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Proving the negative: on the admissibility of the lack of prior accidents in a products liability case.

MANY of us have encountered the situation where the plaintiff is trying to introduce evidence of prior accidents involving the use of our client's products. (1) Less frequently, however, do we encounter the opportunity to convince a court that we should be allowed to present to the jury evidence of the lack of prior accidents from the use of our client's products. The purpose of this article is to provide some guidance on how to persuade the court to allow you to provide this helpful information to a jury.

Generally, all relevant evidence is admissible. (2) Evidence is relevant if it has any tendency to make the existence of a material fact more or less probable than it would be without the evidence. (3) However, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. (4)

Our trial courts have wrestled with the troubling issue of the "relevance" and "prejudice" of the admissibility of the lack of prior accidents, first in negligence cases and then in products liability cases, for over a hundred years. In 1891, in Langworthy v. Green Township, (5) the Supreme Court of Michigan held that the lower court properly excluded testimony as to whether the witness had ever known of anyone being injured previously upon an obstruction, citing to an earlier Illinois case, Hodges v. Bearse. (6) In Hodges, a lower court's refusal to admit evidence of an elevator's accident-free history was upheld, with the court finding that such evidence was immaterial because it would not rebut evidence of negligent construction and operation and because it would distract the jury with collateral issues.

In this article, we will review the salient case law and identify those issues that have proven crucial to the admissibility of the lack of prior, similar accidents. We will first examine an exemplar case, and then review the foundational requirements courts have imposed on the admissibility of evidence concerning lack of prior accidents.

I. Admitting the Negative Evidence (7)

In Pandit v. American Honda Motor Co., (8) the plaintiff was traveling on Interstate 70 through western Kansas when the headlights on the Honda Accord driven by her husband began to twitch and gradually to dim. Plaintiff's husband could detect no warning lights being activated on the instrument panel and he mentioned the problem to his brother, traveling in the backseat with his wife, and the two men began to look for an exit from the interstate. The headlights suddenly became so dim that the plaintiff's husband was unable to see the road. He reduced the speed of the Accord and began to pull off to the side of the road when the engine stalled and the charge warning light activated. As these things go, the car came to a stop in the right-hand lane and was struck from behind by a Ford Bronco, severely injuring the plaintiff and killing her in-laws.

Plaintiff sued the driver of the Bronco and Honda. After setting with the driver, the plaintiff went to trial against Honda on a strict liability defective design theory. (9) At

trial, the court allowed the defendants to cross-examine plaintiffs expert witnesses about their knowledge of prior similar claims and to question one of their own expert witnesses about the absence of prior similar claims. Additionally, another of the defendant's experts testified that he did not believe the Accord's warning system was defectively designed because many automobiles contain the system and he had heard of no similar complaints. (10) The jury returned a verdict in favor of defendants.

On appeal, the plaintiff asserted that the trial court had erred in admitting evidence of the lack of prior similar claims. The Tenth Circuit panel began its analysis of the issue by observing that while it had held that evidence of similar accidents is admissible in a products liability case, it had not addressed the converse: whether the lack of prior similar accidents is likewise admissible. After casting its net into the sea of precedent, the Tenth Circuit concluded that other courts and commentators generally agreed that evidence of the lack of similar accidents is relevant to show:

(1) Absence of the defect or other condition alleged;

(2) Lack of a causal relationship between the injury and the defect or condition charged; and

(3) Nonexistence of an unduly dangerous situation. (11)

Characterizing the approach of admitting evidence of the lack of prior accidents as being "supported by the greater weight of persuasive authority," and as the "better reasoned view," (12) the panel concluded that evidence of the absence of similar accidents or claims is admissible "as long as the proponent provides adequate foundation." (13)

The court then addressed the foundational requirements for the admissibility of evidence of the absence of prior similar claims. The court stated that such evidence will not be admitted unless it relates to (1) a substantially similar product, (2) used in settings and circumstances sufficiently similar to those surrounding the product at the time of the accident to (3) allow the jury to connect past experience with the acts sued upon. (14) Based on the record before it, the court concluded that proper foundation had been laid.

