Chapter 15 Product Liability
description
Transcript of Chapter 15 Product Liability
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Chapter 15Product Liability
Brad CurryMark Medlyn
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Number of product accidents estimated to be
50 million per year Cost of 50 billion dollars Lawsuits filed as a result of faulty design
(Ford Pinto gas tank–a 10.00 repair was turned down for cost )
Introduction
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http://www.youtube.com/watch?v=VS8hWQImD9w
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Three area’s for product injuries1. Behavior or knowledge of product user2. The environment where it is used3. Factory design using safety analysis and
safety controls
Human behavior hard to control
Best recourse is to design products that are idiot proof
Area’s of Product Injuries
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Examples: Lawn mowers with guard chutes Redesigning car interiors to reduce sharp
edges Safety glass on vehicles that does not
shatter into sharp edges
Design products to reduce liability
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Lawsuits filed as a result of Faulty design ( Ford Pinto gas tank)– (a
10.00 repair was turned down for cost )
Manufacturing process- a defect in a part Firestone 500 tire which failed
Liability Due to Poor Design
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History Ancient times: sample of grain shipments
tested for quality By 14th century, textiles were sampled If they passed, then they received a seal
Product Liability Background
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Middle of 18th Century two concepts Caveat emptor (let the buyer beware) Followed Adam Smith “invisible hand” theory Purchaser was to take care of his or her own
interest Under this doctrine, the consumer could not
sue the manufacturer Could only sue the retailer Who then could sue the wholesaler Who then sues the manufacturer
Product Liability Background
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Under this doctrine, the consumer could not sue the manufacturer
Could only sue the retailer Who then could sue the wholesaler Who then sues the manufacturer
Product Liability Background
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This began to change in 1916 Macpherson vs. Buick Motor car Court held that Buick ( rather than the
component manufacturer) was responsible for injuries to plaintiff due to defective wheel
Buick failed to inspect a defective wheel before it was put in the car
Macpherson vs. Buick Motor Car
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Product Safety law Consumer Product Safety Commission
Established 1972 Designed to protect public From unreasonable risks and injuries Assist in evaluating safety of products Promote research and investigation into Causes and prevention of accidents,
illnesses and injuries
Current Product Safety Law
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Factors juries use to determine product design
is defective and unreasonably dangerous Utility of the product Feasibility of cost of improvements Frequency and severity of injuries Adequacy of warnings Environment in which product is used Consumers reasonable care in using product
Current Product Safety Law
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Defenses Defendant must prove that product not
responsible for injury Bad judgment (using a chair as a stepstool) Plaintiff's failure to maintain the equipment Improper use of the product by owner Accident caused by alterations of product i.e. removing safety features
Current Product Safety Law
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Legal theories Comparative negligence: the user did
something wrong.. As a result, the verdict is split….80% fault of
consumer 20% on the product Assumed risk of injuries i.e. bungee jumping
or parachuting Misuse of product by consumer i.e. flying
Cessna 182 into a thunderstorm
Current Product Safety Law
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Expert Witnesses Used by both sides Must be technically competent in area of
testimony Personal character must be above reproach Most important is that they must be able To communicate with the jurors and Judge
Current Product Safety Law
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Statutes of repose Product does not injure person within a
period of time Then there is no liability for the producer
Current Product Safety Law
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http://www.youtube.com/watch?v=QkfVrqas6qI&feature=related
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Consumer Product Safety Improvement Act (2008) CERTIFICATION OF COMPLIANCE 1. Identification of the product covered by this certificate: 2. Citation to each CPSC product safety regulation to which this
product is being certified: 3. Identification of the U.S. importer or domestic manufacturer
certifying compliance of the product: 4. Contact information for the individual maintaining records of
test results: 5. Date and place where this product was manufactured: 6. Date and place where this product was tested for compliance
with the regulation(s) cited above: 7. Identification of any third-party laboratory on whose testing
the certificate depends:
Current Product Safety Law
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1. 600 ppm within 180 days2. 100 ppm with in 3 years if able3. Exemptions for lead that cannot be
accessed by consumer by coverings ( not paint)
4. 300 ppm one year after enactment5. Limit now down to 90 ppm for paint down
from 600 ppm.
