Products Liability Litigation:

Addressing Other Similar Incidents

and Lack of Prior Accidents Evidence Navigating Admissibility Issues and Building a

Solid Foundation Through Incident Reporting Procedures

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THURSDAY, APRIL 30, 2015

Presenting a live 90-minute webinar with interactive Q&A

Frederick E. Blakelock, Partner, Butler Pappas Weihmuller Katz Craig, Philadelphia

William P. Schoel, Partner, Butler Pappas Weihmuller Katz Craig, Tampa, Fla.

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OSI/Lack of Prior Accidents

Frederick E. Blakelock (Philadelphia)

William P. Schoel (Tampa) Butler Pappas Weihmuller Katz Craig LLP

PART ONE: ATTACKING THE

ADMISSION OF OSI EVIDENCE

• OVERVIEW

• OTHER SIMILAR INCIDENTS

• “Incidents” are typically other accidents

involving the same or similar products

• Typically discoverable

• May be admissible:

– Establish the product is defective

– Notice (knowledge by the manufacturer)

– Feasibility of an alternative design

– Punitive damages

6 6

• Severely prejudicial

– Manufacturer must defend not only the accident

at issue, but also other prior accidents

– Jurors are more likely to believe a product is

defective if it is involved in multiple accidents –

the accident at issue is not a “freak” accident.

• Critical to preclude these other incidents

as much as possible

– Efforts should commence in discovery and

continue through trial

7 7

Barker v. Deere & Co., 60 F.3d 158, 162 (3d Cir. 1995)

• “We note that every court of appeals to have considered this issue agrees

that when a plaintiff attempts to introduce evidence of other accidents as

direct proof of a design defect, the evidence is admissible only if the

proponent demonstrates that the accidents occurred under circumstances

substantially similar to those at issue in the case at bar.”

8 8

Brazos River Authority v. GE Ionis, Inc., 469 F.3d 416, 426 (Fifth

Cir. 2006)

• “The question of admissibility of substantially similar accidents is

necessarily determined on a case-by-case basis, with consideration to be

given to any number of factors, including the product or component part

in question, the plaintiff's theory of recovery, the defenses raised by the

defendant, and the degree of similarity of the products and of the other

accidents.”

9 9

PRE-DISCOVERY

• Raise the issue with your client

early on. – What is the product history of incidents?

– Don’t wait for formal discovery requests.

• Do not assume that your client’s

information is the whole story

• Google searches

• Discussion boards

10 10

FACT DISCOVERY

• Responding to discovery requests

• Objections: requests are typically be overly broad and vague

– Limit the scope of the response, but make it clear you are doing so.

– Will limit effectiveness of arguments at trial that you did not fully

disclose when you try to use the lack of similar incidents against the

plaintiff.

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FACT DISCOVERY

• Propound your own OSI discovery requests

– Get details of other incidents:

• date of the incident

• the names of the claimant

• make and model of product involved (PIN if known)

• a description of each incident

• whether a lawsuit was filed as a result

(if so, request the date of filing and

style of the case),

12 12

FACT DISCOVERY

• a list of the documents related to each incident (including reports, notes,

photographs, pleadings, or depositions) and request actual documents

• list of the witnesses on whom the plaintiff will rely to prove the facts of each

incident.

• Was the product in its “as-designed” condition immediately prior to the incident,

and

• on what grounds the plaintiff contends the product to be substantially similar.

• Confirm vague responses in follow-up

correspondence (no knowledge).

13 13

EXPERT DISCOVERY

• Ask for all supporting documentation in reports as soon as

possible after you receive the report

• Prior depositions/trial testimony

– Have they testified in similar cases?

• DRI Expert Witness Database

14 14

EXPERT DEPOSITIONS

• Know the law and standards for admission

• Drill down on the OSI issue

– Get all details and follow–up

– Avoid surprises

• Ask expert to define what factors

other than design, could cause or

contribute to the accident

15 15

EXPERT DEPOSITIONS

• Use your expert to find discrepancies in other incidents to ask

about in deposition

– Cause of accident

– Conditions

• Do not assume opposing expert’s version is accurate

• Other manufacturers’ product incidents can be

particularly prejudicial

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MOTIONS IN LIMINE

• When to file?

– Advise court in pre-trial

conference specifically that

motion will be filed

– File early

– Request a hearing

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MOTIONS IN LIMINE

• Topics to address: 1. plaintiff bears the burden of proof to prove substantial similarity;

2. other incidents generally are not admissible and are only admissible for certain

purposes if proven to be substantially similar;

3. substantial similarity must be proven by competent admissible evidence;

4. substantial similarity is a legal determination to be made by the court, not plaintiff’s

experts; and

5. define the substantial similarity factors listed by case

law and explain what they mean in the

specific case.

