Legal Considerations for Safety Gary Ballesteros Vice President, Law Rockwell Automation  Don Segal Segal McCambridge Sing...
Today’s Speakers Donald Segal Of Counsel  Segal McCambridge Singer & Mahoney, Ltd. Gary W. Ballesteros  Vice President-Law...
Today’s Agenda Investigating Product Safety Incidents Conclusion Questions Product Liability Legal Theories Some Key Conce...
Regardless of your company’s role,  you face risk from safety-related issues <ul><li>Industrial equipment and automation e...
Q: When will your liability risk go away?? <ul><li>A: </li></ul>Copyright © 2011 Rockwell Automation, Inc. All rights rese...
It Isn’t Just Lawsuits Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
You are here because…. <ul><li>You design & build safe products </li></ul><ul><li>You test, redesign, retest, redesign, et...
… .This is what you get Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
… Or you’re here because… <ul><li>You design a manufacturing process to protect your workers & contractors </li></ul><ul><...
… this is what you get! Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
… Or this! Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
… Or perhaps this! Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
Safety Hierarchy <ul><li>A consensus in the literature among safety professionals has identified the following hierarchy o...
Product Liability Legal Theories <ul><ul><li>NEGLIGENCE:  Did you fail to act as a reasonably prudent  person/plant operat...
Elements of Proof <ul><ul><li>That the defendant was in the business of selling a  product </li></ul></ul><ul><ul><ul><ul>...
Some Finer Points <ul><li>A strict liability claim requires physical injury to person or property other than the product i...
Defective Condition Unreasonably Dangerous <ul><li>Consumer Expectation Test :  Whether the product failed to perform as s...
“ Safer Alternative Design” <ul><li>A design which satisfies ALL of this: </li></ul><ul><ul><li>Prevents or significantly ...
Subsequent Remedial Measures <ul><li>Generally, actions taken after an accident to prevent future accidents may not be use...
Defenses <ul><li>Comparative Fault – looks at the fault of the injured party.  Also can involve contributory negligence an...
Possible Third-Party Action for Contribution <ul><li>This is an issue that arises in almost every product liability case i...
Our Practical Advice for Implementing a Safety Program:  #1 – Know the rules <ul><li>Because there often is no one single ...
Know that Standards Change/Evolve Copyright © 2011 Rockwell Automation, Inc. All rights reserved. Standards History - Warn...
Trend – From National to Global Copyright © 2011 Rockwell Automation, Inc. All rights reserved. 47 Other Nations’ National...
A note about Warnings <ul><li>Since every product liability case ultimately involves warning issues, some general guidelin...
#2 – Use the Team Approach <ul><li>Sales/Field personnel  –  user contact </li></ul><ul><li>Legal/Claims </li></ul><ul><li...
#3 – Perform Hazard Review/Analysis <ul><li>Conduct Hazard Analysis </li></ul><ul><ul><li>ANSI B155.1-2006 – a required pr...
#3 – Hazard Review/Analysis (cont’d) <ul><li>Review your product/process </li></ul><ul><ul><li>Identify hazards in normal ...
#3 – Hazard Review/Analysis (cont’d) <ul><li>Review literature </li></ul><ul><ul><li>Ads/brochures/manuals </li></ul></ul>...
#4 – Implement <ul><li>Implement your safety plan </li></ul><ul><li>Continually evaluate in light of: </li></ul><ul><ul><l...
Effective Communication Copyright © 2011 Rockwell Automation, Inc. All rights reserved. BE CONSISTENT!!
