rklopp
Diamond
- Joined
- Feb 27, 2001
- Location
- Redwood City, CA USA
I am a mechanical engineer with a strong machining background, and have often been involved in lawsuits and other disputes as a consultant and expert witness. Most shop managers and owners are not exposed to litigation, and are not familiar with the process, so I thought it might be useful to describe my experience as it relates to cases involving machining, and offer some insights that might help in case the potentially unpleasant arises. I also hope to generate some discussion on the topic so I can learn from other’s experiences.
I was an expert witness in arbitration over allegations that CNC machines and fixtures that were part of a turn-key package failed to produce at the promised rate. The buyer (the defendant) withheld payment and the reseller (the plaintiff) sued. Naturally, there was hype in the plaintiff’s initial quote, but the root cause of the production shortfall was the defendant’s quality control issues. His raw castings being fed into the process (over which the plaintiff had zero control) contained defects that were not detected until after machining. Also, his inattentive operators would fail to notice a tool was broken until hundreds of parts had been run and shipped. The parts were just-in-time for the auto industry, so there was h*ll to pay.
The reseller prevailed over the buyer in the arbitration because his lawyers were ten times better and his experts were ten times better. The defendant tried to use a local machinist as his expert, but when it became clear that this expert formerly worked for the buyer, or did contract work for the buyer, his objectivity went out the window, and he was disqualified. The defendant tried to substitute his in-house manufacturing engineer, but of course, even though he was a decent person, he could not claim to be objective. The defendant also “found” a laptop containing key evidence on the last day of the trial that he had previously claimed was gone. The arbitrators were not amused, and ruled in favor of the reseller, who also was able to recoup their legal fees.
I did some testing as part of a lawsuit between the guardians of an invalid and a CNC lathe maker. The man was an invalid because he was smashed in the head by a 54-lb slug that was thrown from a CNC lathe. He had been an innocent bystander, just pushing a broom. The slug was about 8” long and had been chucked on the first 1” or so. The operator had programmed a G96 constant-surface-speed facing cut to prepare the end for center drilling and tailstock support. During the cut, the lathe revved up to top speed (3,600 RPM, if I recall correctly), and the workpiece came loose. It went right through the lathe’s window, hit the man, and continued onward and upward until it hit a beam in the ceiling, leaving a big dent.
Through a perversion of California workman’s comp law, the plaintiffs sued the lathe maker, even though the employer was responsible for the operator’s mistakes. Even worse, the employer had replaced the lathe’s window with plywood! Under California law, the plaintiff could get peanuts at most from the employer, so he went after the deep pockets. The basis of the suit was that the lathe maker failed to warn the employer against replacing the window with plywood.
I designed a test using our company’s car crash test facility to launch a slug into a sample lathe window, which was polycarbonate. The window did not break, but instead stripped right out of the frame and wrapped around the nose of the slug. The lawsuit settled shortly thereafter because the lawyers felt they needed to cut their losses, rather than risk a huge plaintiff’s verdict. There was lots of jury appeal because the injured man had something like 11 kids, and he was only a bystander. A movie of a slug coming through even a perfect lathe window did not have much jury appeal.
I am involved in a couple of other workman’s comp cases with strange alliances. In those, the employer is teaming with their injured employee in suing a third party defendant. The employer hopes to recover his costs associated with replacing the injured employee. That means the defense has to deal with two sets of plaintiff lawyers.
I was retained by an insurance company to find the root cause of a malfunction in the spindle-orient feature of a 50,000-RPM VMC spindle. They wanted to get the machine back on line to minimize their claim payout, and also wanted to see if they could recoup their losses from a third party in a process called “subrogation.” The shop’s CNC techs, and even the machine maker had not been able to resolve the issue (which is why there was an insurance claim in the first place).
This project ended up being much closer to technical problem solving than most litigation cases. One of our electrical engineers and I visited the shop a couple of times armed with an oscilloscope and data acquisition system. We swapped spindles and cables, took measurements on a sister machine that was working properly, and after two days of sleuthing were able to reproduce the failure and identify the specific circumstances under which it occurred. It turned out there were two failures, which is why it was hard to solve. First, a spindle encoder channel was over-ranging its amplifier. Second, a cable had an intermittent break. In the end, the shop was happy because they got their machine back on line, and the insurance company was happy because their claim was limited, and they had a culprit (the folks who last rebuilt the spindle encoder system) identified for potential subrogation.
I was an expert witness in a patent dispute over CNC laser engraving machine technology. Amongst the patent claims was one for a “rigid frame” for the machine, and the notion that the machine was compact and could fit on a desktop in an ordinary office environment. Under cross-examination, the attorney tried to surprise me with a prior patent for a laser engraver consisting of a MAHO MHx00 milling machine in which the spindle had been replaced with a laser, and I was asked whether I was familiar with this technology. Boy, was I, because I happen to have that machine’s cousin, a Deckel FP2NC, in my garage. “This old patent invalidates your client’s patent, because it already disclosed a rigid frame, didn’t it, sir?” I answered, “No, because, while it may have a rigid frame, it is not compact, and might well drop right through the floor of an ordinary office environment.” “Uuuuuh, no further questions, your Honor.”
