Over the last several weeks, we have talked a lot about how to do a good root-cause analysis. But of course the first step to doing a good root-cause analysis is making sure you do one at all.
Wait, what? Why wouldn't you?
Suppose the worst happens and somebody gets hurt using one of your products. Somewhere along the line, as you start the investigation, somebody is bound to ask, "Why are we doing a root-cause analysis at all? If we find out the real root-cause for the problem and take steps to fix it, doesn't that just mean some hot-shot attorney can subpoena all our files and then use them to prove our original design was at fault? Won't he sue us for everything we've got? Aren't we safer just closing our eyes and hoping it doesn't happen again?"
Yes that sounds crazy -- how could it ever be better not to know what caused an accident? -- but it's also true that an ambitious plaintiff's attorney can do a lot of damage when a company is innocently trying to do the right thing. Where do you draw the line?
There's some good news here. It turns out that if you do an accident investigation that results in taking steps which would have made some past injury less likely, the results of that investigation are not admissible in U.S. federal court to prove negligence, culpable conduct, a product or design defect, or a need for a warning instruction. Note the restrictions. There are other cases where the results of your investigation are admissible — for example, in intellectual property cases, or if the court is trying to determine whether any improvement is possible. But they cannot be used to hang you for your old design.
As I mentioned in an earlier post, I am not an attorney and nothing in this blog constitutes legal advice. Please consult with your own legal counsel.
On the other hand, you can look up the background information on the Internet. The rule in question is called Federal Rule of Evidence 407. And you can find discussions of it in several places. I based this blog post on:
But if you search for FRE 407, I'm sure you can find other sources of your own.
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