Whose Fault Is It?

by Darren Ashby

This will be my final rant on the whole "dog eat dogⁱ" world of product liability. The first point I would like to make is an apology. My email crashing caused this article to be late in publishing. Don't worry, it was nothing a few hours of searching on the Internet couldn't fix. Though, the few hours was spread over the course of several days since I can never find what I want the first time! I had to wipe out my registry and re-enter about a million contacts by hand. Of course, I'm sure the EULA to which I agreed absolved the manufacturer of any fault, so any loss is mine to bear aloneⁱⁱ.

Bombs Away!

That said, the second point comes from reader Mike as he relates this experience:

I see I'm not alone on the "no lawyers in Congress" issue. Nice to know I'm not just a lone voice in the wilderness . Here's something I just had to tell you about. Last night, I bought a Microsoft optical travel mouse for my laptop. The little manual that comes with it is 14 pages long. Inside the front cover, it begins with a half-page Health Warning relating to MSDs (musculoskeletal disorders). This section refers the reader to a six-page section titled "Healthy Computing Guide" which, believe it or not, includes the following. I quote:
For overall good health, consider the following:
* Eat a balanced diet and get adequate rest.
* Exercise for overall fitness to give strength and flexibility to your body. etc, etc, etc.
What in the name of sense and sanity requires that health advice be dispensed in a user manual for a simple technical product??!! One can only surmise that because Microsoft's pockets are among the deepest, their own lawyers feel compelled to create a preemptive defense against some greed-driven shyster who figures that blaming a Microsoft mouse for his client's real or imagined medical problems offers better odds than the state lottery.
If it comes down to war with Iraq, let's drop lawyers instead of smart bombs, cheaper, more plentiful, and ultimately far more destructive, especially if we give a few of them parachutesⁱⁱⁱ.

I won't mention any names (ironically this is for legal reasons), but I think a certain huge company invented the whole idea of a product line that cannot be owned by the consumer and which the company cannot be liable for either . . . alias software. There is an entire industry founded on the lack of recompense for a faulty product, and we pay for it every time we sign an EULA and my compujkkkljjhheessyy. jklkpuhj; stops workkkkk ingns right and I get that darnnned blue screen arggggggh!!!!!!!

I think I'll get up now. Microsoft is right, I need to get out more...

Hmmm . . . using lawyers for bombs, that puts a whole new slant on the Engineer = Pyro Theory! Speaking of lawyers and the forced absence thereof, I have yet to correct myself again. And don't worry, I'm used to it. It comes with the territory of being wrong often. Anyway, it turns out that Shakespeare's quote to "kill all the lawyers" is a bit out of context. A reader named Patience^iv sent in this link. Evidently, the thespian was trying to point out if you want to set up a tyranny the first thing you should do is off the public defenders! Too bad our society has reached a point that this phrase has a whole new and sad connotation.

Statistically speaking

One reader stated the statistics of the problem. Any good engineer would, wouldn't he?

Your remarks about lawyers seem to confirm the stereotype. I know there are some ethical ones out there; unfortunately 95% of the lawyers make the other 5% look bad.

If you didn't giggle the first time you read it, read it again until you do. One thought does come to mind. Does the same ratio apply to managers perchance? Thanks for the stats Earl!

Steve writes to say that you can't legislate a remedy for the problem. He wanted me to throw in the word "Libertarian", the reference to which I am not sure :).

New regulations are rarely the answer. I agree with you that the situation is broken but using the government to solve the problem is not likely to produce anything satisfactory. Especially when the thrust, in this case, is to force politicians to police themselves better. Government certifies these "class action" suits, which are the egregious ones where the lawyers pocket millions, the handful of original plaintiffs get thousands, and the rest of the class gets a few complimentary Blockbuster video rentals (Blockbuster was sued a few years ago over their late fee policy). The right answer is almost always to take power away from government, not give it more. In this case maybe eliminating the concept of a class action suit would prevent these kind of awards. It's harder for a jury to award that kind of money to an individual or two than it is to a "class of thousands". I'm not familiar with the McDonalds case, but if you've ever been through voir dire then you know that it is a thinly disguised process of jury stacking. You're expected to swear that you will leave your common sense in the lobby and follow the rules that the judge gives you. If you stack the jury box with idiots (like happened in the original breast implant trial in Houston) then you're going to get ridiculous judgments. The rules of evidence also play into this, especially in criminal trials, where sound arguments (usually based on the plain language of the Constitution) are just flat disallowed by the judge. Removing the government power to stack jury boxes and control what the jury can hear would go a long ways towards clearing this situation up.

Catch 22

One email asked me what I wanted from the company that hurt my dog. I think what irked me the most is that the company claimed they were not at fault. As I said, they did offer to cover the vet bill, but only if I signed a paper absolving them of all responsibility. I realize that this is standard legal practice, but I simply didn't think it was right. When I sent them the letter, I left the response completely open ended, hoping they would take the initiative and be a responsible company. But they obviously took the easy way out, trying to get away with as minimal risk as possible. I think simply a promise to investigate and fix the problem would have been enough. But that never came up. The company was too busy assigning fault to me for letting the dog wear the collar in the rain. Now I wonder if the only thing they understand is $$$. Reader Nate pointed out the following:

What you say makes sense and in a society where lawsuits are rare, your expected response might be a possibility. However, in our society, the system demands the response you received. I don't think they had a choice. But I can assure you, someone at that company is working on the problem - they just can't admit it.

