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Sooner or later, it will happen. Even though you’ve built a good company that sells fine products, someday you will be sued by a customer who suffers an injury. They’ve hired a lawyer and want millions of dollars. What do you do now? (And what should you have done long ago?)

1. Plan in advance for this (just like a Law & Order episode where they say “You have the right to speak to an attorney…” Now is a great time to do so!)

2. Incorporate safety into your company’s culture; words and actions. This is your first line of defense – if you have no accidents, you’ll have no injury lawsuits.

3. Be aware of litigation vulnerabilities as a second area of defense; unintended words do have consequences; be sure employees don’t say things that could hurt your good reputation.

4. Get the facts. Nothing is as important as the truth – yours, your people’s, and the plaintiff’s. This includes “discovery”, an often time-consuming effort of compiling records, taking and giving depositions, product and site inspections, and getting the opinions of expert witnesses. Yes, it’s expensive even just to defend yourself when it’s not your fault. Remember: it’s not the crime that put so many famous people in jail, it was the cover-up; so even though we’re talking money here instead of jail, don’t hide any of the material your lawyer says you should produce.

5. Prepare a defense. Some companies prefer to settle before trial; others prefer to mount a vigorous defense right through trials and appeals. Here is where good corporate risk management can help.

6. A strong showing in court. Even the most truthful and sincere product engineer can come across as looking callous and guilty unless properly prepared ahead of time. You can learn from the case where McDonald’s lost big on the “hot coffee” lawsuit, mainly because their people in court didn’t take the plaintiff seriously. (And yes, I’ve been questioned under oath by that same lawyer.)

7. Talk to someone who has “been there – done that”; start with me, if you like. See examples below.

The Company
Troy-Bilt Roto Tiller -- Power Composter

Garden Way, in Troy, NY, makers of the Troy-Bilt and Bolens brands of outdoor power equipment, traced its roots back to 1910. During the 70’s and later, it created very well-built products, some with no-time-limit warrantees, and all with “over-the-top” customer service. Over a million customers became enthusiastic cheerleaders for our products.

The Problem
Whenever you sell products with sharp, whirling blades, accidents can happen. When this happened, most of our customers would admit that it was their carelessness and that they should have been more careful. But a few, sometimes prompted by overly-enthusiastic lawyer solicitations, chose to sue us for millions of dollars.

Our Team
As a founding member of the safety committee and the company’s primary expert witness and corporate representative, it was my job to investigate accidents, help determine the cause, and recommend solutions for product improvements and how we should handle the lawsuit. We had a great director of legal matters (Lucia) and would work with our insurance company and a lawyer in each state as needed; they were outstanding, and several were listed in America’s Top 100. Our own head of Engineering (Peter) often testified and he was a very credible witness, plus we sometimes hired an ace outside engineering witness (Ralph) for specific matters. I helped train our state lawyers, was present at all depositions (including 36 where I was being grilled) and all trials, where I was the face and voice of Garden Way, sitting next to our lawyer and testifying to the jury at trial (13 in all).

Our Philosophy

In my day job as Director of Market and Product Innovation, I felt very close to our customers. I helped build this business and many of the products had been developed with my input. It grieved me heavily when someone suffered an injury. Part of me wished I could pile money upon them to help alleviate the pain. Yet, it was not my money to give; we were a private company that was committed to giving back to society, enabling more people to garden and become self-sufficient, and keep prices low. Paying large amounts to careless people and their lawyers would unfairly penalize the many more customers who were good and careful users. So, if our investigations showed that the accident was all or partly our fault, I would recommend that we settle quickly and fairly. But if we had done everything we could to properly design and build the product, guard users and bystanders from all reasonably foreseeable hazards, and provided proper instructions and warnings, I would recommend that we take the case to trial and let the jury decide.

In these lawsuits, one thing I always made sure to do (even though it made our lawyers nervous) was at some time during depositions or even while waiting for a jury to return, was to speak privately to the plaintiff. I expressed my sincere sympathy for their injury and that they were still our customer and, lawsuits notwithstanding, we were sorry. They respected that.

How We Won At Trials
(A few samples from 13 trials and 36 depositions where I testified under oath.)

California

Our first trial was in 1990 and went on for nearly three weeks. A nice, retired gentleman injured his hand when he reached into the discharge area of our chipper/shredder. We hired a great lawyer (Russ Porter) who came to Troy and got an intensive course in our company and products. We deposed the plaintiff; his lawyer deposed us. Peter (our VP of Engineering) and I testified at trial; I was also there from the first jury selection through to the final verdict. During my testimony over the course of three days, I talked directly to the jury and told them about our company, our products, our customers, and how to safely operate our products. Then I took a dramatic risk: I arranged to take the jury, judge, lawyers, and clerks out to the courthouse park, provided them with safety goggles and a safe place to stand, and then proceeded to use our 8hp Super Tomahawk to chip and shred everything from leaves to 3” thick tree limbs. I knew I’d made my point when one of the returning jurors was heard to say, “I had no idea that was such a powerful but good machine; who would have been foolish enough to put their hand in that danger area?” We won.

