Proving design defects with other similar incidents evidence.

Other similar incidents evidence is the most powerful weapon in the plaintiff attorney's arsenal for persuading the jury that a vehicle is defective.

As most successful trial lawyers will tell you, the key to victory in an automotive products liability case is persuasion. You may have chosen the best and most expensive expert witnesses and tested the vehicle and conducted every evaluation possible, but your case is still very likely to fail if the jury is not persuaded that the vehicle is defective.

Other similar incidents (OSI) evidence is the most powerful weapon in the plaintiff attorney's arsenal for persuading the jury that a vehicle is defective.(1) This is because it

* provides a clear method of quantifying the type and degree of danger associated with a vehicle.(2) If you are trying to persuade the jury that the design of the vehicle creates an extreme degree of risk to the public, demonstrating that risk with actual cases is compelling.(3)

* provides an opportunity to counter the tendency of most jurors to believe that car companies don't make bad vehicles. Lawyers who routinely try automotive cases are well aware of this psychological phenomenon. OSI evidence is particularly effective in overcoming this tendency because it provides jurors with concrete examples of the results of a defective design.(4)

* provides direct evidence of a vehicle's relevant safety history. Jurors are interested in knowing whether the incident in question is unique or whether the alleged problem has surfaced before. OSI evidence answers that question with solid proof.

* provides valuable assistance in persuading the jury that the vehicle is defective by clearly demonstrating where the defect is and how it can cause injury. The evidence is particularly persuasive in cases where the defect is technical and hard for the average person to understand.

* lays the foundation for a punitive damages argument. The extent and degree of the defect cannot be adequately demonstrated without proving that the manufacturer knew it had a problem and consciously disregarded the risk to the consumer. OSI evidence can be effectively used to prove what the manufacturer knew, when it knew it, and how often it was notified that the problem was causing death or serious injury.

The power of OSI evidence was recently demonstrated in a sudden acceleration case against Ford Motor Co. involving the design of the 1991 Mercury Grand Marquis. In that case, two elderly women had entered their Grand Marquis in a shopping center parking lot. Several moments later, the vehicle was speeding across the parking lot out of control. The vehicle struck a concrete barrier, killing both occupants.

After weeks of analysis of the components of the electronic engine control system and the throttle control system, the experts had four possible explanations for the sudden acceleration, none of which could be proved with any degree of certainty.

Although the evidence clearly pointed to a defect in the vehicle, a specific component malfunction could not be identified. This was partly because the system's design precluded duplication of the event once the battery was disconnected.

After conducting every conceivable evaluation, a decision was made to prove the existence of a defect by negating other possible causes of the crash and developing OSI evidence to persuade the jury that the vehicle was defective. Discovery was aimed at identifying OSI evidence and witnesses. The 10 most effective OSI cases were chosen for deposition.

After surviving numerous motions in limine, the plaintiff's case went to trial. It began with video depositions of seven of the OSI victims.(5) By the end of the testimony, the jury was convinced that the vehicle was defective and was unreasonably dangerous. It returned a verdict for the plaintiff, finding that the vehicle was defective by design.

Regardless of whether a cause of action is based on negligence or strict liability, a key issue is foreseeability. The plaintiff must prove that a threatened danger of injury existed, that the manufacturer knew or should have known of this danger, and that the defendant's failure to protect against the danger was unreasonable.

Evidence of similar accidents or claims involving a similarly designed or marketed vehicle is generally admissible in strict liability cases to establish defective design.(6) Although the general rule implies easy admissibility, courts scrutinize OSI evidence carefully to avoid mini-trials, prejudicial error, and confusion. As a result, most evidence of other similar incidents is kept out of trials or is limited by judges who recognize its effectiveness.

OSI evidence is admissible to prove the dangerous, hazardous, or defective condition of the product,(7) to prove that the defendant knew or should have known of the dangerous condition,(8) to prove causation,(9) to prove failure to provide a warning,(10) to impeach the defendant's expert,(11) and to prove conscious indifference to a known risk or the magnitude of danger associated with the risk.(12)

The relevance of the proffered evidence depends on establishing that the other accidents or complaints occurred under the same or substantially similar circumstances(13) and involved the same or a similar product.(14)

Substantial similarity means that the circumstances of the accident in question must be similar, but not identical, to the plaintiff's incident. If the evidence is offered to prove notice or knowledge, the similarity rule is relaxed.(15) Even evidence that is technically hearsay is admissible in order to prove that the defendant was aware of a problem.(16)

The U.S. Supreme Court has noted that Rule 404(b)character evidence need not be substantiated by a preponderance of the evidence before submission to the jury because the rule was intended as a rule of "inclusion" as opposed to "exclusion." As such, the Court concluded, Congress was not nearly so concerned with the prejudicial effect of the evidence as it was with ensuring that restrictions would not be placed on its admission.(17)

Applying that rationale to evidence of other similar incidents, one can conclude that the similarity requirement is not designed to be so strict as to exclude evidence of the real-world consequences of a defect even if the defect materialized in a model other than the plaintiff's.