The real battleground in the admissibility of evidence of the lack of prior accidents involving your client's product is laying the proper foundation for the testimony. We will now turn to that thorny problem.

II. Foundation Issues in Manufacturing Defect Cases

As the Georgia Supreme Court observed in Banks v. ICI America's, (15) a manufacturing defect is a defect that is "subject to measurement against a built-in objective standard or norm of proper manufacture." (16)

Section 2(a) of the Restatement (Third) of Torts: Product Liability provides

that a product contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product. (17) In other words, a manufacturing defect exists in a product when it leaves the hands of the manufacturer in a defective condition because it was not manufactured or assembled in accordance with its own specifications. This necessary element spells the death knell for the introduction of the lack of prior accidents in a manufacturing defect case.

In Jones v. Pak-Mor Manufacturing, (18) Mr. Jones was injured while working on a side-loading refuse compaction and collection machine. At trial, the defendant had attempted to introduce the evidence of the lack of any prior accidents, which both the trial courts and the court of appeals concluded was inadmissible. The Arizona Supreme Court, in a thorough opinion well worth the read, reversed and held that in a product liability case involving a claim of defective design, the trial court had discretion to admit evidence of safety history concerning both the existence and the nonexistence of prior accident, provided that the proponent establishes the necessary foundation for the evidence. (19) The Arizona Supreme Court, however, declined to extend the rule of admissibility to manufacturing defect cases. The court observed:
   We emphasize that this is a rule
   applicable to defective design cases
   and not those involving a manufacturing
   flaw. Cases involving a manufacturing
   flaw do not implicate the inherent
   design or quality of the entire line of
   products in question, but only the
   quality of a particular unit or number
   of units of that product. In such cases,
   the fact that the product as a whole has
   a demonstrated safety-history is irrelevant. (20)


This observation by the Arizona Supreme Court has proven persuasive to subsequent courts who have addressed the admissibility of evidence of the lack of prior accidents. In Lokcti v. Mac Tools, (21) the plaintiff was injured when part of a wrench he was using broke off and struck him in the eye. The defendant attempted to introduce testimony concerning the lack of prior known wrench failures involving the model of the wrench that was the subject of the litigation.

The District Court, however, noted that the plaintiff had expressly abandoned any design defect claim and was proceeding on a manufacturing defect claim only. Citing Jones v. Pak-More Mfg., the trial court indicated its agreement with the reasoning set forth in that case and stated that if a certain product design is defective, the defect would be present in all products sharing the defective design. It would be reasonable, then, to expect that if the entire output of thousands or more of such products were defective in design, similar accidents resulting from the defective design would have occurred over time.

"A manufacturing defect, on the other hand, may be present in only a single manufactured item. Hence the absence of prior accidents is not probative of whether a particular manufactured item contains a manufacturing defect." (22) This same reasoning was followed by the United States District Court for the Central District of California in Higley v. Cessna Aircraft Co. (23)

The author does not mean to dampen the spirits of any reader who wants to attempt to introduce evidence of the lack of prior accidents in a manufacturing defect case. It is helpful, however, to note that such an evidentiary effort will be, to say the least, an uphill battle.

III. Foundation Issues in Design Defect Cases

A number of courts have addressed foundational requirements for the introduction of testimony relating to the lack of prior, similar accidents relating to a product in a defective design case. (24)

For example, in Payson v. Bombardier, (25) the plaintiffs decedent, her husband, was a spectator at a snowmobile race in which one of the contestants, operating a nearly new snowmobile manufactured by Defendant Bombardier, lost control of the snowmobile when the handlebar of the machine broke off. The engine was still running and the snowmobile escaped the rider's control and killed plaintiffs husband. (26) 27 28 At the trial, Bombardier introduced evidence that more than 191,000 snowmobiles of the Billings model had been sold since production began, and that the same handlebar design had been used on over 800,000 different snowmobiles. The jury entered a verdict in favor of the defendant, and on appeal, the Supreme Judicial Court of Maine affirmed the admissibility of the evidence concerning lack of prior accidents. (27) The court relied on the notion articulated by Dean McCormick that when the experience sought to be proven is so extensive as to justify the inference that it included an adequate number of situations like the one in suit, the evidence becomes admissible. (28)

