Litigating Failure to Warn Claims in Product Liability Cases

[00:00:07]good afternoon and welcome to today's presentation litigating a failure to warn claim and product liability and personal injury cases the information presented by the expert is not to be used as legal advice and does not indicate a working relationship with the experts in today's webinar dr. Garry goldhaber will discuss legal versus practical definition of the warning when a warning is needed legal requirements of a warning process of creating or evaluating a warning samples of effective warnings and wacky warnings different perspectives on litigating a failure to warn claim to give you a little background about our presenter dr. Gerald M goldhaber has been the nation's leading safety warning and communications expert for more than 42 years dr. Goldhamer has been the subject of dozens of interviews by leading networks newspapers and magazines and has designed warnings for dozens of consumer and industrial products he is also the instructor of the official digital course of warnings and safety communications or the National Association of continuing legal education dr. goldhaber has testified and consulted for lawyers presenting corporations or injured parties in over 1,000 lawsuits since 1978 and is currently seeing a VN excuse me CNN's chief analyst for issues dealing with warning or safety communications he's written 11 books including this month's bestseller Murder Inc how unregulated industry kills or injures thousands of Americans every year and what you can do about it you can also find jerry on his youtube channel gary volt haber the mornings doctor and his podcast mornings doctor attending to require a passcode today the word is liability during the Q&A session we add that you enter this passcode into the Q&A widget for Cle reporting purposes the Q&A is located to the left of your screen please remember that if you are applying for CLE credit you must log on to your computer as yourself and stay for the full 60 minutes you are also required to complete the survey at the end of the program please note that CLE credit cannot be given to those watching together on a single computer dr. Paul Hebert the presentation is now turned over to you thank you very much Raja and I want to give a personal welcome teaching every one of you I understand we have approximately 300 people in the audience and thanks to the work of Tasha and Naja Edmondson here I think that their all-time record I was told given the coronavirus situation I hope that each and every one of you is staying safe and staying healthy for you and your families because that's a lot more important than anything else right now is our health so I want to wish each and every one or do a safe journey for this and recognize one thing we will get through it we will get through it together and remember there's a we here and not at me and we will all get through this together I'd like to talk to you today about how you litigate a failure to warn claim in personal injury or product liability cases I could go to the next slide I'm going to be first of all talking to you you can skip the bio on me plenty of time to read that and Nigel's already told you what I'm going to get at so let's go right to the first part about it legal versus practical definition of a warning first and foremost we have to know what it is a warning but as I say here along is a message it's a form of communication and it tells product users consumers about any danger that maybe associated with the product or how you use a product that's the key part it's about a danger that you might be confronting when you buy or use any product and in my book I talk about the various settings where you would have this danger or these dangers whether it's at home at work at play traveling communicating with your residing at home or whether you're healing from a healthcare situation virtually every aspect of our lives we confront product dangers and that's really what a warning is now at a practical level if I can see the next slide at a practical level a warning is basically a form of communication that tells you about the danger and one that it tells you the consequences so what if the third rail is electrocuted is electrifying what can happen to me well let's open it obvious pretty much the consequences are to be electrocuted and die so what are the consequences that can come from being exposed to the danger and most importantly and this is very relevant in today's Cove in 1900 Rena what can we do or not do to avoid these consequences I want to take a side note and say one thing I've been saying in my podcast the warnings doctor I have never seen in my life a greater and healings - warnings than I have with the Coburg 19 the literature shows us that about 20 to 30 percent people fall warnings depending on the sex of the person depending on their experience depending on how dangerous they think the situation is and so on this is over 92 percent the poles it will be believed that people are actually following what we call the instructions the instructions of what we need to do or not do to avoid the consequences of the danger there's confronting us let's go to the next slide so that's a what a warning is now that I told you what a warning is the question comes up when do you need to warn but you need to learn and this is a legal term forseeable versus unforeseeable foreseeable means that you the manufacturer would know you're in the best position to know whether or not your product can be harmful to the user there may be a danger that you can predict oftentimes my clients will if there are the corporations and I work both sides for personal injury lawyers and defense lawyers quite corporation will sometimes say me Jerry this is the best products and Swiss cheese and I say well I'm not eating Swiss cheese these days so we're not going to leave this rub until you tell me how things can go wrong what can happen I was with my son mark when we were on our way to visit the Nader Museum in Connecticut we stopped at a diner which is really a greasy spoon and the only person in there by coincidence happened to be one of the senior leaders of the I Triple E the largest trade group in the world the international electrical engineer Association and by coincidence he was talking to me about a global initiative which they invited me to join which is basically a very simple message to corporations before you market your product would you mind taking a moment and go on pause and ask yourself how can somebody get hurt by being exposed to this product before you actually manufacture and market the product right after the design stage can we pull up eyes and ask the question what can go wrong and that's basically what I'm asking here do a pause ask yourself what can go wrong let's go to the next slide place and the next question I have is you do do you or don't you know about these dangers now you're the manufacturer you go to the next slide you're the one that should know nor