Often in Plastics News' first decade, more news was made in the courtroom than on the factory floor.
A steady flow of legal stories has appeared in our pages, from patent disputes over gas-assisted injection molding and metallocene resins to product liability lawsuits.
Perhaps the most intriguing liability battles have centered on plastics sectors that seem miles apart — leaking water pipes and lifesaving medical implants. Lawsuits pushed both industries to the brink:
Polybutylene pipe systems with acetal fittings leaked in some 6 million U.S. homes, leading to a $950 million settlement with three resin companies, a record-setting deal for property damages in a class-action settlement. That was in late 1995. A few months later, the only U.S. supplier, Shell Oil Co., nailed the coffin shut on the domestic PB pipe industry by announcing it would stop making the resin. PB pipe makers quickly switched to new types of plastic.
When major resin manufacturers began pulling out of the medical implant market in the mid-1990s, a materials shortage sparked a national crisis. Where would makers of heart valves, artificial hips and the like get material? Finally, in 1998, President Clinton signed the Biomaterials Access Assurance Act. The law exempted raw materials suppliers from liability, as long as the material is not at fault and the supplier had no role in product design. However, today some medical experts say the law didn't go far enough.
``Basically, my sense is it's just a start to what's really needed, and that's a new look at the overall liability idea,'' said Len Czuba, a plastics designer and director of the medical sector at Herbst Lazar Bell Inc. in Chicago. Czuba would like to see some form of a cap on liability.
But setting broad limits on how much money a plaintiff can collect is highly unlikely. Clinton had vetoed broader liability legislation in 1996. Only after its scope was limited to medical implants did the bill become law two years later.
Resin makers have deep pockets, making them good targets. The Vitek jaw implant is a good example. A small Houston company, Vitek Inc., used a small amount of DuPont's Teflon fluoropolymer in each implant. When the product began to fail, Vitek went out of business. After settling hundreds of lawsuits across the country, DuPont pulled out of the implant market.
``If the companies that were making medical devices and supplying resin knew there was a limit on a settlement, they might more likely be willing to enter that market,'' Czuba said.
Plastic pipe may not be as sexy as an artificial heart, but the PB pipe industry faced its own life-threatening crisis. On Dec. 30, 1990, Keith Swinehart Jr. settled down to watch a ``60 Minutes'' television news show. As Ed Bradley intoned, the nation's television screens filled with images of water flooding down walls, as the piping systems — polybutylene pipe and acetal fittings — failed.
Vanguard Plastics Inc., started by Swinehart's father, Keith Sr., in the 1970s, already was facing lawsuits over its pipe. Then ``60 Minutes'' hit.
``We all got together the following morning, discussed it, laid out our strategy on handling calls. They started coming immediately,'' said the younger Swinehart, Vanguard's president. ``We were scared to death. We just saw doomsday.''
During the next few months, Vanguard employees were able to allay fears and explain the situation, one-on-one over the phone. Their position: Most of the problems were from the acetal fittings and improper installation.
When the younger Swinehart heard ``Good Morning America'' was planning a spot on PB pipe, he called them, then flew to New York for an on-camera interview. The result was more balanced than the ``sensationalistic'' piece on ``60 Minutes,'' he said.
But the industry's problems were just beginning. Vanguard had to hire a full-time lawyer. PB resin maker Shell and two companies that supplied acetal for the fittings, Hoechst Celanese Corp. and DuPont, began blaming each other.
The following year, U.S. Brass Corp., facing lawsuits over its Qest brand of PB pipe, filed for reorganization under Chapter 11 of the U.S. Bankruptcy Code.
Meanwhile, the Swineharts cut back from 230 employees to 135. The family took the layoffs personally.
``I read in the paper every week that such and such a company is knocking 10,000 jobs out,'' Keith Sr. said. ``They do it without batting an eye, and yet I just feel terrible that we have had to do some of that.''
Pipe makers, Vanguard included, initially had issued 50-year warranties. Keith Swinehart Jr. said Vanguard's were prorated; coverage declined as the years passed. That didn't matter in court.
``The lawyers understand them to be an iron-clad affirmation this product is going to last 50 years,'' he said.
In November 1995, the resin companies announced the $950 million settlement. The following January, Shell pulled out the rug, telling U.S. customers it would stop supplying PB pipe resin in a few months.
Vanguard and U.S. Brass started from scratch. At one point, the National Sanitation Foundation was running 35 tests for Vanguard — each one costing $4,000-$5,000 — for the NSF 61 standard for drinking-water pipe.
The firm switched to cross-linked polyethylene, known as PEX, with brass fittings. You can't find a plastic fitting at Vanguard today.
It took three years, but Vanguard has begun to turn the corner, the junior Swinehart said. Employment now stands at 175 in two factories, in McPherson, Kan., and Beaufort, S.C.
Keith Jr. won't say how much the company has spent on legal bills. But he said one year the total was ``well over $1 million.'' A few cases are still dragging on. He also declined to provide sales figures.
``Today we've reached a point of stability,'' he said. ``We're no longer spending money on product testing for PEX. We're beginning to spend money on new products, which is very encouraging.''
The company learned some lessons, the younger Swinehart said. One is to be conservative with building-product warranties.
Vanguard also has become more skeptical with suppliers.
``We ask more questions today than we used to ask. We ask about the materials in end-use environments that they may have never considered.''
Liability expert Donald Duvall of Engineering Systems Inc. in Aurora, Ill., said companies often get caught up in the euphoria of a new product — and gloss over liability.
``A small company is going to be more aggressive,'' he said. ``They're looking for a product that's going to sell, that's going to be a big winner. They're probably willing to go out on the edge a bit more, to try and do different things.''
Swinehart Jr. agrees.
His advice: ``Just don't take anything for granted. Look beyond the initial sales of the product, and look at the overall manufacturers' responsibility,'' he said.
And when things go wrong?
``Recognize when there's a problem and when to settle. Don't drag your feet. Don't blame the other guy. You can't duck the questions. ... Don't let the failures happen, and if they do, clean it up quickly.
``And pound it into your people's heads — test, test, test.''