Forrest v. Beloit Corp., which reversed the admissibility of evidence of the lack of prior accidents, is an exemplar case on establishing foundation. (29) The plaintiff, who was employed at a paper mill, had his arm stuck between two multi-ton rollers manufactured by Defendant Beloit. After a jury returned a verdict in favor of Beloit, the plaintiff appealed. The judgment was reversed by the United States Court of Appeals for the Third Circuit, with the panel finding that the trial court had abused its discretion by permitting Beloit to adduce testimony from two paper mill employees concerning the alleged absence of prior accidents involving the machine on which Forrest was injured. (30)

At trial, Beloit had introduced evidence concerning the absence of prior accidents through testimony extracted on cross-examination from two former employees who had been employed at the plant (and its predecessor) for 17 years and 35 years, respectively. (Note that the witnesses were not employees of the defendant manufacturer.) They testified that the way the plaintiff had attempted to thread the machine on the night of the accident was the same as that used for years by other employees, and that they were unaware of any prior similar accidents involving the machine during the years they had worked there. (31)

In assessing the admissibility of this evidence, the appellate court honed in on the rule that the probative value of such evidence is determined in large measure by the foundation laid by the offering party. The court characterized the foundation requirement in this circumstance as "best described as a tool meant to aid in the balancing inquiry under Rule 403 or its state analog. There is little doubt that as a general matter, evidence concerning the absence of prior accidents can satisfy the relevance threshold established by Rule 402." (32)

On the relevancy issue, the Third Circuit noted that prior courts have established that evidence of the lack of prior accidents may be relevant to show (1) the absence of the alleged defect; (2) the lack of a causal relationship between the injury and the defect or condition charged; and (3) the nonexistence of an unduly dangerous situation. (33) After making these observations, the appellate panel articulated the test for determining whether an adequate foundation has been laid for the admission of evidence pertaining to the absence of other similar claims and injuries. Specifically, the court noted that in an effort to ascertain probative value and minimize undue prejudice, the following criteria establish an adequate foundation:

[a] similarity--the defendant must show that the proffered testimony relates to substantially identical products used in similar circumstances; (b) breadth--the defendant must provide the court with information concerning the number of prior units sold and the extent of prior use; and (c) awareness the defendant must show that it would likely have known of prior accidents had they occurred. (34)

Navigating these three evidentiary requirements will be discussed in order.

Similarity: this requirement does not always obligate a defendant to establish absolute similarity because "[w]hen the experience sought to be proved is so extensive so as to be sure to include an adequate number of similar situations, the similarity requirement should be considered satisfied." (35) In Pandit, the Tenth

Circuit reached the same conclusion. Specifically, the court admitted a safety record where "Honda used a charge warning light system of the same design in all of its 1981 Accords and in a total of nearly 1.9 million automobiles between 1973 and 1981." (36) Other courts have adopted this same principle. (37)

The failure of the foundation argument in Forrest v. Beloit Corp. laid with its inability to establish sufficient use of other, similar products. In this case, the defendant sought to introduce the safety history by utilizing testimony of two witnesses who were long-time employees of the paper mill and did not provide any testimony from Beloit itself concerning its knowledge of a lack of prior accidents in locations other than where plaintiff was injured. The court explained Beloit's approach by noting that its corporate designee, in his deposition, had admitted there were no records or databases relating to safety complaints by Beloit's customers or past accidents involving the machine in question. The Third Circuit held the testimony inadmissible because it had no reliable way to determine the probative value of what was essentially anecdotal testimony from two former employees concerning a single machine installed at a single mill. (38)

Breadth: this is a data-driven factor. As the Third Circuit noted, the defendant must be prepared to provide the court with information concerning the number of prior units sold and the extent of prior use. This is not always as easy as it sounds.

Consider using the Rule 30(b)(6) deposition of your client as the anchor for introducing this testimony. Federal Rule of Civil Procedure 30(b)(6) imposes a duty upon a defendant business entity to prepare its selected deponent to adequately testify not only on matters known by the deponent, but also on subjects that the entity itself should reasonably know. (39) Turn this obligation into an advantage.