so than anybody else because you made the product now the question now is if you know it because you're using on an icy sharp I'll show you later on my great staff found me a nice like product that actually had a warning on it but law schools have taught for years that the knife is the classic example of the open an obvious hazard for which a warning is not needed most the time however the danger is not known or obvious to the product user next slide please and so what you have now is called a hidden hazard I boil it all down to two words you need to warn when you have a hidden hazard a hidden hazard or something you the manufacturer know about but don't assume next slide please the consumer would know about and that's a hidden hazard now the question in courts are lies an expert witness we have to work within the court of law and the courts have argued that the adequacy of a warning is determined by the judge or the jury the fact-finder now we go to the next slide most courts tend to accept the following kinds of criteria one is is the danger or the hazard clearly communicated the only word is the hazard understandable by the user at the moment they buy or use the product next slide this is very simple I believe in fewest words possible one of my sample warnings I'll show in a few minutes there's a diving warning that I designed for most polls around the United States the hazard is very simple two words shallow water but I have to communicate it clearly and efficiently next we have to tell people what the consequences are now sometimes people look at a warning and say oh just the stop sign that's good enough well anybody's got two speeding tickets we've gone through a stop sign knows it's not good enough because you need to tell people and the research backs this up that you need to tell people what the consequences are for being exposed to the hazard what can happen to you we see so many warnings in society that we really need to know what can really happen with this coronavirus at the very beginning a lot of people I'm not being political here but a lot of people said oh it's just like the flu and they weren't really talking about the real consequences of a novel virus that could cause death to those particularly pre-existing conditions who might get exposed you may not do that especially to get a flu shot so we now have to apply this to the products that we buy or use if you know that it's shallow water what can actually happen to you if you're exposed to that I say diving or falling into shallow water but what are the consequences and you have to tell people how they can get hurt what specifically can happen to them next slide as a result of being exposed to the hazard in the bagging case paralysis is the consequence and I said earlier a good warning has to tell you what to do or not do to avoid the consequences and to avoid exposure the hazard what do we need to do right keep it there everybody's mine the elephant in the world is you should shelter in place that's why we have pre are people watching this or listening to her because you're sheltering in place and I guess I'm filling an hour for you today about what the user needs to do or not do to avoid the consequences we call this the instructional component and that is important to part of the warning as knowing what the hazard is next slide please now the courts have said that a warning has to be visible you have to it doesn't matter if you have a warning on a product and nobody sees it because the prints too small I had a client who put a warning on a product but then they buried it when the marketing people got a hold of the warning they decided to put ads on the product and ads competed for Miley real estate location for the warning so by warning up buried with the end the warning has to be conspicuous you can't play the game of hide and seek I know that some people like to do hide and seek as a corporate strategy that's not good enough it's going to bite you it shouldn't have to happen I thought I should back up wait a warning on a product is good for business in my book I actually did the research and found that there's a trillion and a half dollars spent mitigating products liability litigation every year price level personal injury litigation with the cost of litigation and the cost of settlements exceeds a trillion and a half dollars annually now that money could be put to a lot better use lawyers you may not like what I'm about to say but in a graduate will happen overnight but if you take the the amount of money that we're spending on litigation and just make our products better and make them safer to take money and expand poorer people more money go into new areas of business so it's good business go warn and if you want to do your clients justice make them see the light and put good warnings on their products but we need to make sure that the warning isn't hidden there's a lot of tools in our toolbox we use bright colors we have larger font and borders large letters and boldface we use pictures by the way pictures are important because somewhere between 35 and 45 percent of America is either functionally or totally illiterate that statistic may be alarming but it's actually true if you take the low end about a third of America's eyes are functionally or totally illiterate the difference is a functional illiterate can read the words but not know what they mean totally illiterate can't read the words and this is why pictograms are so important so important signal words are very important as well now I think my hypothesis there's two why 92% of people's the polls are accurate are sheltering in place and following the instructions and to hopefully flatten the curve here we my research showed 30 years ago that the only simple word that actually had a meaningful difference was not caution not warning and not even danger in many cases we had to get into lethal or deadly and it's my hypothesis that because the coronavirus is perceived as so lethal and deadly and contagious that people aren't paying attention next slide please now I told you what a warning is it's a safety message it has basically a signal word and instructional a hazard and a consequence statement and four components it has to be conspicuously communicated to the audience so that they have a good chance of seeing it at the time of purchase or use that's the basis of what a warning is and you learn when the hazard is hid you warn I had a client once who told me they wanted me to handle a bunch of cases it had to do with the motorcycle kickstand and the kickstand was apparently not being brought up and people were falling and getting injured I didn't ride a motorcycle but I asked the question how hidden or open and obvious is this hazard well one way to find out would have been to do a national survey of people who have motorcycles and find out they're aware of this unfortunately the client didn't want to do it he just wanted me as an expert circuit feet audience wouldn't know and would be a hidden hazard