PRESENTED BY:DENNIS W. BROWN, ESQ.HOLLAND AND HART, LLCDBROWN@HOLLANDHART.COM

Seven Ways to Avoid Getting Sued for Product

Liability

DISCLAIMER• This is Not Legal Advice• There is No Attorney-Client

Relationship• No Privilege Exists

Objective of Today’s Talk

To help you and your company avoid

getting sued for product liability or consumer fraud.

Face Reality…How Juror’s Think

The Danger…How Juror’s Think

“I think that the manufacturer has a duty to prove that they have TESTED the equipment…and done everything within their reasonable ability to make it safe.

[I]f you can find something that they short cut… that’s negligence in my view.” [emphasis added]

Source: Persuasion Strategies 2013 National Juror Survey

Jurors Expect Significant Testing

Who Can Be Sued?• Manufacturer• Component part

manufacturer• Distributor• Retailer/Seller• Installer• Owner/Operator• Maintenance/Repair

Person

Where Can You Be Sued?State Court – State where product was made– State where product was sold– State where Plaintiff lives– State where product was advertised– State where injury occurred

Federal Court– If diversity exists

Foreign Country

The Seven Ways to Avoid Getting Sued1. DESIGN is in accordance with standards2. MANUFACTURE in accordance with specs3. WARNINGS, labels & manuals are thorough &

clear4. REPRESENTATIONS must be accurate and

truthful5. COMPLAINTS must be monitored and

addressed6. RECALLS are implemented where appropriate7. LAWS are followed

Design Specification – Legal Claim

Product design is unreasonably dangerous.

Design Defect - ProtectionsFollow the Recognized Safety Hierarchy

1. Design Out the Potential Hazard

2. Guard Against the Potential Hazard

3. Warn About the Potential Hazard

Safety Hierarchy Explained

WARNING – USER AND BYSTANDER ALWAYS WEAR SAFETY GOGGLES

• Use only to drive and pull common unhardened nails. Any other use, such as striking this tool with or against another striking tool, nail puller, hardened nail, or other hard object or using a chipped hammer, may cause the hammer to chip, possibly resulting in blindness or other serious injury to the user or bystander. Discard hammer immediately if chipped.

Design Defect – Protections (con’t)• Product design should follow the

standards and industry practice

Design Defect – Protections (con’t)• Foreseeable Misuse must be

considered

• Monitor accidents reported in trade magazines, trade organizations, blogs

Design Defect – Protections (con’t)• Subsequent remedial

repairs/changes

Design Defect – Protections (con’t)Lawsuits against outdoor equipment

manufacturers alleging design defect– Harness– Helmets– Camp stove

Manufacturing Defect – Legal Claims

Product not manufactured in accordance with design or

material specifications.

Manufacturing Defect - Protections

QA Program

Manufacturing Defect - Protections

Quality Vendors

Manufacturing Defect - Protections

Record Keeping

Warnings, Labels & Manuals- Legal Claims

Warnings, Labels & Manuals- Claims

Hazard should have been designed out or guarded against

No warning providedWarning was- insufficient- in wrong location- words not a pictorial- only in English- information overload

Juror Views When Warnings Are Used

Juror Views When Safety Instructions not Followed

Here are some actual labels on consumer goods:

• “Do not iron clothes on body” -- Rowenta iron

packaging

• “Do not attempt to stop chain with hands”

-- Swedish chain saw

Warnings, Labels & Manuals- ProtectionsBE CAREFUL

Follow Warnings in Standard

Information Overload

Words v Symbols

Colors

Languages

Printed Word v. CD

Warnings, Labels & ManualsLawsuits against outdoor equipment manufacturers or retailers alleging failure to warn:– Rope– Tent– Ski Bindings

False Representations – Legal Claims

Advertising or Promotion or Product Literature

Contains

– Promotions that• are not 100% verifiable• make promises or guarantees• are incorrect

False Representations - Protections

Representations must be absolutely verifiable

Medical claims universally accepted

100% = 100%

Marketing, Engineering + Legal must all work together

Customer Complaints – Legal ClaimsDefective product

Fraud

Breach of Warranty

Class Actions

Customer Complaints – ProtectionsTo Protect Yourself – Go Where the Plaintiff

Attorneys Go to Find Their Cases?• Regulatory Investigations• Enforcement Proceedings• Recalls– Create websites “investigating”

companies/products• Disgruntled Customers– web postings– Ripoffreport.com

Customer Complaints - Protections

Where do Plaintiff Attorneys Find Their Cases?

• Your website• Materials supplied with the product• Web search for “complaints

regarding ________” (insert company or product name)

Customer Complaints (con’t)Social media & internet postings

criticizing outdoor equipment manufacturers – Harness– Ski pole with steel pick– Kayak paddles

Customer Complaints - Protections

Effective customer call-in line

Customer Complaints - Protections

Monitor and Track Customer Complaints

Customer Complaints - Protections

Monitor the CPSC Product Incident Database = http://www.saferproducts.gov

Meaningful and Effective Warranty

Keep an Eye on Social Media and Internet Postings

Customer Complaints – Protections (con’t)

Sue the offender:

Texas Firm Sues Client For Negative Yelp Review

LITIGATION Weekly Alert

July 29, 2014

Recalls – Legal Claims

• Voluntary recalls• Involuntary recalls

Recalls - Protections

Proactive

Monitor Your Customer Complaints and Claims

Work with the regulatory agencies

Recalls (con’t)

Recalls involving outdoor equipment– Camming anchor– Harness– Sea kayak paddle floats– Kayaking helmets

Follow the Law – Legal Claims

Product design, manufacture or sale violated the law

Follow the Law - Protections

Know and follow the law wherever your product is sold – sounds easy enough

In Closing

Questions

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