warnings – Page 4 – Packaging Expert Witness

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.

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

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.

Packaging expert on fatal medical error

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

Case synopsis:

A man at a country club experienced a severe allergic reaction to a bee sting. An ambulance team, consisting of a paramedic and a technician, arrived. During the on-site treatment, the ambulance workers administered the wrong drug. The medical error sent the man into respiratory distress. He was rushed to the hospital but died shortly thereafter.

The mistaken drug had been packaged in a clear IV (intravenous) bag and had a see-through overwrap.

Litigation for wrongful death was filed against the ambulance company and against the manufacturer of the drug that had been mistakenly administered. The allegations against the drug manufacturer were defective packaging and failure-to-warn, the theory being that the mistaken drug was packaged in a manner that facilitated the medical error and that there should have been warnings.

I was retained by the attorney for the Defendant drug manufacturer.

My opinions:

The direct and proximate cause of the medical error was the failure by the ambulance team to read the labeling . The sequence disclosed in their depositions was: the paramedic asked for a saline solution; the technician retrieved a drug named lidocaine, without confirming his believed choice; the paramedic administered the lidocaine, without checking what he’d been handed.

There was nothing about the packaging that prevented nor even hampered the reading of the labeling. The word, lidocaine, was in such bold, large print, that it was the most prominent feature of the labeling. The labeling also incorporated red markings, known in the medical field as indication that the drug is therapeutically-active, which, saline solution is not.

The Complaint alleged that the packaging for the lidocaine should have been more distinguishable, in terms of size, shape, and overall tactile feel, from those of the saline solution. There is a reason for such standardization: it facilitates the procedure for hanging an IV bag, connecting the tubing, and starting the IV drip.

The Complaint alleged that, since lidocaine is a clear liquid, as are various other drugs, the packaging for lidocaine should have been color-coded. Color-coding, however, quickly can become counterproductive. In the midst of corporate colors and other design elements——with their possible hues, tones, shades, and tints——an attempt to assign meaning via colors would overwhelm the memory. Besides, the lidocaine incorporated red coloring, signaling that it’s therapeutically-active.

The Complaint alleged that ambulance workers operate under severe time restraints, and failing to read the labeling is a foreseeable consequence; and, therefore, there should have been warnings. Rather than being an excuse for not having read the labeling, the conditions under which ambulance work is performed make reading the labeling essential; after all, lives are at risk. Additionally, since the ambulance team didn’t read the labeling, including the most salient elements of same, a warning would not have been read under those same circumstances.

The conduct of the ambulance team was indefensible and contrary to their expected levels of knowledge, education, and training.

Result:

The case settled.

The experience of the packaging expert witness

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

Most packaging expert witnesses can claim a considerable number of years of experience in their specialties. That’s to be expected, since becoming an expert at anything requires an investment in time; therefore, what should differentiate among experts of similar lengths of experience? It’s the type of experience that determines relevancy.

An expert should bring a requisite amount of experience in whatever area is core to a given litigation; nonetheless, it’s possible for that experience to be too narrow. An expert can meet the expected length of experience in a particular industry, for example, and still not be the best choice (or even a good one) if all or most of that experience derives from a single company or institution. Such narrowness can foster myopia and thereby hamper the expert’s ability to creatively provide the attorney with services that reflect a variety of perspectives.

Even when the expert’s industry experience was gained from different companies, the specific job responsibilities deserve consideration. Managerial positions should be regarded as a plus, not only because of the demanded skills but also because of the involved participations and decision-making. Having on-the-job experience, in general, and managerial experience, in particular, should engender an attorney’s confidence that the expert has capabilities in teamwork, meeting deadlines, and producing results. The best experience weighs in heavily on the scales of the practical.

That is not to say that the theoretical should never factor into the scheme of things. That’s particularly true when the expert’s experience includes a stint in academia. Its best when the subjects taught directly relate to the litigation, but even if they don’t, having taught suggests an ability to organize information and to communicate it effectively, in both the spoken and written word. That ability is invaluable to the interactions between the expert and the attorney, and by extension, between the expert and third parties, the most important being a jury.