For example, in Bastian v. TPI Corp.,(18) the plaintiff's property sustained fire damage due to alleged defects in the electrical elements of a baseboard heater. The manufacturer filed a motion to strike evidence of other fires caused by electric arcing because it related to models other than the one owned by the plaintiff. The court admitted the evidence over the defendant's objection because the models, although technically different, all allegedly contained the same defect.(19)

Every automotive defect case will include literally hundreds of potentially different accident or vehicle details. Courts have noted that "perfect similarity is not required, but that dissimilarities brought out on cross-examination go to the weight of the evidence, not its admissibility."(20)

Another case that helped define the similarity requirement is Bishop v. General Motors Corp. (GM).(21) In that case, the plaintiff sued GM after a family member was killed when the fuel tank on a C/K pickup truck exploded in a collision. GM filed a motion in limine to exclude evidence concerning other similar incidents.

The plaintiff's evidence consisted of a government report of an investigation of C/K pickup truck accidents from which the plaintiff's expert prepared a spreadsheet of 227 other similar post-crash fires. GM urged a ruling that would require proof that each accident involved a similar collision. The plaintiff, on the other hand, urged that the proper evaluation of similarity was by reference to the common defect, not the circumstances of each accident.

After reviewing authority concerning the meaning and purpose of the similarity requirement, the court adopted the plaintiff's approach, stating,

   [I]t follows that the determination of"substantial similarity" centers on
   the similarity of the alleged defect between the subject vehicle and the
   vehicles involved in other incidents and the circumstances stemming
   directly from that defect in each incident which resulted in injury.(22)

Although most OSI evidence will involve prior occurrences, evidence of similar incidents occurring after the plaintiff's accident also are admissible. The principle was best summarized by the court in Bass v. Cincinnati, Inc.

   Evidence of prior accidents is admissible because it tends to show that a
   product is dangerous or defective.... It is common sense that the higher
   the number of accidents involving a product, the more likely it is that the
   product is the cause of the accidents and is dangerous or defective. It
   matters little whether the accidents occurred prior to or subsequent to the
   accident at issue.(23)

Gathering evidence

Identifying the defect is always the first step in an automotive products liability case. Once this is done, your focus should immediately shift to proving that the defect exists and showing the degree of risk associated with it. Finding and introducing OSI evidence is the best way to do both.

Proof that many people suffered a common injury from using an identical product design provides credible circumstantial evidence that the product is defective.(24) So long as the circumstances surrounding the occurrences coincide with the allegation of design defect, the records of other similar incidents should be admissible to prove that allegation.(25)

OSI evidence can take various forms. The most common include consumer complaints,(26) dealer notifications, maintenance problems and warranty claims,(27) adjustment records, accident reports, statistical evidence,(28) and formal legal complaints that contain mere allegations.(29) Probably the most effective evidence is direct testimony elicited from an accident victim.(30)

Discovery of this evidence should begin almost immediately after accepting the case. The obvious place to start is with the manufacturer. Although discovery from the manufacturer can be tedious and time-consuming, it can be tremendously effective in proving knowledge.

Generally, complaints about the vehicle made before and after the client's case has been filed are relevant for purposes of discovery.(31) The scope of this discovery would include consumer complaints as well as lawsuit-related information.(32) A corporation's in-house counsel's summary of prior or pending claims has been held discoverable because preparing the summary required no "legal acumen."(33)

A request that seeks incidents involving the "same or similar vehicle" has formed the foundation for an award of sanctions when the manufacturer concealed evidence.(34) A manufacturer's unilateral attempt to limit production to claims involving the "same model" as that involved in the suit is improper and also can lead to an award of sanctions.(35)

Virtually every manufacturer maintains a computer database of incidents involving its vehicles. The databases are searchable by "fields" of information that typically include vehicle makes and models, types of accidents, belt usage, and injury severity.

