insurance claims damaged cargo – Packaging Expert Witness

Packaging expert witness not omniscient

By Sterling Anthony, CPP, expert witness in packaging, warnings, patent-infringement, cargo loading & securement, and insurance claims regarding cargo.

If there’s one answer that some testifying experts seem to have a hard-wired reluctance to utter it’s, “I don’t know.” By virtue of being an expert, that person is presumed to be knowledgeable; nonetheless, being omniscient is not in the job description.

There is nothing inherently wrong for an expert to say, “I don’t know.” In all instances it’s an admission, an acknowledgement, a confession, a concession; however, in no instance should it be a mea culpa.

There are answers that a testifying expert should have at the ready. That’s because, by then, the expert should be acquainted with the case file. In addition, by then, the expert should have been prepped, told what will be asked by the attorney-client and what might be asked by the opposing attorney. Having that storehouse of knowledge, an expert should bring a quiet confidence to the proceedings, committed to listening to the questions, understanding the questions, taking time to formulate answers, and, then answering truthfully. If that last step dictates an, “I don’t know,” so be it.

There are various ways that an expert can mishandle not knowing an answer; however, the worse is to give an answer that is factually incorrect. The consequence to the thusly exposed expert is not just embarrassment but discredit. Almost as bad is to deal in conjecture. Even if the expert’s preamble is, “I’m guessing…,” a fundamental principal of testifying will have been breached.

An expert should guard against beginnings that are defensive and apologetic, as exampled by, “I’m sorry, but I don’t know,” or, “I’m afraid I don’t know,” or, “I must admit, I don’t know.” Some opposing attorneys have a talent for triggering such responses through voice inflection, body language, eye-contact with the jury, or other tactics meant to imply that a reasonable expectation is for an answer other than, “I don’t know.”

If the follow-up question is “Why don’t you know?” the expert should not be intimidated, no matter how incredulously the question is posed. In the absence of a sustained objection by the attorney-client, an expert should be able to answer in a way that does not bespeak dereliction.

An expert should be aware that a line of questioning by opposing counsel might be designed to repeatedly draw the response, “I don’t know.” The expert should not succumb to concerns over being regarded as unknowledgeable nor to concerns over diversifying the responses. An expert who has come adequately prepared is not the best target for the aforementioned line of questioning, the reason being that opposing counsel will need to go increasingly farther afield to sustain the tactic. The opposing counsel who ventures into the irrelevant is not immune to taxing the patience of the Court and jury.

An expert should not confuse, “I don’t know,” with, “I don’t recall.” The latter should be reserved for instances in which the expert either once knew or might have known something but presently can’t bring it to mind. “I don’t recall,” is difficult to disprove; even so, an expert should not resort to it dishonestly. One who does might have the memory “refreshed” by being shown what was said in a deposition, for example. At such time, the jury will be keyed in, forming impressions on whether the I-don’t-recall claim was truthful.

An expert should never utter, “I’m not sure,” unless in association with having been asked, “Are you sure?” Then again, if the expert was not sure, the initial response should have been, “I don’t know.” Relatedly, when giving an estimate, the expert should let it be known that the response is an estimate; otherwise, “I don’t know,” is the advised response.

In summary, an expert should know that an essential part of testifying is the effective use of, “I don’t know.”

Sterling Anthony, CPP, is a consultant to the industrial, institutional, and government sectors and an expert who provides services to the legal community. He is a former manager at Fortune 100 companies and a former instructor at two major universities. His contact information is: 100 Renaissance Center-Box 43176, Detroit, MI 48243; (office) 313-531-1875; (cell) 313-623-0522; (fax) 313-531-1972; thepackagingexpertwitness@gmail; www.thepackagingexpertwitness.com

Packaging expert witness on cargo loading & securement

Sterling Anthony, CPP, expert witness, packaging, human factors, cargo loading & securement

Case synopsis:

A man operating a motorcycle sustained serious injuries when he collided with one of several industrial rolls of paper that had spilled off of an overturned flatbed trailer truck and onto the highway.

The ensuing litigation against the trucking company alleged negligence, claiming that the rolls had not been loaded and secured in accordance with applicable standards. Suit was also brought against the state of California, claiming inadequate maintenance of the involved stretch of highway.