A question that’s always of relevance in the evaluation of an expert’s experience is: How long has the expert been an expert? It’s tempting to become enamored of an expert who promotes on having been involved in, literally, hundreds of cases. Notwithstanding that such an expert certainly knows the ropes, a caution might well be in order. If the long list is due to full-time work as an expert, or even if expert work constitutes the major portion of income, the expert is subject to being branded by opposing counsel as a hired gun. It behooves an attorney evaluating a full-time expert to probe for vulnerabilities, especially those that opposing counsel might claim are contradictory positions of the expert across different cases.

Once retained, an expert can prove to be an asset or a liability. To maximize the chances for the former while minimizing the chances for the latter, the savvy attorney assigns due diligence to the evaluation process. Given that attorneys sometimes operate under the tyranny of a ticking clock (for example, a deadline for declaring experts), it will benefit the attorney and the expert if the attorney always has a well-thought-out evaluation framework at the ready.

Packaging expert witness discusses functions of packaging

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

Packaging performs these functions: containment, protection, communication, and utility. Any given packaging attribute can be categorized under one of the functions. Because the functions are interrelated and the lines of demarcation overlap, a given packaging attribute can be categorized under more than one function.

Containment. Packaging restrains a thing or things within prescribed confines, UNTIL such restraints are intentionally removed.

The function is typically associated with the concept of contents: for example, the packaging contains the contents until the packaging is opened and the contents are removed.

A quite different example is lumber, with the packaging consisting of strapping. Here, the packaging keeps the lumber held together until such function is no longer needed.

Examples of the containment functions are of endless variety; however, what they have in common is, that, at some point, packaging and something else are combined into a packaged unit, and that combination should stay intact until intentionally separated.

Implicit in the foregoing comments is that the containment function be maintained throughout all reasonably foreseeable conditions, notably, those associated with handling, storage, transportation, and stocking——among other activities and environments.

When packaging fails the containment function, results can include leaks, spills, and things leaning, rolling, tumbling, and falling, easily leading to injuries and fatalities.

Protection. Protection and containment are so much interdependent as to be almost indistinguishable; however, there are some differences. Packaging provides protection to that which is packaged, against harmful forces. Said forces are shock, vibration, compression, temperature, and atmosphere——just to name the main ones.

The packaging must be imbued with the requisite strength and properties to provide protection. Depending on circumstances, multiple levels (primary, secondary, tertiary) of packaging are applied (see tutorial on levels of packaging).

When packaging fails the protection function, the impacts can range from rendering whatever has been packaged merely blemished, to rendering it unfit for intended purposes.

The protection function is not limited to that which is packaged. It must extend to people, namely, whoever reasonably can be expected to encounter the packaged entity. If, for example, the contents have the potential of inflicting harm, perhaps as a consequence of an inherent property, such as corrosiveness, the packaging must serve as a protective safeguard.

In instances in which the contents ordinarily are deemed safe but can be dangerous in the possession of particular persons——children are the quintessential example——packaging, through features such as child-resistant closures, must provide adequate protection.

Protection isn’t limited to individual things but also extend to collections or assemblies. Cargo that has loosened or otherwise been compromised, such that it cascades down onto the person opening the doors of a truck or intermodal container, for example, has not been protectively packaged. So too, when a packaged load weakens during handling or storage to a degree that it poses a safety hazard.

When packaging fails the protection function, the results can be damaged or loss goods, leading to injuries and fatalities, and both.

Communication. The communication function reflects the fact that packaging is a medium. Packaging communicates through its graphics, that is to say, through its labeling, including the printed word, symbols, icons, images, colors, and fonts. It also communicates through its structure, i.e. size, shape, and composition, while engaging any of, to all of, the five senses. Especially as applied to retail goods, packaging, through its communication function, is a potent marketing tool that can impart shelf-appeal and give a brand a competitive advantage.

But the communication function of packaging also is vital in the conveyance of warnings and safety instructions (hereafter, warnings). A wide variety of packaged goods pose hazards that might not be known to a reasonably alert and prudent user, thereby triggering a duty to warn on the part of the product marketer. Even when a user has some familiarity with the nature of a hazard, a warning can serve as a valuable reminder.