Philadelphia
Choppy demonstrates to jury outside Federal Court in Philadelphia

We had a couple of trials here, in downtown Federal court; both times with Joe Pinto, one of America’s Top 100 lawyers. Chipper/shredders again. We didn’t have money for high-priced jury selection consultants; I was it. If any juror candidates had any connection to one of our customers, we wanted them because we trusted in the loyalty of anyone who was aware of our excellent products and service. At trial, it came out that the plaintiff said he’d been running the machine for an hour, shut it down, and hadn’t realized that it takes up to a minute for all the moving parts to come to a stop (well-explained in the Owners Manual, on big warning decals, with a twirling motion indicator similar to a plane engine, and the noise of all the moving parts.) So, that evening after trial, I went back to my motel, dragged the machine out to the parking lot, fired it up and sat down (in a safe direction) next to it while my assistant chipped and shredded for an hour. During shut-down, I once again proved to myself that you could easily hear the moving parts, even after the hour-long roar. The next day, after the plaintiff “rested” their case, I once again arranged for a live demonstration to the participants, though because there was no nearby park, we had to do it in a paved parking lot. When we got back in, Joe moved for a directed verdict, based on the fact that the plaintiff had failed to make his case. The judge decided he didn’t need to hear our version; he agreed with Joe and declared a directed verdict in our favor. We’ll take a win whatever way we can get it.

Detroit

George Petersmarck, our lawyer, was a great bear of a man. An experienced expert, he lived large, was outgoing and was very convincing in court. And our engineering expert, Ralph Barnett from Chicago, was a fascinating professor who could find scientific answers to anything. Together, we went to trial in the case of a man who, again, was careless with his shredder. No outside demo was allowed this time, due to a custody concern. At the time of trial, the plaintiff was in the custody of the state of Michigan; he’d be brought into court in chains before the jury arrived, then was uncuffed and allowed to sit looking “normal” with his attorney, while his two keepers sat watchfully, two rows back. His keepers weren’t about to allow him to go outside, and for appearances sake, his criminal status was being shielded from the jury. My moment of fame came while I was on the stand, being cross-examined by the plaintiff’s attorney. He challenged me to explain how the shredder discharge screen could not be considered a safety guard (which would have been judged by a different set of rules.) Placing four fingers and my thumb through the holes, I pointed out that one could easily stick one’s fingers through, so it was not intended nor could it possibly be considered a guard. “Aha!”, he said; “But you were carefully looking when you did that.” Quick as a bunny, I picked up the screen, clenched my eyes shut, turned my head away, and jammed my fingers towards the grate; they all went through. It was a risky moment (I could have broken my fingers), but it proved my point. The jury nodded in agreement. Another defense verdict.

New Jersey

This was a different case. While using his walk-behind sicklebar mower, the machine somehow caused a grass fire and the man tried to stomp it out while wearing poly-foam boots. The boots melted; his feet had burns; the fire department found him carrying buckets of water and ultimately standing in the bucket. Based on the evidence and photos from the scene, it appeared that the man had not properly closed the gas cap, causing fuel to splash onto the hot muffler. We were prepared to go to trial. Then I tried one last experiment. Donning my old volunteer fireman’s protective gear, I tested what happens when gasoline is sprayed onto a hot muffler; surprisingly, unless the muffler is glowing red hot… nothing! However, if the mower is paused while near a ball of fallen grass, the grass can ignite and be fanned by the motor’s cooling fan, causing a rapid grass fire. Upon discovering this, I realized that the man had done nothing wrong and I recommended we settle quickly and fairly, which we did.

Breakthrough Testing

Plaintiff attorneys are resourceful, and their experts imaginative. They came up with a theory that operator’s hands were being sucked back into the discharge opening of our chipper/shredders. We felt that operators were simply placing their hands ever closer in the danger zone until they inadvertently contacted the spinning flails, especially if they disobeyed warnings to stay away and even more so if they removed safety guards. Who was right? I was determined to find out. Using safety cables to keep my hands from actually reaching the flails, I placed shredding samples (cornstalks, sticks, etc.) in ever-closer positions to the flails. I found that although under certain conditions that sticks and vines could be pulled back in, they did so with such speed that they were instantly yanked from the operator’s hands, even with the tightest grip, too fast for the hands to follow. This was the proof we needed.

Ohio

This was a fast trial, in just three days (not three weeks, as in California). At the last moment, our insurance company changed lawyers, and I met ours for the first time on the day of trial. Our engineer couldn’t attend and in a great tactical move, we withdrew our outside expert just before he was about to testify. This left me as the sole witness for my company. The plaintiff had injured his hand badly in the discharge area of our chipper/shredder. I demonstrated the product out on the courthouse lawn. Back inside, in my best grey suit but on my hands and knees next to a model of the machine, I took pieces of it apart and showed the jury exactly how it worked, why it was the best in the industry, and why it was perfectly safe if properly operated. I related the results of the tests I had conducted, and explained that although I was very sorry for my customer’s injuries, it was due to his own negligence, not ours. The jury agreed.

Some Advice For You
As noted in the tips at the top of this page, start preparing now. Work with an expert in risk management who has experience in products liability. Or, give me a call; I’ve been through this from the perspective of a company owner and defendant who has been there, done that, and survived.