I was retained by the attorney for the trucking company Defendant.

My opinions:

The loading and securing of the cargo was subject to federal standards, both the general requirements governing all categories of cargo plus the commodity-specific requirements governing rolls of paper weighing 5,000 lbs. or more.

The rolls of paper had been loaded and secured in accordance with the applicable standards. The claim that they hadn’t been, based on their having spilled onto the highway, was not justified. No standard——federal or otherwise——sets forth an expectation that cargo must remain contained and intact in the event of a truck rollover.

The rollover was not the result of improper loading, for example, improper weight distribution. Nor was the rollover the result of improper securement; for, prior to the rollover, the cargo had remained restrained in place.

Discovery revealed that the curved section of highway where the rollover occurred had been the scene of other such rollovers. Discovery also revealed that the driver of the truck had been ticketed for having negotiated the curve at too high a speed, given road conditions and ambient lighting.

Plaintiff’s expert opined that, had an enclosed trailer been used instead of a flatbed, the cargo would not have spilled onto the highway. Such an opinion was hypothetical, at best; more relevantly, the applicable standards allow for the use of flatbeds.

Whatever factors were causal to the accident, inadequate loading and securement of cargo was not among them.

Result:

The case settled.

Sterling Anthony, CPP, is a consultant to the industrial, institutional, and government sectors and an expert to the legal community. He is a former manager at Fortune 100 companies and a former instructor at two major universities. His contact information is: 100 Renaissance Center-Box 43176, Detroit, MI 48243; (office) 313-531-1875; (cell) 313-623-0522; (fax) 313-531-1972; thepackagingexpertwitness@gmail; www.thepackagingexpertwitness.com

The packaging expert witness on testimony style

By Sterling Anthony, CPP, expert witness in packaging, human factors, warnings, patent-infringement, cargo load & securement

Although depositions occur more frequently than trials, what they share in common is that they come late in the case. Every deposition is preceded by discovery along with its associated expenditures of time, costs, and resources. By the time of trial, the aforementioned expenditures have increased, as a result of all that goes into trial preparation.

With the signature aspect of depositions and trials being testimony, it stands to reason that ANYTHING and EVERYTHING that has been expended, prior to testimony, can be affected———for better or worse———by what is said after the administration of the oath. That’s true of every type of witness; however, a packaging expert——turned packaging expert witness——should stay mindful of the uniqueness of that role. The expert’s stock-in-trade is opinions, BUT it’s more than a matter of substance that determines efficacy; it’s also a matter of style.

Appearance, in terms of grooming and attire, is important. For depositions, it has become common for the attorneys to be casually dressed. An expert’s attire shouldn’t get too relaxed; for example, a male would be well served with a sports jacket, which can be taken off, if consistent with the mood in the room. A female expert also should subscribe to the casual-but-not-too-casual guideline. An expert should ask well in advance whether the deposition is to be videotaped. If it is, the expert should arrive dressed more formally, as one would for trial, against the possibility that portions might be shown to a jury.

For trial, men can’t go wrong with a clean, crisply-pressed, dark suit, either of a solid color or a subdued pattern. Neither the shirt nor the tie should be flashy. Jewelry should be keep to a minimum (wristwatch and wedding ring, perhaps) and absolutely no lapel pin that denotes a particular membership, cause, or philosophy. Women should abide in equivalent measure. For either gender, the attire should not speak louder than the expert.

An expert’s behavior is vitally important. The legal system is adversarial; nonetheless, the expert should never give the impression of being an advocate. Opinions that come across as unbiased and without agenda carry greater credibility.

The expert who is overly defensive or overly combative sacrifices effectiveness. An example is the expert who refuses to make any concession, no matter how logical, to opposing attorney. Question to expert: “If the assumptions that factored into your opinions are incorrect, would that change your opinion?” Answer by expert: “No.” By such an exchange, the expert has given the impression of being inflexible, a characterization that could have been avoided with a different, more reasoned answer, perhaps along the lines of, “That would depend on the specific assumptions you’re referring to and on how substantive they were in the formulating of my opinions.”

At no time should an expert demonstrate frustration or impatience, for example, over being asked the same thing repeatedly, something more likely to be encountered during a deposition, since at trial the retaining attorney will give an asked-and-answered objection, after which, the judge will make a ruling.

