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Don’t Be the Next Boeing: Fixing Tension Between Engineering, Legal

June 25, 2021, 8:01 AM

We frequently read unfortunate headlines about how a previously trustworthy product suddenly caused harm. A perfect example? The two Boeing 737 Max crashes in 2019 and 2020 that tragically killed 346 people, while costing Boeing $2.5 billion in settlements. Not only were those crashes horrible, but they kept leaders everywhere awake wondering, “Could something similar happen to us?”

They don’t have to. Often, such accidents stem from the manufacturer’s corporate culture. That is, the culture is set up to ignore—or even suppress—information that could have prevented an accident.

For example, in the House Committee on Transportation and Infrastructure final committee report on the 737 Max, investigators identified at least two key reasons for the failures: production pressures and a lack of cultural safety. From the start, the Boeing 737 Max design was not robust and the engine was too big for the airframe. Boeing put the latest large high efficiency engines on an old airframe design.

Why would an experienced company like Boeing take this flawed approach? Because of market pressure. Boeing’s competitor, Airbus, was releasing a new airplane with these same high-efficiency engines into the 737 narrow body market. In fact, the Airbus plane was finishing development before Boeing even committed to the program.

Tension Between Legal and Engineering

There are many specific dynamics and struggles in any product development program. A common one is the tension between legal and engineering when analyzing failure modes. Engineering wants to explore them. Legal doesn’t want a paper trail that could harm the company in future product liability litigation.

We have witnessed these struggles first hand. In some noteworthy (and ridiculous) examples, the legal team pressured the engineering team to recharacterize the term “explosion” to “spontaneous self-disassembly” and change “fire” to “thermal event.” This sort of minimization of impact and intensity of dangerous outcomes is not helpful to the company when discussion of serious topics is needed.

The good news for executives wondering “will this happen to us someday?” is that the culture that drove this fatal decision can be changed. A think-outside-the-box approach that permits open discussion will ultimately drive correct decisions by leadership. Such an approach involves a series of exercises rooted in outrageous speculation of “what could happen,” then openly discussing solutions with a diverse team.

Looking at most product litigation, we find that what did, in fact, occur was something the company leadership did not expect. But the tragic accident happened—which means we just didn’t sufficiently explore the product and its potential uses. Or more likely, we didn’t talk about them when it was critical to do so.

Talk About Extremes

A key principle of this approach is talking about the extremes—all extremes. Here is an example: a team designing a new weed wacker. In one of the series of exercises, team members would be open to hearing an engineer suggest, “What if someone uses our weed wacker to paint on a canvas, like a wannabe Jackson Pollock? The extra loading of the paint on the spinning components could cause them to fly off.”

Traditionally, this type of discussion would be discouraged. Legal might not want evidence of the company’s knowledge of such a risk, project management doesn’t want to explore something that could extend the schedule, and finance doesn’t want to add cost.

However, the better approach is one where the mechanical engineer might offer, “We could put a mechanical clutch in the wire cassette that disengages when there is too much torque. A cheap and easy fix.” A software engineer may add, “This control could instead be done by adding electrical current limits. A free fix.”

Legal can then assist with correctly documenting how the company is addressing the risk (perhaps through design changes or consumer warnings). R&D may see the torque control as a way to add additional types of blades, while reliability sees the control as a way to ensure overstress can’t occur, on and on.

The marketing person might see a way to spin the feature as an indication their company is at the forefront of safety. Volvo built an entire brand on being the safest car on the market. All of this occurred in a collaborative arena where it is “team vs. problems,” not “team vs. team.” From this exercise, not only were changes proposed that significantly mitigate possible injuries and the ensuring product liability litigation, but the changes may well have created differentiating characteristics for the product from competitors, increased reliability, and added new uses for the product.

The key is collaboration which views each of the company’s internal constituencies as vital to achieving all, and not merely some, of the company’s goals. The result will be a better designed, safer product backed by good evidence of sound decision-making.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Adam Bahret is the founder of Apex Ridge Reliability Consulting and the creator of the Use Case 7 methodology. He is also the author of two books on reliability engineering: “Reliability Culture, How Leaders Build Organizations the Create Reliable Products” and “How Reliable is Your Product, 50 Ways to Improve Product Reliability.”

Frank A. Bruno is a partner at White and Williams in Philadelphia and chair of the Intellectual Property Practice Group. He is a technology lawyer who focuses on patent law.

James D. Burger is a partner at White and Williams. He is a trial lawyer with over a decade of experience representing companies in product liability and high exposure cases.

William D. Kennedy is a partner at White and Williams. He is a trial and appellate litigator and defends companies against complex claims of injury and damage.

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