Approaching the handling of such proof with what we labeled as "humdrum, robotic recitations of statements found in treatises or case law" seriously underestimates the importance and potential consequences of the issue. As our articles showed, many successful trial specialists consider "Other Similar Incidents" evidence, popularly called OSI, to be among the most powerful weapons intended to persuade juries that the product in question is truly defective. The fact that such evidence is potential dynamite in the courtroom does not mean the reasons for admissibility are sound. Modern Products Litigation The realities of modern products litigation should find lawyers looking at vintage rules with fresh analysis, greater creative thinking and, ultimately, more-incisive advocacy. Rules applicable to the proffer of evidence about one, two or several other simple accidents in routine negligence or slip-and-fall cases are not necessarily justified in complex design and warning litigation involving mass-produced products. Courts and lawyers considering the probity-versus-prejudice calculus of receiving, say, three proximate in-time, slip-and-fall banana-peel incidents at the same supermarket fruit section ought to think differently about allowing evidence about, say, 30 or 50 car accidents occurring in different years in different parts of the country, out of some million similar cars used for years without accidents. For one thing, a lot has changed since the old rules were fashioned. We have had notable, dramatic changes in our modern approach to hearsay evidence, for example, which has recognized many exceptions to the exclusionary rule. Years ago, hearsay generally was "out"; today much of it is "in." Modern practice has liberalized pretrial discovery as well as the scope of expert testimony (subject, of course, to "reliability" standards of Frye and Daubert). We have seen substantive legal changes as, for example, broad application of strict tort liability and massive change from rules of contributory to "pure" comparative fault, which allows even highly culpable claimants to recover. The computer and digital age has broadened and speeded up the transmission of news and communication among information-thirsty lawyers and consumers. Thus, "networking" among like-minded litigants and their attorneys has been maximized. And, in an era of rising consumer awareness, we see double-digit million-dollar tort awards now as somewhat commonplace. These are but a few of the alterations in the litigation landscape. Evidentiary Dynamite "Other accident" evidence, dynamite-laden as it is, therefore, needs to be scrutinized carefully, not only for the talismanic standards of so-called "substantial similarity," but also for real indicia of true relevance, probativeness as well as potential for prejudice. The real value of such evidence should be critically examined and appropriately questioned. Our 1997 articles went into much of that. For example, lawyers seeking to introduce proof that five or 10 other lawsuits were filed against a manufacturer of a particular product as evidence of a defective design are offering nothing more than the existence of hearsay pleadings carefully drafted by lawyers in self-serving complaints using conclusory language. Nor does it matter that a list of "other lawsuits" may have been provided by a defendant during discovery. A defendant does not, by listing them in answer to an interrogatory, concede the truth of those allegations. Similarly, a manufacturer's knowledge that other accidents involving its mass-produced product may have occurred is not of itself "notice" to it of a defect. That certainly is true where tens or hundreds of thousands of those products are in the field. The "notice" issue is much overblown in any event because, under modern products law, a manufacturer is held to the standard of being an expert in its field and is charged with knowledge of what is reasonably foreseeable, including even foreseeable misuse. Thus, given jury instructions to this effect, proof of other accidents, in itself, often merely gilds the lily — and prejudicially so. Our articles were stimulated in part by a masterful 1996 Oklahoma Law Review piece by New Jersey attorney Robert A. Sachs.[2] Here we do not revisit many of the questions raised in the earlier articles. Lawyers tussling with "other accident" evidence imbroglios today can refer to these writings, among others, to help develop something more than a kneejerk response to legal generalizations. Instead, here we move on with a report on a new development, only this one involves the other side of the OSI coin — that is, evidence proffered by defendants about the absence of other accidents. Sometimes, this is called "no-prior-accident" evidence. The newsworthy item is the U.S. Court of Appeals for the Third Circuit's opinion in Forrest v. Beloit Corp.,[3] issued on Sept. 16. This was a products liability case involving a workplace injury. Plaintiff worked at a paper mill. His arm became stuck between two multi-ton rollers, in the "nip" of a so-called "Gloss Calender" machine manufactured by defendant in 1963. The employer made certain changes to facilitate the machine's use in the milling of paper. Experts battled at trial over whether a guard at the nip point would have prevented the injury. When the dust settled, the jury voted for defendant. Plaintiff's appeal raised a number of issues but only one struck home. This involved the trial court's receipt, over plaintiff's objections, of testimony by two former employees that they were unaware of any similar accidents on the gloss calender at this mill. Plaintiff's accident was the first of which they were aware. The employees had worked at the mill 17 and 36 years, respectively. What made the circumstances of this testimony somewhat unusual was that it was extracted by defense counsel on cross-examination. The former employees were plaintiff's witnesses, not defendant's. 