Moreover as to depositions, the expert should never demonstrate hurriedness, even when having been previously informed that the deposition is to take a specified amount of time. If it runs over, it should be regarded as the concern of the attorneys, not of the expert. Under all conditions, whether at deposition or trial, the expert should take the proper time to understand the question and to provide a thoughtful answer.

An expert’s attitude——or, at least what attitude might be inferred——likewise, is vitally important. A professional, respectful demeanor always should be extended to the opposition, no matter what the provocation to get riled.

On a different, although related note, an expert should not convey an attitude of superiority. It’s not self-serving for an expert to ridicule a question, for example, or even to engage in banter with opposing counsel.

Specifically, in a trial, the testifying expert has been proffered by the retaining attorney and qualified by the Court; as such, there’s no reason to convey an attitude of being the smartest person in the room, a surefire way of alienating a jury. In keeping with that, the expert should guard against facial expressions and gestures that signal a less-than-serious regard for the opposition.

Also to be avoided is having the pendulum swing too far in the opposite direction, which happens when the expert is too chummy with opposing counsel, as if to have forgotten that the operative word is, opposing. In a deposition, the expert should not digress into personal asides, even off the record. At trial, the expert should not attempt to lighten matters with humor, even the self-effacing variety.

Style-consciousness should not end at the conclusion of testimony. After a deposition is over, the expert should make a prompt exit, rather than remaining to socialize, which might result in an inadvertent gift to the opposing side. If there is some debriefing to be done by the retaining attorney, it should be done privately. After trial testimony a prompt exit, likewise, is advisable, in that, someone has eyes on the expert until the expert clears the door. Even in instances of sitting in on later testimony, the expert, now known to the jury, should be more self-aware than others in the gallery.

Establishing rapport with the jury overarches all of the preceding comments. It’s something that every expert should strive for; however, it’s important not to be obvious in the attempt. The expert, at all times before the jury, needs to project professionalism personified, under an aura of it being par-for-the-course.

And, the expert should not overlook little things that can have big impacts. An example is occasionally looking in the direction of the jury and making eye-contact during answers and always when providing an explanation. As for providing explanations, the expert should stay reminded that the jury is comprised of laypeople and take care neither to talk over their heads nor condescendingly down to them.

The retaining attorney is use to prepping experts as to substance, the, what to say. The how to say it and all its engendered perceptions is less under the direct control of the retaining attorney. That said, the expert who’s already style-savvy should be held in high favor. An expert who testifies with substance AND style, tells, The truth, the whole truth, and nothing but the truth——EFFECTIVELY.

Packaging expert witness discusses pallets

by Sterling Anthony, CPP, expert witness, packaging, warnings, patent infringement, cargo loading & securement, insurance claims

Pallets carry 95% of the world’s cargo, and 90% of pallets are constructed of wood. Those overwhelming percentages establish wood pallets as the linchpin of logistics, affecting the cost, efficiency, and safety with which transportation, material handling, and storage are performed.

The pallet, on surface, is a simple concept, a platform on which items are placed, allowing the now palletized load to be moved mechanically, such as with a forklift truck. On the other hand, pallets should be engineered, designed for structural integrity, under all reasonably-foreseeable conditions encountered from the time they’re loaded until the time they’re unloaded.

Pallets need to embody the requisite combination of strength, stiffness, durability, functionality/compatibility, and affordability.

Strength refers to load-bearing capacity.

Stiffness refers to resistance to undue bending and flexing.

Durability (if not designed for just one trip) refers to the ability to give service across multiple trips.

Functionality/compatibility refers to being consistent with the materials loaded, material handling equipment, transportation regulations, etc.

Affordability refers to FIRST that the pallet be fit for its intended purposes and THEN that it be attainable at the lowest comparable price.

Pallets are of two design categories, referring to how the base is constructed: stringer and block. A block pallet is 4-way, meaning that material handling forks can enter from 4 directions (front, back, and ends). A stringer pallet is 2-way (ends) but can be made 4-way with spaced notches for fork entry, but at the sacrifice of weakening the pallet and making it more vulnerable to damage.

