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Things the Robot Safety Engineer Will Learn in Legal Depositions Now That the ISO 10218 Document Is Adopted by ANSI (The Primacy of OSHA over ISO is settled in an Ohio Court)

TASA ID: 3199

America is different from all other industrial nations due to the unique American system of justice. Any company who attempts to manufacture products and systems in America must be mindful of this significant difference. To ignore the difference is imprudent and not advised. In the unique American civil justice system the use of the advocate system, trial by jury, the lack of a 'loser pays' process  and the presence of the Occupation Safety and Health Administration sets the US apart from the rest of the industrialized world. Bluntly put: America is truly different from the rest of the world in industrial safety and our track record of safety success speaks for itself.

A simple paragraph can sum up the difference succinctly: In American factories, the employer is the party with the greatest degree of responsibility when a severe lost time injury occurs. In the rest of the world, the principal party held responsible is the victim. This distinction is encapsulated in the OSHA General Duty Clause: Section 5 (a) (1) et, al

This technical report, "Things the Robot Safety Engineer Will Learn in Legal Depositions Now That the ISO 10218 Document Is Adopted by ANSI" has been prepared to assist American robot integrators and employers with the problems that are created by the adoption of the ISO 10218 standard as an American National Standard.  The existence of a parallel ANSI robot safety standard, R15.06-1999 will create not only confusion in the marketplace but will also create the potential for significantly increased liability on the part of both robot integrators and employers. And, an increase in severe injuries and fatalities will likely be the future outcome.

The ANSI successfully adopted the 10218 Part 2 standards with USA home language exceptions. They have created, in one document, conflicting requirements and will introduce a new level of confusion and potential risk to the American manufacturing industry.

This overview brief provides basic information concerning future safety standard compliance issues in a manner that should encourage a dialog within the robot integrator, employer and other stakeholder communities.

 Potential Liabilities:

American industry is now confronted with the simultaneous presence of two different published ANSI robot safety standards: the Adopted ANSI / ISO 10218 / R15.06-2012 standard and the revised ANSI / R15.06-1999 standard. The ambiguities associated with the presence of the two standards will create a substantial opportunity for increased legal liability for both integrators and employers. It is a technical fiction that the use of notations in the adopted ISO text that are described as USA exceptions will serve as a suitable substitute for a complete, stand-alone USA safety standard. The reality is far more problematic. The resulting confusion will not only increase manufacturing costs and uncertainties but it can also lead to an increase in severe injury and fatality accident events.

The single most problematic difference is the exclusion of the OSHA 1910 regulations in their entirety. All ISO and ANSI standards are industry voluntary in nature but OSHA regulations are the law of the land. To willfully ignore OSHA regulations is not only imprudent but it is illegal.

Integrator Example

For the purpose of this discussion: A fictitious company, Widget Inc., purchases an integrated industrial robot system from Proper Systems Inc. (PSI). After the system is installed and commissioned, a Widget employee is involved in a lost time injury event while operating the system supplied by PSI. The injured employee retains counsel and files an intentional tort lawsuit against both Widget and PSI. Widget is located in a State where employees cannot bring a claim against their employer on the grounds of negligence. State law varies from state to state.

The employee files a claim for relief from PSI on the grounds of product liability, claiming that the product was defective by design. The employee alleges that the product was unfit for its intended purposes.

The civil court system proceeds with  the claim for relief by allowing the employee (plaintiff) and PSI (defendant) to conduct a fact finding exercise known as discovery. The judge assigned to the case decides the time limit for discovery and adjudicates all matters pertaining to the discovery process.

One key component of the discovery process is a witness examination procedure known as deposition. Depositions are conducted by both the plaintiff and defense counsels by agreement of the parties and oversight of the court. The deposition process provides for the direct examination of witnesses and the examination is supplemented by the use of evidence collected through the discovery process to either corroborate or impeach the witness oral testimony. It is during the discovery process that the PSI engineers, technicians and managers will discover the difficulties associated with the existence of competing ANSI standards and the further difficulties imposed due to the cumbersome nature of ISO standards. The ISO standards cascade their specific requirements through the use of multiple ISO standards which are included by normative reference in the statutory clauses of ISO 10218, R15.06-2012 and by extension to another twenty one ISO or IEC standards.

In the Widget matter, PSI will be required to produce a variety of employees requested by plaintiffs' counsel to sit for deposition. Design engineers of every manner and type are potential deponent candidates. Project managers, service technicians and direct sales personnel are typically included in the plaintiff's request.

The first task for plaintiffs' counsel is to gather evidence that will be used to establish PSI's knowledge and acumen as it relates to the design, manufacture and installation of integrated robot automation systems. By deposing multiple involved parties, the plaintiff creates a mosaic of different narratives of the design process; plaintiff's counsel will use this information to look for inconsistencies and to determine if the design of the equipment was compromised due to a lack of technical acumen or poor communication.

Ultimately, all technical PSI deponents will be required, under oath, to explain how they conduct the design process. They must provide, along with a complete summary of their technical and formal education, additional information that demonstrates that they have a working knowledge and understanding of the industry standards and government regulations such as the requirements stipulated by OSHA regulations.

