PRODUCT SAFETY
AT HOME & AT WORK

A handle is something that we expect to be able to grab and move to achieve a specific purpose. We expect that, gripping a handle, we can open a door, lift a chainsaw, hammer a nail.  When we say we have “got a handle” on a problem, we mean that it is under control. Lawyers who are asked to handle cases are expected to direct and guide them to a proper conclusion. In all contexts, we think of a handle as something secure, reliable and useful.

When handles fail, they may cause serious injury. Discussed below are three examples of handles that failed, surprising the people who relied on them. The handles were not secure, reliable, or useful, and became the subject of product liability cases. Each case represents a different failure mode. Considered together, the cases provide insight into analyzing other possible handle defect cases.

The Gardener’s Cart

An amateur gardener bought an unassembled cart, in a cardboard box, from a local retailer. The cart had two bicycle-type wheels with a plastic tub between, and was held together by a tubular metal frame. The handle was an extension of the frame, with two longer tubes, one on each side, coming diagonally up toward the user and a cross piece, also tubular, that slipped into and connected the two longer tubes.

The gardener was not mechanically inclined, but the assembly instructions were simple and he was able to get the cart built. He took it out to the garden and used it for hauling weeds, sod, fertilizer, mulch, etc.

As long as he was pushing the cart, it worked fine. One day he was pulling it, trying to get a small load of stones up over a threshold into his barn, when the handle suddenly came off in his hand. The gardener fell back, banged his head, and suffering a serious head injury.

The family gathered the parts of the cart and spoke to a lawyer. They bought an exemplar cart, also in a box with instructions, from the same retailer. The exemplar was identical to the defective cart. The instructions confirmed that the failed cart had been assembled as directed by the designer.

The explanation for the accident, and the defect, quickly became apparent.  The design of the handle called for the cross piece to slip into the two side tubes, but did not call for a fastener to hold it in place. As noted above, as long as the cart was being pushed, the cross piece and the side tubes were being pushed together. With light pulling backwards, friction prevented the cross piece from being pulled apart from the side pieces. With heavy pulling, however, the friction fit between the pieces was not powerful enough to hold the pieces together. The cross piece came off in the gardener’s hand because the designer failed to provide a fastener, such as a ten cent bolt, to hold it together.

If you or someone you know has been injured by a product that was designed without proper fasteners, or with defective nuts or bolts, speak to an attorney with experience in proving such cases.

The bones of the leg can take high levels of force without breaking as long as those force levels are applied over a very short period of time. The longer the leg is exposed to an injurious level of force, the more likely it is to break.

During a downhill ski run, the legs encounter high levels of bending and twisting forces as the skis hit ruts, bumps, ice and other features of the terrain. Because those forces are most often encountered as brief spikes of force, it is not desirable to have the skier released from the bindings every time the level of force gets in the dangerous zone. Properly designed alpine ski bindings are elastic, or capable of absorbing the brief spikes of force, without releasing.  The elasticity in the binding protects the skier from unnecessary, and potentially disastrous, early releases of the bindings.

Alpine ski binding technology has improved steadily since downhill skiing became a recreational sport after World War II. Bindings quickly went from “bear trap” designs that did not release at all to “safety bindings” that released when the skier fell forward, to bindings intended to release with twisting to the left and right and falls to the front or back. Better ski bindings have made downhill skiing a much safer sport. One binding problem that has not been eliminated is the problem of “inadvertent release”- which, more simply stated, means that a ski falls off when it shouldn’t. This is a serious problem because it can lead to the most serious forms of ski injury: head injury, paralysis and death. Some inadvertent release accidents are easily explained by mechanical failure of parts such as the heel cup, the plastic part that holds the heel of the boot down onto the ski. When it cracks or breaks, the heel comes free and the skier loses control. Many binding models have been recalled due to heel cup failure. Other inadvertent release accidents are explained by release force problems. The familiar binding adjustment known as a DIN setting raises or lowers the force at which a binding will release. The setting is calculated by a formula that takes into account the skier’s height, weight and skiing ability, generally releasing earlier for inexperienced skiers and later for expert skiers. Ski shops have methods for testing whether the bindings actually release at the expected force levels, and these tests should always be run in conjunction with sales of new skis and with ski rental transactions. If someone is hurt by inadvertent release and there is no obvious part failure, the ski patrol is likely to turn the skis over to the mountain’s rental shop to check the DIN settings and to test whether release occurs at the expected force level. If the DIN setting is not correct, or if the binding does not release at the expected force level, it may be fairly easy to articulate a product defect claim and to prove that improper setting or performance of the binding contributed to the injury. So what happens when a seriously injured skier reports inadvertent release but the DIN setting appears to be proper and the release forces appear to be as expected? It may be that the skier is simply wrong about inadvertent release, but it may also be that the binding is defective in that it lacks elasticity. This is an issue that counsel must explore carefully in an otherwise unexplained inadvertent release accident in which a skier has been seriously injured.

