Re: Insteon now or wait?

["Robert Green" <ROBERT_GREEN1963@xxxxxxxxx>]

"James Himmelman" <donttry@xxxxxxxxxxxxx> wrote in message
news:Xns980BCE9043079jhimmeloptonlinenet@xxxxxxxxxxxxxxxx
> "Robert Green" <ROBERT_GREEN1963@xxxxxxxxx>

> > If someone's blinded, SH will be on the hook for some very big $$
> > indeed if a smart lawyer can put the blame at their feet.
>
> You are really going off on the deep end here. It's one thing to claim a
bulb
> burned out prematurely due to excessive flicker. It's completely
ridiculous
> to claim that a switch, even a defective one, could blow up a light bulb
in
> the manner you seem to be implying.

Unfortunately, I feel you've missed the point of the discussion.  Would it
surprise you if I gladly agree that the risk of bulb failure from a faulty
switch is extremely unlikely?  What I won't agree to is that it's a *zero*
possibility.  That non-zero number is all a good lawyer needs to drag
Smarthome into any bulb injury case where a defective switch was involved.
I think it was an incredibly risky business decision for Smarthome to
continue selling a switch they knew had ANY KIND of a design defect.  If
you'll allow me, I'll try to explain why:

All it takes for a bulb to seriously injure someone is for the envelope to
quietly separate from the base and fall to a hard surface.  Imagine yourself
on the witness stand.  Can you say for absolutely sure, beyond any doubt
James, that a switch with a brand new, never- been-tried-before design CAN'T
cause a bulb to fail in ways that have not been seen before?

How many years did the NASA experts say those foam panels just *couldn't*
damage the shuttle?  They said it up until seven people died in a
foam-caused accident.  It was 'ridiculous' to some that lightweight
Styrofoam could break the space shuttle badly enough to cause a catastrophe.
But the ridiculous became the very bitter truth when they did the actual
testing and analysis and stopped relying on their "gut feelings" about what
could and what could not happen.

What about Boston's "Big Dig?"  If a product liability case against
Smarthome were underway this week, a smart lawyer would remind jurors,
through cross-examination of the witness, that highway officials were
*certain* that those epoxied roof bolts would hold.  For every degree of
certainty an expert expressed, opposing counsel would remind the jury of
each and every case where experts were flat out wrong.

If the expert somehow managed to claim on the stand it was ridiculous for a
complex, new electronic switch to a cause a bulb failure, the lawyers would
counter by asking, "Didn't maritime engineering experts pronounce the
Titanic unsinkable before she sailed?"  The more certain the expert, at
least in matters like this, the less credible they seem to jurors.  Why?
Well because every juror knows that "stuff happens."

Juries believe that "mistakes happen" far more readily than they believe the
claim "mistakes could never happen."  If they show any signs to the
contrary, the opposing counsel would cheerfully remind them of the all the
world's Titanics, Three Mile Islands and other "impossibilities."  Lawyers
are found of saying "never say never."

More importantly, can you say, for sure, that bulb failure simply can't
happen *without* looking closely at the switch internals, the schematics,
the power line and wiring with tools like an oscilloscope?  And if you made
that claim, how credible would it be without running such a series of tests
and studying exactly how bulbs fail, whether normally or prematurely, when
connected to Smarthome switches?

If a client has been injured by a shattering light bulb connected to a
defective switch made by WingDing then WingDing gets an invitation to the
defendant's table. It's almost guaranteed in our legal system. I've seen
enough civil suits to know that's how it works.  The dragnet is cast.  The
first thing the bulbmaker would do if sued would be to search the net and
Lexis for any lawsuits or admissions of defect by WingDing.  They would do
so in the strong hope of  pointing the finger away from them and at WingDing
, who they will loudly trumpet, sold "known bad" switches.

I've seen cases where a big manufacturing concern like a bulbmaker will
pretend to be on the co-defendants side, but before court, will settle out
and leave the little guy hanging.  They do it both to avoid setting legal
precedent and so that the public documents only point the finger at the
remaining litigants like the switchmaker or the installer.

Companies like GE and Philips have pockets far deeper than a company like
Smarthome.  They can afford fairly big payouts to keep product liabilities
out of the legal search engines.  Little guys can't.  Lawyers know that as
soon as even one client prevails in a product liability case, the floodgates
are opened.  Ask Merck, the makers of Vioxx about that principle.  They've
set aside nearly a billion dollars to fight off the lawsuits they know are
coming now that even a very few clients have won big verdicts.

Lawyers in a bulb injury case wouldn't be playing to electronically smart
guys like you James.  Believe it or not, we're *both* smart enough to know
that catastrophic light bulb failures are NOT at all likely to be caused by
defective switches.  But lawyers work VERY, VERY hard to keep smart people
like you OFF juries.  They have their best luck with retired schoolteachers
and homemakers, to whom they get to explain the problem according to strict
legal principles and rules of evidence.  Rules which often obscure the very
truth of the matter.

If you, as a potential juror, ventured your opinion of switches blowing up
lightbulbs being "ridiculous" at voir dire, you'd be outta there faster than
an Insteon pulse.  The truth is, by holding any opinion at all about what
can cause bulb failures, you'd be stricken from the jury pool.

The jury would not be allowed to consult outside sources of ANY KIND on the
subject of light bulb failure either.  They would only be permitted to
connect the dots they were shown in court.  If you talked to your wife, the
juror, about your theories of bulb failure and she told another juror, she
would be removed from the jury and very likely the other juror as well.  It
happens EVERY day and if the jury contamination is bad enough, it's grounds
for a mistrial.  Judges take outside influences very seriously and will tell
a jury several times during a trial to not consider any external sources of
information.