'No-Accident' Testimony The testimony involved was relatively sparing. One witness was asked on cross as follows: Question: You've never had an accident on the gloss calender, correct? Answer: I never had an accident, no. Question: Okay. And you're not aware of anyone other than Mr. Forrest that's ever had an accident where his hand went through the gloss calender, correct? Answer: No . . . I'm only aware of Paul, that's all. The other employee also indicated he was unaware of any prior similar accidents. In addition to making an earlier motion in limine, plaintiff's counsel objected repeatedly to this testimony. Defense counsel then invoked this testimony during summation when he argued, "as far as the evidence is concerned, the only accident we know of, in 36 years, on the Gloss Calender was Mr. Forrest's." The Third Circuit panel ruled that the trial court abused its discretion in receiving this "no-prior-accident" evidence and, accordingly, reversed and remanded for a new trial. The court stated that the issue of admissibility of evidence concerning the absence of prior accidents "presents recurring difficulties in products liability cases." The Third Circuit had yet to address this issue in the context of the Federal Rules of Evidence. It suggested that "guidance concerning the foundation" that must be laid by a defendant seeking to introduce such testimony was needed and then proceeded to elaborate a number of points. First, there was a question of which law applied on the issue, state or federal. The diversity suit involved Pennsylvania substantive law. The panel majority acknowledged that determining whether a particular evidentiary ruling involves federal procedural law or state substantive law sometimes "can be difficult." It held that federal evidence law governed. The reason was the majority's view that, ultimately, the admissibility of such evidence "turns on a balancing of its probative value versus its prejudicial effect," a question governed by Federal Evidence Rule 403. The third panel member agreed in principle but felt constrained by prior circuit precedent seeming to point towards application of state law. The court noted that the probative value of no-prior-accident evidence "is determined in large measure by the foundation laid by the offering party." Quoting from the First Circuit's Espeaignnette decision, the panel observed that, as a general rule, such evidence "may not be admitted unless the offering party first establishes that the 'lack of accidents was in regard to products that are substantially identical to the one at issue and used in settings and circumstances sufficiently similar to those surrounding the machine at the time of the accident.'"[4] Thus, said the court, when admitting such evidence most courts have done so only where the testifying witness, usually the manufacturer's employee, has testified that: (a) a significant number of substantially identical products have been used in similar circumstances over a period of time; (b) the witness would likely be aware of prior accidents involving these products; and (c) to the witness's knowledge, no such prior accidents have occurred.[5] Is the foundational requirement aimed at excluding irrelevant evidence under Rule 402 or is the target relevant but unfairly prejudicial evidence under Rule 403? The Espeaignnette decision said the matter was "unclear," but the Third Circuit panel in Forrest declared that the foundation requirement is "best described as a tool meant to aid in the balancing inquiry under Rule 403 or its state analog." Such evidence can be relevant to show absence of a defect; lack of proximate cause; and nonexistence of a dangerous condition. Yet, without a proper foundation, unfair prejudice may outweigh whatever probative value the evidence has. Prejudice Concerns What prejudice concerns are there? The panel turned to the Arizona Supreme Court's Jones decision for the list.[6] These were: (1) the mere fact that a witness does not know of any prior accidents does not prove that no such accidents occurred; (2) generalized assertions of no-accidents over an extended period of time can be directly rebutted only with specific evidence of prior occurrences, but such evidence may be difficult or impossible for a plaintiff to obtain in cases where defendant has not kept records concerning the safety history of its products; (3) the absence of prior accidents may simply mean that the plaintiff was the first to be injured; there is always a first victim; and (4) no-accident testimony "does not tell us how many near-accidents nor how many fortuitous escapes from injury may have occurred." The court deemed this fourth factor "especially salient" because Pennsylvania substantive law has the jury focus specifically on whether the product as designed presents a potential danger to the intended user and the risk/utility analysis is for the judge.[7] Readers should note that under other state laws, therefore, this factor may not be quite so "salient." Admissibility Issue The court emphasized that the admissibility issue turns on the facts and circumstances of each case. Yet, in most cases, the required foundation has involved three elements: (a) similarity — the defendant must show that the testimony offered relates to substantially identical products used in similar circumstances; (b) breadth — defendant must provide the court with information concerning the number of prior units sold and the extent of prior use; and (c) awareness — defendant must show that it would likely have known of prior accidents had they occurred.