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MOTIONS IN LIMINE

• Attack purported relevance of OSI evidence.

• OSI evidence can be admitted for various

purposes, including:

– notice

– feasibility of an alternative design

– the existence of a defect.

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MOTIONS IN LIMINE

• Regardless of the rationale plaintiff’s counsel espouses, the evidence

should be strictly limited:

– incidents must substantially similar and

– tend to establish or refute a disputed issue of fact.

• Motion in limine should attack both the

stated basis for the evidence (what is

the plaintiff trying to prove?) and the

alleged similarity of those incidents.

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MOTIONS IN LIMINE

• Restricting “substantial similarity”

1. Substantial similarity of the product

2. Substantial similarity of circumstances and causes

• Substantial similarity of the product

– need not involve the identical model of the product at issue

– should involve the same allegedly defective component in a product of the same

design

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MOTIONS IN LIMINE

• In-house engineers are a critical resource: Intimately aware of product

design and differences with competitor’s products

• Substantial similarity of circumstances and causes

– Be wary of complied data/summaries – often lack facts that are critical to establish

substantial similarity

– Force plaintiff’s counsel to admit he does not have knowledge of critical facts

22 22

MOTIONS IN LIMINE

• Rebutting OSI Evidence to Establish Notice.

– Some courts have relaxed the substantial similarity requirement when the sole

purpose of the OSI evidence is to establish notice

– Cardenas v. Dorel Juvenile Group, Inc., 239 F.R.D. 611, 633 (D.Kan. 2005):

– “Evidence proffered to illustrate the existence of a dangerous condition necessitates a

high degree of similarity; the requirement is relaxed, however, when the evidence of

other accidents is submitted to prove notice or awareness of the potential defect.”

23 23

Jackson v. Firestone Tire & Rubber, 788 F.2d 1070, 1083 (Fifth

Cir. 1986)

• “For purposes of proving other accidents in order to show defendants'

awareness of a dangerous condition, the rule requiring substantial

similarity of those accidents to the accident at issue should be relaxed.”

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MOTIONS IN LIMINE

• Argue against this relax standard.

• Moseley v. General Motors Corp., 213 Ga. App. 875, 878, 447 S.E.2d 302,

307 (1994) (“If the relative defects are not similar, how can one be notice of

the other?”).

25 25

MOTIONS IN LIMINE

• If notice is the rationale, events subsequent to the

plaintiff’s accident should be excluded.

• Consider acknowledging notice in appropriate cases.

– Every product has certain inherent hazards

– Manufacturer may be aware of the potential for certain

uncommon accidents that do not render the product

line defective

– May serve to bolster the manufacturer’s

credibility with the jury.

26 26

HEARSAY OBJECTIONS

• Olson v. Ford Motor Company, 410 F.Supp.2d 855, 861 (D.N.D. 2006)

• Court precluded the admission of customer complaints to show defective condition of brakes where

the purpose for which the evidence was offered hinged on the truth of the assertions in the

complaints.

• Toups v. Sears Roebuck & Co., 499 So. 2d 344 (La. App. 4th 1986), rev. on other grounds 507

So.2d 809 .

• Article summarizing study of other injuries associated with water heaters was properly excluded

where the article was hearsay in that it was offered to provide truth of the matter asserted without

providing defendants the opportunity to cross-examine the author;

article did not qualify as a learned treatise because the expert

who relied on the article was unable to testify how the

statistics were gathered or able to ensure their reliability.

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HEARSAY OBJECTIONS

• Probative Value Substantially Outweighed by the Danger of

Unfair Prejudice

• The marginal probative value of this evidence must be weighted

against the real and substantial danger that the evidence will

mislead the jury and unfairly prejudice the defendant

28 28

THE OSI HEARING

• Request a hearing to convince the judge and make a record

• Charts can be compelling to demonstrate differences:

– Make/Model

– Facts

– Differences

29 29

Barker v. Deere & Co., 60 F.3d 158 (3d Cir. 1995)

• Plaintiffs’ expert witness testified as to the history and rate of tractor

fatalities to farmers, including the number of rollover accidents. Offered

to prove defect (lack of OPS) and feasible alternative design.

• Court held it was error to admit theses statistics.

• “District court must be apprised of the specific facts of previous accidents

in order to make a reasoned determination as to whether the prior

accidents are ‘substantially similar’.”

30 30

Exum v. General Electric Co., 819 F.2d 1158 (D.C. Cir. 1987)

• Fast food employee was filtering hot grease when his asthma inhaler fell into the fryer.

Plaintiff alleged it having an open filtration system was a defective design.

