When you go to a grocery store or a big box retailer, like Wal-Mart, Sam’s, or Costco, and you see the plastic shrink wrapped packages of drinks, dog food, and other products, how do you pick up same? Most of the packages have a pair of holes in the sides of the packaging. The industry often refers to them as hand-holds. The drinks or cans of dog food or other products are placed into a cardboard box and then a sheet of plastic is wrapped around the package and shrink wrapped – heated to shrink around the packaging. This leaves the holes on the sides of the product. Typically, there is no warning that the product should be picked up by the bottom, where the cardboard is located, and not by the holes on the sides.
We represented a lady who picked up a package of canned dog food by the hand-holds. After using the hand-holes to pick it up from a shelf and place it into her buggy, using them again to place the package on the conveyor belt for checkout, the package failed on the third occasion when she picked up the package of dog food to put it back into her buggy. Because one of the hand-holds ripped, she was unable to hold onto the package and the entire package and all of the cans dropped onto one of her feet. The resulting fractures and destruction of tendons resulted in multiple surgeries and permanent problems with her foot, including the inability to stand or walk for any length of time.
We sued the manufacturer of the product under the theory that the packaging was not adequately designed to be picked up by hand-holds. Interestingly enough, we could not find any similar suits in the United States! The evidence showed that the manufacturer had initially tested the shrink wrap packing decades earlier, when it started manufacturing that product, but had never tested the hand-holds as to whether they would hold when someone picked up the packaging! We hired a professor at a school of Packaging at a major university in America who testified about packaging industry standards and the choices available to package products. We were also able to show the pricing of the various types of packaging used by hundreds of American corporations for their various products. The same plastic could be bought in a thicker film, which would not have torn. Alternatively, the manufacturer could have even used a thinner film but of a more modern material and the hand-hold would have held. Modern plastics mix in webbing or thread-like materials to make their packaging super strong. The cost is virtually the same.
On deposition, the corporation who manufactured the product took the position that their packaging was as good as anyone else in that same industry and that it was not foreseeable that an individual would pick up the packaging by the hand-holds! We did a survey of stores to show that this is routinely how customers pick up all similar type products. Combined with the testimony concerning viable alternatives, which were much safer but not more expensive, the case settled for a confidential sum.
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