Regardless of design, pallets are different than mass-produced items that (barring a manufacturing defect) are indistinguishable, one from the other. More so than being manufactured, pallets can be said to be assembled and crafted; therefore, there is an inherent potential for variation, even across pallets built from the same design. Some factors that can contribute to said variation include:

Lumber. A pallet’s physical properties are influenced by the type of wood, that is to say, whether hardwood (from deciduous trees) or softwoods (from coniferous trees). Within any one type of lumber are grades, reflecting how free the lumber is from such defects as bark, knotholes, and dimensional irregularities. Yet another important consideration is the degree to which the lumber has been kiln-dried or remains green.

Number and positioning of deck boards. A deck comprised of abutting boards, with no spaces in between——all other things being equal——is sturdier than a deck with spaced boards. Of the latter type of decks, the greater the spacing the less sturdy and the greater the opportunity of an unstable load.

Type, number, and positioning of fasteners. Whether staples or nails are used affect how well the components remain attached, and within each category of fasteners, there are different sizes, with different holding strengths. How many fasteners are used affects how steadfastly the components are joined. Whether the fasteners are patterned in a straight line or staggered not only has an effect on holding strength but also on how likely a board, for example, might split.

By industry standards, any company that loads a pallet is responsible for the fitness of the pallet, and by extension, the fitness of the palletized load.

When pallets fail, the immediate consequence is that the load becomes dangerous to move, prone to tilting on the forks or even falling off. The danger to anyone in the vicinity hardly needs elaboration. Pallet failure also can occur during storage, with the sudden collapse of the load. Failure also can occur during transportation making the unloading——and even the opening of the doors of the equipment——hazardous.

When pallet failure causes or contributes to cargo lost or personal injury and litigation ensues, either party would be wise to retain an expert. The expert should have knowledge of, and experience in, the design, specification, sourcing, inspection, and care of pallets.

Packaging expert witness on intermodal cargo

by Sterling Anthony, CPP, expert witness, packaging, warnings, patent infringement, cargo loading & securement, insurance claims

Synopsis:

A shipment of beer out of China into the United States subsequently was declared unfit for consumption, and, therefore, a total loss. The beer had suffered organoleptic changes that negatively affected appearance, smell, and taste.

The shipment had been made in an intermodal container and had traveled by highway, rail, and ocean. The importing had been handled by a logistics company that arranged for transportation, warehousing, and documentation.

The ensuing litigation via an insurance claim brought by the importer against the logistics company alleged negligence in cargo care and an unnecessary time delay.

I was retained by the attorney for the Defendant.

My opinions:

The direct and proximate causes of the loss were choices in the type of packaging and the type of intermodal container.

The beer arrived stateside, physically intact, that is to say, without compromise to the palletized loads and without damage to the individual glass bottles.

The bottles were flint (clear) glass. Green or amber would have been better choices because they protect better against the harmful effects of light; relatedly, discovery revealed that the beer had been under lighted storage for an extended period prior to having been loaded into the intermodal container.

The intermodal container was not——but should have been—— the refrigerated type, known in the parlance as a “reefer.”

Discovery revealed that the intermodal container had sat at dockside at a port in China for more than a day beyond the scheduled loading; however, the logistics company had delivered the intermodal container on time, after which, the company had no authority over port operations. Since the time of year was summer, it could be reasonably inferred that the temperature inside the non-refrigerated intermodal container rose.

Discovery revealed that at no time did the logistics company hold itself out to be an expert in the factors that determine beer quality.

Discovery revealed that this was the Plaintiff’s inaugural importing of beer; that notwithstanding, a universally-held expectation and assumption is that being an importer is to have extensive knowledge about the salient characteristics of the product imported.

As the importer, Plaintiff knew, or should have known, that choices in packaging and in transportation equipment impact the quality of beer. Discovery revealed that Plaintiff made both choices. The latter choice was made knowing that a refrigerated intermodal container was an option. Given that international/intermodal shipments, by definition, involve considerable distances that can complicate being aware of conditions on a real-time basis, it’s prudent to build in margins-of-safety in all phases of planning.

Result:

The case settled.

A packaging expert witness should avoid indefensible opinions

by Sterling Anthony, CPP, expert witness, packaging, warnings, patent infringement, cargo loading & securement, insurance claims

A packaging expert witness can become infamous for indefensible opinions, and the consequences can be ruinous. It only takes one celebrated case, and celebrity comes easily in this era of 24-hour news channels, social media, and YouTube——all in addition to the traditional channels that attorneys tap in vetting an expert.

