Manufacturers of workplace products often hide behind weak U.S. safety standards to avoid liability for injuries. More stringent international safety standards can show what the manufacturer should have done to prevent your client’s injury.
With the 2008 downturn in the stock market, Suzette’s 401(k) nest egg shrank to nothing, forcing her out of retirement and back to work. She got a job as a laborer at a large commercial bakery, working on an automated bread-making conveyor.
During a shutdown of the equipment for cleaning, Suzette kneeled down and reached under the conveyor to wipe off excess dough that had stuck to a pulley. Her supervisor, stationed at a distant control panel, couldn’t see Suzette and restarted the line. Suzette’s arm was pulled into the nip point created by the conveyor belt going over the pulley, stripping all the flesh from her forearm. Her dreams about how she would spend her golden years were shattered.
Suzette’s employer had violated the Occupational Safety and Health Administration’s (OSHA) lockout/tagout requirements, which mandate that every employee who is working on a piece of de-energized equipment (to which the power has been disconnected) be provided an individual lock that is attached to the control switch. This ensures that the equipment cannot be turned on until the worker who turned it off removes his or her own lock once he or she is out of harm’s way.
Suzette’s employer violated this and other OSHA regulations, as well as the warnings and instructions that the conveyer manufacturer provided in its operation manual. Despite the employer’s clear negligence, it was exempt from suit because of workers’ compensation immunity.
To provide Suzette with adequate financial compensation and security—which she wouldn’t receive through the nominal workers’ compensation payments—a products liability claim was investigated against the Japanese manufacturer of the automated bread line. On first review, the case might seem daunting: The employer’s conduct was a major cause of the accident, and the industry safety standards for bakery equipment published by the American National Standards Institute (ANSI) explicitly stated that the manufacturer, in its design, should rely on the employer following OSHA lockout/tagout procedures.
But Suzette’s products liability claim against the Japanese manufacturer was actually strong. Japan, as well as the member countries of the European Union (EU) and many American manufacturers selling in the international market, has adopted stringent product safety standards. These international standards not only formally incorporate many basic safety principles that are the traditional foundations of products liability cases, but they also mandate specific actions and design features.
U.S. safety standards rarely support a design defect case, and manufacturers in many jurisdictions use them to shield themselves from liability. Reflecting major manufacturers’ dominance of the technical committees that draft them, ANSI standards typically impose on the manufacturer only minimal design requirements, and they focus heavily on the employer’s responsibility to provide training and the operator’s duty to read and follow warnings. Most standards promulgated by OSHA are now 40 years old and, by the terms of OSHA’s enabling legislation, govern the conduct of the employer only.
Because strict liability cases may exclude all evidence relating to negligence concepts, plaintiff counsel often face uphill battles with the court and the jurors, who want the plaintiff to prove that the defendant manufacturer did something wrong. Jurors see the plaintiff expert’s opinion as Monday morning quarterbacking, in the absence of stringent U.S. standards. International safety standards are an underused and powerful resource to define the standard of care that the manufacturer should have followed—but violated—in designing its product.
International product safety standards require a rigorous predesign hazard analysis, recognize the importance of anticipating human error and studying accident history, and mandate that hazards be reduced through design and not by warnings. Manufacturers’ compliance is often pro forma, providing fertile ground for deposition questioning and presentation at trial.
Three major sets of standards can be particularly helpful: EN standards prepared by the European Committee for Standardization (CEN), which governs all products sold in the EU; ISO standards prepared by the International Organization for Standardization, which is a consortium of 162 countries’ standards organizations (including ANSI from the United States); and JIS standards, written by the Japanese Industrial Standards Committee and published by the Japanese Standards Association for all products manufactured in Japan. To facilitate the global sale of products, these three organizations are working to harmonize their standards over the next several years by adopting similar requirements, with frequent cross-referencing among the organizations.
Although compliance with these international safety standards is not yet formally required by regulatory agencies in the United States, many U.S. manufacturers—especially those that sell their products overseas—have adopted the standards as their own design requirements. Through their American trade associations, such as the Association of Equipment Manufacturers (AEM), many U.S. manufacturers serve on the ISO technical committees that draft safety standards. Minutes of these committee meetings, often available online, record frank discussions revealing the manufacturers’ recognition of the significant potential dangers their products pose.
For example, some U.S. heavy equipment manufacturers such as Caterpillar, CNH-New Holland, and John Deere are members of AEM and send delegates to the ISO technical committee for earth-moving equipment (TC 127). They would be hard pressed to distance themselves from these ISO safety requirements.
Three levels of standards apply to product design: universal safety principles that apply to all products, standards that are focused on a particular industry, and product-specific standards. An Internet search can quickly identify the EN, ISO, and JIS standards that may apply to a particular product. The standards are updated periodically, with prior editions withdrawn. The edition in effect at the time of the product’s design and sale defines the standard of care.
At the beginning of every standard is a list of other standards that are incorporated by reference. Plaintiff lawyers must review all the incorporated standards, because they may set out the most critical requirements.
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