I wasn't quite ready to take that on so one thing we have to be sure about is that we have evidence that the hazard is hidden sometimes the open and obvious isn't so open and it isn't so obvious I'm reminded I'll share with you what I wrote about the McDonald's hot coffee suit I wasn't involved directly in that suit my company which had among its divisions a marketing opinion research division we had a contract with McDonald's and one of the things we did was a bunch of focus groups around the United States and one of the things we found was people complain that the coffee wasn't hot enough so McDonald's look at our data and everybody and other people's data that they were collecting and they decided to calculate the temperature they need for the average commute time from the time you picked a cup of coffee up to the time to get to work nationally was about twelve and a half minutes so they determine what temperature they'd have to make the coffee heated to and to get it that hot and when you got to work as it was when your body that turned out to be about 30 degrees hotter than the industry average Ralph Nader has an excellent display in his torts museum in Connecticut we explained this whole thing the woman in Bob was still leaving she was an 82 year old sweet grandmother whose grandson was driving through a drive-through at McDonald's in Albuquerque New Mexico now the comedian's made a feel bad on her being the poster girl for silly lawsuits claiming everybody knows coffee five and they said grandson drove through gunned it and the coffee went flying that didn't happen the facts added the grandson pulled over to the parking lot because Stella had a little shake in her hand and she wanted to put the cream and sugar in and she so he pulled over in the parking lot shopping engine the pickup truck was stationary when she spilled the coffee because her hand was shaking quantum line was how hot his height was the question how hazardous was this product if you asked the question is coffee hutch or people say it's right if you look at McDonald's cup today they still haven't put a warning on it just says crashing Hut and by the way about hide-and-seek if you get that warning and you can see it send me a note because I got it I went over to McDonald's to look at it it's yellow print on a white background or white print on an orange background light orange orange yellow if I had to pick two colors that wouldn't match those of you the ones so it's absolutely hide-and-seek on just the words caution Hut but the question is is the consequence clearly understood and this comes to my theory of how hot is hot nobody knew that there were 700 Stella lyrics before this one that means 700 Nader's people told me there was 700 Stella's before this form meaning 700 lawsuits before this one but they all settled with an NBA whereas you know that non-disclosure agreement and nobody knew about it let alone this Consumer Product Safety Commission is supposed to regulate so McDonald's goes on its merry way even to this day they haven't put a warning on that their temperature is 30 degrees higher than the average so when I say consequences I want to be sure you understand what that so that's what a warning is that's what the components of a warning are and that's when you're supposed to want well second phase of this presentation is how do you actually create a warning and then how do you evaluate it the three step process please next one first step is basically to look at and I'll get to the history of warnings in a second if so look at the information about the product and its hazard we need to find out whether we need to have a warning law if you look at this slide it basically says that whether you're considering the literature of warnings or the standards dealing with what you need to do to have a good warning or federal regulations or even the existence of warnings it's basically a lot of it's happened in the last 30 to 40 years next slide please it's a relatively new phenomenon so whether or not we're looking at the warnings literature you can skip to the next one you can see that this is on the last 20 30 40 years whether it's professional standards from organizations like ASTM or ANSI or the ISO international standards organization next stair slide please and whether you look at the actual federal regulations there's next slide be CPSC or OSHA or Nitsa you'll find that it's all happening and even companies making prior warning it just kind of exploded in the 80s and 90s next slide please but what are we doing we're trying to figure out whether we need to warn that's phase one do we need a warning so there's a number of things I want to know before I can give you an answer if you brought me into your room and said Jerry should I have a warning on a product I got a phone call from somebody in Colorado a couple weeks ago and he's got a product I don't want to go into it because it's confidential but his product may have a chemical in it that he's not sure if that chemical may cause cancer so I'm doing some homework and we're finding out we're doing a hazard analysis and we're asking him in his marketing and his engineering design people as he had any engine is he had any injuries as a record of data if you're dealing with a drug is what we call it the FDA VAERS adverse event reports which is the Consumer Product Safety Commission they keep a record mr. King so reckon s if people don't settle it or keep a nondisclosure agreement and don't report the data now technically you're supposed to report injuries now everybody does I with the prior claims I look to complaints there's a lot of data I'm interested in and if it's a clean slate and we don't well then we don't know next slide please so one of the ingredients I'm looking for is to conduct a hazard analysis to determine what the hazard is and what is the evidence of the hazard the next thing I look for is I'm not proud state of the art who are your competitors when I was designing the warnings Perot and his public for Owens Corning fiberglass wool insulation having to do with inhalation hazards exposure to the people who install a fiberglass wool insulation for a living this is not to you and me maybe do it once or twice in our lives but the person who does it every every day does several a day now what is the hazard it was something to do with inhaling the fiberglass school fire nickels and my one of my questions was who owens-corning who are your competitors well it turned out Johns Manville certainty was another competitor and I was very interested in what they warned about if they did well they did turned out they have any warning so I am interested in looking and see if a competitor has warnings because we should definitely learn from what else is out there what I want to make sure my clients have is the best warnings I don't want to be out there in front of a quarter or a deposition buddy hold up somebody else's warning and say that this morning was better than the one I designed next slide please so