LIABILITY IN RESPECT OF COSMETIC INTERVENTIONS AN OVERVIEW. Jim Sherwood Greg McEwen Partners, BLM London

LIABILITY IN RESPECT OF COSMETIC INTERVENTIONS AN OVERVIEW Jim Sherwood Greg McEwen Partners, BLM London Birmingham Cardiff Leeds Liverpool London Manchester Southampton

AN OVERVIEW Introduction More and more people are choosing to undergo cosmetic procedures. Now more than ever seen as socially acceptable, there has been a dramatic growth in the industry, with breast augmentation remaining the most requested form of cosmetic surgery. Not that long ago there were few options, mainly limited to going under the knife. Few were willing to take such a dramatic step, which involved a long and painful recovery. These days however, there seem to be an abundance of options and non-surgical cosmetic treatment has become something of a growth area. Botox, chemical peels and dermal fillers, all promise to take years off, without the time, worry or expense of surgery. Increasingly they are being seen as quick fixes, offered not only in cosmetic clinics but also some salons and dental surgeries. Quick and relatively inexpensive, non-surgical cosmetic treatments are now advertised on most high streets. National newspapers and magazines report on lunch hour facelifts and instant wrinkle treatments, which are seen as the modern, safer alternative to surgery. According to market researcher Mintel, the number of non-surgical procedures in the UK rose from 950,000 in 2008 to 1.1 million in 2009. Given the increasing ubiquity of these treatments, it may come as a surprise to many just how little formal regulation there currently is in the UK of the non-surgical cosmetic industry. Surgical facelifts are performed in operating theatres by qualified doctors, who are registered with the General Medical Council and indemnified by their medical defence organisations. There are mandatory requirements to ensure the patient is operated on by professionals with certain minimum levels of expertise and experience and that they have adequate redress in the unfortunate event that something goes wrong. The position may however be somewhat different in the case of a patient who opts for something deemed safer, such as Botox or dermal fillers. In fact Botox, or botulinum toxin, is derived from Clostridium botulinum, the cause of botulism and one of the most powerful toxins known to man. Its ability to instil muscle paralysis was first harnessed by the medical profession to treat certain facial disorders, such as cross eyes or uncontrolled blinking. Its uses in more recent times have broadened considerably and now include the treatment of wrinkles and the control of sweating. Despite this, the use of Botox in cosmetic treatments remains outside the product s licensed indications. Practitioners using it in this way therefore do so off-licence. Nevertheless, Botox injections have now become one of the most common cosmetic procedures. In the US, which tends to lead the way for others to follow, 4.6 million Botox procedures were performed in 2007 according to the American Society of Plastic Surgeons. Opportunities will inevitably result from an evolving situation. Developing medical knowledge is already moving beyond nip and tuck, botox and filler, to cellular rejuvenation techniques and stem cell storage. No longer the stuff of science fiction, some reports suggest that DIY kits will be available over the counter within years. But with surgery on the increase and non-surgical treatments now accounting for more than 9 out of 10 cosmetic procedures, what happens when things go wrong? Regulation Having moved from the fringes into the mainstream, how can those involved be satisfied that these treatments and products are safe? Regulation of such non-surgical procedures remains minimal. Up until 2009, regulation fell primarily within the ambit of the Healthcare Commission, or HCC. Since 1 April 2009 the HCC has ceased to exist and has been replaced in England 1

