June 4


Is It Products Liability Or Packaging Liability?

By Mark Miller

June 4, 2020

The answer is…both! The same laws that are designed to protect consumers from dangerous products also protect consumers from dangerous packaging.

Anyone who has ever tried to open a small electronic device encased in a hinged, hard clear plastic container welded at the seams knows the “wrap rage” that clamshell packaging causes. Unfortunately for consumers, the packaging causes more than just rage. When sliced open, the hard plastic shards can cut you, and it’s all but impossible to extricate the contents without weaponry.

Clamshell packaging received Consumer Reports 2006 1st Place Oyster Award for hardest-to-open packaging. Injuries from packaging, including clamshell packaging, contributed to 200,000 visits to emergency rooms in 2005 as reported by the U.S. Census Bureau. Yet, manufacturers continue to package their products in this unreasonably dangerous type of packaging.

As you might have guessed, the reason that companies continue to use clamshell packaging is profit. The packaging makes for eye-catching product displays in stores and operates as a theft deterrent as shoplifters are thwarted by the clamshell design. Companies are reluctant to employ alternative, equally effective, packaging designs because they cost a few more cents per package which cuts their profit margins.

This profit, however, comes with a price. A price paid by consumers with painful cuts to fingers and hands. The injuries caused by jagged shards of clamshell packaging can, on occasion, be severe. When more severe injuries occur, a claim under a products (or packaging liability) theory may be viable.

We do not advocate the pursuit of claims for scratches and minor cuts. Pursuing products (or packaging) liability claims is expensive. These claims can only be justified when the injuries are severe and debilitating.

A severed tendon or nerve caused by clamshell packaging can be devastating. This type of injury can be especially devastating for the person who makes a living with her hands.

Our office recently represented a woman who suffered a serious injury to a tendon in her finger while opening clamshell packaging. She was a nurse who could not return to her chosen profession because of her injury. We obtained a favorable result for her and her family under a products (or packaging) liability theory.

If you have been seriously injured as a result of an unreasonably dangerous product or packaging, contact our office to schedule a free consultation.