in addition to the competitor analysis and the hazard analysis I want to know if the federal government or any standards organizations have had anything to say about warnings now they may have plenty of standards about the design of a product but I'm interested that the FDA or mr. OSHA or Consumer Product Safety Commission and I consult for FDA CPSC and some of the other ones I've done a lot of work of DoD over the years so I'm pretty up on what regulations are but I always like to double-check call my friends up in the agencies and make sure that I know what the federal regulatory requirements are I'm also a member of the ANSI and I don't belong to any of their committees and but I do Galileo literature I now remember the Global Initiative of the I Triple E which is a hundred of their fifty thousand members and the goal of the Global Initiative is basically to tell manufacturers to put a pause before they market and sell their product until they think it out what the hazards are sounds pretty logical but unfortunately it's not the case there are some bad actors out there I'm not naive in my book I write alive out several of them one being Takata we all read about it you're present and they're engineers knew the hazard could occur about the airbags that could prematurely blow oxides of metal in particularly states in the United States or other places where there was high temperature and high humidity and they basically buried the hazard until the engineers got religion and went to the New York Times so that's pretty much well know now but we need to be sure that the regulatory environment is working to tell us what to do unfortunately I can't rely on the regulations because as I pointed out two-thirds of all regulatory commissioners since the creation of time have come from or went to the very companies they're supposed to regulate this will evolving door creates in an inordinate conflict of interest so as a warnings expert I looked at a regulatory environment but it won't prohibit me most regulations are floors not ceilings so I will never sell right an FDA regulation that doesn't go far enough and in any deposition I've ever given it's a lawyer on the other side say well doctor go lever we met the FDA you can't deny it I'll say yeah you've met the minimum before not the ceiling there's very few exceptions very few exceptions to the rule which involves a term called preemption tobacco being one where because of congressional mandates you can't go above or below the congressional warnings but that's not the case for 95 or more percent of all products you can easily exceed minimum regulatory or of standing recommendations next slide please so as I'm gathering data about the hazard and gathering data about competitors I'm gathering data about regulations and now I'm gathering data about who's your audience and communication we begin with who is the message intended to go to who's the audience and I want to know I had a pool client once years ago and they were being sued be covered by a person who became a quadriplegic for diving into shallow water and turned out that client literally even though the pools are three and a half to four feet deep they had on their litter letterhead their sales and promotional letter has and a logo showing someone actually diving into their pool not too cool so we had to change all their marketing days so it's very important that a warnings expert looks at the marketing information sales promotional the brochures and the internet today it's very important I was just involved in a settlement of the product I'm not talking about it a few minutes so I think I'll hold off on that because that involve looking at the marketing data and determining whether in the marketing day they're actually during the warnings or hiding the warnings so marketing information is very important and it's also important as a warnings expert you're writing basically a form of communication it's a safety message but you're communicating to a product user or product maintainer somebody who is buying or using or maintaining a project you have to know your audience is so that the message in the warning is appropriate designed for the understandability of that audience because communication is measured as to its effectiveness by a very simple metric the metric is was the message received and understood received and understood in my business it's my job to get you into the showroom or get you to the water tank but I can't make you drink it I can't make you buy the car so please don't judge me and my warnings by how many people follow them I like to have them follow them but I can't make them follow them there's a whole bunch of academic disciplines they get between communication and behavior like psychology anthropology and sociology so my job is to make the best warnings I can and to make sure they're communicated as clearly and effectively as I can and to hopefully people will understand them you hold me accountable for whether my message is received and understood you can't really hold any points and accountable for whether people follow it because there's a lot of things that get in between the cup on the left many a slip twixt the cup over my late father and I used to say go ahead next slide please now go final thing I look at and together this is a free phased process the first phase of which I'm gathering data to determine the answer to the question do we need a warning or if we do is the warnings you've got adequate are they adequate or is it adequate and the final piece of data I work at is have you been sued and claims we made against you let me look and see what the warnings issues have been that have been brought against you because if you have we need to fix it so litigation analysis along with regulatory competitor hazard analysis these are the kinds of data I need next slide please to answer the question do we need a warning let's say the answer is yes we do let's say the answer is you did have warnings but your warnings weren't adequate now it's phase two I designed the warning I designed it because I'm an expert in warnings and communication I design it because I rely on the information I got when I conducted a hazard a competitor a regulatory of market legal analysis and I gathered all that data that data informs my decision of what to warn about and whether to improve existing warnings so I rely on all that information I will design I look at the codes I look at the standards next slide I look at the hazards I want to make sure that I've covered the bases based on the data I've got and then I design the warnings okay that's good how do I know if it's effective I like to test them if I'm designing a warning for a client I test them not them pride into a case as an expert after the fact and I look at a warning viously I can't do post remedial testing if I'm going to change it then I try to test it because you know in courts these days experts like me and engineers will be less not just a criticize but let's come up with