Foo - Getting sued?

Say hypothetically speaking... your company's getting sued because their product hurt someone and you realize that there's a "small" flaw and decide to fix that flaw in a new revision of the product and quietly "release" it into production. Is this such a good idea while you're being sued?

Would it be like, an admission of guilt or something?

Any lawyahs in the house?

Tough Question.

I would think the best people to ask would be attorneys who work for your company. That sounds like something bigger than I'd want to deal with....I'd probably tell a big boss or something and put the ball in their court.

Issue an immediate recall to absolve any future legal action, then pay off the lawsuit. It'll be cheaper/easier than conspiracy charges.

What is it? I want to buy one. I could use a payday. :D

Invade Iraq

Say hypothetically speaking... your company's getting sued because their product hurt someone and you realize that there's a "small" flaw and decide to fix that flaw in a new revision of the product and quietly "release" it into production. Is this such a good idea while you're being sued?

Would it be like, an admission of guilt or something?

Any lawyahs in the house?

Yeah, I is, but I'm waaaaaay over here in California (and I didn't stay in a Holiday Inn Express last night), so I can't speak to Noo Yawk law. Many states have a rule of evidence that precludes a plaintiff from introducing evidence of a subsequent "fix" such as you describe in your, ahem, hypothetical. The theory is that we want to encourage folks to fix such flaws when they come to their attention, not to discourage them from doing so for fear of it being deemed an admission of wrongdoing, just as you surmised.

It will not surprise you to hear that plaintiffs' and defense attorneys have fought many a battle before a judge arguing that this rule does or does not apply in a given situation. It will also not surprise you to learn that this rule has exceptions, and that they vary from state to state.

So, the real world answer to your situation is, unless you are the Grand High Poobah of the company, to run this up the chain of command to whoever is the proper person to bring this to the attention of the company's lawyer (in-house, outside litigation counsel, whoever). Odds are the appropriate thing to do is make the fix for a number of reasons (legal, ethical and business), but do not do it in your own say-so: run it by the lawyers first to make sure you don't screw yourself or your company over while trying to do the right thing. One thing I can absolutely guarantee: if the company is already being sued over the particular aspect of the product, it will chap the lawyers' asses no end if they get sandbagged by there being a "fix" without them knowing about it. (Litigation attorneys do not like little surprises like that. We get them all the time, but we hate them. There is nothing quite like being a day away from trial or a major hearing and hearing your client say "Oh, I forgot to tell you . . . " or, worse yet, hearing about some such nugget for the first time from opposing counsel. And people wonder why lawyers drink and get ulcers.)

Don't get me wrong - if there is a problem with the product, it is almost certainly better to correct the problem. All I am saying is that you want to do it in a way that poses the least threat to the company. Trust me, it is far better for everyone - in the company and in the public that uses whatever widget the company makes - to get the suits involved now, up front, than to sit back, let a problem build into a crisis, and try to have them fix it then. (In addition to spoiling the lawyers' day, I promise you that it costs a lot less to have a lawyer help you avoid a problem than it costs to have one fix an existing problem. Them's just be the facts of life.)

CYA caveat - I am not giving you legal advice here. I am saying that this is a serious enough situation that you should be getting your answers from lawyers in a position to really assess all the facts under the applicable law, not from some BF bozo. There, now my A has been C'ed.:D

Invade Iraq

That's only if my first suggestion doesn't pan out.

I worked for a company that got sued because the product we made injured someone. Not a product defect, but because the operator was an idiot. But because we were a foreign company, get who pays out!?!?! I tell ya, if this guy was stupid enough to do what he did.....

OFF Topic to OP but relevant to bgilchrist's post: Dad worked for a hand tool company for years. They got sued by a guy using one of their screwdrivers. He was using it to pry out the huge staples that are used attach the ground wires to telephone poles. It broke and a piece of metal hit him in the eye. I think that people that bring frivolous suits should stand to lose whatever it is they are asking for. Sue for a million and lose, the winner get a million for the waste of time.

Just use duct tape.

OFF Topic to OP but relevant to bgilchrist's post: Dad worked for a hand tool company for years. They got sued by a guy using one of their screwdrivers. He was using it to pry out the huge staples that are used attach the ground wires to telephone poles. It broke and a piece of metal hit him in the eye. I think that people that bring frivolous suits should stand to lose whatever it is they are asking for. Sue for a million and lose, the winner get a million for the waste of time.

Yeah, we ended up having to modify the warning sticker. It was 'ensure machinery is not running before cleaning' to 'don't straddle the dump lever and ensure that machinery is not running before cleaning the machine.'

The stupid warning stickers you see on equipment......all result from some idiot actually performing the action warned about.