CSPIA :Lead in Children Products
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Lead paint and total Lead content Full and non full cribs: and pacifiers Small parts Children’s metal jewelry Baby bouncers Products subject to all other children
product rules
Mandatory Testing: Products
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One year after law goes into effect Manufactures must place Permanent distinguishing marks/labels that
allows the consumer to know where/when and by whom the
product was manufactured
Tracking labels: Children’s products
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Requires that consumers have cards or electronic means
To register their purchase Manufacturer must then keep that
registration and notify consumer of any recalls
Product registration
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Requires that there be safety standards enacted
Including flammability Uses existing standards
Child Safety Standards
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Products that contain Pthalates and lead1. In toys2. Child care article (sleepwear)3. Clothing4. Bedding5. Every product intended for children under
the age of 12
Prohibition on sale of certain products
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Stipulates type of language to be used Must be used at point of sale and in
advertising
Labeling requirements for Child product
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Financial loss Award compensates plaintiff for current And future medical expenses For pain and suffering Loss of earning
Results of Liability Litigation
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Used by both sides to bolster their argument
Requires that the person who testifies Be technically competent in the area Either through training or education Should be able to communicate well with
the Judge or Jury
Expert Witnesses
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Actual vs. Punitive Actual loss is what the Plaintiff ( or his
family)Is out of money for. Can be for wages lost Loss of limbs Death Property that is damaged or lost
Financial Loss
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Goes beyond what the actual loss is Very rare and usually only when the Defendant knew the product that is being Manufactured has a high potential for
failure Pinto gas tanks Simple 10.00 brace wasn’t used despite
Engineers saying needed Result was rear impacts caused tank to split Potential for fire and death
Punitive Damages
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Increased insurance Cost of recall, replacement or repair of
product Cost of damage to reputation to company Cost of holding back production Cost of increased quality efforts for
prevention or appraisal
Additional costs
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Product Liability Prevention Program Program is part of organization structure Product safety committee Members should be from legal, design,
manufacturing, marketing and quality areas Safety engineer should be chair person
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Product Liability Prevention ProgramChair person’s responsibility Liaison between insurance and government
regulators Participates in injury cases Maintains education programs Conducts audits Acts as consultant Keeps informed of trends
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Safety Engineer Needs a thorough understanding of
products Background in manufacturing Professional and diplomatic Direct access to senior management Respect of everyone in organization Be able to take charge of a project Team player
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Components of Prevention Program Education New-Product Review Initial Production Review Periodic Production Audits Control of Warranties, ads, agreements Warning Labels and Instructions Complaints and Claims Records ISO 9000 Documents Product-Recall Plan Subrogation Risk Criteria Standards Audit Customer Service Redress
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Education Employees need to be aware of product
safety both internally and externally Train employees on how to handle product-
related incidents Inform employees of laws and lawsuits that
may have an impact on the company
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New Product Review Product safety is a design parameter Must be considered first Adopt product safety design techniques Document, Document, Document Have a product review team List all the possible hazards Design control is required for ISO 9000
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Initial Production Review and Audits Start with a limited production run Control the distribution The more people involved in evaluating the
product the better Process control is required for ISO 9000 Perform regular audits on all products
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Warranties, Advertisements, and Agreements This documentation is legally binding for
organizations Reviews must be performed regularly to
protect the company interest All of these documents can and will be used
in court Evaluate the cost problems of these
documents
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Warning Labels and Instructions Largest cause of manufacturer’s negligence
is inadequate warnings Consider the knowledge level of the
average user A product is not defective if it has an
adequate warning that when followed makes the product safe to use
ANSI has established guidelines to follow
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Warning Labels and InstructionsProduct safety signs Type of hazard Degree of hazard Consequence of involvement with hazard How to avoid the hazard
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Warning Labels and Instructions Warning labels and instructions are not the
same Care should be taken to develop both Overuse of warning will dilute the message
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Complaints and Claims Alerts the organization that a change is
needed Complaint or claim should trigger a review
for:◦ Cause◦ Nature and seriousness of injury◦ Failure mode causing situation◦ Was defect present when product was sold◦ Any negligence by the parties involved
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Document ControlMaintain records on all of the following1. Product development and testing2. Audits3. Verbal and written communications4. Original design data and revisions5. Service life6. Outside organization acceptance and
approvals7. Raw material acceptance records
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Document Control Records provide traceability Records must be protected from loss Records must be maintained over time Record retention procedure is required for
ISO 9000
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ISO 9000 Documents Can be used to show that a company is
diligent in design validation and corrective procedures
Can also be used to show that a company is negligent if the company is not following it’s own quality manual
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Product Recall Plan Minimizes costs and potential liability The decision to recall is based on 3 things1. Exposure to personal injury or property damage2. Form of communication used to notify users of
recall3. Will the product be repaired, replaced or
reimbursed Traceability is important to find affected
products
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Subrogation Suppliers are just as important to the
product liability prevention program Buyers and suppliers should work together
to visit and audit prevention programs Buyer needs to make supplier aware of all
relevant documentation.
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Risk Criteria, Standards, Audits Determine what the risk is for each product Involve employees in developing standards Continuously audit for improvement
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Customer Service and Redress First line defense against a potential lawsuit Better to make friends than enemies Provide customers with a policy that
addresses their needs in a timely manner Provide repairs quickly and fairly