Have your 30(b)(6) deponent review prior production records on the model or product in question. Have the deponent talk to the records custodian and familiarize herself with how the data was acquired, recorded, and stored. Have the deponent interview any current or prior employees who had firsthand knowledge of the number of prior units sold and the extent of their use in the marketplace. Plaintiff s 30(b)(6) deposition can be turned into a platform from which your client can launch its testimony about the number of prior, similar products your client has manufactured without any--or some remarkably small number--of prior, similar accidents.

It may not be possible for one witness to provide the necessary "breadth" foundation testimony. If more than one witness is necessary to provide the foundation testimony, a 30(b)(6) deponent is entitled to provide more than one witness. (40) To the extent possible, use plaintiff's 30(b)(6) deposition as an opportunity to provide the adequate foundation for your client's introduction into evidence at trial the absence of prior, similar accidents.

Awareness: again, this is a requirement that not every company can meet. This will call for a careful examination of how your client gathers information about product use and how your client stores and evaluates that information. Hopefully your client has a risk manager--or equivalent position--charged with the task of accumulating information concerning all claims relating to the company's products. The absence of such an individual is not necessarily fatal to a foundational showing for the introduction of the necessary evidence. There are alternative sources of information you can turn to to bolster the awareness foundational criteria.

First, check to see if there are any industry organizations that collect data on the use of and problems with the type of product at issue in your case, including your client's product. Second, the Consumer Product Safety Commission's National Electronic Injury Surveillance System ("NEISS") maintains a national probability sample of hospitals in the United States and its territories. (41) Patient information is collected from each NEISS hospital for every emergency visit involving an injury associated with consumer products. The manner in which the data is collected allows much of it to be searched online. (42)

Collecting sufficient similarity evidence and meeting the "breadth" and "awareness" criteria solely through the use of an expert witness is not always foolproof. In Wallis v. Townsend Vision, Inc., (43) the plaintiff was injured while using a meat-skinning device manufactured by Defendant Townsend. Prior to trial, Townsend proffered the testimony of an expert who was an employee of the American Meat Institute (one Mr. McCausland) and other Townsend witnesses that injuries using skinning machines occur less than once per every 4.7 million operations. According to his affidavit, McCausland had worked at the American Meat Institute where he was responsible for all member issues with Occupational Safety and Human Resources and he had kept abreast of any and all safety issues in the industry, including but not limited to, meat processing equipment and pork products skinning and de-fatting machines. (44)

The plaintiff challenged McCausland's testimony because it contained slaughter and production figures for all types of meat processing procedures, and the statistic of injuries on skinning equipment occurring less than once every 4.7 million cycles was arrived at by a calculation that McCausland had created himself. (45) The trial judge split the baby. McCausland was allowed to testify about the volume of meat skinned and as to what he had observed in the plants that he had visited. But the trial judge found that McCausland's opinion that injuries using skinning machines occur less than once per 4.7 million operations was not supported by any evidence that these other skinning machines were similar to the Townsend model at issue in the case. The court held that "unless there is a showing that the skinning machines are substantially identical, any testimony from McCausland or other evidence that injuries occur less than once per 4.7 million operations is inadmissible." (46)

The opposing party's human factors expert will likely be used to present an argument concerning admissibility of the evidence of lack of prior accidents, as he or she will testify that people may have sustained injuries without filing any claim. (47) If someone was injured from the use of your client's product, however, they would have sought medical treatment for the injury. Have a medical expert conduct a search of the medical literature for any injuries that result from the use of your client's product. Alternatively, use your own human factors expert and/or engineering expert to conduct an internet or other search to try to ascertain if there are any reports of incidents involving your client's product. It will be important to have the expert carefully document in his/her report how the search was conducted, the databases searched, and the results of those efforts.

A case study in the admissibility of the lack of prior, similar accidents is demonstrated in Nance v. Innovasis, Inc, (48) In Nance, the plaintiff brought a products liability claim against a defendant alleging that certain cervical screws implanted in the plaintiff during an anterior cervical fusion surgery had failed. Plaintiff alleged that a design defect caused four of the screws to fracture, requiring subsequent revision surgery. (49) Prior to trial, the plaintiff filed a motion in limine seeking to preclude the defendant from introducing evidence of the absence of other, similar claims.