No expert would jeopardize a career, at least not intentionally; however, toxic cases don’t carry warning labels. An expert needs to develop perspectives that protect against the formulating of indefensible opinions, opinions that later will have to be worn around the neck like a yoke.

During initial discussions with a potential attorney-client, the expert should seek information necessary to determine whether the case falls within the expert’s expertise. Some attorneys are given to going beyond that point, generous with details. The expert politely should interrupt and announce an interest or decline further consideration. In the event of the former, the expert should offer to forward the pertinent documents, i.e. curriculum vitae, fee schedules, references, etc. That way, the expert won’t end up conflicted, if not chosen but afterward is contacted by the opposing side.

The greater threat is that too much initial information can trigger the hard sell on the part of an expert, who, eager to land the case, endorses the attorney’s theories, seemingly unmindful of yet not having reviewed any case materials. Such a scenario subsequently might develop along these lines: the expert is retained; and, afterwards, the expert formulates opinions shaped by the prior endorsement, rather than by objective and ethical analysis.

Even when information overload is not a factor, an expert can inadvertently end up saddled with indefensible opinions, typically under one of two scenarios.

One is that of the relatively new expert, desperate for business and willing to say whatever is thought to be desired. That expert is not sufficiently appreciative of the possible risk to reputation and to future business .

Although it might seem counterintuitive, the other is that of an experienced expert who feels insulated by an impressive curriculum vitae. That expert is not appreciative of the fact that such credentials make indefensible opinions all the more indefensible.

Any expert can expect to be portrayed unfavorably by the opposing attorney as a human vending machine: insert payment and withdraw the desired opinions. “Tell the Court, Mr./Ms. Expert, how much you are being paid to testify in support of the side that retained you.”

An experienced expert will recognize the question as the landmine that it is. The thornier task is to give a response that defends the expert’s integrity while setting a foundation for the defense of the forthcoming opinions. Be that as it may, if the opinions are prima facie indefensible, any attempt to dress them in different garb will reduce the expert to laughable.

For the expert who has given indefensible opinions, there is no refuse in blaming the attorney-client, particularly under the rationale that, had the expert not given the opinions, the attorney would have found another expert who would have given them.

Such is never the concern of an ethical expert; besides, no attorney-client should be averse to being educated about deficiencies in the theory. Thus educated, the attorney-client can weight options, such as settlement, or, if the education comes early enough, not filing the case.

The expert who gives indefensible opinions digs a hole as soon as they are conveyed to the attorney-client, and the hole gets deeper with time. The deepening continues when the indefensible opinions are incorporated into an expert report. From there, they become high-caliber ammunition at deposition, causing the opposing attorney to salivate over the prospect of going to trial. At trial, they cause jurors to roll their eyes incredulously and to disregard the expert. The sequence is bad in its own right, but as previously noted, it won’t be limited to that one specific case.

The attorney-client likely will go unscathed, the case standing as a testimonial to a willingness to go any length to aggressively represent a client. You can’t win them all; therefore, how doggedly an attorney fights means a lot.

An expert is not accorded the same pass. Justifiably. An expert’s stock-in-trade is opinions; therefore, an expert who provides faulty wares can’t expect that fact to go unnoticed

Packaging expert on newborn blindness case

by Sterling Anthony, CPP, expert witness, packaging, warnings, patent infringement, cargo loading & securement, insurance claims

Case synopsis:

An obstetrician delivered a baby and afterwards placed erythromycin ointment into the newborn’s eyes, a common safeguard against eye infections from bacteria in the birth canal. The ointment had come packaged in a 1-gram metal tube, having a keen dispenser end, the tip of which required breaking off in order to squeeze out the ointment.

Days later, it was discovered that the newborn had become blind in one eye. The tip of the dispenser had not been broken off completely and had ended up in the newborn’s eye, thereafter repeatedly scratching the retina and otherwise damaging the eye such that blindness resulted.

The ensuing litigation against the product manufacturer alleged defective packaging and an unreasonably dangerous product. The physician and the hospital also were sued.

I was retained by the attorney for Plaintiff.