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Legal Considerations for Safety

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  • Legal Considerations for Safety

    1. 1. Legal Considerations for Safety Gary Ballesteros Vice President, Law Rockwell Automation Don Segal Segal McCambridge Singer & Mahoney
    2. 2. Today’s Speakers Donald Segal Of Counsel Segal McCambridge Singer & Mahoney, Ltd. Gary W. Ballesteros Vice President-Law Rockwell Automation, Inc Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
    3. 3. Today’s Agenda Investigating Product Safety Incidents Conclusion Questions Product Liability Legal Theories Some Key Concepts and Defenses Our Practical advice for Building a Product Safety Program Effective Communication and Document Retention Practices Introduction Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
    4. 4. Regardless of your company’s role, you face risk from safety-related issues <ul><li>Industrial equipment and automation exists in a wide variety of very dangerous applications, creating both hazards and risks. </li></ul><ul><li>Hazard : something that can injure or damage </li></ul><ul><li>Risk : the probability of encountering a hazard and receiving injury </li></ul>Copyright © 2011 Rockwell Automation, Inc. All rights reserved. WHERE MAN MEETS MACHINE OR PROCESS, HAZARDS CAN BE ENCOUNTERED AND RISK EXISTS
    5. 5. Q: When will your liability risk go away?? <ul><li>A: </li></ul>Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
    6. 6. It Isn’t Just Lawsuits Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
    7. 7. Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
    8. 8. You are here because…. <ul><li>You design & build safe products </li></ul><ul><li>You test, redesign, retest, redesign, etc </li></ul><ul><li>You adopt new and unique technologies to improve safety and performance </li></ul><ul><li>You provide detailed instructions on how to safely use your product </li></ul>Copyright © 2011 Rockwell Automation, Inc. All rights reserved. AND…
    9. 9. … .This is what you get Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
    10. 10. … Or you’re here because… <ul><li>You design a manufacturing process to protect your workers & contractors </li></ul><ul><li>You invest in the available technologies to provide a level of safety </li></ul><ul><li>You provide training (and follow up) </li></ul>Copyright © 2011 Rockwell Automation, Inc. All rights reserved. AND…
    11. 11. … this is what you get! Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
    12. 12. … Or this! Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
    13. 13. … Or perhaps this! Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
    14. 14. Safety Hierarchy <ul><li>A consensus in the literature among safety professionals has identified the following hierarchy of actions: </li></ul><ul><li>First Priority: Eliminate the hazard and/or risk </li></ul><ul><li>Second Priority: Apply safeguarding technologies </li></ul><ul><li>Third Priority: Use warning signs </li></ul><ul><li>Fourth Priority: Train and instruct </li></ul><ul><li>Fifth Priority: Prescribe personal protection equipment </li></ul>Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
    15. 15. Product Liability Legal Theories <ul><ul><li>NEGLIGENCE: Did you fail to act as a reasonably prudent person/plant operator/manufacturer/installer/repairer would have acted under the same or similar circumstances? </li></ul></ul><ul><ul><li>STRICT LIABILITY: The sole issue is whether a person has been injured by a product that was defective in design or manufacture (including warnings and instructions since those are considered to be part of the design and manufacturing process) and unreasonably dangerous when it left the manufacturer’s control. You may have been eminently reasonable, yet liable for a defect. </li></ul></ul><ul><ul><li>BREACH OF WARRANTY : This is a lesser applied theory but still available to an injured party. The focus is on whether the product conformed to representations made by the seller in writing, verbally, or implied by law. </li></ul></ul>Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
    16. 16. Elements of Proof <ul><ul><li>That the defendant was in the business of selling a product </li></ul></ul><ul><ul><ul><ul><li>What is a “product?” </li></ul></ul></ul></ul><ul><ul><li>That plaintiff’s injury or damage resulted from a condition of that product </li></ul></ul><ul><ul><li>That the condition was a defective and unreasonably dangerous one </li></ul></ul><ul><ul><li>That the condition existed at the time the product left the control of the defendant </li></ul></ul>Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
    17. 17. Some Finer Points <ul><li>A strict liability claim requires physical injury to person or property other than the product itself </li></ul><ul><li>“ Producing cause” or immediate cause of a person’s injury </li></ul><ul><li>Remember – design or manufacturing (including warnings) </li></ul>Copyright © 2011 Rockwell Automation, Inc. All rights reserved. States adopting strict product liability hold manufacturers, sellers and distributors of defective products strictly liable in tort for the injuries caused by their products
    18. 18. Defective Condition Unreasonably Dangerous <ul><li>Consumer Expectation Test : Whether the product failed to perform as safely as an ordinary consumer would expect. </li></ul><ul><li>Risk Utility Test : Whether the harm could have been avoided by adopting a reasonable alternative design, and on balance, the benefit of that design outweighs the risk. This test usually applies in cases involving more complex products. </li></ul><ul><li>A few courts (Illinois has done so since 2008) allow the parties to choose their approach. </li></ul>Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
    19. 19. “ Safer Alternative Design” <ul><li>A design which satisfies ALL of this: </li></ul><ul><ul><li>Prevents or significantly reduces the risk of injury </li></ul></ul><ul><ul><li>Does not substantially impair the product’s utility </li></ul></ul><ul><ul><li>Is not too expensive (economically feasible) </li></ul></ul><ul><ul><li>Is technologically feasible at the time the product left the [manufacturer’s] control by the application of existing or reasonably achievable scientific knowledge </li></ul></ul><ul><li>Often your current product is the evidence of safer design </li></ul>Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
    20. 20. Subsequent Remedial Measures <ul><li>Generally, actions taken after an accident to prevent future accidents may not be used against you as an admission of a defect. This is referred to as a &quot; subsequent remedial measure .&quot; The reason for this approach is because the law encourages manufacturers to constantly improve their products to make them safer. Evidence of any subsequent remedial measure may be admissible only for the purposes of proving ownership of the product or the feasibility of an alternative design. </li></ul>Copyright © 2011 Rockwell Automation, Inc. All rights reserved. Sometimes the law actually displays some common sense!