The best way to discover this information is to obtain direct access to the database so you can personally define the scope and extent of the search. Where this is not possible, you should attempt to identify the fields of information that are available before drafting your discovery request. If this is not possible, narrowly frame the request and then submit broader requests as discovery continues.

Another method of developing OSI evidence is through groups like the Attorney Information Exchange Group, based in Birmingham, Alabama. These organizations have valuable databases developed by trial lawyers who have had similar cases and who can direct you to helpful witnesses. You might also want to consider running a "Networking" notice for information about similar cases in publications like the ATLA Advocate.

OSI evidence also can be discovered through the consumer report database maintained by the National Highway Traffic Safety Administration (NHTSA).(36) Although names and addresses are routinely omitted from this database, they can be obtained without much time, effort, or expense by hiring consultants in Washington, D.C., to review the actual reports. The database is available on the World Wide Web and can be searched by vehicle make and model and the type of complaint made.(37)

Although difficult to locate at times, case studies evaluating a particular crash may provide valuable assistance in proving a defect. Articles published by the Society of Automotive Engineers, for example, occasionally focus on a particular model vehicle in a specific type of crash.(38)

Likewise, NHTSA's New Car Assessment Program (NCAP)can sometimes provide information in a frontal crash case where the dynamics of the accident are reasonably similar to the crash circumstances of the client's accident. Not only will the NCAP tests provide valuable data for the vehicle and occupants, but the testing will also typically include invaluable video evidence that helps demonstrate the crash dynamics and the defect.

Anticipating defenses

The manufacturer will make every effort to define the term "substantially similar" as narrowly as possible. For example, in a rollover case, the manufacturer will likely argue that the plaintiff must identify similarity among driver factors, accident factors, vehicle factors, and environmental factors.

The plaintiff should counter this argument by saying that the similarity requirement should be broadly defined--that it should encompass similarity in design but should not require similarity in accident facts as long as the defect implicated in both cases is the same.

The manufacturer may try to shift the jury's focus to "comparative risk" evidence. This is evidence comparing the risk of injury or death in unrelated activities to the risk of injury or death while using the defendant's product.

The defendant will try to create an illusion that the risk of injury is minor when compared to the risks associated with routine behavior. Although comparative risk testimony has been held admissible insofar as it relates to similar types of products, courts have refused to admit it when it incorporates dissimilar activities.(39)

Another common defensive tactic is arguing that the vehicle was not defective because it complied with applicable government safety standards. The plaintiff typically responds by attacking the manufacturer for accepting minimum standards for its vehicles and by attacking the adequacy of the standards.

OSI evidence can be used to counter this defense by showing that the design and safety standards cited by the defendant are inadequate given the magnitude of injury risk posed by the defect. Reports of other similar incidents combined with the testimony of injury victims can be particularly persuasive.

Using OSI evidence this way puts the manufacturer in the difficult position of trying to explain why its vehicle, the one that complies with all applicable safety standards, has nevertheless killed and maimed many people.

OSI evidence is likewise relevant to demonstrate that a safety standard is inadequate given the real-world performance of vehicles that have previously met it. Instead of simply arguing that the standard is weak, you should offer direct evidence of other similar incidents to show how the standard has failed to protect people from injury. Make the jury see how inadequate the standard is and you have taken a giant step toward persuading the jury that you are correct.

Another effective use of OSI evidence is during cross-examination of the opposition's expert witness. Courts have held that even dissimilar accidents are admissible to cross-examine a defense expert when the expert broadly testifies that the product in question is "safe."(40)

Final analysis

The keys to admissibility of OSI evidence are preparation and a firm understanding of the similarity requirement. Do the homework necessary to prove substantial similarity, including collecting accident reports, vehicle design information on similar models that is available in the public domain, and photos of the accident scene and vehicle. Talk to witnesses, and, assuming suit has been filed, collect all available factual depositions.

Expect the manufacturer to try to get the jury to focus on the differences between your case and other similar incidents. Assign an expert the task of reviewing, summarizing, and presenting the relationship, including relevancy, of the OSI events to your client's case. Expert testimony may convince the court that any dissimilarities the defense points out should affect the weight rather than the admissibility of the OSI evidence.

Some judges will consider conducting an early preliminary hearing to define the term "substantial similarity." This can help to reduce time and effort spent gathering information that otherwise may have been ruled inadmissible. You may also catch the defendant ill-prepared for battle early in the litigation.

