The Best Defense is a Good Offense

Tips to protect manufacturers and dealers from improper field testing
By David Toney, Adams & Reese LLP
September 15, 2008
FEATURE ARTICLE | Strategies & Practices

It is an ever-increasing occurrence in the window-and-door industry-a manufacturer or dealer receives notice that a field test has exposed a leak. The repercussions which may flow from this depend largely on how the leak-identifying field test was conducted and how the manufacturer or dealer reacts.

A "properly" conducted field test can be loosely defined in a legal dispute as one which conforms to any number of AAMA or ASTM standards. These industry-standards not only provide the testing outfit with protocols which include, for example, duration of testing, water pressures, and angles of spray; but also provide reliable testing protocols which can be reproduced and are generally considered relevant evidence for a jury or judge to consider in a product defect case. Conversely, an "improperly" conducted field test is one which is likely conducted on a whim and lacks any resemblance to scientific methodology or protocol. As such, most field tests fail to provide relevant and reliable product performance data and do everything but evaluate a product in a "real world" fashion. In fact, many field tests (typically beginning with an owner or contractor and a hand-held garden hose) are conducted with the specific goal of failing units, without regard for the most likely sources: poor installation and inadequate design of the surrounding construction.

WHY THIS MATTERS
If a lawsuit or demand for arbitration is filed against a manufacturer or dealer with the results of an improper field test in-hand, these results may be the only evidence available related to the function or malfunction of the product. This danger is multiplied by the ability of plaintiff's counsel to liberally extrapolate expert opinions related to the improper testing. Plaintiff's experts will commonly opine, for example, in a structure with hundreds of units, based on a couple of leaky units found using improper field testing methods, that widespread unit malfunction and damage exists. This extrapolation of the evidence creates the risk that a court or a jury may be swayed by this "junk science" rather than the true merits of the case, and more importantly, the true "real world" performance of the product. In a scenario such as the one mentioned above, if the court or a jury is somehow persuaded by the flawed testing, the manufacturer and/or dealer could be liable for the cost of replacing hundreds of properly functioning units, not to mention consequential damages, attorney's fees and costs under some scenarios.

AVOIDING RISKS
The best defense for manufacturers and dealers against the risks associated with improper field testing is to play offense. In doing so, the first, and most important, step is to be diligent in communicating information which will ultimately formulate reasonable and realistic product expectations. It is extremely important that all product information, warranties and relevant instructions are clearly communicated. Drafting these documents should always be done with an eye towards shaping the customers' product expectations. Next, manufacturers and dealers must work together to stay informed and, if possible, insert themselves into the testing process. The goal is to "equal the playing field" by participating in and ensuring that the field tests are being properly conducted (according to industry-accepted standards).

On participation, it is not uncommon for owners to attempt testing without any participation by a manufacturer or dealer's representative. While the motive is obvious, such testing is not always disregarded by courts and juries. So, a very basic rule that all manufacturers and dealers should live by (and one that should be included as a condition precedent to obligations under a warranty) is that they do everything in their power to participate and insert themselves into the testing once they are notified that there's a problem.

Another example of a simple joint defense effort by manufacturers and dealers is to shape both the testing and its outcome by mandating that all testing be performed by an AAMA-accredited testing laboratory. Finally, manufacturers and dealers should, to the extent possible, examine carefully bid contracts for post-project performance language, making sure to provide building written explanations of how products can be expected to perform in each particular application. Again, this should be done with an eye towards conveying reasonable and realistic product expectations and shaping the evidence that can later be used in the event of a dispute.

Although some of these steps, in the short-term, may appear to be extraneous, time-consuming, and expensive, in the long run they may prove to be priceless. At the end of the day (or perhaps at the end of a long, hard-fought jury trial or arbitration), it is a manufacturer's or dealer's lawyer's dream to be able to point to written documents and say "we told you that would happen" and be able to produce documentary evidence and credible testimony from first-hand, personal knowledge that the "defect" actually lies in the testing methodology rather than the product.

David Toney is Special Counsel to Adams & Reese LLP's Houston office. His practice includes risk management and consulting as well as claims and litigation handling for window and door manufacturers and dealers. He welcomes feedback and questions, and can be reached at 713/308-0116 or david.toney@arlaw.com.