[8] Here, however, there was an uncommon scenario. The evidence was elicited not from defense witnesses but from plaintiff's witnesses via cross-examination. It was limited to the history of accidents on this particular gloss calender used at this mill. Did that make a difference in application of the foundational stringencies? The court held "no" under the circumstances here. The narrow focus was "understandable," said the court, because defendant's corporate representative admitted in his deposition that he knew of no records or databases relating to customer safety complaints or past accidents involving its gloss calender machines. Thus, reasoned the panel, any attempt by defendant to introduce through its own witnesses a broad claim of no-prior-accident safety history "would likely have been foreclosed by the witness's inability to show that he or she would have known of prior accidents had they occurred."[9] So, the question boiled down to whether the focus solely on the single gloss calender machine at that mill over a more than 36-year period "so diluted the probative value of the testimony . . . as to render it inadmissible in light of the potential for unfair prejudice that inheres in all such testimony." The court held "yes." The no-accident evidence should have been excluded under Rule 403. The court's "primary concern" was that "we have no idea whether there were prior accidents" involving defendant's other gloss calendars. The corporate witness said no records on possible injuries or accidents were kept during the decades prior to plaintiff's accident. The court was thus left with "no reliable way to determine the probative value of what is essentially anecdotal testimony from two former . . . employees concerning a single Gloss Calender installed at a single mill." The court could do little more than engage in rank speculation concerning the probative value side of the Rule 403 balancing equation. The same uncertainty undermined plaintiff's ability to respond to such proof. While plaintiff could speculate that other accidents occurred elsewhere on these machines, such speculation "would not have anywhere near the same effect on the jury" as the concrete testimony of the two former employees. There was asymmetry in the persuasive force of the no-accident testimony and the speculative nature of plaintiff's response. And this was traceable "in large measure" to defendant's failure to maintain records on its products' safety history.[10] The court acknowledged that a number of the prejudice concerns arose from the unique facts of the case and the characteristics of Pennsylvania law. The court also noted that "the mere existence of potential unfair prejudice" does not "in and of itself justify the exclusion of safety history evidence . . . ." That such concerns are always present, however, "will invariably implicate the strength of the showing a defendant must make in terms of establishing probative value under Rule 403." Defendants' foundational showing will incorporate the elements of "similarity, breadth and awareness." Safety History "Breadth" need not always mean knowledge of the safety history of each unit; there may be gaps in the most thorough record-keeping system. "Minor gaps can legitimately be said to go to the weight of the evidence rather than its admissibility." Here, however, there was a complete absence of records which defendant sought to remedy by using a small fragment of anecdotal testimony. Michael Hoenig is a member of Herzfeld & Rubin Endnotes:________________________________________________________________________________________________________ [1]. Clark v. Takata Corp., 192 F.3d 750, 759 (7th Cir. 1999). [2]. 797 N.Y.S.2d 743 (Sup. Ct. Wayne Co. 2005), 2005 N.Y. Slip Op. 25252. DeMeyer was discussed in Hoenig, "'Gatekeeping' Gems Give Guidance," New York Law Journal, July 11, 2005, p. 3. [3]. Fuesting v. Zimmer, Inc., 2005 U.S. App. LEXIS 18759 (7th Cir. Aug. 30, 2005). [4]. Hoenig, "Questions About Experts and 'Reliable' Hearsay, NYLJ, July 8, 2002, p. 3. [5]. Hutchinson v. Groskin, 927 F.2d 722, 725-726 (2d Cir. 1991). [6]. Borden v. Brady, 92 AD2d 983 (3d Dept. 1983); Hornbrook v. Peak Resorts, Inc., 194 Misc.2d 273 (Sup. Ct. Tompkins Co. 2002) (out-of-court material must not be principal basis for expert's opinion on ultimate issue in the case; expert not to be mere conduit by which to funnel out-of-court material into evidence). [7]. Hoenig, "Experts' Reliance on 'Unreliable' Hearsay," NYLJ, Nov. 12, 2002, p. 3; See also our columns in the NYLJ on Experts and Professionally Reliable Hearsay dated, respectively, April 11, June 18, July 8 and Aug. 12, 2002, each article commencing at p. 3. [8]. "Questions About Experts and 'Reliable' Hearsay," NYLJ, July 8, 2002, p. 3; "Experts' Reliance on 'Unreliable' Hearsay," NYLJ, Nov. 12, 2002, p. 3. [9]. By authors W.L. Anderson, B.M. Parsons; Dr. Drummond Rennie in 34 U. Mich. J. L. Reform 619 (summer 2001). [10]. Hambsch v. N.Y. City Transit Auth., 63 NY2d 723, 726 (1984). [11]. John P.A. Ioannidis, "Why Most Published Research Findings are False," Vol. 2, Issue 8, Public Library of Science Medicine (Aug. 30, 2005), DOI: 10.1371/Journal.pmed.0020124. [12]. DOI:10.1371/Journal.pmed.0020272, 2 Public Library of Science, Issue 8 (Aug. 30, 2005). |
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