18, 1998 Design News
LEGAL FORUM Latest advice on engineering and the law
Defend your design
Phillip M. Davis
Davis, White & Pettingell, LLC
Current laws regarding product liability frustrate
the engineering fraternity. According to designers,
our courts fail to resolve product litigation in a predictable,
consistent manner. Designers seek some basic criteria
or standard against which to measure the legal ramifications
of their conduct.
How can you, the designer, meet all that the law requires
of you? What are your responsibilities as a product
designer? We have outlined the designer's legal responsibilities
and examined in detail the various obligations the courts
impose on engineers. None are novel, but an overview
may be useful as a reference. Consider and document
the following design principles to successfully defend
your design in court.
Concern for safety. Your design should
clearly reflect that you were concerned about user safety.
Juries have little sympathy for manufacturers who do
not show such concern.
Failing to meet standards is invariably fatal to the
defense of a product liability case. Conversely, merely
meeting a standard does little to help the case's defense.
Designers are expected to meet all applicable standards.
Think about your safety margins.
Establish clearly defined criteria that support your
decisions to fulfill safety margins and material specifications.
Documentation of analysis and tests are crucial, since
analysis and sufficient testing are often key issues
for the jury. Documentation written long before the
accident is much more credible evidence than later verbal
You must demonstrate a comprehensive understanding
of both the product's limits and maximum capabilities.
Document the life of the product or accelerated testing.
Since it is no longer enough to argue that the accident
was "unanticipated," the engineering fundamentals
of failure and hazard analysis are equally important
in the lab and in court.
Worst-case analysis is particularly useful in a products
litigation defense. Consider also "fail-safe"
design. While a product need not be fail-safe, legally,
reasonably foreseeable uses (and misuses) must be anticipated.
Think about the hazards of the use or misuse of the
product. Once you have anticipated foreseeable product
uses/misuses and resulting injuries, you must heed the
potential injury's magnitude. For instance, a product-related
death may result in criminal charges against corporate
Recently, the plaintiff's bar has focused on warnings
and instructions in cases against manufacturers. Clear,
comprehensive, adequate warnings are a must for any
product with attending risks which are not obvious to
the intended user. It is important to demonstrate to
the jury also that the product and its components left
the manufacturer in a documented, defect-free functional
condition through inspection and quality control.
Evaluation by independent laboratory. Good product
design corroborated by an "objective" third-party
tends to remove some of the jury's natural bias against
the manufacturer's in-house testing and opinions. Empirical
testing and assessment of the field result is one of
the best measures of a product in the lab and courtroom.
Document risk-utility considerations at the outset of
product development and intermittently afterwards as
your company receives incident reports.
Such are your responsibilities should the product become
the subject of litigation.
Q: As a designer, should I document the design
criteria and all steps undertaken during product design
and development by writing them down?
A: Yes. Written documentation of your
efforts is crucial in the defense of products litigation.
Frequently, products litigation occurs years after your
work is complete. It is particularly important to document
all safety considerations and any reasons why choices
were made which might later be questioned in a courtroom.
Q: Why isn't my testimony as the product designer
the key at a trial, since I know my product best?
A: Good question. The jurors are the
final judges of the credibility of all witnesses and
their testimony. Thus the jurors may decide that the
company representative is biased and give equal or greater
consideration to the testimony of the so-called "independent
Q: Why are warnings part of the design criteria?
A: Although the product may be adequately
designed, it may present non-obvious dangers or hazards
to a user. Our courts have held that failure to warn
of these dangers may be a breach of the designer's duty.
Q: Am I personally responsible for the design
of my company?
A: Theoretically, yes. However, rarely
is an individual corporate representative sued. When
one individual in the company is singled out in a lawsuit,
it is usually because that person exercised full decision-making
and control of the product. More importantly, companies,
not individuals, have sufficient funds to satisfy large