To win their cases, lawyers LOVE to put out dots that really don't connect
but that they are certain jurors can't help but join together anyway.  I
believe that's the case here.

If they got you on the stand, James, could you really say that a
newly-designed, complex, multi-function light switch, connected
electronically to all the house's other light switches, can't have some
serious interaction where the loads are briefly subjected to extreme voltage
spikes?  They would ask you if subjecting a light bulb or fuse to voltage
and current far outside the normal range isn't one way to cause serious
physical failures of those devices?

Can you say for an absolutely certainty there is NO WAY for an electronic
circuit, using any of the components in this newly designed, lightly-tested
electronic switch, to accidentally provide more voltage to a lightbulb
specifications allow?

Could you testify knowledgeably to the potential harmful effect of any
filament vibration induced by the switch?  Could you say for sure that
switch couldn't cause vibrations serious enough to effect the seal between
the base and the glass envelope?  Their are plenty of reports in the field
of X-10 dimmers causing serious and annoying buzzing.  You'd have to explain
why buzzing happens only with electronic switches and why that buzzing
couldn't possibly weaken the bulb.

Isn't extreme overheating or vibration capable of inducing fatigue?  Hasn't
metal fatigue caused tails to fall off airplanes:

http://www.aircrash.org/burnelli/ws791101.htm

"at Lusaka, Zambia, in 1977, the starboard tail plane broke off and the
aircraft fell, killing the crew of five. That accident touched off checks of
707s around the world, and cracks were found in the tail structures of 26
more of the Boeing planes."

Hasn't unexpected metal fatigue causeed the hulls of WWII Liberty ships to
crack in half?

http://en.wikipedia.org/wiki/Liberty_ship

"During WWII, there were nearly 1,500 serious brittle fractures. Nineteen
ships broke in half without warning"

Couldn't stressing the bulb in ways the manufacturer did not envision cause
an envelope separation?  Isn't any AC device with a capacitor and very
little else able to produce significant voltage spikes?

A smart lawyer would take you over all those hurdles and more until you
admitted that newly designed equipment sometimes has unusual,
never-before-seen failure modes.  If you remained intractable, they would
paint you as the kind of engineer that allows shuttles to crash, ships to
sink and tunnel panels to crush drivers.  It's a no-win situation when
there's an admitted defect in a product.  That's why I think Smarthome
screwed the pooch by not halting sales.

The lawyers may conclude by getting the expert witness to admit that the
design engineers never meant for a flicker problem to get into the switches
but it did, anyway.  Then they will ask if some *other* design defect
couldn't get by those same engineers as well - this one having to do with
bulb failures.  If the expert admits to one, and not the other possibility,
they lose credibility.  Even my second grade teacher could make that
connection.

> This whole discussion has gotten silly.

I wouldn't be calling it silly if you paid an electrician to install 25 or
so switches that you'll have now have to pay him twice as much to take out
and put back in.  I'd be calling it angry.  I'd wouldn't feel comfortable
with defective switches deployed throughout my house if they accelerate the
rate of bulb burnout.   Less time between burnouts means more net exposure
to burnouts and the possibility that one of those burnouts becomes a blow
up.

Worse, still, *something* made Smarthome decide, after ETL had seen the new
design, to stop selling unfixed switches and to fix all the switches in
their possession immediately.  That wouldn't me feel comfortable about
owning older, 1st generation switches with the flicker defect, even if I
wasn't seeing the flicker currently.  I'd be afraid that ETL discovered
something we're not aware of, but that was serious enough to motivate
reworking the entire inventory.  Do you think if Smarthome or ETL found
another, more serious defect that they'd be singing it from their rooftops?

You don't have to shatter the bulb to cause serious injury.  You just have
to cause it to break from its base and fall on a hard surface.  We have to
remember that an electronic switch can also be a fire hazard all by itself
if the components are not properly sized or the case is too small and heat
can build up.  We'll know soon enough what changes they've made.  That's the
great thing about the Internet. :-)

What's "silly" about this whole affair is that SmartHome would decide to put
themselves, the installers who use their products and their customers at
risk for a just few months' worth of sales.  Someone's got their priorities
wrong in upper management.

In my laymen's opinion (and it is only that, I am not an attorney)  they've
exposed themselves and others to serious liability.  That opinion is based
upon sitting through some pretty amazing trials in my role as a litigation
support consultant.  A smart lawyer doesn't have to convince *you* James,
that a switch with a flickering defect can blow up a bulb;  They have to
convince *your* mother or *your* retired second grade teacher.  Those are
the people that sit on civil juries.

You can talk toroidal chokes, inductance, triacs and millihenries to my
mother (and I'll bet plenty of other mothers who might end up as jurors)
until you're blue in the face.  All that non-techie jurors will understand
is that your client sold switches they learned were defective in March until
one day in July, when they suddenly (after an ETL review, FWIW) decided they
had better fix them ALL before selling even another single switch.

I believe, from watching jurors get the thousand-yard stare when exposed to
complex technical testimony, that's all the jurors will *ever* understand.
Smarthome admitted there was something wrong with the switches but continued
selling them for several months after they learned of the problem.
Everything else will be yada yada yada Henry choked Millie.  Civil awards
don't depend as much on the pure facts as they do a non-technical jury's
interpretation of those facts.  Judgement for the plaintiff in the amount of
$500,000.  :-)

If you have any doubts about the power of a jury to both connect dots that
don't connect and to disconnect dots that do, think "OJ."

--
Bobby G.