The plaintiff contended that the large number of screws the defendant manufactured or sold, compared to the small number of complaints received, should be excluded because the comparison would be misleading and the prejudicial effect of this information outweighed any probative value. To support its motion in limine, the plaintiff advanced two arguments: (1) the defendant had never disclosed during discovery how many screws were actually sold or implanted in patients, such that the introduction of the evidence at trial would constitute unfair surprise; and (2) the plaintiff asserted that the number of complaints received did not equate to the number of screws that actually fractured, so that any inference to be drawn based solely on complaints received would be highly speculative. (50)

The defendant opposed the motion in limine, arguing that the plaintiff never asked for evidence of the number of screws implanted during discovery and that the comparison was highly relevant to its defense of plaintiffs claim of a design defect. The defendant conceded, however, that surgeons do not always report a broken cervical screw, but contended that a lack of claims similar to plaintiffs is analogous to an absence of similar incidents, which is admissible in products liability cases. (51)

In opposition to plaintiffs motion in limine, the defendant also indicated that it would lay the proper evidentiary foundation. The defendant explained that the number of cervical screws actually implanted in patients can be determined from sales to hospitals, which only bill for screws actually used by surgeons. The low number of complaints, in relation to the total number of screws sold, according to the defendant, then becomes relevant to the patient's allegation of a design defect under the rationale set forth by the Tenth Circuit in Pandit v. America Honda Motor Co, (52) In Pandit, as noted above, the Tenth Circuit upheld the admission of evidence of an absence of similar accidents or claims where the evidence involved use of substantially similar products under substantially similar circumstances.

Laying an adequate foundation for the admissibility of the lack of prior, similar accidents is not always straightforward. In Balsley v. Raymond Corp., (53) following an accident in which his hand was crushed by the falling of a 60-pound protective battery cover on a Raymond Model 75 sideloader (a machine similar to a forklift), the plaintiff filed a product liability action against the machine's manufacturer. At trial, the jury returned a verdict for Defendant Raymond Corporation and the plaintiff appealed, contesting the admissibility of testimony regarding an alleged lack of other accidents involving the battery box lid on the Model 75 sideloader. (54)

The appellate court reviewed existing precedent and concluded that the evidence of an absence of prior accidents or incidents is admissible when the party offering the evidence establishes as foundation that the absence of other accidents occurred when the same product was used and that the product was used under conditions substantially similar to those in which the plaintiff used the product. (55) The court then reviewed the testimony adduced at trial.

The defendant's expert had testified that the plaintiff's accident was the only one of its kind involving the machine at issue. The expert had explained that each Model 75 sideloader is equipped with an identical battery compartment cover; each sideloader must be electrically recharged after eight hours of use; and each sideloader is recharged by opening and closing the battery compartment cover in exactly the same manner. (56) However, the court noted that the Model 75 sideloader (whose battery lid had been designed to stay open without propping) nevertheless required an adaption to be made by each user during the battery recharging process.

Because recharging had to be accomplished with the battery lid open, and because the lid would not stay open on its own accord, the user had to prop it open. The defendant's expert at trial had presented no evidence to establish that all battery lids in all Raymond Model 75 sideloaders were propped open the same way. (57)

The plaintiff in the case had propped the battery lid open with a 2X4. Defendant's expert testified that in the course of his inspection of 100 sideloaders, he had observed one sideloader that had incorporated a safety latch to keep the lid in place, a design adaption that required the users to get prior approval from the Raymond Corporation. The expert testified that Raymond Corporation had not had notice of any such modifications. Nevertheless, the court was not persuaded that the information provided by the defendant's expert accounted for how the battery lids on the remainder of the Model 75 sideloaders were kept open during the recharging process. (58)

Although the sideloader battery recharging process had only this one variable, the court nevertheless found that the presence of this factor cast doubt upon the conclusion that the machines "were used in a substantially similar manner. Therefore, the foundational requirements for the introduction of the lack of other accidents was not met." (59)