The central issue confronting the PSI deponents is the determination of the safeguarding design process selected and the reasons for the selection. If the proximate cause of the injury accident in the Widget matter cannot be determined to be either an act of God or was caused by a deliberate action to harm the plaintiff, then it can be concluded that the system design was obviously defective. It is obvious as evidenced by the fact that the injury occurred. One overriding truth remains for any injury event that occurs, with the exception of accidents that occur due to an act of God or deliberate malicious act: The selected design process and its execution were defective because the plaintiff suffered an injury. The point is made by virtue of the fact that the injury occurred.

NOTE:            The preceding scenario is not necessary valid for the rest of the world but it is a matter of federal law in the US.

Matrix Risk Assessment, Protocol Risk Assessment and Prescriptive Method of Safeguard Selection

Creating, defending and avoiding arguments are the nature of civil litigation. The principal argument made by the plaintiff requires PSI is to defend their design process and to prove that it was correct and properly executed. The burden is on PSI to prove that the design process selected by the PSI engineers produced the right choices and selections necessary to ensure that the system was designed to be safe for its intended purpose. It is critical for PSI to provide a clear and compelling argument that defends their design process. Simply put: Objective methods applied to the discretionary decision making process is preferred over the use of any design decision making process that is subjective in nature:

With respect to the Widget accident, the more subjective the safeguard selection processes the higher the risk to PSI. Subjective arguments should always be avoided because they can be very difficult to defend.

The method of Risk Assessment (RA) currently codified in the R15.06-1999, Clause 9 standard is highly subjective and it relies upon the discretion of the engineer who performs the RA. However, the 1999 standard allows for two different approaches to the subject of safeguarding selection: Clause 7 and Clause 8 allow for prescriptive measures to be used in lieu of the subjective Matrix Risk Assessment process described in Clause 9. If PSI did not contract with a third party concern to conduct the RA for the Widget system, then one or more internal PSI engineers must bear the burden of defending the subjective safeguarding selections made. If the RA is performed by PSI engineers then subjective risk factors including but not limited to, avoidance, severity, exposure and use of control reliable safeguards must be determined by the PSI engineers. The judgment of the PSI engineers is now called into question and the liability exposure for PSI will be determined by how convincing the PSI engineer's argument is in defense of their safeguard and safeguarding selection methodology.

The challenge for PSI is selecting from one of three competing methodologies for selecting safeguards and safeguarding systems:

Matrix Risk Assessment:

  • Subjective
  • Non specific
  • Counter intuitive

Protocol Risk Assessment:

  • Objective
  • Specific safeguarding requirements
  • Robot classification
  • Application specific considerations
  • Incorporates OSHA requirements

Prescriptive

  • Objective
  • Determinative
  • General in scope
  • Incorporates OSHA requirements

The Matrix RA method, represented by ANSI in  2012, and as prescribed in ISO 10218, requires the engineer who performs the RA to demonstrate expertise in areas that may not necessarily be typical for design engineers who design robot automation systems. If the PSI engineers choose the matrix RA format then they will be required to testify concerning their knowledge of human factors engineering, ergonomics, statistics and probabilities and they need to demonstrate a knowledge and aptitude in the analysis of lost time injury and accident statistics that apply to robot systems.

Both Matrix RA formats are counterintuitive in their selection matrix analysis. The presumption of the Matrix RA format is that the personnel who have the highest exposure to a hazard and the least amount of technical knowledge of the system are the personnel who are most likely to suffer a serious lost time injury. All of the specific information available within the robot industry indicates different conclusions. By most estimates over 60% of serious lost time injury and fatal accidents are suffered by personnel who have the least exposure to the hazard and the highest level of technical knowledge. Personnel who are classified as operators are not as likely to be injured as non-operator personnel.

If the PSI engineers choose the Protocol RA method, they would have presumably selected safeguards appropriate for their application based upon the minimum safeguarding requirements established for robots classified by energy, reach and speed. Three basic protocols are provided that set forth requirements for low, medium and high energy robots. The selection of minimum safeguards is specific and unambiguous. The PSI engineers can defend their selection based upon easy to identify operating features and characteristics of the robot selected.

Prescriptive Method requirements as codified in R15.6 Clause 8 provide for a definitive approach to safeguard selection. The methodology relies heavily upon other industry standard guidelines and it is very general in nature. If PSI chose this methodology, they may still be susceptible to a degree of subjectivity but a strong argument can be made based upon the concept that other prevailing industry standards have merit and that the selection methodology can be validated by other industries.

In the Matter of Plaintiff v. Widget, PSI et. al.

The facts in the case will speak for themselves but the potential for reduced product and employer liability will hinge on the PSI defense of its safeguarding section methodology. Widget's liability exposure, assuming that they are considered a defendant, because they acted as a 'self-integrator,' is the same as PSI.

An actual case that tests the premise and conclusions found in this article is the Camaco v. State of Ohio, et al VSSR Claim. The case citation is provided in the decision arrived by the court on December 1, 2014:

In The Court of Appeals of Ohio Tenth Appellant Division, Case No, 13AP-1002

The author's opinions are found on pages 2-4, 15, 16, 20, 21, and 24.

"Increased Subjectivity results in Increased Potential Liability Exposure. ISO style methods of Safety Risk Assessment should always be avoided."

 This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the permission of TASA.

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