Most of the disputes I’ve been involved with start innocently enough, unless there is catastrophic injury. Most people have good intentions, but sometimes relationships go bad, and insurer’s and lawyers have to sort things out.
Based on my experience, I recommend that you find an insurer with whom you are comfortable. They are in business to make money from premiums, obviously, and not pay claims, but the good ones recognize that you won’t be around to pay premiums if they don’t help protect your interests. Offer them a tour of your facilities to show that you are conscientious and take reasonable steps to avoid claims. Listen to what they have to say about further minimizing the risk. Involve them early if there is any hint of a forthcoming claim, as they can advise you on mitigating damages. A good faith effort to mitigate damages is a requirement of most insurance policies.
Find a lawyer with whom you are comfortable. They should regularly practice the kind of law that is relevant to the machining business. Generally, the amount of money at stake dictates the level of law firm to employ. I would not recommend hiring your “Cousin Vinny” if you are sued for $2 million over parts that are suddenly alleged to have caused a huge incident.
A lawsuit proceeds in stages. First, the initial claims and counterclaims are stated. Then, the parties exchange truckloads of documents as part of a process called discovery, and the lawyers review them. Experts will be selected and named to the other side. The experts will investigate, reviewing documents, inspecting evidence, and performing tests and analyses in order to support opinions that they can provide at trial. Claims and counterclaims may be refined based on information learned during discovery. Experts will be deposed to get their opinions and their basis on the record. This gives all sides a preview of what could be presented at trial. Unlike Perry Mason, there are usually few surprises by the time something goes to trial. At any time, the parties may negotiate to a settlement, which is what happens nine times out of ten.
If you are sued, act immediately to protect your interests. Contact your lawyer and insurer promptly. Preserve evidence and documents; don’t do the opposite. If you think a lawsuit will involve technical subjects like engineering, safety issues, or medical issues, be sure your attorney has access to top-notch consulting experts. Do not be afraid to recommend ones. When it gets down and dirty, the litigation arena can be brutal on experts, and you want ones who are experienced with both the technology at issue and with litigation. An honest expert tells the truth no matter how much it hurts his own client. Preferably, this happens early on, so the client knows the bad news and can deal with it.
I have many other machining cases I could talk about, but I want stop and hear other folk’s tales of insurance issues and legal disputes involving the machining trade.
I was an expert witness in arbitration over allegations that CNC machines and fixtures that were part of a turn-key package failed to produce at the promised rate. The buyer (the defendant) withheld payment and the reseller (the plaintiff) sued. Naturally, there was hype in the plaintiff’s initial quote, but the root cause of the production shortfall was the defendant’s quality control issues. His raw castings being fed into the process (over which the plaintiff had zero control) contained defects that were not detected until after machining. Also, his inattentive operators would fail to notice a tool was broken until hundreds of parts had been run and shipped. The parts were just-in-time for the auto industry, so there was h*ll to pay.
The reseller prevailed over the buyer in the arbitration because his lawyers were ten times better and his experts were ten times better. The defendant tried to use a local machinist as his expert, but when it became clear that this expert formerly worked for the buyer, or did contract work for the buyer, his objectivity went out the window, and he was disqualified. The defendant tried to substitute his in-house manufacturing engineer, but of course, even though he was a decent person, he could not claim to be objective. The defendant also “found” a laptop containing key evidence on the last day of the trial that he had previously claimed was gone. The arbitrators were not amused, and ruled in favor of the reseller, who also was able to recoup their legal fees.
I did some testing as part of a lawsuit between the guardians of an invalid and a CNC lathe maker. The man was an invalid because he was smashed in the head by a 54-lb slug that was thrown from a CNC lathe. He had been an innocent bystander, just pushing a broom. The slug was about 8” long and had been chucked on the first 1” or so. The operator had programmed a G96 constant-surface-speed facing cut to prepare the end for center drilling and tailstock support. During the cut, the lathe revved up to top speed (3,600 RPM, if I recall correctly), and the workpiece came loose. It went right through the lathe’s window, hit the man, and continued onward and upward until it hit a beam in the ceiling, leaving a big dent.
Through a perversion of California workman’s comp law, the plaintiffs sued the lathe maker, even though the employer was responsible for the operator’s mistakes. Even worse, the employer had replaced the lathe’s window with plywood! Under California law, the plaintiff could get peanuts at most from the employer, so he went after the deep pockets. The basis of the suit was that the lathe maker failed to warn the employer against replacing the window with plywood.
