The Products Liability Option

John is a line foreman at a plant. One day, when something got stuck in one of the machines, he tried to dislodge whatever was jamming it. The machine was not turned off, and John had to take off the chute, which was acting as a guard. When he put his hand inside, it was forced between two rollers, and his fingers were crushed. Later, an Occupational Safety and Health Administration (OSHA) investigator examined the scene and cited the employer for failing to have a procedure in place that would have required the machine to be turned off before any work was done on it.

Robyn GoldenbergJohn comes to you for help. Since OSHA blamed the employer, and workers’ compensation laws prevent recovery against the employer, do you have any type of third-party case? If the machine was defective because it lacked a necessary safety feature, yes.

Ask John what caused his injuries: What equipment was he using, and how did the accident happen? Ask about any modifications that coworkers or the employer had made to the machine. After John’s accident, was anything taken away or added?

Often, when someone is injured by a product at work, the product lacks an important safety feature. It’s your job to determine whether that was true in your client’s situation. John’s case involves common defects: a removable guard and the lack of an interlocked device that shuts the machine off or prevents it from being turned on or operated when the guard is removed. Other typical examples of product defects in the work place include the following:

  • A scaffold does not have guardrails.
  • A piece of equipment lacks a pressure-release valve, which allows steam to build up
  • to explosive levels.
  • A forklift does not have an audible or visible alarm.
  • A scissor lift lacks a pothole protection safety device, allowing it to tip over easily.

Most products liability cases, including those that arise from workplace accidents, are a hybrid of design-defect and failure-to-warn claims. But other theories may be relevant.

Design defect. In such a case, the product is unreasonably dangerous, and the design contains a hazard that existing technology could feasibly make safer. The principles of safe product design are as follows:

  • Eliminate the hazard from the product-“design out” the defect.
  • If that cannot be accomplished, incorporate safety devices, such as guards and
  • Provide warning devices.

Look to the marketplace for alternative designs. Does a similar product have a different safety feature? Or does the product manufacturer sell an alternative design as an option? For example, most scaffold manufacturers offer guardrails as an option. They are not included when you purchase the scaffold, even though the manufacturer knows that users fall off scaffolds without guardrails and get injured.

Manufacturing defect. A product may be unreasonably dangerous due to a defect or flaw in the process or materials used to create, assemble, or construct the product. The product does not work as it should or was not manufactured to its intended specifications.

Lack of warning. These cases are based on the argument that one of the known and anticipated dangers of the product was not warned about. In some cases, there was no warning at all; in others, a warning was in a location, color, or size that was not visible to the user, or the language of the warning was inadequate to clearly convey the hazard. Warnings cases usually require a human factors expert.

A word of caution: If your client never read the existing warnings or instructions, you will have a hard time arguing that he or she would have read them if the manufacturer had given better ones, However, some jurisdictions have a heeding presumption that requires the fact finder to assume that had a warning been given, it would have been understood and followed.

Malfunction. A fourth, hybrid cause of action is the malfunction theory, which often is viable when the product no longer exists or when it did not work as it was designed to. This theory permits a plaintiff to use circumstantial evidence to prove the product is defective. The plaintiff does not have to demonstrate the precise defect, as long as there is no evidence of abnormal use or reasonable secondary causes of the injury.

For example, one woman was injured when she cut her hand on a drink and bottle manufacturer’s product while removing glass bottles of soda from their plastic six-pack containers and placing them in a store’s cooler. The plaintiff’s employer disposed of the evidence.

The court found that the plaintiff was able to present a case through circumstantial evidence and concluded that under the malfunction theory, she could proceed to trial. Since the bottle was obviously broken at some point before it was removed from the box, the jury could find that the bottle was in a defective condition.

In another example of the malfunction theory, someone was sitting on a chair, the back of which broke, causing injuries to the plaintiff. The plaintiff did not need to prove a specific defect but could argue that since the chair was not used abnormally, something had to be defective for it to have broken.

Product cases can be complicated by the circumstances of the particular workplace and the facts of the particular accident. For example, if the plaintiff did not use the product as it was intended, the defendant can argue that he or she misused the product and can rebut issues of defect or causation.

A defendant raising the assumption of-risk defense must prove the plaintiff took a known risk voluntarily. But if the plaintiff must face the risk or lose his or her job, the assumption-of-risk defense may not apply.