alternative design and so I will always come in with concepts in a deposition or a trial that tries I'll actually bring the samples with me as exhibit sometimes a depo I've been prepared but certainly by the time of my deposition I'll be able to tell the other side what I intend to do at the trial in terms of alternative design and if we have time I'll try to test those wines that I'm coming in with this alternative design testing is an extensive process it's not a simple matter because you really have to determine that the audience and involved received and understood the message remember the metric effective communication effective warnings because a warning is just another form of communication effective communications are measured are determined by the degree to which they are received and understood is the message received the mail get delivered that the TV signal get on to be in in that crash did you hear me today are you able to see my slide was the message received and do you understand what I'm saying you understand my words and my visuals am I getting through to you well there's a you'll have an opportunity there's a measurement that Casta very nicely puts out afterwards where you'll get to evaluate and to determine and I'll be able to know from reading 300 of your comments that whether or not you got the message today whether you understood it well this is what I do when I test warnings I'll give you an example we were designing the there was a company from Japan that wanted to come into the commercial air conditioning business Dyken Bai KN and their lawyers were in there in the lawyer and he brought me in because he heard about me and I was the other other people in the company off in Japan so they all flew in from Tokyo and we have like a United Nations meeting with translational Ealing with earphones in an auditorium and I was trying to explain to them what the warnings would be about so we got tools we put warnings on going through the hazard analysis steps I determined but the only two ways you could get hurt or kill the freeways by this product was through electrocution or you could lose a finger or thumb forget brand there are three hazards and the engineers showed me how this could happen and so we designed some warnings and we came time to test them all I needed to test them on the right audience who was that audience the people who install or maintain these large commercial air conditioning systems fortunately there are show rooms around the country they one in New Jersey one in Texas another one out in the coast so we went all three of those places we brought in about a hundred people for me two roads coming locations and these are actual people who people who install or maintain the air conditioning systems commercially and how do we bring them in we had to pay me 200 bucks for their town for an hour of their time we work with the unions and other sources to get people to voluntarily come in and then when they came in we have that thought some preliminary question is and then we told hey we've got some product here and I remember the key is if it's got to be received and understood you don't want to tell them go look at the warning so you don't even tell about that we've got some air conditioning product - we'd like you to look at kind of look and what's your opinion so they go out and they spend some time looking and maybe fifteen minutes or so then I call them back in and we ask them questions about whether or not they saw different warnings and the fan just stood with the warnings worth and this how we determine if something is visible conspicuous and understandable just one example add the next slide please so when I finish designing them I test them I only show you a few samples and they will applies for some questions this is a mentioned before a swimming pool warning I designed that it appears in most pools I believe around the country it was accepted by the two leading pool organizations at the time and notice it's very simple I believe as a communication background my background that the communication of a warning should be efficient that means using as few words as we can we don't want to make up what I call mercedes-benz warning those too many words I'll show you in a little bit one of those so here we have a signal word remember for things have to be in a warning send a word this case it's danger I put danger on because the hazard was immediate and life-threatening if you died into shallow water it's going to mediate risk to you that you could be rendered as the nonverbal there shows you quadric lead you to be paralyzed what's the hazard shallow one two words shallow wire what's the consequence you can be paralyzed and the instructional component what's the do or don't do no dieter and the danger is in the ANSI recommended colors for danger red white surround a black border and then I put a pictogram up that we tested and found out that 95% of the people understood what that meant I put in the handicap thing it was little twist I put in myself so that's an example of an effective warning next slide please let me show you another one this is one we did for a case we had in Texas and again we had to put it in Spanish the only reason I'm putting this one up there is that I wanted you to see that depending on where your audience is you should be ready to translate into the appropriate language in southern Texas in the Rio Valley where this took place the majority language spoken was Spanish so I would have been crazy not to put that warning in Spanish next slide please now this is when I had in a latter case you may laugh at this and I did initially when the plaintiffs law firm called me up I said are you kidding I'm not going to possibly be on a side of a personal injury lawyer dealing with a ladder well it turned out that there was a real hazard that wasn't he learned about very adequately this morning I designed in both English and Spanish again it was in Texas in the Houston area and the racking hazard was a hidden hazard nobody knew what wracking meant we tested people nobody knew there were studies done books published nobody knew what the hazard was and yet it was the most common I know this at the beginning I laugh excuse me there's so many wines on a ladder don't pay attention to it it turns out warnings experts we're in the real estate business it's all about location location location turns out that of the step of the ladder there's plenty of room there's nothing on the steps the warnings that are on the side of the ladder happened to be in small print including one about racking which is buried in the middle of a bunch of small print nobody had read it seen it and we tested it we found out we looked a hundred people with that I think we noticed the racking warning that was on the current we call that the control group and when I tested my morning we had some way 80% no notice the warning well I put it on an empty step the second step of a three step step layer again don't ask you to judge the