by the Care Quality Commission, or CQC, the new independent regulator of health and social care. The remit of the CQC is broad, touching upon everything from healthcare to social care and mental health services. So far as non-surgical cosmetic treatment is concerned however, the regulatory position remains largely as before. Essentially, only treatment involving surgery, lasers or intense pulsed light are formally regulated. Where there is no formal regulation, as with most non-surgical cosmetic procedures, registration with the CQC is not a requirement. The Government requested the Independent Healthcare Advisory Service (IHAS) to produce proposals for a self-regulating industry framework. According to IHAS: Cosmetic treatments comprise non-surgical, non-incisional (although in some cases piercing of the skin may be involved) procedures that revise or change the appearance, colour, texture or structure of bodily features to achieve what patients perceive to be more desirable IHAS has to date produced guidance standards for injectable cosmetic treatments, which include Botox and dermal fillers. The guidance recognises the fact that such treatments may in practice be provided by doctors, dentists or nurses. In addition, individual professional bodies have in many cases issued their own guidance, although often in fairly broad terms. For example, guidance from the General Dental Council states: Registrants choosing to offer Botox or other non-surgical cosmetic procedures should note that the GDC expects the same high standards of them, whatever the type of treatment they are carrying out. In particular, they are advised to work within their knowledge and professional competence and be prepared to back up the decisions they make. Careful thought also needs to be given to maintaining professional standards in relation to advertising these services, and the need to be indemnified. The involvement of the Medicines and Healthcare products Regulatory Agency (MHRA) within this industry wide self regulating model is fairly limited. The MHRA administers the Medicines for Human Use Regulations. Botox for example is a prescription only medicine. The MHRA can, and have, prosecuted individuals for offences under the Medicines Act 1968, including the illegal import, possession and supply of prescription only medicines and the placing on the market of unlicensed medicines. However, dermal fillers, some of which are permanent, are classed not as medicines but as medical devices. Regulation of medical devices is limited to the product meeting the appropriate European standard and qualifying for a European CE mark. The British Association of Aesthetic Plastic Surgeons (BAAPS) wants dermal fillers to be treated in the same way as prescription medicines, as they are in the USA. A recent BAAPS survey found that over 38% of its surgeons had seen patients in the previous year experiencing complications from permanent fillers and 23% reported patients requiring surgery as a result. IHAS sought advice from the MHRA and were informed that it was not possible to designate dermal fillers as prescription only medicines. According to the MHRA: you cannot use the Medical Devices Regulations to restrict the availability of a device as a means to control the service provider. For the time being at least injectables such as Botox and dermal fillers, will continue to be administered by a wide range of practitioners. MHRA guidance confirms that Botox can be administered by an appropriate practitioner, which definition may include a doctor, dentist, nurse or pharmacist. Not only that, but such medicines can also be administered by others in accordance with the directions of an appropriate practitioner. Consider for example a cosmetic clinic in which staff administer Botox under the direction of a resident doctor. There is no legal requirement for a face to face consultation between the prescribing doctor and the patient. Nor is there any legal requirement that the doctor s direction be in writing. In view of this, the Nursing and Midwifery Council (NMC) have issued guidance to its members, stating that it is not 2

considered good practice to administer medicines from a remote prescription or remote directions. The Department of Health has issued guidance for patients considering a non-surgical cosmetic procedure, designed to identify suitably qualified and competent practitioners. Amongst the questions that would be patients are advised to ask are: Who will carry out the treatment? How long have they been trained in this treatment and do they have a certificate of accreditation? How frequently do they carry it out? Do they have professional indemnity insurance? Is the treatment right for me? How long does the treatment take? Is the treatment painful and if so what form of anaesthesia is used? Is all equipment used sterile and used only for me? What are the risks involved? Are there any other treatment options available for me to achieve the results I want What will happen if I am unhappy with any aspect of the treatment? Some patients however will inevitably remain dissatisfied. Given the growth in cosmetic treatments, both surgical and non-surgical, the corresponding growth in related litigation should come as little surprise. Increasing numbers of solicitors are taking on cases involving cosmetic treatments, alongside their more mainstream clinical negligence and personal injury work. Whilst many claims are of comparatively low value, this is no guarantee. Consider the high flyer with a glittering career before them. It is not unprecedented for claimants to allege they have been left unable to work as a result of complications following cosmetic treatment. Many cosmetic claims also include claims for psychiatric injury. What is more, recent events involving PIP breast implants have illustrated that even where stronger regulatory controls exist, rogue manufacturers can still circumvent production controls and introduce goods onto the market which do not conform to the approved specification. The nature of a relatively new and fast evolving product knowledge is such that risks cannot always be avoided. In circumstances where more and more people are opting to undergo cosmetic treatments, treatment providers should ensure that they have in place adequate insurance or indemnity and that this covers the full extent of their practice, bearing in mind that cover may vary according to the nature of the procedure. Those who indemnify or insure the treatment providers will no doubt wish to review their exposure. In a fast developing area, the full extent of what is being covered may not always be fully appreciated. Reform The growing concerns regarding protection of consumers using the cosmetic industry is likely to fuel EC development of a uniform collective actions procedure across the EU. Following periods of consultation over recent years, the current implants saga is likely to spark renewed interest and enthusiasm to progress the access to justice agenda. An EU review of current arrangements for the regulation of medical devices is currently underway. The type of cosmetic interventions likely to be considered include: The surgical insertion of a medical device or prosthesis, or other surgery intended to change the appearance of the body; Injection with any product, whether medicinal or otherwise; and Any other form of intervention at the discretion of the review team (e.g. laser treatment, IPL etc). 3