The easier determination, in the failure-to-warn sense, is when there’s a duty to warn but no warning is provided. The more difficult determination is when a supposed warning is not adequate, in that, an inadequate warning is tantamount to no warning at all.

An adequate warning abides by a variety of factors related to what the warning says (content) and the framework within which it’s presented (format). Specific to packaging, and in addition to content and format, other issues factor into adequacy. One is conspicuity, how easily the warning can be perceived. A warning must be prominently displayed, such that it stands out from the surrounding visual elements.

When packaging fails the warnings component of the communication function, the results can be an unreasonably dangerous product, leading to injuries and fatalities.

Utility. Packaging facilitates the interaction between people and what’s packaged; as such, the utility function is also referred to as the convenience function.

A feature that’s typically associated with utility is that of easy opening. As innocuous as that might sound, it can have a safety consequence, if an instrument (a knife?) is used and the instrument cuts fingers. Then again, there are types of packaging, such as clamshells, that can bear sharp edges that can cut all on their own.

A different example demonstrates the utility function on two levels. A corrugated box with die-cut slots for inserting one’s hands facilitates manual handling; however, how safely the handling can be performed is contingent on the location of the slots and the construction of the box. By contrast, unitizing dozens of those boxes on a pallet facilitates mechanical handling; however, how safely the handling can be performed is contingent on how solidly the unit has been assembled, as to pallet pattern, strapping, and stretch-wrapping.

When packaging fails the utility function, the results are inconveniences as to time and effort, at minimum, and injuries and fatalities, at most.

In summary, packaging performs only a handful of functions; nonetheless, they can take on a wide variety of complexities that have a direct impact on safety. As established, failure in any function can result in injuries and fatalities. When that happens, litigation is mostly a foregone conclusion, taking such forms as product liability, personal injury, failure-to-warn, and insurance claims.

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.

Packaging expert witness on warnings case

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

Case Synopsis:

A mother purchased a plastic tub of Plaster of Paris at an arts-and-craft store for a project with her daughter. Said project involved making a cast of the daughter’s hand. After mixing the Plaster of Paris, the mother told the daughter to insert the right hand. The plaster hardened, entrapping the daughter’s hand, during which time, the daughter complained of a burning sensation in that hand. After various failed attempts to free the daughter’s hand, the mother did so by breaking the plaster with a hammer. By then, the daughter had incurred burns to the hand, so severe that surgery and partial amputation of fingers resulted.

The ensuing litigation against the manufacturer of the Plaster of Paris alleged that the product was defective and unreasonably dangerous due to failure-to-warn.

I was retained by the attorney for the Defense.

My opinions:

A duty to warn manifests when a product embodies a hazard, such that a reasonably prudent and alert person nonetheless needs to be informed/reminded and instructed, in order to be able to behave in a manner that avoids harm. To be adequate, a warning must conform to well-established guidelines as to content and format.

The Plaster of Paris was not defective nor unreasonably dangerous. Adequate warnings were prominently displayed on the packaging (plastic tub). The warnings, rendered in capitals, included statements directly relevant to the incident, namely: AVOID CONTACT WITH SKIN AND EYES; WHEN MIXED WITH WATER, THIS MATERIAL HARDENS AND THEN SLOWLY BECOMES HOT; DO NOT ATTEMPT TO MAKE A CAST ENCLOSING ANY PART OF THE BODY; and, FAILURE TO FOLLOW THESE INSTRUCTIONS MAY CAUSE BURNS.

The mother admitted in her Deposition that she had read the warnings in the store and again at home; irrespectively, she claimed that she did not voluntarily assume risk because she was not left with an appreciation for the degree of the hazard and the extent of the risk. In support of her claims, the lawyer for Plaintiff had argued in the Complaint that there were differences in wording between the warnings on the packaging and those on the Material Safety Data Sheet (MSDS).