stupidity or lack of personal injury injury priety and why he fell off and how he get injured that's not what I'm here to talk about I'm here to talk about that there was a hidden hazard the main facts are know by they put a little warning but they played hide and seek and the rest of the public didn't know about it and yet it was the most common hazard associated with falling off a ladder so that got my attention and that warranted putting a warning on a step with people sorry everybody started any percent understood at ninety percent so that's an example of an effective warning please go to the next slide I designed these warnings for the Consumer Product Safety Commission in the four Japanese companies that made ATVs there are a bunch of warnings I had to deal with but the reason I put it up there was to show you that you can deal with people who are under 12 the risks of ATVs was a lot greater with younger kids were rather stealing their father uncle's ATV and going on it or their parents were letting the kids go on it and so the Consumer Product Safety Commission for whom I've done a lot of work over the years they asked me to come up with some warnings I worked cooperatively with the industry because I was first hired by the industry and then the government had their experts but to save money everybody decided let's all get the same page we all want the same thing so that warning the next one the reason I put it up there is to show you that and we were trying to warn kids who are you know preteen and teenage kids this one is on the Rheem water heater the reason I put it on their ways because this is an example of a warning for a product that nobody pays attention to we do not interact with our water heaters we buy it stick up the Attic their garage or or some place out of sight outside hopefully and we forget about it but the problem is until recently the industry had a design defect in it all the water heaters happen to have had something called a pilot light in other words the paddle lights what ignites the gas when you want hot water it eats up for water so that pilot light was located for six inches from before well guess if you're storing your one-eighth in the garage where part of big majority of water heaters restored the water heaters actually what else is stored in the garage well your car per one cans of gasoline and other flammables well guess what and this is life it measured most people don't know that the fumes that come out of your gas cans and other flammable class you keep in the garage those are heavier than air and therefore they fall to the ground when they fall to the ground they creep along the ground and guess what they're going to find a pilot light that will light up those fumes and explode and cause a fire damage and death so we needed to put warnings on and more importantly we need the industry to fix it so this warning it's really a stopgap measure the industry did fix the hazard now the question is should they keep the warning up it my advice was why not even though you claimed you fixed it if something goes wrong at least you're still got the warning up there people aren't interacting enough of the wheel with the product anyway so next slide please all right so we have warnings on products and I'm a big fan of warnings but I'm also a big fan of not warning when you don't have to warn the earliest warnings going back to the turn of the century was a Scullin button literally that was all we did in the way of warnings mostly for what was the predecessor the FDA as the food act and we and drug act and we had your skull and bones or a lot of products I'm a big fan of warning I believe in mourning for hidden hazards I design warnings for hidden ashes I've worked over a hundred over 500 top companies in the United States putting the morning's on their products nobody's going to say Gary go labor doesn't want to warn about products that are dangerous ill and nobody's going to say - Jerry going to wants to warn about product that I think ERISA next slide please or you put on a warning that's for an open and obvious hazard as you'll see here this is what we've come to every year I like to publish the syllabus warnings that are out there immediately warnings on products that really you really ask the question seriously this is the winter one year a guy named brought our ago I believe his name comes up with a group of the top more silly warnings and gives our awards and I kind of promote them in my newsletters and on my podcast and sites because I think he's got a point we do need to warn when we have it hidden hazard we should not one when we don't because if you put too many silly warnings out and this is really silly warning remove your child before folding the stroller really if you can say really to something that you know it shouldn't be the look slide please JP or what I this is Isle is a Buffalo Bills fan for in the years and my home team read that warning decals are for decoration ollie I will not prevent you from bodily harm or injure really next wife I like that comedian and fan airline reelin next slide warning do not drink now I happen to have Epson printers I get ink cartridges hmm I've got thirsty now I've been going for what 45 minutes Nick's life tricks this is a catfish nuggets thing it says contains fish like peanut next slide please so these are silly warnings let's stop after this one this is my favorite one this is a a one of those Blazer bean things from Star Trek Star Wars razor sharp I'm sorry wrong one this is lazer sharp my staff founders this is actual knife in a blade sharp next slide when I said open and obvious somebody actually this is with a laser beam don't be used as a battle device okay let's go questions okay if all the attendees could please type in the passcode your first question is I know we touched on the warnings in Spanish but this question is is there an involving requirement for warnings in Spanish for example the only requirements are strong recommendations that you take into account for your audience for whom the warning is intended it's pretty much an unregulated area and pretty much you will get me immediately if I'm with any class my statement will be who's the audience what languages they speak now this can get so that you remember you're not going to we've seen an instructional colyn how to maintain your television something it might have the instruction booklet in 14 languages that's not what I'm talking about Spanish is a no-brainer I just had a lawsuit settled in Florida against Universal Studios Disney and SeaWorld warned in Spanish Universal did not that was a no-brainer I went to all three amusement parks one day 100 bucks each Bella and I found out that Disney World warns SeaWorld warned in Spanish but the universal did not and they sell the case very quickly next question okay after after you make recommendations to your client do you follow up in any way to see if it has adopted your suggestions what attorney client will keep you from in luck what