On 24 January 2012, the Department of Health announced terms of reference for two reviews into the cosmetic treatment industry. The first, led by Minister for Quality Lord Howe, sought to establish how events unfolded when the MHRA first became aware of the reported problems with PIP breast implants. Over 40,000 women in the UK alone are believed to have PIP implants. Lord Howe has now produced his report, which runs to over 100 pages and examines in detail the events from around 2003, when concerns over PIP cohesive gel implants first began to emerge. His report concludes that the MHRA acted appropriately in responding to scientific and clinical advice, but that there remains room for improvement with serious lessons to be learned. Amongst the 15 recommendations made in the Howe Report, it is suggested that the MHRA should: identify ways of gathering better evidence on the safety of devices broaden its approach to analysing reported problems with higher risk medical devices; and find better ways of communicating with the public Lord Howe states: This report won t prevent the distress caused to women who have PIP implants, but it should give them and the public reassurance that we have identified the lessons; that we will take all steps to act on them; and that, should something like this happen again, our systems for dealing with it will be stronger. Looking ahead, NHS Medical Director Sir Bruce Keogh is leading a wider review into regulation of the cosmetic treatment industry. The aim is to ensure that those who carry out cosmetic procedures have the appropriate skills and that those who undergo the procedures are given adequate information, along with appropriate redress if things go wrong. Options being considered include an insurance scheme for the sector, similar to the ABTA scheme for travel agents, and a statutory redress scheme. The Government is also considering the reintroduction of a breast implant register (one of Lord Howe s recommendations), a form of which operated in the UK from 1995 to 2005 before being closed due to a lack of consent from patients to their inclusion on the register. Professor Keogh is expected to report in March 2013. Liability It is assumed that non-surgical cosmetic interventions are generally a service performed under a works and materials contract and will therefore be subject to the Supply of Goods and Services Act 1982 which will govern the issue of liability in respect of goods which are not found to be of satisfactory quality. The issue of liability for goods which are considered unsafe may also be determined by reference to the Consumer Protection Act 1987 and/or by reference to the usual principles of negligence. This presentation will provide an overview of the liability issues which may arise. Contract The Supply of Goods and Services Act 1982 ( SGSA ) provides for terms to be implied which mirror those of the sale of goods legislation and which relate to correspondence with description, satisfactory quality and fitness for purpose. Section 13 of the 1982 Act also contains an implied term whereby the work or service element of contracts is to be carried out with reasonable care and skill this presentation only considers the implied term as to the satisfactory quality of the product supplied. 4

Under Section 4(2) of the Act, where goods are supplied under a contract for the transfer of goods, the Transferor transfer the property in goods in the course of a business and there is an implied condition that the goods supplied under the contract are of satisfactory quality. The test of satisfactory quality will be met if the goods supplied comply with the standards that a reasonable person would regard as satisfactory taking account of any description of the goods, the price (if relevant) and all other relevant circumstances. (SGSA Section 4(2A)). Section 14 of the Sale of Goods Act 1979 as amended provides : (2B)... the quality of goods includes their state and condition and the following are in appropriate cases aspects of the quality of the goods (a) fitness for all the purposes for which goods of the kind in question are commonly supplied (b) appearance and finish (c) freedom from minor defects (d) safety, and (e) durability The test of safety is likely to be key in determining whether a cosmetic product is of satisfactory quality. It is probable that the contractual test of safety will be aligned with the tortious test of defect and thus goods that are supplied to consumers and which may be proven to present a health risk will be of unsatisfactory quality in contract and defective in tort. Similar considerations would apply where goods are considered to be unsafe and of unsatisfactory quality because of the unsuitability of material or ingredients used in their composition. The pricing of certain goods is unlikely to be considered a factor where the complaint is that the goods are of poor quality and thus present a safety hazard for the health of consumers. As to durability, there are few cases which provide a firm indication of the durability and standards to be demanded. The general expectation is that goods should be capable of lasting for a reasonable time after supply and that the issue should be judged at the time of supply. It is likely that goods will be compared to other products of a similar nature provided for the same purpose. Once again, the pricing of the goods would not be considered a factor where those goods have been provided to consumers and safety and/or danger to health is a risk. The key advantage of a contractual claim in the context of injury is that there is no defence for the defendant to argue that it exercised reasonable care. If breach of the implied term in question caused the loss, the claimant will establish liability. Thus it does not matter that the supplier was unaware through no fault of his own that the product contained a potential hazard to health or was of unsatisfactory quality. In certain circumstances, the Act enables a consumer to require repair or replacement of the goods and any necessary costs incurred in doing so, including in particular the cost of labour or materials. This provision was introduced by the Sale and Supply of Goods to Consumers Regulations 2002 see Sections 11M-S of the Act. This remedy is available to a consumer if the goods supplied do not conform to the contract for the transfer of goods at the time of delivery. Thus the claimant consumer must show that there was a breach of express or implied terms at the time the contract was performed. In addition, non-conformance to the contract for the transfer of goods must be established within a period of six months starting with the date on which the goods were delivered to the transferee subject to the compatibility of this time limit with the nature of the goods or the nature of the lack of conformity. 5