Plaintiff’s claims notwithstanding, the warnings on the packaging were unambiguous. The mother was not claiming that she could not interpret their meanings; rather, the mother chose not to comply. Such was not the fault of the warnings, since warnings can’t force compliance; after all, people are known to intentionally disregard red traffic lights or even flashing railroad-crossing signals. A warning on a package and a warning on a MSDS are directed to separate readers (the consumers of the product and the employees of the product manufacturer, respectively). The two don’t have to be identical syllable-for-syllable, only adequate for the given reader. In the case-at-issue, the differences in wording were neither substantive nor causal to the incident.

Result: The case settled.

Packaging expert on in-store fall case

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

Case synopsis:

A woman shopper at a major retailer took an aerobic stepper from the shelf. The packaging consisted of: a printed placard, sized to cover the top surface of the stepper; and, plastic shrink wrap that completely enshrouded the stepper. Prominently depicted on the placard was a woman dressed in exercise tights, performing step aerobics. The shopper placed the stepper, still packaged, on the floor and then stepped up and onto the product. The product slid forward along the floor. The woman fell to the floor and sustained serious injuries.

The ensuing litigation against the manufacturer and the retailer alleged defective packaging, an unreasonably dangerous product, and failure-to-warn.

I was retained by the attorney for Plaintiff.

My opinions:

I testified at trial.

The packaging embodied a design defect, inherent in each exemplar. The defect was that the packaging neutralized a safety feature of the product, namely, the non-skid discs, one each at the four corners of the stepper. As long as the stepper was in the packaging, the non-skid discs couldn’t be in contact with the floor.

The packaging embodied a marketing defect. The defect was the failure-to-warn that the packaging should be removed before any use of the product.

The two defects resulted in an unreasonably dangerous product and were direct and proximate causes to the accident.

It was foreseeable that a shopper might attempt an in-store trial of the stepper. The sturdiness of the product, required for its being fit for its intended use, was not dissuasive of such a trial. Nor was it dissuasive that such a trial would not sully the surface of the product and its placard, since both were protected by the shrink wrap.

It was foreseeable that an uncarpeted, hard surface store aisle would not provide sufficient friction to prevent a stepper enshrouded in plastic shrink wrap from sliding.

It was foreseeable that, without adequate warnings, a shopper would not be aware of the hazard to safety associated with attempting an in-store trial. Plaintiff’s actions were not reckless, nor did they constitute a willing assumption of risk. The placard’s depiction promoted the belief that it was not dangerous to step up and onto the product. The difference between what the placard depicted and what Plaintiff attempted was that, in the latter case, the product still was in its packaging. Plaintiff had no way of knowing that the difference was crucial.

The state-of-the-art in packaging afforded alternatives that were technologically and financially feasible. One would have been to package the stepper in a carton, printed with necessary product promotion and information. A shopper would have been less prone to step on a carton; furthermore, even if stepped on, a carton would have been less prone to sliding along a floor.

Result:

Verdict for Plaintiff.

Packaging expert witness defines packaging

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

Whether at a deposition or at trial, an expert might be asked to define his/her specialty. In most instances, the response can be kept short without undue sacrifice in comprehension, for example: Marketing is a business discipline concerned with the identification of customer wants and needs and the fulfillment of those wants and needs with products and services.

Unless a specialty is arcane, preexisting familiarity on the parts of the stakeholders (i.e. attorneys, jury, and Court) likely will only need to be confirmed. Packaging is an exception; for, the familiarity that practically everyone claims is based on misconceptions. That’s because what most people have in mind are packages, understandable given that packages are ubiquitous in our lives——in stores, in markets, and in our homes. But packaging and package are not synonymous terms: a package is an element; packaging is a system.

Definition:

Packaging is a system, within which, containers, materials, accessories, and components are combined to enable and facilitate the manufacture, distribution, and marketing of goods.

Containers include those that most readily come to mind, such as bottles, jars, cans, boxes, cartons, bags, pouches, wraps, trays, tubes, etc., but also the likes of sacks, crates, barrels, bins, and racks. The categories of products that utilize the containers include consumer non-durables, institutional, military, and industrial.

Materials can be rigid, semi-rigid, or flexible, used singularly or in combination, namely: wood, paper, paperboard, metal, glass, and plastics.

Accessories include closures, labels, stretch-wrap, shrink-wrap, seals, ties, fasteners, strapping, dunnage, cushioning, and adhesives.