attorney-client privilege keeping him from what what would attorney-client program from involvement or commenting when the warning when the warnings you designed were not utilized know if I'm an attorney-client privilege I won't discuss it obviously than any date and kind of but I do follow up with all my clients when you hire me to design your warnings you've got me for life better or worse till death us do part and I mean that I will constantly shop my plot my clients products I mean I designed the products on Playtex tampons for Tasha's eye syndrome to this day I look like an idiot buying tampons I want to go and then watch the warnings dr. pepper 7up and our Orange Crush and all those soft drinks the exploring bio cameras I went out and bought them and I would see if there was competition and advertising and I would call them up and say you guys got to fix this now the only leverage I have is if there are sued and they're going to ask the question who designed this is I've got to get named as a factory expert witness and I'll tell truth you know that's not turning client privilege if I'm under oath but I won't go around talking about my clients work because of confidentiality agreements I'm just like give me permission to brag about it they've done a good job Playtex I write about them in my book I feature my clients with their permission and knowledge next question okay it's a warning required on product such as icy hot to use only as suggested because they could cause injury is a warning required on icy Hut use only is suggestive a warning is required if the icy hot instructions tell you the do's and don'ts but neglect to tell you what the hazards are you might find Jerry deliver testifying against you because the Remer the purpose of a warning a warning is not an instruction instructional component is the doin don't and it's only one out of four components in a warning a warning has to have a signal word a statement of the hazard of statement of the consequences that can result and the instructional component too often my clients make well look at the instructions or in the book doing this don't do that do this don't do that those aren't warnings those are instructions if you want to draw attention to a hazard you have to do it the right way next question please yes what is racking on a ladder mean jumping the ladder okay pulling it forward by jumping and not getting off by the way if I don't answer your questions today I'm going to be saying a no that everybody and you can write me in I answer everybody's emails I'm happiness call me I'm happy to target with the coronavirus at a lot of time as a real special oh my god I think the warning should have a Scott Nords wait what and it was not why my son and I read that came in Java and it went right through a referee was born 1991 enough Giants against the Buffalo Bills next question all I hate to see that next thing you're going to ask me if Bill Buckner on the season ticket-holder Red Sox you have to be built Buckner should add a warning on his glove not to fumble the ball good 1986 Mets Red Sox my sons listening so this is for him next question what about the what about the existence of safer designs that are available similar to warnings on SUV visors about rollover risk versus passenger cars in other words should the SUV user be told about this risk absolutely post sale duty to warn I mean I'm in some cases now I can't really talk too much about them but the question is did you inform people about the risk and the injury after the fact well one case I think I've talked about I'm going to in fact take two more questions in apt in any case which is on the screen that one we were after each other because they fail to tell people about it a CPSC recall choice was the defendant in the settlement next question for manufacturers of what is it teratogenic chemical mixtures is warning pregnant women should not handle this product sufficient when most women have no idea when they're pregnant well this is a technical question furs I have no idea what tell it to jack chemical mixtures tired of studying I'd have to look into the hazard analysis and obviously the attorney involved it's got some litigation and maybe from the framing of the question maybe on the defense side of the fence argument women don't know if they're pregnant there are lots of warning the pregnant women effect that issue that amusement prize one of the key warnings and most amusing fact rides that a risky pregnant women should not be in the product and I guess how hot is hot let me have a person who asked that question contact me after I've done some thinking before I can ask a question intelligently listen eyes noticing on the clock if you want me to stop it - then you just we can go to the questions yeah but let me go right through there go that next slide on I want to talk about the - very quickly just touch on the how you litigate personal injury warnings claim and how you litigate a defense how you defend in a private liability case on a warning stage all right now you'll notice this has been a PID case there's an instant recliner were kids rolled off the mat Manny that was in the crib and suffocated when the head of the different stress strangled by the crib bumper against the NAP Manny and the kid guide the warning was if you can't see it too much on the left but if ever Sadie's beds warning way too many words too much on there and the parents were six inches away they saw it but they just ignored it thought it was a message about how to maintain the product because there aren't everything there wasn't any grab their attention so I designed a warning on the late side first of all I didn't use the word warning the word danger I would want a link or deadly but I made it very clear your infant could die that we tested and people got their attention in this case so very favorably for the personal for the plaintiff side they should have had a warning that got your attention the litigation of a personal injury cases first is neither had hit hazard in this case it was definitely him putting the kid on a credit and you don't know it can happen secondly what is it that you're doing a litigant they're going to litigate that the warning was inadequate because the print was too small the hazards there were three hazards they try to warn about it you want war I focus on the most important thing I said that there was a suffocation hazard to words they use to paragraphs I said your infant to die that gets your attention in danger this is right in front of your eyes so the comparable was very compelling if you're on a personal injury side and you're trying to attack an existing warning those are some of the arguments I use you might look at the flipside go to the next slide and defending the private liability case shallow water pool this is a warning that's on virtually every pool if you go in and dive into a shallow pool I guarantee you that this sign is up you're going to lose your case you will lose your case I have never lost a