This remedy is unavailable only if repair or replacement would be impossible or the cost disproportionate (Section 11N(3)). Inevitably, in cases involving the supply of cosmetic products, the question of whether the goods can be returned without the assistance of a surgeon would be relevant. Hence the applicability of these provisions in this instance must be questionable. Under Section 11N(4), the SGSA provides that the cost would be disproportionate if the cost to the transferor would be unreasonable taking into account the value which the goods would have if they conform to the contract for the transfer of goods or if any other (cheaper) remedy could be effected without significant inconvenience to the transferee. The Consumer Protection Act 1987 Background The Consumer Protection Act 1987 ( CPA ) transposed into domestic law the EU Product Liability Directive. It was introduced to change the system for assessing liability for defective products from a requirement for proof of negligence to one in which liability was dependent on proving that a defective product had caused damage. The basic principle of the Act is that a producer of a defective product is strictly liable for any damage which is caused by that product. Accordingly, where a claimant has suffered death or injury or damage to consumer-type property and this damage was caused by a defective product which has been put into circulation in the course of a business, there will be a liability on the part of the producer or manufacturer. Liability may also rest with an own brander or importer of the product from outside the European Community ( EC ). A supplier/retailer may also be found liable although this can be avoided by identifying the supplier of the goods to the consumer. In all cases liability is strict and does not depend upon proof of negligence. However there may be a number of defences available. Which products are affected? Under the CPA, a product is defined as any goods or electricity and includes a product which is comprised in another product, whether by virtue of being a component part or raw material or otherwise; (section 1(2)). It is likely that cosmetic products will be classed as products under the Act although When is a product defective? Put simply, liability attaches to products which contain a defect which causes damage. The test of whether a product is defective is based on safety, as measured by the public s general expectation of safety requirements. Under Section 3 of the Act There is a defect in a product if the safety of the product is not such as persons generally are entitled to expect; Hence, the test of defect or of defectiveness is framed in terms of what persons generally are entitled to expect. This is to be seen as the legitimate expectation of persons generally and reference should be made to the preamble of the Product Liability Directive which refers to the safety which the public at large is entitled to expect. See A v National Blood Authority (2001) 3 All ER 289 and the Judgment of Burton, J: The test is not that of an absolute level of safety, nor an absolute liability for any injury caused by the harmful characteristic In the assessment of that question the expectation is that of 6

