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After starting my own company in 1968, I was occasionally offered work as an expert witness in legal cases involving plastics. I always declined these projects until one of my customers was named in a patent litigation. The subject of this controversy was a childproof closure that I had helped design and develop.

Glenn Beall

October 5, 2011

4 Min Read
By Design: A breach of contract

After starting my own company in 1968, I was occasionally offered work as an expert witness in legal cases involving plastics. I always declined these projects until one of my customers was named in a patent litigation. The subject of this controversy was a childproof closure that I had helped design and develop.

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GlennBeall, author of our By Design column and a member of the Plastics Hall of Fame.

While preparing for the trial I was interviewed by my customer's attorneys. They discovered that I knew why the product was designed as it was and how it differed from the prior art. I wasn't interested in this kind of work, but I agreed to testify because I believed my customer was being unjustly accused.

Much to my surprise I discovered that I enjoyed the work. The trial attorneys were intelligent, dynamic people who had the ability to motivate me to do my best work. I found the opposing experts to be technically competent. In too many instances they knew more about the related technology than I did. I found that being technologically challenged was intellectually stimulating at a stage in life when there weren't that many new challenges.

The few legal projects that I accepted back then consisted mainly of patent litigations and personal injury cases involving product failures or machinery accidents. There were a few breach-of-contract cases that have become more common now than in the past.

Since the beginning of time businessmen have been claiming that someone didn't meet a contractual obligation. Most contracts do not cover all of the possible eventualities. In some instances there is no written contract. In these disagreements the court falls back on the prevailing standards and practices in that particular industry. The court relies on theoretically impartial expert witnesses to define what those standard practices are.

Parts don't work properly

A classic example of such a situation would be where a new mold produces parts that don't function as anticipated. After multiple tool revisions, the molded parts are acceptable. The product goes into production and becomes a commercial success. The only remaining problem is who is liable for the tooling revisions.

From the 1960s through the mid-1980s most of these issues were resolved by the mold maker and his customer having a good time meeting face-to-face to argue, threaten, scream, and shout at each other. Then, for the sake of the project, they shared the cost of the revisions, went to lunch, had a few beers, and continued to do business as usual. It should be pointed out that the mold maker always paid for the lunch, as that was the standard practice in that industry.

Times have changed, but the same disagreements still occur. My own experiences are limited, but I have to believe there are more breach-of-contract lawsuits today than in the past. When such lawsuits are filed, the project suffers accordingly.

Some say that this is the result of having too many lawyers in this country. I believe it has more to do with today's corporate managers being taught to sue each other as a part of their MBA training. What these modern managers don't seem to understand is that taking such an issue to court costs far more and takes much, much longer to resolve than sitting down face-to-face and arbitrating a situation.

Other managers attempt to avoid any unpleasantness by hiding behind a blizzard of threatening e-Mails. This is not a good practice, as with e-mail you can't scream at someone or read the resulting body language. What your e-mail will do is solicit an e-mailed reply. This is the beginning of a paper trail that lawyers will turn into an income stream for themselves.

If you find yourself involved in a dispute with an inadequate contract or no contract at all, you will have wandered into the poorly defined area of the standards and practices of the plastics industry. In this eventuality I would recommend that you secure copies of the following two booklets available from The Society of the Plastics Industry at www.plasticsindustry.org:

1. Standards & Practices of Plastics Molders: Guidelines for Molders and their customers.

2. Customs & Practices of the Mold Making Industry: A guide for the purchaser or manufacturer of thermoplastic injection molds, and classifications of injection molds for thermoplastic materials.

These excellent little booklets don't cover everything. They are, however, the only published information available on the standards and practices in this industry, and attorneys and the Court love printed documents. I can't remember how many times I have cited them in settling disputes or at trial. Hopefully they will help you resolve disputes before they turn into litigations. In the final analysis suing someone should be a last resort and not a first response.

Incidentally, my customer won the childproof closure case.

About the author: In this recurring column at PlasticsToday, Glenn Beall of Glenn Beall Plastics Ltd. (Libertyville, IL) shares his special perspective on issues important to design engineers and the molding industry. You can reach him at [email protected].

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