swimming pool case in 42 years when my warning was up first of all there's a question of if there's been a number of summary judgments on standing in the depth of a shallow water pool for three and a half four feet if people are aware the depth many courts have thrown out on summary judgment the claims of the personal injury lawyer on the plaintiff side so most shallow water diving if they've got my sign up I definitely will not take me a plaintiff side on this call be on the defense side because it's an adequate warning even though the hazard it depends on the time of day too if it's most of these injuries occur by strangers who have never been on the pool before so they're not aware of the depth of the pool there may not even be depth martha's it might be a foggy night or dark night a lighting might be questionable so the hazard could be good if somebody's standing in the pool and the strip or people standing in there then that of course gives you the open and obvious defense but at any rate my warning is what gives me the opportunity to defend that case because it's an adequate warning okay let's go back to your questions the NAP nanny case finally toys-r-us was one of the named defendants along with the company that made the product and they chose not to warn about the recall and this person bought the product from a Toys R Us store and they did not notify her and I spent about the recall so that's a mistake we taught retailers make I've been involved with live cases against all Depot over the years where they are named co-defendant because Home Depot is in the warnings business as I said before about real estate most companies are warnings they're in the real estate business so Home Depot saw a shelf space but they have a staff of people who actually engage on warnings so if you're a personal injury writer I definitely look to the retailer as a source of litigation because big-box retailers have to know they can't just simply put it on the shoulders of the manufacturer they decide what product from the shelves and they many of them have human factors people evaluated the warning to the manufacturer okay some more questions sure I will put it to the screen and how do you handle cases where the message is mixed and therefore potentially confusing on the dangers of the potential hazard for instance where the company identifies the warning but also claims the product has a potential hazard oh sorry has a safety feature to prevent the hazard from manifesting well in this case I would probably be working through the personal injury where I got the defense layer because the idea is to be as clear as you can about the nature of the azure the hazard has to be communicated here if you guarded against it or designed the hazard out then warnings almost become moot the case of a warning of the year home we are water heater that I mentioned earlier the hazards been essentially designed out the reason we agreed to keep the warning up there was that there was a one in a thousand chance that the design feature could fail so we decided to keep the warning up there not every company would have made that decision but I will definitely if the defense calls me in I'm not going to go to court on this but I will work with them to help them fix it behind the scene if they want to fix their warning I'll say hey limit we got a mixed message here we can be confusing by the way a quick question Naja we bound of a 60-minute war if I want to stay a few more minutes we can stay a couple more minutes afterwards just to you know respect everyone's time so I'm going to give you two more questions okay okay okay so this is the one how do you overcome warning fatigue well that's the reason I said that Jerry goal they will never shy away from warnings when they're needed but he also won't shine away from telling your client forget about it forget about it in the morning is contributing to information overload the information overload occurs when you have warnings on products that aren't needed and that's exactly why I am very interested in being very particular about the hazard is hidden I do my crack I was once on 20/20 and the announcer asked me that question as we were walking along and the interview is being conducted no I don't know what if you want to tell the consumer and I said don't be stupid pay attention to the warnings and my book murder incorporated which you could get at Murder Inc by Gary calm the podcast is the warnings doctor and among you to the jury on YouTube that time I talk a lot about what you the consumer can do last question yes is there any industry standard for the physical size of a warning relative to the size of the product yes there are ANSI standards that not so much about the size of the product although Real Estate's important to me I want to use the available space to the extent that I can what I'm most interested in is the chart that ANSI provide an T the American National Standards them and they have a Z 535 warnings code that has six components one of the components has a child inside of it that has actually the distance that the average consumer is going to be and the size of the font that you should use so if you have something that's an eighth of an inch you might be able to see it from about three feet away so and so on so you increase the size of the font to the distance that you want the the morning to be visible and if you've got a lot of space I'm not simply going to say use all the space you've got I want to be reasonable so I want you to use as much space as you can so that the average user will be able to see the warning from the distance they're most likely to use an app great question thank you thank you and I was remiss if you also type in the passcode again that'd be perfect sanctuary for answering those questions and the overflow of questions that we do have I am going to send them over to you Jerry with with along with the you know the stuff that I normally send you okay that's great now I just want to tell everybody out there we're all in this together be safe out there and show a lot of love to everybody that's what we need today a lot of life a lot of love and kindness be well and be safe things I want to take this opportunity to thank everyone for attending and most especially Jerry goldhaber for his time and effort in creating this presentation if you will like to speak with Jerry or if you would like to speak with as a representative regarding an expert witness for case that you are currently working on please contact a side one eight hundred five two three two three one nine and one of my colleagues will be following up with you regarding your feedback on today's presentation again I will be sending out the webinar follow-up tomorrow morning and I will be sending out the certificates again they will be delayed as I'm one person trying to send everything out so maybe by the middle of next week you should have all of your CLE certificates thank you so much for attending everyone this concludes our presentation