persons generally, or the public at large The safety is not what is actually expected by the public at large, but what they are entitled to expect The common ground is that the question is what the legitimate expectation is of persons generally, ie what is legitimately to be expected, arrived at objectively. Section 3 of the CPA details how the test of defect is to be applied. The circumstances to be taken into account will include: The manner in which the product has been marketed, the instructions, warnings, its getup. What the public might reasonably be expected to do with the product. The time when the product was supplied by its producer. Who can sue? No specific person is identified and essentially any injured person who has been injured by a product can pursue a claim. Thus there is no need to be the user or purchaser of a product or to have any interest as an owner. What kind of damage is covered? To succeed with a claim there must be evidence of damage and that the damage was caused by the product. Section 2(1) states that any damage which is caused wholly or partly by a defect in a product is covered, and damage is defined by Section 5(1) to mean death or personal injury or any loss of or damage any property. Who can be liable? Primary liability is placed on a producer, own brander and/or importer into an EC member state. Secondary liability may arise in certain circumstances in relation to any person who supplied the product, such as the retailer. Thus under Section 2(2), liability for damage caused wholly or partly by a defect in a product may attach to: (a) (b) (c) the producer of the product; any person who, by putting his name on the product or using a trade mark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product; any person who has imported the product into a member State from a place outside the member State in order in the course of any business of his, to supply it to another. Examples of an own brander may include a retailer who has not been involved in any way in the production of the product but sells the product labelled perhaps with only his own name on it thereby putting himself forward as the producer. An importer will be potentially liable if he imports a defective product from outside the EC. The supplier may also be liable although is identified as a secondary producer because where the producer can be identified, the supplier will be able to pass liability down the chain to the producer. If the supplier identifies who supplied the goods to him within a reasonable period he will be able to avoid liability. 7

What does the claimant have to prove? Although the CPA imposes strict liability on the defendant (subject to the available defences), the claimant bears the burden of proving: the item in question is a product ; the product does not provide the safety which persons generally are entitled to expect; the defect in the product caused the damage suffered by the claimant. Defences Obvious issues may arise as follows: the item concerned is not a product under Section 1; the claimant has failed to prove that: - he has suffered damage - the product was defective - the damage was caused by the defect; the defendant is not a producer of the product; the claim is barred by limitation. In addition, an argument of contributory negligence may be available where damage is caused partly by the defect in a product and partly by the fault of the person suffering the damage. Liability of the defendant may be reduced or extinguished in these circumstances. Other specific defences are available under Section 4 of the CPA. (a) (b) (c) (d) (e) (e) The defect was attributable to compliance with any requirement imposed by or under any enactment or with any community obligation. The defect did not exist at the date of supply by the producer or importer. The defendant did not at any time supply the product to another. A product is supplied otherwise than in the course of a business. A special defence for component producers. The so-called development risk defence. Limitation The Limitation Act 1980 governs limitation in England and Wales. It is important to clarify at the earliest possible stage which types of claims are being brought and when the limitation periods expire as a Claim Form must be issued within the limitation period. The provisions which are likely to be most relevant to product liability claims are set out below. A substantial body of case law exists in relation to many of the sections and in certain circumstances sections overlap, thus the application of each section may require careful consideration and advice. 8

Claims founded in contract Under section 5 of the Limitation Act, a party has six years to bring a claim in contract from the date on which the cause of action accrued which in a product liability claim is typically (but not always) the date that the product was supplied. This six year period applies even if the loss or damage did not occur until more than six years later as there is no provision for a later date of knowledge. This will include claims based on terms implied under the Sale of Goods Act 1979 and Supply of Goods and Services Act 1982. Consumer Protection Act Claims under the Consumer Protection Act 1987 are dealt with by section 11A of the Limitation Act 1980, which specifically excludes the application of any other limitation periods to claims which are brought under the Act. Section 11A provides a claimant with three years in which to issue proceedings from either the date the cause of action accrued or the date of knowledge, whichever is the later date. This period applies regardless of whether the loss suffered is personal injury, property damage or both. Under section 33 of the Limitation Act the court has the discretion to allow a claim to proceed if proceedings are issued outside of the normal three year period. The date of knowledge and court discretion to allow a claim to proceed out of time are subject to a ten year long stop date after which a claim cannot be made under the Consumer Protection Act in any circumstances. In the case of a producer (or one who has held himself out as the producer), or someone who has imported the product into the EU from outside the EU, this ten year long stop date runs from the time when he supplied the product to another. In the case of a supplier, the 10 year period runs from the date when the product was last supplied by him. The position regarding the 10 year long stop date was clarified in the case of O Byrne v Aventis Pasteur SA. The European Court of Justice provided guidance on when the 10 year time period begins to run, and the domestic court s discretion to substitute a party outside of the 10 year period. In this case, which concerned an allegedly defective vaccine given to the claimant, proceedings had been brought under the Consumer Protection Act by the claimant within the 10 year limitation period. However, the proceedings were brought against the French manufacturers wholly owned English subsidiary who, it transpired, had not produced the product but simply distributed it in Britain. After the ten year limitation period expired, this mistake was discovered and the claimant sought to substitute the English subsidiary company for the French manufacturer. The following guidance was provided by the European Court of Justice: If ten years have passed since a producer has placed a product into circulation, that producer cannot be sued, unless proceedings have been taken against it within the ten year period. This rule is applicable even if the producer s identity has been mistaken. However, if within the ten year period a claim has been brought against the wholly owned subsidiary of the producer and the putting into circulation of the product was determined by the producer, the producer can be substituted for its wholly owned subsidiary. A product is put into circulation when it is taken out of the manufacturing process operated by the producer and enters a marketing process in the form in which it is offered to the public to be used/consumed. Following the guidance provided by the European Court of Justice, the Supreme Court determined that it was necessary to take into account the legal and factual relationship between the companies involved. In this particular instance, the Supreme Court held that no such close relationship existed between the producer and subsidiary company, despite the fact that it was a wholly owned subsidiary. Essentially, the subsidiary company - rather than the producer - had 9