Rivets are metal fasteners used to hold things, often other metal parts, together.  Generally, rivets have a head and a shaft. The shaft is passed through pre-drilled holes in the parts to be connected until the underside of the head stops against one of the parts to be connected. The shaft is then “upset” or flattened against the farthest surface of the other part to be connected. The upsetting or flattening of the shaft has the effect of creating a second head and shortening the shaft. As the shaft is shortened, the second head moves toward the original head, squeezing the parts together. The idea behind the rivet as a fastener is that the rivet material is stronger than the forces tending to pull the connected items apart, so everything stays tightly connected.

Common uses of the rivet have included connecting the steel girders of skyscrapers, the steel plates of ship hulls, and the aluminum skin of airplanes.

Rivets may fail because they are made from material that is weaker than specified, because the shafts are not fully upset and shortened, because the overall joint design is flawed, or for a combination of these reasons.

As noted above, the theory of riveting is that the ability of the rivet material to withstand stretching forces is greater than the forces trying to tear the connected joint apart.  An example of poor joint design would be a circumstance where an engineer miscalculates the stretch resistance of the rivet material. If that is overestimated, the stretching forces produced by the connected parts while they are in use may be greater than the rivet can bear, leading to joint failure.  Poor quality material might cause the same problem.

Failure to properly shorten the shaft of the rivet during installation causes a slightly different problem.  If the rivet is not shortened enough, the joint between the connected parts will not be tight. If the joint is not tight, it is likely that the forces on the rivet will not be limited to a either a “straight pull” or stretching force or a perpendicular or shearing force as anticipated by the design engineer. In a loose joint, the forces on the rivet probably include a diagonal or bending force as the connected parts move in response to the various forces they encounter. In a skyscraper, the forces could come from wind or earthquake. In a ship, the forces could come from wind, waves, or cargo loads. Once the forces on a joint deviate from a “straight pull” or a shear, the stretch resistance or shear strength of the rivet material are no longer the critical strength issues. With bending forces on the joint, the engineering analysis of the strength of the rivet material must be entirely different. It is not possible to use a rivet to reliably overcome bending forces because there are too many unknown factors that can lead to joint failure.

Riveted joints are designed to hold together on the assumption that the components that they connect will remain close and firmly held to each other.

Rivet failure has been known to cause personal injury in many circumstances, and can be the basis for a successful product liability case. One example from a real case involves a handle which broke off of a delivery truck door. The driver was assuming that the handle would remain firmly attached as he pulled down on the door to get it closed. When it suddenly came off in his hand, he lost his balance and fell from the back of the truck onto pavement and suffered broken bones and nerve injury.

Whenever there is a rivet failure leading to personal injury, it is helpful, and maybe necessary to proving the case, to recover the broken parts.  Analysis of those parts can reveal whether the failure resulted from defective rivet material, bending, stretching or other factors. Understanding the cause of the failure is critical to proving a product defect. Was it the raw material of the rivet, the design of the joint, the construction of the riveted joint, or perhaps a failure of maintenance that lead to the injury?

If the broken parts are not available, prompt inspection of the remaining parts may help prove the case. For example, in the case of the handle that broke free from the delivery truck door, the door was a sandwich of materials (an inner and outer aluminum skin covering an strong but weather-pervious core material) which was held together by similar rivets. Inspection of the door revealed a pattern of rivet failure, leading to discovery of similar problems in other doors, and helping to prove that the basic door design was defective and its construction technique was negligent. The rivets were not strong enough for the purpose for either holding the basic door together or keeping the handle in place, and they were poorly installed. There was a history of other similar incidents, and the seller of the door failed to warn customers that a string of similar doors had failed.

If you or someone you know is injured by the failure of a rivet or other fastener, whether it be a screw, a bolt, or a nail, contact a lawyer with experience in similar cases. Getting the right lawyer and engineering expert involved early in the case may be critical to a successful outcome.

Automobile seat back failure has been known to create a danger of catastrophic injury for many years. Especially in rear-end collisions, poorly designed or defective seats can collapse backwards upon impact. This happens because manufacturers seek to save money by using old seat designs (which are lightweight and flimsy) and by including recliner hardware on only one seat back hinge rather than on both the left and right hinges. 