My opinions:

The packaging had a design defect, shared by every exemplar manufactured to that specification. The design defect was that the dispensing tip could be snapped but remain attached, dangling. When an unaware physician administers the ointment, the tip can fall into the eye; in fact, the pressure from the squeezing of the ointment can dislodge a dangling tip and the viscosity of the ointment can entrap the tip, assuring that both ointment and tip end up in the eye.

The packaging had a marketing defect. The defect was the absence of warnings regarding the possibility that a partially detached tip, undetected, might end up in the eye of a newborn.

The design defect and the marketing defect resulted in an unreasonably dangerous product. The unreasonably dangerous product was the direct and proximate cause of the accident.

It was the responsibility of the product manufacturer to have factored into account all reasonably foreseeable conditions under which the packaged product would be used. Such an exercise, performed adequately, would have alerted to the possibility of the subject accident.

There were better, safer ways to package the product; for example, a tube with a dispensing tip that didn’t require breaking, but instead, required a puncture by a pin-like feature molded into the top of a cap.

Since such a package had not been chosen, there should have been warnings, alerting to the hazard and instructing how to assure that the tip has been completely detached before the administering of the ointment. Given the small size of the tube, the warnings additionally could have been printed on a carton and on carton inserts.

Results:

The case settled.

A packaging expert should be responsible AND responsive

by Sterling Anthony, CPP, expert witness, packaging, warnings, patent infringement, cargo loading & securement, insurance claims

A packaging expert witness is responsible for the delivery of services, such as consulting, analysis, site inspection, testing, opining, reporting, and testifying. By responsible is meant an obligation to practice decision-making and control and to be accountable for results. Having credentials and ethics are necessary but not sufficient for the delivery of competent services to the attorney. An expert also needs to be responsive, demonstrating the ability to respond quickly, especially under deadlines; however, the quick response should not be at the sacrifice of quality.

Sometimes an expert will be retained late in the game, for example, after the attorney has failed to obtain an anticipated settlement and soon has to disclose an expert, and perhaps, that expert’s expected topics of testimony, should the case go to trial. The attorney will inform the expert about the timetable and perhaps offer an apology or two. At that point, the expert should not accept the case UNLESS the expert is positive of being able to give the case the requisite priority. An expert’s reluctance to decline a plausible case is understandable, in that every expert desires a sustaining caseload; however, the truly professional expert devotes whatever levels of time and resources that are necessary.

Even under less harried conditions, the expert should proactively exercise time management practices. Every time an expert receives case materials from the attorney, the expert should send an acknowledgement. That’s not just a courtesy; it starts the clock ticking. Even if the attorney’s cover letter open-endedly says, “Please contact me after your review,” the expert should not take inordinately long. An attorney, aware of the volume of materials sent, has an idea——even if unexpressed——of what constitutes a reasonable time for review, and, therefore, will be impressed if the expert delivers before then.

When the need for review is on the part of the attorney, the expert has another opportunity to score points. A prime example is the Expert Report. An attorney appreciates the convenience of receiving the report in ample time to: review; suggest revisions; have them made; and, review again. It’s not unusual for there to be more than one round of that sequence; therefore, an expert should submit the report accordingly.

Any type of report submitted by an opposing expert might require a response; and, not to file one could result in a strategic disadvantage. Under that scenario, an expert should: analyze the report; formulate opinions; discuss them with the attorney; and, write a rebuttal. After that, the aforementioned review/revision/review sequence tacks on more time. An experienced expert will prove equal to the task.

Another area of services in which an expert should be time-conscientious is that of testing. An expert experienced in the type of case at issue would know at the onset if testing is needed and would have a reliable idea of the type. Communicating that information to the attorney allows for effective scheduling, thereby avoiding a situation wherein neither the testing can be conducted nor the results ascertained in time for the intended use.

More examples should not be necessary to make the main point: there is a time element, of varying urgency, to much of what an expert does, giving the expert repeated opportunities to build on a reputation for on-time delivery.

Packaging expert witness discusses levels of packaging

by Sterling Anthony, CPP, expert witness, packaging, warnings, patent infringement, cargo loading & securement, insurance claims

Packaging is first and foremost a system. The physical component of the system—— meaning what’s combined with the goods——comes in three levels, appropriately named: primary, secondary, and tertiary.