    21. 21. Defenses <ul><li>Comparative Fault – looks at the fault of the injured party. Also can involve contributory negligence and an objective &quot;reasonable man&quot; test. </li></ul><ul><li>Misuse - unforeseeable misuse of the product by the user or injured party. </li></ul><ul><li>Assumption of Risk – if the injured party “assumed the risk” the burden of proof is on the defense (called an affirmative defense) to show that the plaintiff was aware of the specific danger, appreciated the danger and still voluntarily acted. </li></ul><ul><li>Alteration – the product was modified by the end user. </li></ul><ul><li>Statutes of Limitation and Repose – it’s been too long since the injury occurred or the product was made. </li></ul><ul><li>Preemption – a state law claim may be barred due to federal law. </li></ul><ul><li>Distributor Statutes - allow a distributor to be dismissed from a lawsuit if it can be shown that the distributor did nothing to a product but act as a conduit between the manufacturer and the end user. </li></ul>Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
    22. 22. Possible Third-Party Action for Contribution <ul><li>This is an issue that arises in almost every product liability case involving injury at a worksite. </li></ul><ul><li>Although an employee's exclusive remedy against the employer for injuries while in the scope of employment is the state's Workers' Compensation Act, an employee is not precluded from suing a third party, such as a manufacturer. Oftentimes a manufacturer will then file a third-party action for contribution (i.e., seeking to have another party held at least partially responsible for any settlement or judgment) against an employer. The grounds usually are for modification or alteration to the product after it leaves the possession of the manufacturer and/or the failure of the employer to properly instruct or train the employee which contributes to any injury. Needless to say, this is a sensitive area because it involves a potential adversarial situation between the manufacturer and its customer. </li></ul>Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
    23. 23. Our Practical Advice for Implementing a Safety Program: #1 – Know the rules <ul><li>Because there often is no one single set of rules – even knowing what rules apply can be difficult. What law applies? </li></ul><ul><ul><li>Where your plants are located? </li></ul></ul><ul><ul><li>Where you ship your products? </li></ul></ul><ul><ul><li>Where your product is likely to be found or was used? </li></ul></ul><ul><li>Therefore applicable standards governing your product are a key part of every product liability case since standards are probative of the conduct of a &quot;reasonable man&quot; under the circumstances. </li></ul>Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
    24. 24. Know that Standards Change/Evolve Copyright © 2011 Rockwell Automation, Inc. All rights reserved. Standards History - Warnings
    25. 25. Trend – From National to Global Copyright © 2011 Rockwell Automation, Inc. All rights reserved. 47 Other Nations’ National Bodies
    26. 26. A note about Warnings <ul><li>Since every product liability case ultimately involves warning issues, some general guidelines are helpful. </li></ul><ul><li>The goal of a warning sign is to enhance safety by modifying human behavior to reduce the severity or frequency of injuries. This is by either eliminating the danger or safeguarding it. It must be realized that sometimes safety information is extensive and warning signs are not adequate. Therefore, those issues must be covered in company manuals or training. The use of specialists in the area of warnings should be considered, especially since ergonomic research has determined the most desirable colors and color combinations, warning label shapes, word content of the labels, importance of avoiding &quot;cluttering&quot; and placement of the labels on the product so that it conveys the necessary information. </li></ul>Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
