Posted On: August 23, 2009 by GGCSMB&R

NEW YORK PRODUCTS LIABILITY-DEFECTIVE PRODUCT DESIGN

By Howard S. Hershenhorn and Anthony H. Gair.

In products liability cases involving allegedly defective machines such as printing presses, plastic molding machinery, power saws, power presses and innumerable others, the defense will invariably argue that it was the plaintiff’s culpable conduct which caused the accident and resulting injury. In other words, the defendant will argue that it was the plaintiff’s failure to use the product properly or to follow warnings which caused the plaintiff’s injury. In New York the plaintiff’s culpable conduct is a defense in a Products Liability case. The problem confronting the plaintiff’s attorney is that plaintiff will often not have used the machine properly. Given this fact, the jury must be taught that such misuses were reasonably foreseeable and that the manufacturer knew or should have known that users of products are people and that people can make mistakes which must be guarded and warned against.

The deposition of the defendant’s design engineer in a products liability case is crucial in New York. Defendants will often produce a risk manager on behalf of the manufacturer for deposition. This is totally unacceptable. The plaintiff’s attorney must insist that a design engineer with knowledge of the product be produced in order, among other things, to deal effectively with the affirmative defense of culpable conduct. Indeed, the deposition notice should be specific in this regard.

In order to effectively depose defendant’s design engineer with regard to the defense that the plaintiff’s negligence caused the accident, the plaintiff’s attorney must understand the concept of ergonomics as it relates to product design engineering. An understanding of hazard analysis is also required. Ergonomics as it relates to machine design involves the consideration of human factors and characteristics in designing safety features into machines. The basic precept is that people make mistakes. Since this is foreseeable to the design engineer, it must be taken into consideration when designing a product. A machine must be designed so as to reduce, as much as technologically feasible, without destroying the utility of the machine, foreseeable actions by the operator resulting in injury. In order to design a machine so as to reduce the potential of injury resulting from human error, hazard analysis must include a collection of accident and injury information. Product design is not a stagnant event, but an ever evolving process, which requires constant review of injury data, so that modifications to the machine design may be made to eliminate predictable human behavior resulting in injury. A hazard is a condition that may cause injury. Once a hazard has been identified, the risk of injury as a result of the hazard must be reduced as much as possible while preserving the utility of the machine. A machine is dangerous when the risk of being injured by the identified hazard is unacceptable.

Once a hazard is identified, it is the responsibility of the design engineer to design the machine so as to eliminate, or at least, reduce the possibility of injury resulting from that hazard. There is an accepted priority in the field of product design engineering with regard to the prevention of injury from an identified hazard. The first goal of the design engineer is to eliminate or design out the hazard if this can be done without destroying the functional utility of the product. Obviously, this often cannot be done. The second option is to guard against the hazard causing injury. If the hazard cannot be guarded against the final option is to warn about the potential of injury resulting from the known hazard.

In many cases involving injury caused by allegedly defective machines, the machine will have had a warning on it as to the very action by the plaintiff which precipitated his injury. This must, of course, be dealt with at the deposition of the defendant’s design engineer. Most design engineers will admit that written warnings are the least effective method of protecting someone from a known hazard and should be used only as a last resort or in combination with proper guarding.

The following is an edited portion of the deposition of defendant’s design engineer in a case in which the plaintiff suffered severe injuries to his hand when it was drawn into the plates of a printing press. The guard on the press in the area of the plate cylinder had been removed subsequent to manufacture. It was plaintiff’s position that defendant knew the guards were often removed and that they should have been interlocked to prevent operation of the press without the guard in place. The plaintiff at the time of his injury was attempting to remove impurities (hickeys) from the moving plate cylinder. Although this was a dangerous and improper manner in which to remove hickeys, it was plaintiff’s position that it was a common practice in the printing industry and thus foreseeable.

The first goal was to have the design engineer concede that this was a foreseeable action by a press operator:


Q. Are you familiar with the term hickey?
A. Yes.
Q. Hickeys are part of the printing process; is that right?
A. Yes.
Q. Would you agree that a hickey is some type of imperfection on a plate or cylinder which results in an imperfection of the product?
A. Yes.
Q. And hickeys can be caused, among other things, by specs of dirt on the plate cylinder?
A. Yes.
Q. They can be caused by lint on the plate cylinder; is that correct?
A. Yes.
Q. They can be caused by dry ink on the plate cylinder; is that correct?
A. Yes.
Q. Among other things; those are some of the things that can cause hickeys, correct?
A. Yes.
Q. Do you agree that hickeys must be removed from the plate cylinder or imperfections will appear on the product being printed?
A. Yes.
Q. Is it fair to say that hickeys are recurring problems on printing presses?
A. Yes.
Q. And they are certainly not unusual?
A. No, they are not unusual.
Q. Is it fair to say that pressmen who are operating offset presses have to be aware of hickeys?
A. Yes.
Q. And if hickeys develop on a plate cylinder, the pressman must remove them; is that correct?
A. Yes.
Q. Are you familiar with the term chasing hickeys?
A. Yes.
(Chasing hickeys is attempting to remove them from the plate cylinder with the press in operation.)
Q. Are you aware of pressmen attempting to remove hickeys with their fingers or hands from the plate cylinder of offset presses while the press is in operation?
A. Yes.
Q. You are aware, aren’t you, of pressmen being injured when using their hands or fingers to remove hickeys from the plate cylinder with the press in operation; is that right?
A. Yes.
Having conceded that there was a recognized hazard as a result of a foreseeable action by a press operator, the witness was next questioned with regard to designing the machine so as to prevent injuries resulting from that hazard, and specifically with regard to the priority, the design engineer is obligated by professional standards to follow in reducing the risk of injury from a known hazard.
Q. Would you agree as a design engineer that once a hazardous condition is identified in a machine the first goal of the design engineer is to design out that hazard?
A. Yes.
Q. Would you agree as a design engineer that if an identified hazard cannot be designed out of a machine without destroying its utility, the next goal is to guard it?
A. Yes.
Q. Is it fair to say that the last alternative is, if you cannot design out the hazard and you can’t guard against it, then you warn about it?
A. Yes.
Q. And that is a priority, isn’t it?
A. Yes.
The witness was then questioned as to the consideration of foreseeable human behavior with regard to the design of the machine; and the fact, known to design engineers and to be considered by them, that people make mistakes.
Q. As a design engineer, are you familiar with the concept of ergonomics?
A. Yes.
Q. In layman’s terms, that is what is known as human factors; is that correct?
A. Yes.
Q. Included in the field of ergonomics is human error; is that correct?
A. Yes.
Q. In designing a machine, does a design engineer take into consideration that the machine is going to be used by people?
A. Yes.
Q. When this printing press was designed, you knew it was going to be used by people of varying intelligence; is that correct?
A. Yes.
Q. And you knew that it was going to be used by people with varying degrees of education, correct?
A. Yes.
Q. And you knew that it was going to be used by people with varying degrees of experience with printing presses, correct?
A. Yes.
Q. As a design engineer, you knew that people make mistakes; is that correct?
A. Yes.
Q. And in designing a machine, a design engineer who was incorporating safety devices into the machine takes into consideration the fact that humans make mistakes; is that correct?
A. That is not the only reason.
Q. It is one of the reasons, though, isn’t it.
A. Yes.
Q. Because if we were all perfect, you wouldn’t need guards, any guards on any machines, would you?
A. Correct.
Q. The reason guards are put on machines are to prevent injury as a result of foreseeable actions by operators of the machines; is that correct?
A. Accidents are normally not foreseeable. That is the problem that we have.
Q. Wouldn’t you agree that the reason the guard was incorporated into the design of this press was to prevent injury to operators by foreseeable actions of the operators?
A. Possibly, but there were also other reasons.
Q. But that was one of the reasons?
A. Yes.
Q. And specifically it was to prevent operators from picking hickeys off the plate roller with the machine fully operational and in the printing mode; is that correct?
A. It was the rules and regulations of operating the machine to stop the machine in order to remove the hickeys from the machine.
Q. That really wasn’t the question, but I will try to move along.
If press operators never picked hickeys with the press in operation, you wouldn’t need the guard, would you?
A. Yes.
Q. Yes, that is a true statement?
A. Yes, that is a true statement.
Q. Is it then fair to say that the guard was utilized on this press to prevent certain actions by operators of the press which are foreseeable to you as a design engineer?
A. Foreseeable and unforeseeable actions were the reasons for it.
Q. Among those foreseeable actions were operators using their hands or a rag to remove hickeys from the plate cylinder with the press in operation, true?
A. Yes, but that was not correct. That was not a proper way of operating the machine.
Q. But the answer is yes?
A. Yes.
Q. Is it fair to say that from a design engineering standpoint part of design engineering is anticipating operator behavior and taking that into account in the design of a machine and its safety devices?
A. Partly, yes.
The witness was next questioned with regard to the known danger of operating the press with the guard removed;
Q. By risk, we mean the probability of being injured by identifiable hazards, correct?
A. Yes.
Q. Would you agree that with regards to machine design danger means an unacceptable combination of risk and hazard?
A. Yes.
Q. Would you agree that it was dangerous to operate this printing press with the guard removed?
A. More dangerous.
Q. This press as designed could be operated with the guard removed, true?
A. Yes.
The witness was then questioned as to whether it was technologically feasible to incorporate the safety device plaintiff asserted should have been included in the design of the machine at the time of manufacture;
Q. You would want to make a printing press as safe as technologically possible without destroying the utility of that press, correct?
A. It has to be as safe as possible but still functional.
Q. So, the answer is yes, I take it?
A. Yes.
Q. Anything that you could do which was technologically feasible which could prevent injury to the operator without destroying the utility of the machine you would want to do, true?
A. Yes.
Q. Was it technologically feasible prior to the date of manufacture to have incorporated an interlock into the guard design so that when the guard was removed from the press power to the press would be cut?
A. Yes.


This type of questioning of the defendant’s design engineer will enable the plaintiff’s attorney at trial to meet head on, from opening through summation, the defendant’s argument that the plaintiff must bear responsibility for the accident since he operated the machine improperly. His actions were foreseeable, it will be argued, and the injury could have been prevented by the defendant manufacturer by incorporating proper safety devices into the design of the machine. Thus, instead of allowing the manufacturer to shift the responsibility for the injury to the injured plaintiff, who did not use the machine properly, the jury may be reasonably asked to place responsibility for the injury where it belongs, on the manufacturer who was aware of the foreseeable operator behavior, which caused the injury and failed to take adequate measures to prevent injury from that foreseeable behavior.
For more information on injuries caused by defective products contact the New York Product Liability Lawyers at Gair,Gair,Conason,Steigman,Mackauf,Bloom&Rubinowitz.