Components include pallets, slip-sheets, and skids.

Containers, materials, accessories and components comprise the physical packaging, and their combination with goods and products is at the core of the system. There are components of the system that precede that combination and others that proceed it. The former includes research, design, development, sourcing, testing, trials, receipt, storage, line-feed, and line machinery operations. The latter includes line-takeaway, and unitizing, in addition to those components enacted upon the now packaged goods, namely: in-house storage, transportation, warehousing, selling (whether through retail or another form of acquisition), use, and disposal/reuse.

The overwhelming majority of goods require packaging, the exception being raw materials, in bulk, for example, ore. The more the value that’s added to raw materials through manufacturing and processing, the more the need for packaging. Without packaging, as herein defined, the mass manufacturing, distribution, and marketing of goods would not be possible, and, hence, nor would the associated conveniences, notably, uniformity of quality, time-saving, labor-saving, and personal health & safety. An example: rather than modern, self-service retailing, we’d still be in the era of the cracker barrel store, the old-fashioned apothecary, and the nails-scooped-into-a-paper bag-hardware store.

For all its contributions to our quality-of-life, packaging’s variety and complexity renders it subject to an equal variety and complexity of issues, and depending on the nature of an issue and its consequences, litigation might ensue. Packaging-related litigation has been known to include product liability, personal injury, failure-to-warn, falling merchandise, material-handling safety, cargo loading & securement, insurance claims for loss and damaged cargo, patent infringement, and trade-dress infringement——the list not offered as being exhaustive.

An attorney involved in packaging-related litigation will recognize the need for an expert, who, if required, can also serve as an expert witness. But what should the attorney seek in an expert, beyond, of course, talents related to the facts of the case? Ideally, the expert will have expertise, experience, education, training, and an overall background that empower the expert to deliver services from multiple perspectives. In contrast, if, for example, the curriculum vitae shows that the expert’s career(s) have been spent wholly or mostly in a single industry or institution, that expert’s approach might be commensurately restricted. On the other hand, the approach of an expert whose credentials are relevant AND diversified can enable greater creativity and keener insights.

Past employment in industry is a plus, especially when it includes managerial positions; for, it bestows insider’s knowledge that’s difficult, if not impossible, to otherwise obtain. Current work as a consultant is valuable, particularly of aid in benchmarking and the determination of best practices and state-of-the-art. A stint in academia bespeaks honed skills as a teacher and a communicator, useful throughout a case and in front of a jury. Rounding out the profile, commitment to one’s specialty, as evidenced by memberships, offices held, and certifications add to credibility.

In summary, by definition, packaging-related litigation is fraught with a multitude of factors, necessitating that, in the vetting of candidates, the attorney seeks the best “package deal” in an expert.

7 ways attorney derives more from packaging expert

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

Engage the packaging expert as early as feasible. Any veteran expert can recount instances of being contacted by an attorney who’s under a time crunch, practically needing an expert yesterday. Whatever the reasons behind the delay, opportunities have been lost. There’s a shorter time for the vetting process, especially with multiple candidates. Even if the attorney has a particular candidate in mind, that candidate might not be available, worse if the unavailability is due to having been retained by an opposing attorney. It shouldn’t be just about finding an expert who can perform under tight timing; for, whatever the performance, it arguably could be better, given more time.

For Plaintiff attorneys and Defense attorneys, alike, being proactive pays dividends, especially for a Plaintiff attorney who’s not sure of the merits of a contemplated case. Before filing the Complaint, with Discovery being scant, it’s likely that it’ll only require a few hours of an expert’s time to provide an opinion. If the expert performs impressively, and regardless of the opinion rendered, the attorney will be left with either of two favorable options: file and retain the expert; or, not file but remember the expert for future cases.

Set ground rules for the expert. Since every attorney has a preferred way of working with experts, those preferences should be made known from the onset. Attorney and expert comprise a working relationship; however, it’s not one of equals. The expert is not the advocate, and, therefore, should defer (within ethical limits) to the attorney’s ways of working a case. That’s not to suggest that the attorney needs to be a micromanager; nonetheless, it’s prudent not to leave certain issues to assumption.

