By Joe Feeley
In a wide-ranging discussion of product liability issues facing U.S. manufacturers, Gary Ballesteros, vice president, law, Rockwell Automation, and Don Segal, attorney at law, Segal, McCambridge, Singer and Mahoney, had the clear attention of most of the members of a diverse audience well-represented by manufacturers, machine builders and distributors.
In this Monday afternoon technical session at Rockwell Automation's Safety Automation Forum, the lawyers discussed "Top Legalities Impacting Safety Automation." This is about where man meets machine, Ballesteros began. "Where that happens we have a potential for hazard and a risk that someone's going to be injured."
The presenters explained to the audience that a consensus in the literature among safety professionals has identified the following hierarchy of actions as critical to reducing product liability risks:
1st Priority: Eliminate the hazard and/or risk.
2nd Priority: Apply safeguarding technologies.
3rd Priority: Use warning signs.
4th Priority: Train and instruct.
5th Priority: Prescribe personal protection equipment.
Segal and Ballesteros also stressed the point that this issue can be about far more than just legal liability and paying damages. "These product liability things are very injuring to business reputations," Ballesteros reminded. "Even if you don't have to write a big check at the end of the day, the damage to company reputation is on the line."
Segal and Ballesteros offered four key points of advice on how to minimize the risks of product liability and tried to answer questions of "How do we avoid this morass? How do we build products better?" Ballesteros said.
Number one, know the rules about how you build your products and how you build them safely and comply with standards. "It's tricky, particularly here in the United States, because there are issues about what sorts of rules apply," Ballesteros admitted. "So one common denominator that is effective is to follow the engineering standards associated with machine building and product manufacturing."
Ballesteros reminded the audience, many of whom identified themselves as engineers, that the law knows who knows about these issues the best. "The law follows you engineers on this," he said. "I can't think of any state that hasn't incorporated the National Electrical Code as law. Engineering standards are critical, even if not expressly adopted as the law, as elements of proof that your product is not defective if you followed the standards."
He recognized that standards change and evolve, so it's incumbent to try to follow the changes in standards applicable to your area.
A question from the audience summed up one of the dilemmas here. "I have machines in the field, built to standards at the time, and grandfathered in as okay. But the standard—and our designs moving forward—changed for the better. Are you liable for everything that's out there?"
This issue, said the lawyers, can demonstrate that "Sometimes the law actually displays some common sense!"
"It often fits the criteria for making what's known as 'subsequent remedial measures' that the courts recognize as a well-intended improvement, and "can't be used to prove what I did before was wrong," Ballesteros said. "If the law of common sense says it's the right thing to do today, and even if you implement it only partially because it's not economically feasible to do it all, how can that be a bad thing?"
Warning is also a key element in knowing the rules to follow. "There's not a product liability case out there in which the issue of warnings doesn't come up," Ballesteros said. "It's an area where you want to have good expert advice."
If you want to show a jury or the general public that, in addition to all the appropriate design measures you take, warnings are critical. "You don't want to over-warn because it scares people away," Segal cautioned. "You can't make it too busy because then people aren't going to read it. You want to make references to the operating manual for complete understanding of the hazard."
Reinforcing the need for expert help, Ballesteros added that "It's 'Goldilocks and the three Bears' advice. Not too much, not too little; you have to get it just right."
The second piece of practical advice is that product safety at all stages requires a team approach. "Some companies think if you have a product safety group, then that's who's responsible for designing safety in and getting products safely to market, and you're done," Ballesteros stated. "I think that's a fallacy. What we've found internally at Rockwell Automation is that it requires the inputs of internal and external experts. If there's a problem in the field, you run down the list of people who have interfaced with that product, be it the sales personnel involved, warranty and claims folks, legal. Don't isolate the problem to one element in your organization."
Ballesteros further identified a laundry list of due diligence to-dos that help make hazard analysis thorough. One of those items is a double-edged sword. "We certainly look at what our competitors do, but my word of advice to you is don't assume that they are smarter than you. It's a useful touch point, that's all."
The fourth bullet of practical advice involves implementation. "Once you do a hazard analysis, and because the law does support the implementation of subsequent design improvements without fear of that action being held against you, feel encouraged to continue to re-evaluate design. Don't let it gather dust. Update it from time to time as new technology comes out."