Risks to front seat passengers from seat back collapse include permanent brain damage or other head injuries and neck injuries. These occur because the occupants fall backwards as the seat collapses and they strike someone or something in the area of the back seat. Rear seat passengers, particularly children and older adults, are also at risk of serious injury and death as a result of being struck by the collapsing seat or by a front seat passenger.

The New York Times reported on April 23, 2010 that Ford is recalling about 33,000 of its 2010 cars and sport utility vehicles because the front seats may collapse rearward, the automaker told the National Highway Traffic Safety Administration.

The models are the 2010 Explorer, Explorer Sport Trac and Mercury Mountaineer as well as the Ford Fusion and Mercury Milan.

Ford said the problem is that the “gear plate teeth” on the manual recliner mechanism may have been built “out of dimensional specification” and the seat will not pass the federal safety standards for strength. 

Ford, which said it had no reports of accidents or injuries, said the problem was noticed by a worker at an assembly plant who felt the seat move back. In its report, the automaker told the safety agency that it would immediately begin notifying dealers and owners but that it did not plan a press release on the seat problem. A Ford spokesman, Wes Sherwood, said later that the company did not ordinarily issue news releases on safety recalls.

In other recent automotive recall news:  

 • Porsche has recalled approximately 3,200 2010 Panameras because “the restraint function of the safety belts can no longer be guaranteed. ” Porsche told N.H.T.S.A. that when the front seats are moved forward “ … to an extreme position” it is possible that the seat-belt mount “could detach from the anchoring system.”

  • BMW recalled about 735 of its 2010 X5 Ms because power cables were not connected to power the side-marker lights.

   • Volvo is recalling almost 2,500 of its 2010 XC90s due to a risk of leaks in a pressurized fuel line.

  • Braun is recalling certain Dodge Caravans and Chrysler Town and Country “Entervan” minivans with wheelchair access due to a fire hazard. Braun told N.H.T.S.A. that the fuel filler pipe may rub against the left rear tire and cause a leak.

Previously, Braun recalled about 5,000 vans after discovering that a defective weld could allow the rear axle to loosen.  To make those vans wheelchair-accessible,  conversions were performed on the 2005–8 Buick Terraza Entervan, Chevrolet Uplander Entervan and Pontiac Montana Entervan. 

For more information or to report a safety problem go to the government Web site.  

For more information, please visit the Berman & Simmons website on our products liability page.

Molded plastic chairs sell for low prices for a reason: they are not very durable. The points of highest stress, and thus the points of most frequent failure, are where the legs meet the seat and where the back or arms meet the seat.

Lawyers and forensic engineers get involved in analyzing plastic chair failure when the failure causes people to fall and get seriously hurt.

In all such cases, the first step is to preserve the broken parts and protect the fracture surfaces from further damage. That includes avoiding any effort to push or touch the fracture surfaces together in an informal effort to “reconstruct” what happened. Touching fracture surfaces in any way can destroy evidence, and such informal reconstruction does not advance the case in any way. If you observe or are involved in an incident in which components break off a molded plastic chair, wrap each piece separately as soon as possible to protect it from physical harm, exposure to chemicals, and other damaging events.

In thinking about whether personal injury damages may be available to an injured person in connection with chair failure, it is important to consider how the chair was used. If a very cheap chair is sold for use in an industrial or commercial setting, such as in a restaurant, hotel, conference center, or school, the legal cause of the failure may be the choice of a low budget product rather than a defect in the chair itself. It is patently unreasonable to assume that the cheapest form of molded plastic chair will stand up to frequent and heavy use. In such a case, a successful claim may be brought against those who sold or selected the inexpensive, lightweight chair when they knew it was likely to get heavy use.

If the chair was properly selected for the setting in which it was used but still fails in a way that causes injury, the failure may be the result of unforeseeable misuse, such as damage during shipping or being thrown out the window of a college dorm, or factory failure such as the use of contaminated raw materials or poor controls in the molding and inspection process. Testing failed plastic materials is very expensive, and if you think about using scientific methods to determine what caused the failure, it is easy to see why preserving and protecting the broken parts is so important. Testing the purity and consistency of plastic is done by running numerous tests on multiple samples of a specified size and shape. One must have enough sample material to test, and you will want to be sure that the samples being tested came from either the exact chair involved in the injury or one purchased from the same source in the same lot.

