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Have you responded to events in the world and industry by investing in product research and development? If so, this is the time to sharpen your focus on reducing risk.

Plaintiffs who sue manufacturers often allege they suffered an injury during use of a product because it was defective or lacked adequate warnings or instructions. By being proactive, a relatively small investment now can result in valuable protection later. Before selling new or redesigned equipment, consider these strategies.

Document Preservation

If someone files suit claiming a manufacturing or design defect, the plaintiff will have an opportunity to collect documents and information that relate to the design, manufacture and testing of the product. This includes original design concept notes and drawings, engineering specifications, testing parameters, supplier certifications and quality checks.

If that information does not exist, a plaintiff can argue the company is hiding something or did not have a thorough and safety-focused process. It is critical that companies are thoughtful and strategic about preserving key information that helps tell their company story.

Producing documents that show a product was manufactured as designed and thoroughly tested demonstrates the product’s quality.

The company should also be prepared to explain why a product was developed in a certain way, other designs it considered, and why an alternative design was not the proper design.

Keep and organize documentation related to design changes. If a lawsuit is filed involving a product that has undergone changes, expect the plaintiff to argue that changes made after the plaintiff was injured are proof that the product was not safe. Be prepared to track the timeline on changes, identify individuals who participated in the changes, and offer reasons for the changes. Such information strengthens a company’s position significantly.

Many companies create a document retention policy. These policies create structure. It is critical that if a policy exists, you take steps to ensure it is followed. Companies often implement an annual review to be sure that employees know the policy, that it is correct and comprehensive, and that documents are preserved for the appropriate length of time.

Instructions, Warnings

Secondary to legal claims of defects, plaintiffs often allege manufacturers sold a product with inadequate instructions or warnings about a hazard that is alleged to have caused an injury.

Product sellers have a basic legal duty to provide “reasonable warnings and instructions.” Instructions provide information on how to use a product safely. Warnings are intended to prevent harm through improper use by alerting users to the existence and type of risk.

When we discuss a company’s duty to warn, the conversation goes beyond onproduct labels. It also must include safety information and instructions provided to users in manuals, for example, hangtags, videos, advertising or on a manufacturer’s or retailer’s website.

Although manufacturers generally do not need to warn of open or obvious dangers, dangers commonly known to the public, or when users of a product have special expertise with its use, these exceptions are fairly narrow. Consult a product liability attorney before deciding if a warning is necessary.

Manufacturers should consider and identify all reasonably foreseeable risks of use and misuses of their products. Once identified, the goal is to write warnings and instructions that are as clear and succinct as possible. It is helpful to organize warnings and instructions by the level of risk, which will correspond to the ANSI signal words of “Danger,” “Warning,” and “Caution,” or the type of hazard. Bullet points and pictograms can also help relay warnings and instructions.

Lastly, manufacturers should decide if a warning goes on the product and in separate instructions or only in separate instructions, such as an owner’s manual.

In our experience, this determination is best guided by asking whether the safety message should be seen prior to each use or read once prior to initial use. Assuming some warnings and instructions are contained only in separate materials, a warning label telling users to read the manual prior to use should be on the product, as should directions on how to obtain a copy of the manual.

By thinking about how to best communicate warnings and instructions, manufacturers can defend themselves with the position that there was nothing more to do to warn an injured party.

Vendor, Supplier Contracts

Manufacturers also can minimize risk through careful consideration of the contract language used in vendor, supplier, and distributor agreements. Consider these questions on contract provisions to best protect yourself:

• Does the contract contain indemnification provisions that will protect you if a legal claim is made but the vendor or supplier is at fault?
• Are there warnings and instructions for use of the product that should be spelled out in the contract?
• Does your contract spell out the responsibility of the dealer/ vendor for providing point-of-sale materials to the customer and/or training end users?
• Is the contract clear about responsibility for insurance, additionally insured designations and minimum coverage amounts?
• Would it be advantageous to include an arbitration or forumselection clause in the contract?
• If consumer products are at issue, does your contract allocate responsibility for issuing product recalls and safety reporting to the Consumer Product Safety Commission?

Although contractual provisions such as these cannot help in every instance, they can shift risk and responsibility for product liability matters in the right situations. In deciding whether to implement these provisions, it is important to consider legal ramifications as well as potential customer reactions and business suitability. The proper balance can result in significant benefits through a shift in risk.

DJ Warden is an attorney with Association partner Nilan Johnson Lewis. He specializes in defending product liability cases and commercial litigation.