An issue that illustrates that fact is work-product, more specifically, what is and isn’t discoverable. The attorney’s position on note-taking by an expert is an example. Whatever the position, does it extend to the annotating of deposition transcripts? Does the attorney take different positions depending on whether the case is federal or state? Does the attorney take different positions depending on whether the expert has been retained to only consult or to also testify? No expert wants to compromise whatever privacy privileges that attach to work-product, but necessary to such avoidance is that the attorney establishes ground rules.

Address problems with the expert immediately. No problem should be considered too small to address, although the response should be commensurate with the size of the problem. Not to do so is to implicitly endorse the problem, thereby increasing the probability of repeat or exacerbation.

While acknowledging that a problem can originate from either party, the following example addresses one from the perspective of the attorney: taking issue with——or, at least needing further explanation about—— an expert’s invoice. The expert should be able to explain and justify every item of the invoice, ideally with documentation to the attorney’s satisfaction. A problem (and it’s a big one) that never should arise is billing for work that has not been authorized; for, that’s an indication of an out-of-control expert.

Don’t choke the expert with purse strings. An attorney owes cost-effectiveness to the client; however, it would be a contradiction to that maxim to prevent the expert from performing necessary work, simply for purposes of expenses. If, for example, a site inspection by the expert is advisable or if it’s advisable that the expert see, handle, examine, etc., an exemplar, the attorney should authorize such activities. The alternative is to jeopardize the expert’s credibility. That’s a handicap that won’t escape the notice of an experienced opposing counsel, particularly if the expert’s expertise is central, for example, a packaging expert in a case alleging an unreasonably dangerous product due to defective packaging.

Frugality need not be discarded, though. Flying coach, moderate lodging, and modest dining are common-sense practices to which no expert should object. The expert can further contribute by arriving with a well-conceived agenda that is carried out with dispatch, saving time and money.

Challenge the expert’s creativity. Attorney and expert are experienced in the type of case that brought them together. Whereas the upside is self-evident, the downside can be underappreciated. The more times something is repeated, the greater the chance that the thing will be done by rote. If it ain’t broke don’t fix it. A better philosophy: If it ain’t broke, improve it. The case objectives never change: prove or disprove the allegations to a preponderance of the evidence; however, success in the pursuit of the objectives can hinge on creativity.

The expert should approach the case from multiple perspectives, constantly searching for something overlooked, something hiding in plain sight that can be utilized for a competitive advantage. An expert can endorse the attorney’s theories without being just a sounding board or a programed agent. The expert performs a valuable service by getting an attorney to rethink assumptions. An expert should demonstrate self-initiative regarding creativity, but the attorney should make it known from the onset that creativity by the expert is expected.

Involve the expert in case strategy. Valuable experts serve not only in a tactical role but also in a strategic one. For discovery, an expert can inform on the necessity of certain evidence, enabling the attorney to acquire it through requests for admission, requests for production, or interrogatories, whichever is appropriate. Using as an example the aforementioned case involving an unreasonably dangerous product due to defective packaging, the attorney who unilaterally decides on what evidence is pertinent, might not know to request a particular specification, or perhaps certain quality assurance records.

As for the other discovery tool, depositions, collaboration between attorney and expert should extend beyond the former’s preparation of the latter. An expert always should be consulted about the questions to be asked of the opposing expert. On a related note, attorneys know the wisdom in supplying experts with all pertinent deposition transcripts; however, there’s more to it than informing the expert on who said what. The attorney and expert should have phone discussions to exchange takeaways on the various deponents. Perhaps the expert has noted a technical error or some other verbal miscue by a deponent that can be utilized for strategic advantage.

Express gratitude to the expert as deserved. Well accustomed to working with experts, attorneys are not easily impressed; therefore, an attorney should acknowledge exceptional service. An expert should be committed to excellence, regardless, and when it’s delivered, recognition can be a powerful motivator and reinforcement.

Lastly, when an attorney has need for a particular type of expert and immediately thinks of a candidate based on prior collaboration, time is saved, time that can be devoted to other aspects of trying the case. That, in itself, is worth the occasional verbal pat on the back.