One place to look for evidence that plastic chair failure was caused by defects in materials or workmanship is to ask about other similar incidents. The wholesale supplier of the chair and the owner or the failed chair (particularly institutional users who may have purchased hundreds of similar chairs in one or more shipments to furnish classrooms or dormitories) may have knowledge of frequent or regular similar failures. Such evidence is very important in showing both foreseeability and causation: the injury was not an isolated unavoidable accident, but one of a pattern of similar failures. When there is evidence of widespread failure, defendants are anxious to make it available to the plaintiff in order to pass blame up the chain from owner to wholesaler to manufacturer. It is almost always good for injured people to have defendants fighting among themselves.

One way to protect oneself from the failure of inexpensive plastic chairs is to avoid buying or using them. As noted above, they are cheap for a reason. If you must use a cheap molded chair, inspect it before you sit down. If it is cracked or flimsy, refuse to use it. If you are sitting in such a chair and hear a crack or feel that it is just too wobbly, stand up carefully and find a different and better place for you and your family and friends to sit. Protecting yourself is always the best option.

If you or a friend is injured by a chair that fails, get the best medical treatment available to you, gather and protect all of the failed parts, and call a lawyer with experience in similar cases. An experienced product liability lawyer may be able to prove the case with a minimum of expensive scientific testing and engineering analysis, which is a good way to improve the bottom line outcome of the plaintiff’s case.

Six Sigma is the most powerful quality control tool ever employed in industry. Developed at Motorola in 1986, this rigorous approach to quality engineering led to rapid improvement in the company’s products. It is believed to have been a major factor in Motorola’s being awarded the inaugural Malcolm Baldridge National Quality Award. Because of the close connection between quality control, efficiency and profits, and because Motorola was willing to share the secrets of its success, by 1990 Six Sigma had been widely adopted among the world’s most successful companies. According to legend, Six Sigma saved General Electric more than $5 billion in the first five years of its implementation.

As Six Sigma has become a powerful tool for industry, understanding it can be a powerful advantage for a plaintiff’s lawyer in a product liability case.

Six Sigma Basics

Six Sigma is based on the premise that manufacturing processes can be systematically improved to the point where defects are reduced to as few as 3.4 defects per million opportunities. It is distinguished from earlier quality engineering programs by the intensity of the planning, goal setting and discipline it requires from employees at every level of the companies which adopt it. Six Sigma demands an unwavering commitment to measurement, feedback, analysis and improvement. While expensive to implement, Six Sigma has consistently produced business results which prove that no modern manufacturer or seller can afford to be without it.

Six Sigma as a Tool for Plaintiff’s Lawyers

Six Sigma can be useful to plaintiffs’ lawyers in product liability cases in a number of ways.

First, understanding Six Sigma can help in controlling discovery costs. Six Sigma companies engage in a vigorous regime of defining problems, measuring critical elements of the production process, analyzing results and changing features that produce bad parts.  Using discovery requests to obtain the right data, and knowing how to read and use it, is much cheaper than wading through days of depositions trying to gather background facts on the product in question.

Second, one of the fundamental challenges in many products cases is to fully understand what the product, or a failed component, was designed to do. Because Six Sigma is based on measuring products against a specific and detailed standard, documentation available through a Six Sigma program should lead counsel to the product specifications, the sole purpose of which is to articulate the defendant’s design expectations. If the product did not meet the specifications, the plaintiff may be able to prove the defect by comparison of the product to the defendant’s own standards.

Third, although Six Sigma is most often used to eliminate the production of defective parts in manufacturing operations, its principles can be used to improve the design process, as well. A thorough understanding of those principles will help a plaintiff’s lawyer analyze and critique a defendant’s design efforts.

Finally, if the defendant has not adopted Six Sigma as a quality control system, it is likely that it either has no systematic quality control at all, or that its system is poorly run and ineffective. These facts can support arguments on both unreasonable conduct on the part of the defendant and product defect theories: bad products got into the marketplace because the defendant did not care enough to watch what it was selling. It is very difficult for any company to justify having an ineffective quality control system in today’s business environment.

Conclusion

Six Sigma brings discipline and systematic improvement to smart companies. Smart lawyers will understand Six Sigma concepts and use them to win the best possible results for clients injured by defective products.

A Pennsylvania jury has returned a verdict of $13.5 million in a case involving the death of a child caused by a defective electric fan motor.