The owner won't listen, he's the largest jackass in the world and I wouldn't mind if he went down in flames just this once. We're being hit with multiple lawsuits from many different states where our product's being used.

What's weird is that they haven't subpoenaed us for our engineering documentation yet to tear apart. I haven't reviewed everything but I'm pretty sure that there's a very slim chance that the way everything is toleranced, there is a situation within spec that will allow the product to fail. The product is not really passively safe, which is the main reason, it should've been designed passively safe a long time ago but no one did anything about it.

CYA caveat - I am not giving you legal advice here. I am saying that this is a serious enough situation that you should be getting your answers from lawyers in a position to really assess all the facts under the applicable law, not from some BF bozo. There, now my A has been C'ed.:D

Thanks! One more to throw at you. Say, hypothetically speaking, if someone say... slapped a coworkers ass a few times, would that get that person fired for sexual harassment and that's that or would it spill over outside of the job, like end up in court somewhere?

Yeah, I is, but I'm waaaaaay over here in California (and I didn't stay in a Holiday Inn Express last night), so I can't speak to Noo Yawk law. Many states have a rule of evidence that precludes a plaintiff from introducing evidence of a subsequent "fix" such as you describe in your, ahem, hypothetical. The theory is that we want to encourage folks to fix such flaws when they come to their attention, not to discourage them from doing so for fear of it being deemed an admission of wrongdoing, just as you surmised.

It will not surprise you to hear that plaintiffs' and defense attorneys have fought many a battle before a judge arguing that this rule does or does not apply in a given situation. It will also not surprise you to learn that this rule has exceptions, and that they vary from state to state.

So, the real world answer to your situation is, unless you are the Grand High Poobah of the company, to run this up the chain of command to whoever is the proper person to bring this to the attention of the company's lawyer (in-house, outside litigation counsel, whoever). Odds are the appropriate thing to do is make the fix for a number of reasons (legal, ethical and business), but do not do it in your own say-so: run it by the lawyers first to make sure you don't screw yourself or your company over while trying to do the right thing. One thing I can absolutely guarantee: if the company is already being sued over the particular aspect of the product, it will chap the lawyers' asses no end if they get sandbagged by there being a "fix" without them knowing about it. (Litigation attorneys do not like little surprises like that. We get them all the time, but we hate them. There is nothing quite like being a day away from trial or a major hearing and hearing your client say "Oh, I forgot to tell you . . . " or, worse yet, hearing about some such nugget for the first time from opposing counsel. And people wonder why lawyers drink and get ulcers.)

Don't get me wrong - if there is a problem with the product, it is almost certainly better to correct the problem. All I am saying is that you want to do it in a way that poses the least threat to the company. Trust me, it is far better for everyone - in the company and in the public that uses whatever widget the company makes - to get the suits involved now, up front, than to sit back, let a problem build into a crisis, and try to have them fix it then. (In addition to spoiling the lawyers' day, I promise you that it costs a lot less to have a lawyer help you avoid a problem than it costs to have one fix an existing problem. Them's just be the facts of life.)

CYA caveat - I am not giving you legal advice here. I am saying that this is a serious enough situation that you should be getting your answers from lawyers in a position to really assess all the facts under the applicable law, not from some BF bozo. There, now my A has been C'ed.:D

+1,000,000

In Texas, fixing the problem will pretty much never get you in trouble. Leaving it be...that's another story.

Bikingshearer's advice is spot on and you simply must run this by counsel to figure out the best way to make the necessary modifications and still preserve any discovery protection, work product privilege and the like. Having said that, I work on the defense side of medmal cases, and when it comes to issues of patient safety, we make whatever changes are necessary then and there regardless of any legal implications down the road. To do otherwise would simply not be ethical.

Bikingshearer's advice is spot on and you simply must run this by counsel to figure out the best way to make the necessary modifications and still preserve any discovery protection, work product privilege and the like. Having said that, I work on the defense side of medmal cases, and when it comes to issues of patient safety, we make whatever changes are necessary then and there regardless of any legal implications down the road. To do otherwise would simply not be ethical.

+1,000,000 again.

I don't know about you people but I hid the book under my desk during my Ethics class final and passed with an A-.

Hmm...we're always being sued for stuff, but I'm not a part of that, so I can't answer your question.

From what I've heard from our law and risk guys, if we've made due diligence in eliminating faults and providing training (such as a users manual that tells you not to pull out staples with a screw driver) to users, then it should be possible to be ruled not-at-fault.

And yes, the others are right. You need to be talking to a real lawyer about this.

Also, saying outright that something isn't safe is a legal deathtrap, especially if there's documentation of the statement and no evidence of followup to address the issue. Around my company, we usually have things that "do not meet durability targets" or "require following operator procedures" (which are specified in our manuals). If it's genuinely not safe...well...then it has to be addressed, but if you're not careful about the wording a prosecutor may spin it into something bigger than a 9/11 conspiracy.