determined the point at which the product was put into circulation. Therefore, the claimant was not permitted to substitute the subsidiary company for the producer. This case emphasises the importance of issuing a claim against the correct defendant within the 10 year limitation period. Claims founded in negligence Under section 2 of the Limitation Act the basic rule is that a party has six years to bring a claim in negligence from the date on which the cause of action accrued. This is usually the date that the loss or damage occurred. In certain circumstances, the position set out in section 2 is superseded by section 14A. If a claim founded in negligence, involves latent damage (but does not involve personal injury), the party has either six years from the date on which the cause of action accrued or three years from the date of knowledge of the damage, whichever is later to bring the claim. This gives a party more time to bring a claim in circumstances where damage occurs which it is not aware of at the time. Claims for personal injury Claims for personal injury, whether founded in contract or tort, are dealt with by section 11 of the Limitation Act. A party has three years to bring a claim, either from the date on which the cause of action accrued or the date of knowledge as defined by that section, whichever is the later date. The Court has a discretion under section 33 of the Limitation Act to allow a claim for personal injury to proceed, even if it is out of time. The Court has to balance the prejudice to each party when deciding whether to allow the claim to proceed. The position of a defendant who seeks to sue the supplier of the product causing personal injury which is the subject of the overall claim is considered in the case of Howe v David Brown Tractors (Retail) Ltd. The defendant employer in this case had been sued by an employee due to a personal injury suffered as a result of a defective product. The employer sought to sue the supplier of this defective product, but faced difficulties as the injury to the employee occurred more than 6 years from the date that the product had been supplied. As the employer s cause of action against the supplier would normally have been based in contract, limitation had expired in relation to a contractual claim. The defendant employer argued that, due to the personal injury nature of this claim, the appropriate limitation period was that set out in section 11 of the Limitation Act rather than the usual contractual limitation period of 6 years. This would allow the defendant employer to bring an action against the supplier, seeking an indemnity in respect of damages awarded to the claimant as a result of the personal injury suffered, within the same period that the claimant had to bring an action against him. The Court of Appeal commented that such a scenario did fall within section 11 as this section includes damages in respect of personal injuries to the plaintiff or any other person. Accordingly, it is submitted that the limitation period applicable to a claimant against a defendant is the same as that between a defendant and the supplier of the defective product in respect of a claim for damages due to personal injury. Contribution claims A claim for contribution can be made under the Civil Liability (Contribution) Act 1978 by the defendant against any party that the claimant could have sued. Under section 10 of the Limitation Act a claim for contribution can be brought up to two years from the date on which the right to recover contribution accrued. 10

The relevant time period runs from the date on which judgment is given against the party seeking contribution or, in the case of a settled claim, the date on which that party makes or agrees to make any payment in compensation in respect of the claim. If the claimant s claim is settled the two year limitation period begins to run when the agreement is reached not when the agreed damages are finally paid. Berrymans Lace Mawer LLP 2012 Disclaimer This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of Berrymans Lace Mawer. Specialist legal advice should always be sought in any particular case. Information is correct at the time of release. P:\PROF-IND\SHERWOOD\PRODUCT LIABILITY\SEMINARS-TALKS\PRODUCT LIABILITY - 2012 - SCRIPT.DOC 11