The motor, which was sold as part of an inexpensive household fan,  overheated and caused a fire. Several years after the fan was made and sold, Lasko Products, Inc., the seller, discovered the defect, and learned that the defect also was present in thousands of similar fans. In 2004, Lasko changed the design to eliminate the defect from some of its fans, but did not alert the public or recall the defective fans.  The child died in 2004, and Lasko subsequently initiated a recall of the defeective fans.

If this case had been filed in Maine, the plaintiff might have been blocked from introducing the evidence of the 2004 re-design based on the “subsequent remedial measures” rule. That rule  is intended to encourage defendants to improve dangerous situations by  assuring them that safety improvements made after discovery of a problem or after an injury will not be introduced into evidence to prove that the product was defective to begin with. This rule is based on the public policy decision that it is better to encourage defendants to remedy defects than to encourage them to deny that there is a problem.

One way to avoid the obviously unfair impact of that rule on injured people may be to include a “post-sale duty to warn” count in the case.  While in some states there is no duty to warn users about defects or  “repairs” that become known after a product is sold,  judges in Maine have rejected that position, at least in one case, and have held manufacturers to a higher standard.

If there is evidence of a post-sale design improvement, and if no recall or warning has been issued, plaintiff’s attorneys should include a post-sale duty to warn count. This will provide a basis for discovery on the re-design/modification, what warnings and notice of defect were provided to the public, and whether proper notice to the public, or a product recall, would have prevented the injury. If the facts support the argument, then the trial court should allow the evidence of “subsequent remedial measures.” To do otherwise would be to prevent the plaintiff from proving his or her case. The public policy of protecting consumers injured by defective products, particularly those known to the defendant to be defective, should outweigh the defendant’s interest in hiding evidence of its subsequent product improvement.

Toyota and Truth

Is Toyota committed to telling the truth? That big question goes unasked as the news outlets splash recall, factory shut down, and apology stories across their front pages, websites and TV news shows.

Four people died in a speeding Lexus in August of 2009. A woman died when her family’s Camry accelerated across a parking lot and over a cliff as her husband tried to brake. Are these cases of driver error, or are the families of these people among those to whom Toyota now extends its apologies for delay in addressing unwanted acceleration?

Denial and dishonesty is not new in the automobile industry. In the case of Davis v American Honda, Honda was defaulted after a trial judge found that its defense team destroyed evidence and lied about it during trial of a civil case filed by a young woman rendered quadriplegic in the crash of an allegedly defective Honda Civic. More recently, in Magana v. Hyundai Motor America, a judge in the State of Washington  ordered the entry of a default judgment against Hyundai for withholding critical information in a lawsuit alleging defects in the design of the seats in a Hyundai Accent.

Injured people and their lawyers face tremendous obstacles in product liability cases because manufacturers are well-organized and well-funded, they have a lot to lose if a jury finds one of their products defective, and they are experienced litigators. They know how to defend by giving up as little information as possible. We are fortunate in America in general, and in Maine in particular, to have open court rooms and judges willing to call dishonesty what it is and to mete out appropriate punishment to dishonest defendants. Still, for an injured person to get a hearing against a manufacturer committed to withholding information is a significant challenge, legally and financially.

Toyota should take this opportunity to not only pledge to re-focus its corporate culture on quality, but also to commit its corporate culture to honesty and openness. One simple way it can do this is to make the data in its black box data recording devices available to the public. Like the black boxes in airplanes, these devices record information such as pre-crash speed, throttle position, seat belt use, and braking. Ford, GM and Chrysler have made this information accessible in their products for years. Toyota has refused, keeping the key to reading its software secret on the ground that the data collected by the computers in its cars and trucks is unreliable.

It is hard to believe that Toyota,  which first successfully commercialized regenerative braking, which has built some of the world’s most efficient and successful robotized factories, and which claims to be a leader in stability control and other safety technology, cannot accurately collect speed, time and distance data in its on-board computers. Despite its denials, one would think that Toyota can record electronic data as well as its competitors.  If Toyota really lacks confidence in its ability to record data in its vehicles, it can certainly license reliable technology from another company.

Rather than withholding data, Toyota should provide its dealers, its customers and the U.S. government the key to reading the data collected its vehicles. Disclosing the translation software and providing access to the data should help explain the many accidents and injuries now attributed to acceleration, steering and brake system defects in Toyota products. Maybe the data will show that some accidents arise from driver error, and that some arise from defects which Toyota should have fixed long ago.Why not let the truth come out?

By committing itself to an open and truthful culture, Toyota will honor its customers and the families of those who seek to understand violent and tragic accidents. By failing to commit to openness and honesty, Toyota dooms itself and its customers to costly replays of mistakes of the past.