I designed a test using our company’s car crash test facility to launch a slug into a sample lathe window, which was polycarbonate. The window did not break, but instead stripped right out of the frame and wrapped around the nose of the slug. The lawsuit settled shortly thereafter because the lawyers felt they needed to cut their losses, rather than risk a huge plaintiff’s verdict. There was lots of jury appeal because the injured man had something like 11 kids, and he was only a bystander. A movie of a slug coming through even a perfect lathe window did not have much jury appeal.
I am involved in a couple of other workman’s comp cases with strange alliances. In those, the employer is teaming with their injured employee in suing a third party defendant. The employer hopes to recover his costs associated with replacing the injured employee. That means the defense has to deal with two sets of plaintiff lawyers.
I was retained by an insurance company to find the root cause of a malfunction in the spindle-orient feature of a 50,000-RPM VMC spindle. They wanted to get the machine back on line to minimize their claim payout, and also wanted to see if they could recoup their losses from a third party in a process called “subrogation.” The shop’s CNC techs, and even the machine maker had not been able to resolve the issue (which is why there was an insurance claim in the first place).
This project ended up being much closer to technical problem solving than most litigation cases. One of our electrical engineers and I visited the shop a couple of times armed with an oscilloscope and data acquisition system. We swapped spindles and cables, took measurements on a sister machine that was working properly, and after two days of sleuthing were able to reproduce the failure and identify the specific circumstances under which it occurred. It turned out there were two failures, which is why it was hard to solve. First, a spindle encoder channel was over-ranging its amplifier. Second, a cable had an intermittent break. In the end, the shop was happy because they got their machine back on line, and the insurance company was happy because their claim was limited, and they had a culprit (the folks who last rebuilt the spindle encoder system) identified for potential subrogation.
I was an expert witness in a patent dispute over CNC laser engraving machine technology. Amongst the patent claims was one for a “rigid frame” for the machine, and the notion that the machine was compact and could fit on a desktop in an ordinary office environment. Under cross-examination, the attorney tried to surprise me with a prior patent for a laser engraver consisting of a MAHO MHx00 milling machine in which the spindle had been replaced with a laser, and I was asked whether I was familiar with this technology. Boy, was I, because I happen to have that machine’s cousin, a Deckel FP2NC, in my garage. “This old patent invalidates your client’s patent, because it already disclosed a rigid frame, didn’t it, sir?” I answered, “No, because, while it may have a rigid frame, it is not compact, and might well drop right through the floor of an ordinary office environment.” “Uuuuuh, no further questions, your Honor.”
Most of the disputes I’ve been involved with start innocently enough, unless there is catastrophic injury. Most people have good intentions, but sometimes relationships go bad, and insurer’s and lawyers have to sort things out.
Based on my experience, I recommend that you find an insurer with whom you are comfortable. They are in business to make money from premiums, obviously, and not pay claims, but the good ones recognize that you won’t be around to pay premiums if they don’t help protect your interests. Offer them a tour of your facilities to show that you are conscientious and take reasonable steps to avoid claims. Listen to what they have to say about further minimizing the risk. Involve them early if there is any hint of a forthcoming claim, as they can advise you on mitigating damages. A good faith effort to mitigate damages is a requirement of most insurance policies.
Find a lawyer with whom you are comfortable. They should regularly practice the kind of law that is relevant to the machining business. Generally, the amount of money at stake dictates the level of law firm to employ. I would not recommend hiring your “Cousin Vinny” if you are sued for $2 million over parts that are suddenly alleged to have caused a huge incident.
A lawsuit proceeds in stages. First, the initial claims and counterclaims are stated. Then, the parties exchange truckloads of documents as part of a process called discovery, and the lawyers review them. Experts will be selected and named to the other side. The experts will investigate, reviewing documents, inspecting evidence, and performing tests and analyses in order to support opinions that they can provide at trial. Claims and counterclaims may be refined based on information learned during discovery. Experts will be deposed to get their opinions and their basis on the record. This gives all sides a preview of what could be presented at trial. Unlike Perry Mason, there are usually few surprises by the time something goes to trial. At any time, the parties may negotiate to a settlement, which is what happens nine times out of ten.
If you are sued, act immediately to protect your interests. Contact your lawyer and insurer promptly. Preserve evidence and documents; don’t do the opposite. If you think a lawsuit will involve technical subjects like engineering, safety issues, or medical issues, be sure your attorney has access to top-notch consulting experts. Do not be afraid to recommend ones. When it gets down and dirty, the litigation arena can be brutal on experts, and you want ones who are experienced with both the technology at issue and with litigation. An honest expert tells the truth no matter how much it hurts his own client. Preferably, this happens early on, so the client knows the bad news and can deal with it.
I have many other machining cases I could talk about, but I want stop and hear other folk’s tales of insurance issues and legal disputes involving the machining trade.