Some states allow comparative negligence as a defense to a strict liability cause of action. Negligence on the part of the plaintiff or his or her coworkers may bar or limit recovery.


As in any case, detailed investigation is crucial if you are to assemble the proof you need. Follow these essential steps.

Preservation. Try to take possession of the product, even if this means buying the employer a new version of what you are taking. Obviously, with large machines and equipment, this may not be possible, so send a letter to the employer or whoever possesses the product and instruct them not to destroy it. Inform them that if they do, they may be faced with a spoliation charge.

If you are concerned that a nonparty may ignore this preservation letter, follow your state’s rules about precomplaint discovery. You may need to file suit against this party (if you are not able to identify the seller or manufacturer) and then file a motion requesting permission to enter the defendant’s property to inspect the product.

Inspection. It is important to inspect the product and its environment as soon as possible to see how it functions and what, if any, warnings are on it. Unless the product will be altered or destroyed, you do not need to tell the manufacturer that you are inspecting it.

Bring an expert. Sometimes you get only one chance to inspect the product; if you show up without an expert, you may not be able to get back to the product. Take photographs and video if possible. Do whatever you can to document evidence from the equipment and the site.

The right expert. For a design defect case, you most often need a mechanical engineer and possibly a biomechanical engineer. The latter may be necessary to show that the defective design caused the injury and that an alternative design would have eliminated the mechanism of injury, preventing the accident. You may also need other experts, depending on the case. For example, you may need a metallurgist for a manufacturing defect case or a human factors expert in a failure-to-warn case.

Manuals, repair invoices, service records, bills, and installation information. You need to get this information on the product from the employer to identify the appropriate parties. Sometimes employers will be helpful and supply a plethora of information because they understand that they cannot be sued. If they are not helpful, contact the workers’ compensation or subrogation adjuster for assistance in getting the information you need from the employer. Adjusters understand that it is in their best interest to help you because if you are able to recover under a third-party theory, their lien will be reimbursed accordingly.

Often, employers will not give you this information, so do whatever is necessary to get this precomplaint discovery. It will be the most useful in ascertaining whether any of the potential defendants is an in-state resident.

Before filing the case, you should identify the manufacturer, seller, distributor, and any entities that performed maintenance or repair on the product. Make sure you identify the product’s serial and model numbers as well.

Research. The best design cases are those where alternative designs already exist in the industry, so make sure you research thoroughly. Use the Internet and visit product and manufacturer Web sites. Manufacturers often have product, parts, and operator’s manuals for the product at issue and similar ones on their sites. Many offer the exact theory you are proposing as an option or an accessory. For example, a scaffold manufacturer will offer guardrails as an option but not as a standard feature of the product.

Do not rely solely on your expert to suggest alternative designs. Have your own ideas, and be prepared to challenge your expert’s suggestions. If you are in federal court and your experts have to survive Daubert challenges, you should start interrogating them about their design and methodology from the beginning. You can also look for other attorneys who have brought similar cases against the defendant. 12

Subrogation file. Sometimes, the workers’ compensation insurance company will do its own investigation into the accident to determine whether there is a third-party claim. This investigation may or may not be helpful, depending on whom it hired to look at the product, whether it took statements from witnesses, and what it concluded.

If the expert it hired is not the right type of expert or experienced enough, the investigation may not be helpful. This expert may not have thought of theories that your expert would recommend. He or she may conclude that there is no products liability case, when you think there is one, or may blame only the employer. The result is a potentially discoverable report saying the product is not defective when your expert thinks it is.

Immediately after an accident, many employers gear into defense mode, either to protect themselves from direct liability, if your state allows it, or to cover themselves from potential OSHA liability. Witnesses’ statements may be biased or leave out relevant details.

For example, say you have a case where your client fell off a scaffold that did not have guardrails. The subrogation carrier hires an expert who says that the scaffold was not defective and guardrails were not required, because it complied with OSHA. Your expert looks at it and says that guardrails should be used at all heights, regardless of OSHA’s requirements. You are now in a difficult position because the adjuster’s expert’s report contradicts your theory.

Another potential problem arises when the workers’ compensation adjuster or investigator goes to the scene without an expert and tries to determine what happened. He or she then writes a report blaming only the employer but does not have enough experience or the right qualifications to even consider a products case.

Be alert to the potential for these reports, although it is rare for a workers’ compensation carrier to hire an expert to do a report, especially if you are involved in the case early on. Make sure you send a letter to the subrogation or compensation adjusters requesting their files so that they know you are involved and should they take no further action.

