719-471-1984

It Really is a Products Liability Case (No Matter What They Tell You)

Sears & Associates, P.C.
Colorado Springs, Colorado
1997 Colorado Women’s Bar Association Convention

I SUMMARY OF PRESENTATION

Products (and technology) are meant to serve humans in their work and play. When the products do not perform as intended, then they were improperly designed. When the products hurt their users, they were not only improperly designed, but legally defective. Product designers, using well-known technology, have the ability to design products so they perform as intended and do not hurt those who use them. As representative of the users of products, jurors are capable of understanding product design and allocating fault for defective products.

I “IF THEY CAN PUT A MAN ON THE MOON….”

  1. Engineering is a profession rooted in the sciences, particularly physics, chemistry and mathematics. Engineering applies scientific principles to solve problems and create useful items for society. Unlike a scientist, who studies science for its own sake, the engineer uses the discoveries of the scientist as tools to make products for humankind. Most products today are the result of several engineers, or committees of engineers, sharing design responsibility. These engineers exercise design choices, using the scientific knowledge available at the time the product was designed and the available technology.
  2. Tools of the engineer
    1. Mathematics
      1. arithmetic
      2. algebra
      3. geometry: used by engineers who deal in measurements, distances and relationship between different measurements, i.e. architectural engineers, surveyors, civil engineers, etc.
      4. trigonometry: used by engineers to determine measurements and distances and their relationships.
      5. analytical geometry: combines algebra, geometry and, in some cases, trigometry; used in defining shapes, such as a wing’s curvature
      6. calculus: deals with changing quantities. Differential calculus finds the rate at which a known but varying quantity changes; integral calculus reverses the problem, to find a quantity, knowing the rate at which it is changing.
      7. statistics: form of mathematics used to analyze large groups of numbers; using the study of probability and the collection of numbers, engineers can make predictions of important trends
    2. physics: the “how” and “why” of the non-living world; a “physicist” is a scientist, but the engineer uses physical principles at every stage of the design problem
      1. mechanics: deals with forces, work, power and energy; engineers apply these concepts to machine problems using mechanical advantages of pulley systems, gear boxes, etc.
        1. application of engineering mechanics in a stationary, non-moving system such as a bridge, is called “statics”
        2. application of engineering mechanics to moving systems such as rotating machinery or orbital mechanics is “dynamics” and “kinematics”
        3. application of engineering mechanics to determine the ability of a given material, such as steel, wood, plastic, etc. to carry a load without bending, stretching or breaking is “strength of materials”. In this discipline, engineers analyze “stress” and “strain” on materials.
        4. fluid mechanics deals with forces, power and energy of both stationary and moving fluids such as air and water
      2. heat, light and sound
        1. thermodynamics deals with the work, power and energy derived from a quantity of heat and applied to all kinds of internal combustion and jet engines, applying the two basic laws of thermodynamics:
          1. the energy entering a system minus the energy coming out of a system is equal to the change in the energy stored in the system.
          2. heat will only flow from a hot source to a cold source
        2. “heat transfer ” is the discipline which engineers use to analyze the time it will take for a quantity of heat to flow through a material or system of materials (via conduction, convection and radiation)
        3. use of light is one of the frontiers of engineering today, in areas of laser surgery tools and fiber optics
      3. electricity and magnetism
        1. electricity: deals with electric current mainly in the form of energy, i.e. wires, motors
        2. electronics: deals with electricity in the form of pulses or signals, i.e. computers
      4. atomic and nuclear physics
      5. solid state physics
    3. Materials used by the engineer: by understanding engineering mechanics and chemistry, the engineer will have a working knowledge of the properties of various materials: the strength, manner in which it will deform when a load is applied, its reaction to heat or cold, its density and its ability to be shaped or formed
      1. tensile strength
      2. compressive strength
      3. sheer strength
      4. fatigue strength
    4. The design process: there is an organized process by which products are designed from concept to market. In the corporate design process, no one engineer actually designs the product. Most products sold today have evolved over the years and only engineering improvements have been made to the products. Even where the product is a new design, no one engineer in the corporation designed it. Its design resulted from committees and divisions of engineers. The new product is truly the product of the corporation.
      1. Inventive phase: this is where there is an opportunity for the engineer to be creative. All possible solutions to the problem are aired for consideration, rejection or modification. The engineer considers the state of the art at this stage. State of the art is not how everybody else solves the problem, but what is technically feasible at the time to solve the problem. Technical research in all related fields to the problem will reveal the state of the art and provide innovative solutions to the engineering problem.
      2. analysis phase: here the engineer constructs a model of the solution (product) in order to make a quality engineering analysis. This model may be an actual working mock-up, a computer model, a previously modified product, or even a paper model. The engineers apply basic engineering principles in order to obtain meaningful answers to whether the product is the best solution to the engineering problem. Neither the engineer or the company can be so committed to a design as to be unable to scrap a concept if an essential design criteria cannot be met. An honest look at the performance of the product, may require the engineer to start over.
        1. operating conditions
        2. materials considerations
        3. operating environment
        4. human factors
      3. Preliminary design phase: here a prototype is constructed as a result of calculations, material specifications and engineering shop drawings. A prototype is a full-scale, fully functioning product. It should contain all of the features of the final product. This unit is the basis for determining whether the design will ultimately meet the design criteria. Testing of the prototype must be thorough and complete. In dealing with a complicated machine like an airplane or automobile, the prototype must be fully instrumented so that the test data is recorded from all parts of the product for later study and analysis. The testing should be conducted to try to get the product to exhibit its “worst” behavior: operated to extreme capabilities, to maximum speeds, anticipating “dumb” or inattentive human operators. Merely demonstrating that the product will exhibit good behavior under moderate conditions accomplishes little.
      4. Finished product: this phase is a joint effort between manufacturing and marketing. The product has to be built according to the engineers specifications and contain proper warnings and instructions as to its safe use under all foreseeable conditions.