• Plaintiff offered about 15 case files detailing incidents in which young employees were

burned while filtering grease with the same model filter. The other incidents involved

“slightly different and sundry fact patterns-for example, spillage were burned while

filtering grease with the same model deep fryer.”

• Preclusion similar incidents (including incident that post-dated the accident at issue)

was an abuse of discretion where it was offered on issue of dangerousness of deep

fryer.

• “Certainly these other accidents were ‘of a kind which should have served to warn’ GE of

the risks of an open system fryer.”

31 31

Crump v. Versa Products, Inc., 400 F. 3d 1104 (8th Cir. 2005)

• Decedent died after falling from a ladder. Plaintiffs alleged the hinges on the ladder

unlock unexpectedly. Accident occurred on July 28, 1997, with the ladder in a straight

configuration.

• District Court allowed evidence of incidents before the date of plaintiff’s accident, with the

ladder in a straight position.

• Eighth Circuit Court of Appeals upheld the District Court’s ruling precluding the

admission of 44 other incidents of hinge failure on a ladder because the incidents were

either after the date of the plaintiff’s accident or did not involve a similar ladder position

as that of the ladder when the plaintiff was injured

32 32

FIGHTING OSI AT TRIAL

• If OSI is coming in, address it in your opening statement.

– Jury will determine whether these incidents are relevant to this

particular case

– Mention the absence of other incidents

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FIGHTING OSI AT TRIAL

• Cross examination of plaintiff’s expert

– Absence of specific facts of to the incidents

– Get expert to admit the product can be used safely and has been in the vast majority of

instances

• Ryan v. KDI Sylvan Pools, Inc., 121 N.J. 276, 579 A.2d 1241 (1990) (trial court committed

reversible error in excluding defendant manufacturer’s proffered evidence concerning the

frequency of serious injuries resulting from diving accidents).

• Ask expert about plaintiff’s conduct (generally admissible for

establishing lack of causation)

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PART TWO: INTRODUCING EVIDENCE

OF LACK OF SIMILAR INCIDENTS

• OVERVIEW – Why is this important?

– How to lay the foundation.

– Counsel clients to establish solid

record keeping procedures.

35 35

BASIS FOR THE ADMISSIBILITY OF EVIDENCE REGARDING

THE ABSENCE OF OTHER SIMILAR INCIDENTS

• Absence of Defect

• Intended Use

• Causation

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LAYING THE FOUNDATION

• The manufacturer must be able to present evidence that it is

likely to have know about prior accidents had they occurred.

• Think about issue early in litigation.

• How have courts decided this issue? What level of knowledge is

enough?

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LAYING THE FOUNDATION

• Spino v. John S. Tilley Ladder Co., 696 A.2d 1169, 1174-5 (Pa. 1997)

• “there is little logic in allowing the admission of prior similar accidents but

never admitting their absence.”

• Two requirements for the introduction of lack of prior claims testimony:

1) the evidence must be relevant to the issue of causation

2) the offering party must lay a proper foundation.

38 38

LAYING THE FOUNDATION

• The manufacturer must be able to present evidence that it is likely to have

know about prior accidents had they occurred.

• The standard is generally satisfied where a manufacturer can put forward

sufficient facts to demonstrate that it tracks and monitors incidents involving

its product and affirmatively seeks out such information.

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LAYING THE FOUNDATION

• In Forrest v. Beloit Corporation, 424 F.3d 344 (3rd Cir. 2005)

• The offering party kept no records regarding other accidents

involving the product at issue in the decades prior to the

plaintiff’s accident.

40 40

COUNSELING YOUR CLIENT

• Set up an accident tracking database.

• Be aware of risks: the degree to which a manufacturer diligently records incident reports may make it

easier for plaintiffs to gather information to be used as evidence against the defendant manufacturer

at trial.

• However, in most cases the number of truly similar accidents will be insignificant as compared to the

number of products in the marketplace and the number of hours they have been used.

• Any incident that involves personal injury or substantial property damage should be

recorded.

• Facts should be entered, not commentary.

• Affirmatively take steps to seek out information.

• Document retention considerations (permanent?)

41 41

METHODS OF COLLECTING DATA

• Dealers

• Hot line or tool-free number

• E-mailing the product safety department.

• Internet (Google alerts)

• CPSC

• Employees are encouraged to report incidents

• Media coverage (newspaper articles)

• Lawsuits or other claims information

Make it someone’s job to actively monitor public information.

42 42

OTHER BENEFITS

• Product improvement: analyze trends.

• Avoidance of punitive damages

43 43

OSI/Lack of Prior Accidents

Frederick E. Blakelock (Philadelphia) fblakelock@butlerpappas.com

William P. Schoel (Tampa) wschoel@butlerpappas.com Butler Pappas Weihmuller Katz Craig LLP

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