LEGAL CORNER

Quality Control, Testing Can Be As Important As Warning

By Gerard Panaro, Howe & Hutton, WSTDA Legal Counsel

Although WSTDA focuses intense attention on warning users on how to use its products, two recent cases (one from New Jersey, one from New York) illustrate that manufacturing practices, quality control and testing of the product can be equally, if not more, important. Duty to warn, failure to warn, adequacy of warnings, or testimony from human factors experts, is not always an issue in products liability cases. Sometimes, warnings are irrelevant and expert testimony is subject to challenge or even exclusion from the trial altogether.

In Land v. C&M Baling Systems, Inc., 2008 WL 2796456, the Appellate Division of the New Jersey Superior court did allow the report of an expert witness, but also affirmed judgment in favor of one of the defendants, agreeing with the lower court that the expert’s opinion that the accident could have been prevented if the manufacturer had provided operating instructions or safety warnings was not supported by any empirical evidence.

The plaintiff was attempting to wrap metal bands around a bale of paper when the door of the baler flew open and struck him. A company which had rebuilt and maintained the baler (Recycling Equipment Corp., REC), but which was not the original manufacturer, was a defendant. The plaintiff’s expert witness said the accident could have been avoided if REC had installed adequate hardware, and provided written operating and safety instructions.

The court of appeals nonetheless affirmed judgment for REC because the expert gave no empirical basis for his conclusion that written operating and safety instructions could have prevented the accident. The only support for the expert’s conclusion was “a passing reference to the 1969 National Safety Council Accident Prevention Manual”. This was not sufficient, the court held.

In the second case, Preston v. Peter Luger Enterprises, Inc., 51 A.D.3d 1322, the Appellate Division of the New York Supreme Court affirmed a decision in favor of the manufacturer of a glass bottle, in light of the evidence the company produced of its quality control and testing procedures and the plaintiffs’ failure to show any negligence or defect in the product.

A woman bought a bottle of steak sauce. When her husband went to open it, he was hurt when the neck of the glass bottle broke. He and his wife sued on the basis of strict product liability, negligence and failure to warn. The court ruled in favor of the manufacturer.

Testimony from the manufacturer’s president and manager in charge of quality assurance showed that the thickness of the bottle well exceeded general industry standards and that of the approximately 2.1 million bottles of this design manufactured by the company from 1999 to 2001, the time from which it began using the bottle design at issue until the date of the accident, this was the only instance they were aware of where the neck of the bottle broke upon an attempt to open it.

The plaintiff’s human factors expert was unable to overcome this evidence. His report, in the court’s words, “contains only generalized statements and bare conclusory assertions that the long neck bottle used has less ‘load carrying capability’ than a short neck bottle and that the design violated acceptable engineering practices and industry standards.” The expert’s “opinion is not supported by any empirical data or foundational facts, it lacks sufficient probative value to raise an issue of fact that the subject bottle was not reasonably safe in its design”, the court concluded.

The court also cited the evidence presented by the company as to its bottle inspection process. Every single bottle was inspected by various pieces of equipment, including undergoing “bright field analysis” which electronically inspects for flaws, and was then examined by a trained inspector and subjected to a variety of sampling procedures to ensure its quality and integrity. These methods tested and inspected for, among other things, sidewall thickness and impact resistance, deviations in the sealing surfaces, glass composition, cracks in the bottles and resistance to thermal expansion.

The evidence went on to describe how the cases of bottles were packaged, detailed the bottling process and stated that each bottle was inspected by at least two employees and, if a visual defect were found on a bottle, it would be discarded. “In our view,” the court concluded, “this evidence satisfied defendant's burden of establishing prima facie that the subject bottle was not defective when it left its manufacturing facility.” The plaintiff’s expert’s testimony was insufficient to overcome all this evidence, the court concluded.

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