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Old 08-29-07, 05:02 PM   #1
slvoid
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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?
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Old 08-29-07, 05:05 PM   #2
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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.
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Old 08-29-07, 05:11 PM   #3
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Issue an immediate recall to absolve any future legal action, then pay off the lawsuit. It'll be cheaper/easier than conspiracy charges.
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Old 08-29-07, 05:13 PM   #4
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What is it? I want to buy one. I could use a payday.
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Old 08-29-07, 05:16 PM   #5
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Invade Iraq
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Phobias are for irrational fears. Fear of junk ripping badgers is perfectly rational. Those things are nasty.
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Old 08-29-07, 08:15 PM   #6
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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.
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Old 08-29-07, 08:16 PM   #7
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Invade Iraq
That's only if my first suggestion doesn't pan out.
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Old 08-29-07, 08:29 PM   #8
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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.....
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Old 08-29-07, 08:36 PM   #9
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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.
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Phobias are for irrational fears. Fear of junk ripping badgers is perfectly rational. Those things are nasty.
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Old 08-29-07, 08:41 PM   #10
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Just use duct tape.
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Old 08-29-07, 09:00 PM   #11
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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.
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Old 08-29-07, 09:26 PM   #12
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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.
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Old 08-29-07, 09:28 PM   #13
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Quote:
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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.
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?
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Old 08-29-07, 09:35 PM   #14
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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.
+1,000,000

In Texas, fixing the problem will pretty much never get you in trouble. Leaving it be...that's another story.
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Old 08-29-07, 09:39 PM   #15
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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.
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Old 08-29-07, 09:42 PM   #16
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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.
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Old 08-29-07, 09:57 PM   #17
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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-.
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Old 08-29-07, 11:34 PM   #18
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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.
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Old 08-29-07, 11:37 PM   #19
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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!
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Old 08-30-07, 08:25 AM   #20
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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.

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Old 08-30-07, 08:59 AM   #21
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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."
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Old 08-30-07, 09:25 AM   #22
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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!
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Old 08-30-07, 09:35 AM   #23
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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.
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Old 08-30-07, 09:41 AM   #24
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Our product hurt someone? Must be working.
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Old 08-30-07, 10:01 AM   #25
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Our product hurt someone? Must be working.
Remind me not to piss you off....
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