I think Nate is right about the system creating the response. It goes back to the various frivolous multibillion-dollar lawsuits of late that force companies to claim no fault because if they don't then the greed of the consumer, armed with the lawyer, can bankrupt them. I think Nate is right that someone in the company is working on it. I was in a pet store just a few days ago and noticed that you can now buy collars that are marketed as waterproof. Too bad the plain old ones are still for sale.

It's My Fault

Alan wrote in again and gave me a load of giggles reading his comments. But alas his rant was so long that I had to relegate it to another page. So those of you who would like to read it click here. He delves into stupidity, morality, and responsibility, not necessarily in that order. Speaking of responsibility that's what it boils down to isn't it? Who is willing to say, "I am responsible, what can I do to make it better?" A little dose of ethics could go a long way in this world. The following reader, also named Allen^v(note the different spelling) points out the main concern with claiming responsibility:

...I was reading the article and side bar and it seems to me the general idea of this whole situation is that people should take responsibility for their actions. In an ideal society this would be the best course of action however, realistically this will NEVER happen unless EVERYONE did it all at once. The reason is this: Say somebody stands up and says, "I did it, I take responsibility," well then the rest of society would feed on him like a school of sharks! It would appear that no one person or group can take responsibility without fear of intense undeserved repercussions from every other person/group in the world.
What would need to happen I believe is that everyone would first need to understand and use the concept of forgiveness. Once this as a society is in place, than people can take responsibility for their mistakes without fearing some great impending doom to befall them.

Mike spent some time in Japan and relates the following in comparison to the US:

In a past (job) life, I spent a lot of time in Japan, trying to get them to buy our products and was constantly made aware of two things. 1) For some reason, they didn't want our product or company in their country, and 2) there was a strong presence of company/corporate responsibility. If someone was injured by your product, the company took care of the situation generously. They accepted complete responsibility. There was no other way. It was a matter of honor.

Honor, responsibly, ethics, integrity, is it me or are these the things that Dad taught you to have when he sat you down and told you how you should respect your family name and not do anything that would ruin it? I know I was given that talk, and if any of you out there were not, I encourage you to have one with your children because it really does boil down to these fundamentals. Clearly, there is a lack of these character traits in corporate America today. You need only watch CNN for a few minutes to hear of yet another scandal where some big-wig drove some giant company into the ground for personal gain and at the expense of thousands of others. Is that really any different than launching a "deep pocket" lawsuit just to see how much money you can get? I don't think so. True corporate responsibility starts with personal responsibility. And personal responsibility is not something you can legislate, it's not something you can force. But it is something you can teach.

The Last Re-"tort"

The last couple of articles gave me the chance to hear from nearly a hundred other similar minds out there that recognize the problem and the need to do something about it. There were lawyers (yes even with all the bashing, I traded a few very enlightening emails with a real live lawyer!), there were engineers^vi, pet lovers, mothers and managers (yes, there are managers out there with ethics, I can prove it!). I wish I could have printed all of your comments as I learned something from each one, but I wouldn't want to run the Internet out of disk space. :)

To sum it all up, there is a problem. It is our fault, so we need to do something to fix it!

----------------------------

Footnotes

ⁱ If you read the last article you will get this sad but true pun. And if you want to train your dog without risking the problems I had, try this link, http://www.apdt.com

ⁱⁱThis is not so 'down under'. I noticed on the last warranty card I received with a piece of software that there was an exclusion to the liability clause where all responsibility was absolved. I believe it applied to residents of Australia and it allowed some legal recourse for failure of software. Though I can't prove it, as I have mis-filed the document somewhere in my 'piles everywhere' filing system. You know the one where the taller the pile becomes, the less important the documents are in it. If any of you have taken advantage of this clause, please drop me a line. I'd like to know how it worked out.

ⁱⁱⁱI had to include Mike's disclaimer slightly edited for -you guessed it- legal reasons.
DISCLAIMER: The above is the personal opinion of the author, and should not be construed to represent the opinion of ***** Systems Inc. or, for that matter, of any reasonably intelligent lifeform.

^ivI thought it odd that someone named Patience wrote in to comment on an article where I was clearly upset. Yet, the coincidences and ironies have been piling up during this treatise, at what I would say is an alarming rate. It could be reality shifting (if you want to know more about this bizarre theory click here, but don't say I didn't warn you!) or it could be karma, but personally I just think God had a sense of humor when he created the universe!

^vAllen's tag line sums up an engineers life to the "T", so I include it here for all to see:
"What we demand is, rigidly defined areas of doubt and uncertainty!"

^viOne engineer sent in specs on the collars. I was surprised to learn how high of a voltage was used, on the lowest setting your dog would get hit with about 1500 volts, while high could pump out as much as 3500 volts. I mention this because it certainly isn't printed on the package or I may not have even bought one. I thought my readers might like to know though.

Product Engineering Archive

Guides and Experts Analog Avenue EDA Tools PLD DSP EDA Embedded Systems Power Test


		Click here to get your listing up.