II IT’S NO DEFENSE THAT…

  1. The product user “caused” his own injury
    1. Colorado products liability statute contains “pure” comparative fault provisions, such that even if the product user was more than 50% at “fault”, he will recover his diminished damages. CRS 13-21-404. In a strict products liability case, the concept of comparative negligence embodied in CRS 13-21-111 is inapplicable. States v. R.D. Werner Co., 799 P.2d 427 (Colo. App. 1990)
    2. When the “misuse” was caused by design defects. Huffman v. Caterpillar Tractor Co., 908 F.2d 1470 (10th Cir. 1990)
    3. When the “misuse” was caused by lack or insufficiency of a warning. Fibreboard Corp. v. Fenton, 845 P.2d 1168 (Colo. 1993)
      1. But the injured product user better have specific evidence on the deficiency of the warnings that caused his misuse. Wagner v. Case Corp.,33 F.3d 1253 (10th Cir. 1994)
      2. And the injured product user better prove that the risks which should have been in warnings were known or knowable in light of generally recognized and prevailing scientific and technical evidence available at the time of manufacture and distribution. Fibreboard Corp v. Fenton, supra.
    4. When the “misuse” was reasonably foreseeable by the product designer, especially if the manufacturer possessed knowledge of other similarly-caused injuries. Armentrout v. FMC Corp., 842 P.2d 175 (Colo. 1992)
    5. When the “misuse” was failure to use a seatbelt. Miller v. Solaglas Cal. Inc., 870 P.2d 559 (Colo. App. 1993)
  2. The manufacturer says the injury was not foreseeable.
    1. When the issue of foreseeability is in dispute, it is for the jury to decide. Mile Hi Concrete Inc. v. Matz, 842 P.2d 198 (Colo. 1992)
  3. The manufacturer obtained the material or part from an outside source.
    1. The manufacturer has a duty to inspect and/or test that material or part. International Harvester Co. v. Sharoff, 202 F.2d 52 (10th Cir. 1953)
  4. The product user wasn’t the buyer of the product
    1. Under theories of breach of warranty, it is not necessary that the plaintiff have been the buyer. CRS 4-2-318
  5. The product conformed to the state of the art applicable to such product in existence at the time of sale. The statute says it is a presumption of no defect (CRS 13-21-403), but the court will decide this issue as a matter of law. Mile Hi Concrete, Inc. v. Matz, supra.
  6. The product complied with government regulations. (CRS 13-21-403) The statute provides a legal presumption of this point, which the court will rule upon as a matter of law. If there is any evidence which rebuts this presumption (i.e. the government regulations did not address the product or this defect with specificity), there is no defense and the jury will simply learn of minimal government regulations applicable to the product.
  7. The product was more than 10 years old. (CRS 13-21-403) As long as there is evidence that the product was defective, even though more than 10 years old, the jury will be allowed to consider the issue of the manufacturer’s liability. Mile Hi Concrete, Inc. v. Matz, supra.

 III BUT IT IS SOMETIMES A DEFENSE WHEN…

  1. Specific federal laws or regulations preempt state products liability law
    1. Claim for failure to provide adequate warnings was preempted by Federal Hazardous Substances Act. Salazar v. Whink Products Co., 881 P.2d 431 (Colo. App. 1994, cert.den., cert. den. 115 S.Ct. 1315
    2. General Aviation Revitalization Act: prohibits suits against private aircraft manufacturers when such aircraft are more than 18 years old, unless the plaintiff pleads and proves that the manufacturer knowingly misrepresented to the Federal Aviation Administration information that was material and relevant to the design of the aircraft, which information was the cause of the harm to the plaintiff.
  2. Product user “misuse” could not be foreseeable by the product designer/manufacturer. Armentrout v. FMC, supra.
  3. Product user “misuse” amounts to “assumption of risk” such that the injured user of the product voluntarily and unreasonably proceeded to encounter known danger arising from use of the defendant’s product. White v. Caterpillar, Inc., 867 P.2d 100 (Colo. App. 1993), cert.den.
  4. The product is proved to be unavoidably unsafe. Belle Bonfils Memorial Blood Bank v. Hansen, 665 P.2d 118 (Colo. 1983)