I think that people that bring frivolous suits should stand to lose whatever it is they are asking for. Sue for a million and lose, the winner get a million for the waste of time.jsharr for the Supreme Court!

My bicycle came with a warning sticker on the top tube:

DO NOT RIDE THIS BICYCLE UNTIL YOU HAVE READ AND UNDERSTOOD THE OWNER'S MANUAL. FOR ANY QUESTIONS ABOUT OPERATION CONTACT YOUR AUTHORIZED DEALER.

:)

I once heard about a manufacturer of toy trains that put the following warning on its products:

"Our lawyers told us to tell you not to eat this."

I once heard about a manufacturer of toy trains that put the following warning on its products:

"Our lawyers told us to tell you not to eat this."
:)

No one ever warned me not to eat my bike! I still have grounds to sue!

Sounds like you should be updating that resume cause, depending on the size of your company, multiply lawsuits could lead to layoffs, lower pay, or even shutting down an office or two.

Our product hurt someone? Must be working.
http://www.lockheedmartin.com/data/assets/2887.jpg

Our product hurt someone? Must be working.

Remind me not to piss you off....

Should Foo have a warning label?

WARNING: DO NOT EAT THE BASS

The bass is safe to eat. Caught fresh daily.

Thanks! One more to throw at you. Say, hypothetically speaking, if someone say... slapped a coworkers ass a few times, would that get that person fired for sexual harassment and that's that or would it spill over outside of the job, like end up in court somewhere?

Lessee, unsafe product going out the door and ass-slapping behind the door. Great place to work you've got there. :eek:

Again, the CYA statement in my previous post applies. But as a practical matter, unless the perp leaves welts, breaks the skin, or tied the recipient down and shot video, it is highly unlikely that the criminal justice system would get involved. In far too many places of employ, it wouldn't even get the rat ******* a stern talking to. In California, though, it would get you elected Governor, assuming you also have an accent and star in action movies.

Remind me not to piss you off....

Haha, I'm in new york city, he'll have to take out the other 10 million people here.

Sounds like you should be updating that resume cause, depending on the size of your company, multiply lawsuits could lead to layoffs, lower pay, or even shutting down an office or two.

or... 26% raise over the next year. :)


Lessee, unsafe product going out the door and ass-slapping behind the door. Great place to work you've got there. :eek:

Again, the CYA statement in my previous post applies. But as a practical matter, unless the perp leaves welts, breaks the skin, or tied the recipient down and shot video, it is highly unlikely that the criminal justice system would get involved. In far too many places of employ, it wouldn't even get the rat ******* a stern talking to. In California, though, it would get you elected Governor, assuming you also have an accent and star in action movies.

Some of the ladies here turn quite a few heads. Plus one of em grabbed my nipple in the hallway, I was considering grabbing hers but something told me to hold back... I'll NEVER have that opportunity again...

Short answer: NO.

Rule 407. Subsequent Remedial Measures
When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
This rule is constructed along familiar lines: it excludes evidence (the undertaking of subsequent remedial measures) when it is presented under specified theories of relevance. However, the rule only bars subsequent remedial measures that would have prevented the harm that is the subject of the litigation. The rule incorporates language that clearly indicates the arena of products liability; the reasoning behind this is parallel to the foundational policy behind the rule: the judiciary does not want to dissuade manufacturers, or anyone else, from taking remedial measures that might prevent future harm. However, some courts allow it in products liability cases on the theory that the greater risk of liability, if admitted, would trigger the change, which is somewhat of a circular argument as it is designed to encourage improvements.

The purposes for which the evidence may be admitted are limited by the requirement that the offer is made to prove a controverted fact. It can’t be offered to prove ownership or feasibility of precautionary measures unless the opponent has denied ownership or that taking remedial measures was possible.

The rule does not bar evidence that measures have not been taken, but this might not be relevant unless the defense is lack of knowledge of the dangerous condition or product. Evidence of subsequent remedial measures made by someone other than the instant defendant, like a peer corporation, is not excluded by the rule. Firing an employee is a widely considered a subsequent remedial measure.

or... 26% raise over the next year. :)



one of em grabbed my nipple in the hallway, I was considering grabbing hers but something told me to hold back... I'll NEVER have that opportunity again...

Ha! Something you'll regret while you reflect at 80 yo.

Why don't you go back now and grab for the gusto?

Whaddayu care? If you ain't the PE that signed off on the product, just lay back, let the beheadings happen, then save the day w/ the "fix" to the flaw, get paid, slap ass and document everything just in case you need to sue someone.