'No prior accidents' claim does not prove safety, says Third Circuit.

A trial court should not have allowed testimony suggesting no previous accidents had occurred involving a piece of machinery implicated in a products liability action, the Third Circuit has ruled.

"Testimony concerning an alleged absence of prior accidents, if offered without a proper foundation, can create risks of unfair prejudice that may substantially outweigh whatever probative value the evidence otherwise has," Circuit Judge D. Brooks Smith wrote for the court. (Forrest v. Beloit Corp., 424 F.3d 344 (3d Cir. 2005).)

The court also held that a lack of previous accidents does not establish that a product is safe.

In November 1999, Paul Forrest was injured on the job at a paper mill in Pennsylvania. While trying to clear a jam in a long line of machines that press wood pulp into dry paper, his arm became caught between two multi-ton rollers on a Gloss Calendar machine. He suffered severe, permanent injuries.

He sued Beloit, which manufactured the machine, in federal court, alleging negligence and strict liability under state law.

Before trial, Forrest filed a motion in limine seeking to bar the defense from presenting evidence that no accidents involving the machine had occurred before Forrest's. Beloit's former chief engineer had testified at deposition that the company had not kept records of safety complaints or accident reports related to the machines. Therefore, Forrest argued, the defense could not establish an adequate foundation for any evidence of an absence of prior accidents.

The trial court allowed Beloit to introduce the evidence. Also, in cross-examining two of Forrest's coworkers at the mill, the defense elicited statements that neither worker was aware of any other accidents involving the machine. In closing, Beloit referred to these statements as evidence that no prior accidents had occurred and that the machine was not defective. The plaintiff objected to the testimony, claiming the defense had not established an adequate foundation for it under Federal Rules of Evidence 402 and 403.

The jury returned a defense verdict. On appeal, the Third Circuit agreed with Forrest that the testimony on the alleged lack of prior accidents should not have been allowed, and it remanded the case for a new trial.

Explaining his reasoning, Smith noted: The fact that a witness does not know of any accidents does not prove that no accidents occurred; specific evidence of prior accidents would be difficult or impossible for the plaintiff to obtain because the manufacturer kept no such records; and there is always a first victim, so a lack of prior accidents does not necessarily prove that the product is not defective.

The court also pointed out that testimony on an absence of prior accidents does not address near-accidents that may have occurred. "[E]vidence of near-misses or fortuitous escapes would be highly probative of the existence of danger, and thus of the existence of a defect," Smith wrote.

The court noted that the testimony Beloit elicited from the plaintiff's witnesses referred only to the Gloss Calendar machine at the plant where they and Forrest worked. Their statements cannot be used to support broader generalizations related to similar Beloit machines at other plants, Smith wrote.