Primary packaging is in direct contact with the goods.

Secondary packaging contains one or more primary packages.

Tertiary packaging unitizes the two other levels.

An example of the interrelationships among the three levels is: a can (primary) of soup; a corrugated box (secondary) containing dozens of cans; and, the unitization (tertiary) of dozens of corrugated boxes onto a pallet, strapped and stretch-wrapped.

The traditional definitions notwithstanding, the lines of demarcation among the levels at times can blur. A box for cereal is considered a primary package, although an inner bag is what’s in direct contact with the product.

Not all three levels are present in every type of product; for example, sacks (primary) of fertilizer are palletized (tertiary) and there’s no secondary packaging.

Illustrating a different point, a wood crate and a metal rack perform as primary, secondary, and tertiary packaging.

What never blurs and what is always the case is that the levels are system components that should perform for a combined optimal result. The performance of any one level impacts the performance of the others. If, at any level, the packaging proves unfit, the results are never positive, sometimes causing damage to goods, or of greater concern, sometimes causing personal injury and even death.

In the case of substantial damage to goods and more certainly in the case of personal injury, litigation can ensue. When it does, one or both sides will need a packaging expert. But what should that expert bring?

The expert should be experienced in package design & development at all three levels. The expert also should be experienced in packaging-line operations and the involved machinery, calibration, trouble-shooting, and record-keeping. The expert should be conversant with applicable regulations and standards-of-care and be able to opine on what’s technologically and financially feasible. Overall, the expert should, indeed, be expert, in managing packaging for functionality and safety, consistent with reasonably foreseeable conditions encountered through the service life of the packaging.

When packaging expert witness and attorney first talk

by Sterling Anthony, CPP, expert witness, packaging, warnings, patent infringement, cargo loading & securement, insurance claims

An attorney and packaging expert have their initial conversation. Common sense allows certain motives to be ascribed to the parties: the attorney wants to know whether the expert deserves further consideration; and, the expert wants to know whether to seek further consideration. Those motives are interdependent, but herein are discussed from the perspective of the expert.

After the attorney has identified himself/herself and before the conversation begins in earnest, the expert should ask how the attorney learned of him/her. The attorney doesn’t always volunteer the information, though not intentionally. If the expert advertises, it’s good business basics to know what’s working.

The expert should want only enough details to determine whether the case is within his/her bailiwick. Beyond that, the expert runs the risk of being conflicted out of the case, should the expert not be retained by the attorney but opposing counsel calls. Another risk is that the more details supplied, the more the unspoken expectation of a response from the expert. It is not the expert’s obligation, at this juncture, to opine on the merits of the case. There’s time for that after the expert has been retained.

The expert should be cordial and considerate. The expert can be both without being reluctant to steer the conversation, as needed; for example, as soon as the expert has sufficient details, the attorney should be informed, “Yes, Counselor, I’m qualified to serve as your expert;” or, “Thank you, Counselor, but I’m not the expert for you.” If it’s the former, the expert should provide a concise narrative on qualifications, highlighting those aspects relevant to the case. Then, the expert should offer to send pertinent information——curriculum vitae, fee schedule, references, and whatever else the attorney might reasonably request.

If all of the heretofore advice is followed, the result will be a relatively short and to-the-point conversation. That’s a good thing. The phone call is business, not social. Both parties are assumed to have various demands on their time; therefore, there’s a need for effectiveness and efficiency. No matter how short the call, the expert, unavoidably, beyond questions and answers, conveys much for the attorney’s consideration. There’s the expert’s command of language and ease-of-expression. Whether the delivery is halting, professorial, stilted, fluid, or otherwise, the attorney is justified in regarding it as indication of what it would be like to work with that expert in the important realm of communications. It’s equally justifiable to regard delivery as indication of how the expert would come across in a deposition and in court.

If, at the conclusion of the conversation, there’s something further to pursue, the expert’s motto should be, promptness. Whatever has been promised should be fulfilled with dispatch; otherwise, the expert gives the impression of being less than reliable.

It’s rare that an attorney will think, “You had me at, Hello.” That fact notwithstanding, for the expert, the initial conversation is a unique opportunity, in that, if not handled competently, no other opportunities will be forthcoming——at least, not from that attorney.