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No good deed goes unpunished

October 1, 2006 By    

The industry focuses a significant amount of time and resources on warnings programs – and for good reason.

We want consumers to be aware of risks from propane that we have not been able to completely eliminate. We also are quite aware that lawsuits invariably focus on warnings.

 John McCoy
John McCoy

The experts that testify about warnings in litigation have an expertise in what is called human factors. This person is usually highly educated in human behavior characteristics and the effectiveness of various modalities of communication. Usually they have an advanced degree in psychology.

Consensus standards for warnings have been developed that dictate such minutia as placement, color and type size to be used when communicating concepts such as the level of danger.

Not surprisingly, in cases we defend, the plaintiff’s expert on warnings is typically critical of the warnings given to the plaintiff in the case at hand.

In a recent deposition I took from a plaintiff’s warning expert, I asked a series of questions that seem to symbolize the frustration common to companies charged with providing deficient product warnings.

I asked the expert how long he had been testifying as an expert for plaintiffs and against propane companies. He indicated 30 to 40 years.

I asked how many warning programs and brochures prepared by propane companies he had reviewed over those many years. Many hundreds, he replied.

I asked if in all those cases and programs he had been involved with he had ever found a program he thought was adequate. He said he could not recall a single one!

I must admit I was not surprised by his answer. But the point demonstrates the frustration of the industry efforts to develop an effective warning program.

No matter what the industry does with regard to warnings it should expect that its efforts will be attacked as insufficient in any subsequent lawsuit.

There will always be a critic out there or someone who will say we could have done more than we did. There is no harm in listening to these critics but we should not lose focus on our approach to warnings.

We have continued to be self-critical of the programs that we have. Our goal is, and always should be, to develop a warnings program that enhances the safe use of this exceptional product. I believe the industry has the right mind set on this issue, critics aside.

So, don’t throw up your arms in hopeless frustration the next time you hear someone speak critically of the warnings program you have in place.

Don’t give up. A warnings program is meaningful and when properly executed will be a proactive way to communicate the risks associated with the use of propane and it will enhance safety for all who come in contact with this exceptional energy.

Success to you!

John V. McCoy is a trial lawyer and president of McCoy & Hofbauer, S.C. He specializes in catastrophic fire and explosion cases and product liability disputes. He can be reached at 800-599-8300 or

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