Issue link: https://read.dmtmag.com/i/279349
I DA U N I V E R S A L M a rc h -A p r i l 2 0 1 4 53 Robert McIntyre Wegman, Hessler and Vanderburg 6055 Rockside Woods Blvd., Suite 200 Independence, Ohio 44131 Phone 01.216.642.3342 (offi ce) 01.216.403.0516 (Cell) e.mail RWMcintyre@wegmanlaw.com the failure of the OEM and a ermarket components is tied to this matter, rather than the part itself. e part that fails from your shop gets blamed, and you get sued. What's the answer? Easy, don't make or sell anything, and you will be 100 percent safe – out of business, but safe from the lawyers. More complex answers are out there: insure against this type of claim, usually prohibitively expensive; put away money and self-insure; do business through a web of companies and "kill" the one that gets sued; only come into the U.S. through distributors (no Internet sales) and let them worry about the problem; obtain releases from tier one customers. None of these are completely eff ective. ere is another path. Carefully analyze the actual use of the product you are making as a replacement – essentially "engineer through" the system or use of the part in the actual machine and look for the hidden defects. Market intelligence helps here. If the OEM or other a ermarket companies have a failure trail out there, fi nd out why, and put that intel in your engineer- ing of the replacement part. In some cases, it may indeed be something that is so "under water" that you might decide to wait-and-see before dupli- cating the OEM's mistake. Alternatively, if you have confi dence in your engineers, you may decide to change the OEM design and make it bet- ter, but still fi t on the machine. is is truly a solo fl ight and must only be taken with the highest care and consideration. Where does this leave the domestic and foreign com- pany that makes or sells here in the land of the free and the free lawyer? In addition to the technical and engineering steps outlined above, another key defense tactic is to keep careful and extensive records of all engineering and manu- facturing activities and testing. If you can prove in court that your product is as good as or better than the OEM's, you have, at the least, a fi rst defense to negligent design and manu- facturing. Also, track your products a er sale if possible. O en "failure" results in just losing the customer, and the instance and circumstances of the failure are never known. Settle claims as quickly as you can, right or wrong. A settlement protects you from a worse event later. In a case where an operator's widow wanted $100,000 in a rollover accident, the OEM and the dealer's insurance company resisted. e claimant changed lawyers and got a $5,000,000 jury verdict. In conclusion, like almost every topic in this column, the answer is common sense and reasonable caution. Take baby steps and get good advice – technical and legal, check your work and their work, and move deliberately. ere are unique risks in the U.S. legal system for making products that can, alone or in a machine, hurt people, but they are manageable risks and must be taken. e only alternative is to stay home and not make or sell the product. ●