Ultimately, the jury must be convinced that the alleged defect was a known risk and that the risk could have been avoided by using a safer design. OSI evidence is key to proving both these points.

Notes

(1.) See Rimer v. Rockwell Int'l Corp., 641 F.2d 450, 456 (6th Cir. 1981) (noting that a jury "would be far more likely to find that a design is defective if it learns that the alleged defect resulted in a number of accidents").

(2.) See Johnson v. Colt Indus. Operating Corp., 797 F.2d 1530, 1535-36 (10th Cir. 1986) (noting that "the greater the danger, the greater the duty").

(3.) See Exum v. General Elec. Co., 819 F.2d 1158, 1160-61 (D.C. Cir. 1987) (reversing trial judge's refusal to admit other similar incidents evidence where the evidence was relevant to show both "dangerousness and notice," especially where the jury was being asked to balance the likelihood and the gravity of harm against the burden of precaution necessary to avoid the harm).

(4.) See, e.g., Rimer, 641 F.2d 450, 456.

(5.) Selman v. Ford Motor Co., No. PB-C-94-474 (E.D. Ark. Oct. 6, 1995) (deposition testimony on file with the author).

(6.) See Soden v. Freightliner Corp., 714 F.2d 498, 507-08 (5th Cir. 1978).

(7.) Jackson v. Firestone Tire & Rubber Co., 788 F.2d 1070, 1082-83 (5th Cir. 1986).

(8.) Skil Corp. v. Lugsdin, 301 S.E.2d 921, 922 (Ga. Ct. App. 1983).

(9.) Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1268 (7th Cir. 1988).

(10.) Firestone Tire & Rubber Co. v. Battle, 745 S.W.2d 909, 912 (Tex. Ct. App. 1988).

(11.) Johnson, 797 F.2d 1530, 1534-35.

(12.) Hahn v. Sterling Drug, Inc., 805 F.2d 1480, 1483 (11th Cir. 1986).

(13.) Thomas v. Chrysler Corp., 717 F.2d 1223, 1225 (8th Cir. 1983).

(14.) See, e.g., Hale v. Firestone Tire & Rubber Co., 756 F.2d 1322, 1332 (8th Cir. 1985); Barnes v. General Motors Corp., 547 F.2d 275, 277 (5th Cir. 1977); Bailey v. Kawasaki-Kisen, K.K., 455 F.2d 392, 397 (5th Cir. 1972).

(15.) Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979 F.2d 1434, 1440 (10th Cir. 1992), aff'd, 69 F.3d 548 (10th Cir. 1995); King v. Emerson Elec. Co., 837 F. Supp. 1096, 1099 (D. Kan. 1993).

(16.) See, e.g., Kelley v. Airborne Freight Corp., 140 F.3d 335, 346 (1st Cir.) (citing Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 575 (1st Cir. 1989), and deeming harmless a customer complaint offered to show, for example, that a decisionmaker had notice of the complaint, rather than to prove the specific misconduct alleged in the complaint), cert. denied, 119 S. Ct. 341 (1998); Shields v. Sturm, Ruger & Co., 864 F.2d 379 (5th Cir. 1989).

(17.) Huddleston v. United States, 485 U.S. 681, 687-88 (1988).

(18.) 663 F. Supp. 474 (N.D. Ill. 1987).

(19.) See also Wagner v. International Harvester Co., 611 F.2d 224, 230-31 (8th Cir. 1979) (ruling that prior incidents involving earlier model were admissible to prove that manufacturer should have foreseen rollovers of the newer model); Melville v. American Home Assurance Co., 584 F.2d 1306, 1315 (3d Cir. 1978) (finding airworthiness directives from Federal Aviation Administration admissible despite different models because all may have had same design defect); Mitchell v. Fruehauf Corp., 568 F.2d 1139 (5th Cir.) (affirming admission of testimony of six truck drivers who had similar experience with handling problems of different model trucks, all of which had common design defect), reh'g denied, 570 F.2d 1391 (5th Cir. 1978); Fine v. Facet Aerospace Prods. Co., 133 F.R.D. 439, 441 (S.D.N.Y. 1990) ("different models ... will be relevant if they share with the accident-causing model those characteristics pertinent to the legal issues raised in the litigation"); General Motors Corp. v. Van Marter, 447 So. 2d 1291, 1293 (Ala. 1984) (affirming admission where evidence showed different models were "basically the same").