    27. 27. #2 – Use the Team Approach <ul><li>Sales/Field personnel – user contact </li></ul><ul><li>Legal/Claims </li></ul><ul><li>Product Quality </li></ul><ul><li>Supply/Procurement </li></ul>Copyright © 2011 Rockwell Automation, Inc. All rights reserved. <ul><li>It’s not just the Product Safety Group! </li></ul><ul><li>Safety/Environmental </li></ul><ul><li>Engineers/Designers </li></ul><ul><li>Experts (Human Factors/Warnings) </li></ul><ul><ul><li>It is essential to get an expert involved as early as possible once it is determined that litigation is imminent. </li></ul></ul>
    28. 28. #3 – Perform Hazard Review/Analysis <ul><li>Conduct Hazard Analysis </li></ul><ul><ul><li>ANSI B155.1-2006 – a required process for certain machines </li></ul></ul><ul><ul><li>Design History of product </li></ul></ul><ul><ul><li>Identify potential risks/hazards </li></ul></ul><ul><ul><ul><li>NOTE: There has to be major emphasis on guarding at areas of the product which have risks and hazards which cannot be avoided. Almost every product liability case involves guarding since many hazards cannot be designed out of the equipment. </li></ul></ul></ul><ul><ul><li>Demographics of target audience </li></ul></ul><ul><ul><li>Field experience is crucial </li></ul></ul><ul><ul><li>Fault trees/FMEA </li></ul></ul><ul><li>Industry/Competitor info </li></ul><ul><ul><li>They are not necessarily compliant! </li></ul></ul>Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
    29. 29. #3 – Hazard Review/Analysis (cont’d) <ul><li>Review your product/process </li></ul><ul><ul><li>Identify hazards in normal use </li></ul></ul><ul><ul><li>Identify hazards from foreseeable misuse </li></ul></ul><ul><ul><li>Identify hazards from known and foreseeable modifications </li></ul></ul><ul><li>Conduct Regulatory Review </li></ul><ul><ul><li>Government Agencies – OSHA, etc </li></ul></ul><ul><ul><li>Trades/Standards Organizations </li></ul></ul><ul><ul><li>European Union directives </li></ul></ul><ul><ul><li>Local laws </li></ul></ul>Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
    30. 30. #3 – Hazard Review/Analysis (cont’d) <ul><li>Review literature </li></ul><ul><ul><li>Ads/brochures/manuals </li></ul></ul><ul><ul><li>Packaging/labels </li></ul></ul><ul><ul><li>Website </li></ul></ul><ul><ul><li>Minutes, memos, studies </li></ul></ul><ul><li>Review Litigation History </li></ul><ul><ul><li>Arguments against product </li></ul></ul><ul><ul><li>Defensibility of your beliefs </li></ul></ul><ul><ul><li>Identify adverse experts </li></ul></ul><ul><ul><li>Successes/failures </li></ul></ul>Copyright © 2011 Rockwell Automation, Inc. All rights reserved. It is guaranteed that the plaintiff's attorney and expert will look at all the literature and litigation history with a magnifying glass. Ultimately a jury will be looking at that literature in a courtroom &quot;blow-up“.
    31. 31. #4 – Implement <ul><li>Implement your safety plan </li></ul><ul><li>Continually evaluate in light of: </li></ul><ul><ul><li>Technological advances </li></ul></ul><ul><ul><li>Product/process improvement </li></ul></ul><ul><ul><li>Additional uses/misuses discovered </li></ul></ul><ul><ul><li>claims/loss experience </li></ul></ul><ul><li>Don ’ t let your work gather dust!! </li></ul><ul><ul><li>Update, Update, Update </li></ul></ul><ul><li>DOCUMENT YOUR EFFORT (more on this to come … ) </li></ul>Copyright © 2011 Rockwell Automation, Inc. All rights reserved.
    32. 32. Effective Communication Copyright © 2011 Rockwell Automation, Inc. All rights reserved. BE CONSISTENT!!
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