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Duty of Care and Standard of Care Revisited

In my files of memorable products liability cases, there is one that, as an expert witness, I often cite anecdotally as the most profound example of inappropriate standard of care by a defendant company. The plaintiff had purchased an inexpensive residential box fan. The brand name may be a familiar one, although the manufacturing facility that built the subject fan no longer exists.
One summer, the subject fan ran virtually continuously. One night, the switch that turned the fan on and controlled speed ignited to combustion temperature and started a fire that led to death and critical injury of several family members.
The basic design for the subject fan was from the mid-1960s. As the company passed from generation to generation, the owners had to find ways to compete with similar products that were manufactured overseas. Their short-term solution was to buy the motor and switch assembly in Asia. The C&O experts quickly determined that the motor and switch assembly did not meet the requirements of safety for electrical appliances sold in the US. The case might have moved to settlement based on their findings, but defense counsel was a predatory advocate whose mission it was to avoid admitting liability in this case.
The focus of my investigation was the quality and business practices of the manufacturer and their control over their suppliers. Through discovery, I obtained copies of their quality assurance manual and operational procedures. I also obtained copies of their contract with the offshore supplier of the motor and switch.
The quality manual was a poorly drafted representation of an internationally recognized quality system standard. My preliminary report concluded that the manual and procedures were inadequate for their type of production manufacturing. Their documents did not meet the test of industry practices that would effectively prevent unsafe products from being sold. My conclusions were that the manufacturer did not exhibit an appropriate standard of care and that this accident was foreseeable.
The motor and switch had Underwriter’s Labs markings, suggesting they were safety tested, and the motor had a “QC Accepted” sticker on it. Unfortunately, the contract with the offshore manufacturer specified requirements that were the most egregious that I have ever encountered. The contract required that the manufacturer would place UL markings and the “QC Accepted” sticker on the motor. There was no requirement, however, that the components would be tested, inspected or certified! The document went on to state that there was a known high failure rate of the components, and the offshore supplier would deliver a significant quantity of spare motors and switches to compensate for the ones that would fail during product testing. The issue went before the Judge, and we were given permission to perform a factory inspection to validate my opinions and conclusions. That audit revealed the most blatant lack of standard of care I have ever witnessed. Duty of care and standard of care have typically been subjective and introducing them as strategy can be very expensive and time consuming. The outcome is typically two or more qualified experts testifying for and against, resulting in conflicting opinions. Which argument prevails is often which expert was the most convincing. When duty of care is clearly defined in a standard, with quantifiable parameters, evaluating obligatory diligence can be relatively straightforward. When duty of care has accepted standards established, such as in pharma or food safety, applying these standards can also be used to rebut claims that are not based in empirical data. In cases where industry standards exist, experts can create compliance matrices to commonly acceptable industry practices.
Where standards or a peer-accepted body of knowledge does not exist, establishing duty of care can be accomplished by citing international standards of quality. ISO 9001 Quality Management System Standard has been in existence since 1987 and there are thousands of certified companies. There is a vast body of knowledge that can be used to create a defensible duty of care, empirically.
The definition of standard of care contains obtuse terminology such as “dependent on circumstances” and “a reasonable person.” Obviously, there are volumes of case law that are used to establish precedents for comparison. Some are spot on and unambiguous. Many are subject to the persuasiveness of those proposing the interpretation.
In my experience, compliance in standard of care is directly measurable against the duty of care established by research. Forensic process audits can be (and have been) used as methodical proof of standard of care.
My background is in quality control engineering. For me, the segue from quality systems auditing to proving or disproving standard of care was crystal clear. My expert reports typically include a statement such as “the failure was the result of a series of seemingly unrelated activities that manifested themselves in a catastrophic event.”
The most common modality for that convergence of events to happen is for negligence by the defendant in following standards, procedures and process steps. In many cases, there is negligence by the defendant to diligently follow industry, quality and their own standards. In all too many other cases I have worked, defendant companies create risk by striving for higher profits by lowering their standards of conformance and performance. One defendant stated that the nature of their product had “an acceptable kill rate each year.” That depo page is contained in my expert witness hall of shame. I recommend, before opening a case file and collecting detailed evidence, do preliminary research on the defendant company. Search the Internet for articles, news reports, web pages, sales literature and any other anecdotal information you can find. Marketing people have a knack for including misleading and inaccurate information in their zeal to attract customers.
Organizations often have compelling and revealing data embedded on the web and in social media. Documentation of customer satisfaction with a company can also provide anecdotal information that leads to rapidly uncovering a bad actor.
The second step is to find a scientific basis for duty of care of the company and industry. I have had several cases involving catastrophic failure of electrical appliances. Fortunately, UL, CSA and the EU have published comprehensive safety standards that are unimpeachable benchmarks for duty of care.
Third is to perform a preliminary forensic evaluation of the defendant. It can be conducted using the filings and responses and any production already available. Unlike typical failure mode investigation, this process assesses the business practices of the defendant company, not the causation.
This preliminary investigative work can give you a foundation for your strategy and what other experts may or may not be needed. It can create more focused discovery requests that reveal documentation of their compliance to applicable standards.
In my experience, establishing duty of care and determining standard of care leads to early case settlements. The expense is minimal, compared to hiring the wrong experts or spending time and resources on unnecessary forensic investigations.
As in the case above, working for the plaintiff, judges have allowed me to perform physical audits of the defendant’s manufacturing operation to determine conformance to standards and standard of care. Defense counsel has always been antagonistic, but it has taken me to places like Mexico City and Shanghai.

Tom Taormina

Tom Taormina is a Certified Management Consultant and Certified Manager of Quality and Organizational Excellence. He has written 12 books on business management practices. His 11th book, Foreseeable Risk, was commissioned by Lawyers & Judges Publishing as a reference book for litigators and as a roadmap for risk avoidance by enlightened business leaders. Learn more at: www.tomtaormina.com.

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About the Author: Tom Taormina is a Certified Management Consultant and Certified Manager of Quality and Organizational Excellence. He has written 12 books on business management practices. His 11th book, Foreseeable Risk, was commissioned by Lawyers & Judges Publishing as a reference book for litigators and as a roadmap for risk avoidance by enlightened business leaders. Learn more at: www.tomtaormina.com.

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