(20.) See, e.g., Campus Sweater & Sportswear Co. v. M.B. Kahn Constr. Co., 515 F. Supp. 64, 90 (D.S.C. 1979), aff'd, 644 F.2d 877 (4th Cir. 1981). See also Rucker v. Norfolk & W. Ry. Co., 396 N.E.2d 534, 537 (Ill. 1979) (affirming admission of 42 prior incidents involving punctures of the tank cars despite the fact that the cars were punctured differently because the defect was the same).

(21.) No. CIV-94-286-B, 1995 WL 886817 (E.D. Okla. Aug. 18, 1995).

(22.) Id. at *4.

(23.) 536 N.E.2d 831, 833 (Ill. App. Ct. 1989). See also Caterpillar Tractor Co. v. Beck, 624 P.2d 790, 794 (Alaska 1981) (holding that subsequent accidents are equally admissible).

(24.) See, e.g., C.A. Hoover & Son v. O.M. Franklin Serum Co., 444 S.W.2d 596, 598 (Tex. 1969) (finding 100 percent adverse reaction to a cattle serum).

(25.) Cf. G. Bumbs v. International Harvester, Inc., 718 F.2d 88, 97-98 (3d Cir. 1983) (finding abuse of discretion where trial court admitted U.S. Department of Transportation complaints of U-bolt failure although plaintiff had not met "burden of establishing sufficient similarity"); Kontz v. K-Mart Corp., 712 F.2d 1302, 1304 (8th Cir. 1983) (rejecting Consumer Product Safety Commission study indicating over 8,000 injuries per year without additional evidence to prove that each occurred under substantially similar conditions).

(26.) See, e.g., Ellis v. International Playtex, Inc., 745 F.2d 292, 305 (4th Cir. 1984) (allowing consumer complaint letters offered to prove notice where jury is advised that defendant had received complaints ranging from minor grievances to reports of severe injury).

(27.) Ford Motor Co. v. Massey, 855 S.W.2d 897, 902-03 (Ark. 1993) (upholding admission of computer listing of "warranty" repairs).

(28.) But see Barker v. Deere & Co., 60 F.3d 158, 162-63 (3d Cir. 1995) (finding admission of historical evidence of tractor deaths in rollovers improper without first requiring proof of substantially similar conditions).

(29.) Soden, 714 F.2d 498, 507-08 (admission of five other similar lawsuits and three informal complaints involving post-collision fuel-fed fires with identical tractor-trailer held permissible, noting that even mere allegations in complaint may have some probative value on the limited issue of notice).

(30.) See, e.g., Sears Roebuck & Co. v. Menegay, 907 S.W.2d 72, 74-75 (Tex. Ct. App. 1995) (holding admissible testimony of victim involved in other similar incident).

(31.) See Clark v. General Motors Corp., 20 Fed. R. Serv. 2d 679 (D. Mass. 1975).

(32.) Ericson v. Ford Motor Co., 107 F.R.D. 92 (S.D.N.Y. 1990).

(33.) Fine, 133 F.R.D. 439, 444.

(34.) Coleman v. General Motors Corp., No. 88-53419-02 (Fla., Dade County Cir. Ct. 1997).

(35.) Hathcock v. Navistar Int'l, 53 F.3d 36, 40 (4th Cir. 1995); see Malautea v. Suzuki Motor Corp., 148 F.R.D. 362 (S.D. Ga. 1991), aff'd, 987 E2d 1536 (11th Cir.), cert. denied, 510 U.S. 863 (1993).

(36.) The agency is located at 400 Seventh St., S.W., Washington, DC 20590. The auto safety hotline number is [phone].

(37.) The site is located at http://www.nhtsa.dot.gov.

(38.) The Society of Automotive Engineers is located at 400 Commonwealth Drive, Warrendale, PA 15096-0001.

(39.) Bittner v. American Honda Motor Co., 533 N.W.2d 476, 487 (Wis. 1995).

(40.) Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991); Hale v. Firestone Tire & Rubber Co., 820 F.2d 928, 934-35 (8th Cir. 1987) (permitting cross-examination of defense expert's testimony on other suits about safety of the product).

Tab Turner practices law in North Little Rock, Arkansas. He wishes to credit attorney Francis J. Hare Jr. for providing reference materials on the topic of the admissibility of OSI evidence.