As a word of caution, the subrogation file is not the same as the workers’ compensation file. If you simply request the workers’ compensation file, you will get only medical information. Most carriers have a different address and phone number for their subrogation department.

If you do not have that information, ask the workers’ compensation adjuster for it. The subrogation information may give you access to photos, statements, and expert reports. The subrogation adjuster may also be able to help you get access to an unresponsive employer. For example, suppose your client fell out of a lift at work when it collapsed. You have tried diligently to contact your client’s employer to gain access to the product, but the company is unresponsive. You contact the subrogation adjuster, who has direct contact with the employer, and within days, you are e-mailed photographs of the product and are given a day for the inspection.

OSHA and other accident reports. OSHA is responsible for setting and enforcing safety and health standards in ‘the workplace, so its citations usually focus on the employer’s wrongs. Nevertheless, the agency can help you with theories of liability that you can impute from the employer to the manufacturer.

For example, with regard to John’s injury from putting his hand in .the machine while it was on: OSHA cited the employer for failing to have the proper lockout/ tagout procedure in place. When an employer is cited for this type of safety violation and a product is involved, you should investigate whether the product has the appropriate interlocks.

You will need to make a Freedom of Information Act (FOIA) request to get records of OSHA’s investigation. You can also check the agency’s Web site to see which standards and citations apply as well as research current and previous citations against the employer.13

It is important to get all accident reports from the employer, other contractors on site, and any entities that responded to the accident, such as the police, fire department, or ambulance service. These reports may contain photographs, statements, and product identification information.

The employer’s and manufacturer’s actions. Analyze what the employer did before and after the accident. Did it remove a guard or otherwise alter the machine before the accident? Although removing a guard is not the best scenario, it may not be an obstacle, because you can argue that the guard should have had an interlock so that it could not be removed.

Did the employer add a guard after the accident? Depending on the defendant’s testimony, this addition may be admissible as a subsequent remedial measure. Typically, subsequent remedial measures by a party are admissible only to address feasibility, ownership, or control. However, when it is the employer and not a party who made the change, evidence of this change is admissible.14 When an employer makes a subsequent remedial measure, it may be admissible regardless of issues of feasibility.

Find out whether the manufacturer made any changes to the product since the model involved in the accident was manufactured. Check newer designs (usually, the model number changes with each iteration) to see if they have features that would have prevented your client’s injury and were technologically feasible before your product was manufactured. Your expert can address whether your alternative design would have been technologically feasible at the time of manufacture. The defendant’s corporate designee will also be able to address these issues. Finally, Internet research or a search of patents will be helpful to determine whether your alternative design was technologically feasible at the time of manufacture.

Recalls. Several government agency Web sites can tell you whether the product in question has been recalled. The Consumer Product Safety Commission keeps these records.15 Once you determine the product has been recalled, make a FOIA request for records related to the recall or product.

The U.S. Chemical Safety and Hazard Investigation Board conducts detailed research and reconstruction into chemical-fueled explosions and other accidents.16 You will also need to make a FO IA request for this information.

Keep on top of these agencies to make sure you get what you need from FOIA requests. Most-if not all-do not keep evidence. They return it to either the owner or the police. If the agency investigation is over, follow up with the employer for the evidence.

Witnesses. Since most witnesses are coworkers, try to talk to them as soon as possible about what happened. Employees often relocate and may be difficult to track down once the case is filed, so make sure to get their addresses and cell phone numbers. If you think that a helpful coworker may be hard to locate later, take a statement from him or her.

Industry standards. Review industry standards in your investigation. Some helpful standards applicable to products are available from the American National Standards Institute, the National Safety Council, the American Society for Testing and Materials, and the American Society of Mechanical Engineers.

Some standards are advisory, but most product corporate designees will tell you their companies comply with them. In some states, evidence of compliance with industry standards is admissible to refute a claim of defect.17 In other states, this evidence is inadmissible in a strict liability case.18 Regardless, the standards can help you determine what may be defective about the design and whether other feasible alternative designs exist.

Every workplace accident that involves a product should be reviewed to determine whether there is a potential products liability cause of action. If you investigate thoroughly and build a third party products case, you may be able to get the recovery that an injured worker needs to rebuild his or her life-and hold accountable those responsible for unsafe products in the workplace.

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