The difficulty of establishing foundation for the admissibility of such evidence should not dissuade you. The persuasive effect on a court of overwhelming evidence of lack of prior, similar accidents can be demonstrated by a review of Hayes v. Larsen's Mfg. (60) In this case, a high school student was injured when she bumped her head on the bottom of a fire extinguisher cabinet as she stood up from a seated position in a high school hallway. The student subsequently brought negligence, duty to warn, breach of warranty, and strict product liability claims against the cabinet manufacturer. In the defendant's motion for summary judgment, it provided evidence that about 50,000 fire extinguisher cabinets such as the one in the case before the court had been sold by the defendant since the 1960s. Of those, there had been no claims of injuries suffered as a result of a person's head or other body parts bumping into or striking a cabinet during the entire history of the product. (61)

The court proceeded to grant summary judgment to the defendant on all claims. With respect to the negligence claim, the court determined that the apparent risk of injury associated with the fire extinguisher cabinet "to be very low." On the plaintiff s breach of warranty claim, the court noted that the plaintiff nowhere alleged that the fire extinguisher cabinet did not work properly; rather, her complaint focused on a claim that the product was unexpectedly harmful. In dismissing the breach of implied warranty claim, the court reasoned that while the plaintiff did not expect to be harmed by the corner of the cabinet, neither does one expect to cut one's self on a carving knife or shoot one's self in the foot. "Yet in neither of those situations should a lawsuit commence. In this case, the cabinet 'performed as a expected' [Lorfano v. Dura Stone Steps, Inc., 569 A.2d 195, 197 (Me. 1990)]. Id. It was Hayes who acted unexpectedly." (62)

On the strict products liability claim, the court noted that in Maine, to determine whether a product is defectively dangerous, one balances the danger presented by the product against its utility. The court determined that the utility of the design was high and that the risk of design--based upon the lack of any prior reported injuries--was extremely low. In light of the utility of the cabinet, "and the exceedingly low risk of injury, this court holds, as a matter of law, that the fire extinguisher cabinet was not defectively designed for the purpose of strict liability." (63)

In some cases, evidence of the lack of prior, similar accidents, can be a straightforward matter. In Spino v. John S. Tilley Ladder Company, (64) the court held that evidence of the non-existence of prior claims was "admissible subject to the trial court's determination that the offering party has provided a sufficient foundation --that they would have known about the prior, substantially similar accidents involving the product at issue." (65)

In Spino, a ladder manufacturer's president testified that during his thirty years with the company, he had never been informed that a product had failed in the way that the plaintiff alleged. The defendant ladder manufacturer also had introduced its claim log, which documented all reports, claims, or problems involving its ladders. The court determined that the president's testimony was admissible and explained that the plaintiff had the opportunity to cross-examine the president about his knowledge of prior accidents, injuries, or claims and about the maintenance of the claims log. (66) The court also stated that there is little logic in admitting evidence of prior similar accidents but never admitting their absence.

IV. Conclusion

The admissibility of evidence of lack of prior, similar accidents is relevant. Overcoming the reluctance of trial judges to introduce negative evidence turns on your ability to lay a proper foundation for such evidence. To meet your evidentiary burden, you need foundation for similarity of product and similarity of circumstance, and you need to demonstrate a reliable process for accumulating this information. If you can meet these threshold evidentiary predicates, then the relevance of the evidence of lack of prior accidents outweighs any prejudice that may attach to the testimony. The search for truth at trial can only benefit from admissibility of this evidence.

Gary L. Johnson is a shareholder in the Salt Lake City law firm of Richards Brandt Miller Nelson. He has been a trial lawyer for over thirty years and focuses his practice on the direct representation of insurers and product manufacturers.

(1) See, e.g., Jonathan R. Friedman and Matthew S. Knoop, A Wolf in Wolf's Clothing--Other Incident Evidence in Aviation Litigation, 73 J. Air. L. & Com. 441, 447-455 (2008) (discussing cases admitting evidence of other accidents).

(2) Fed. R. Evid. 402.

(3) Fed. R. Evid. 401.

(4) Fed. R. Evid. 403.

(5) 88 Mich. 207, 50 N.W. 130, 132 (Mich. 1891).

(6) 129 111. 87, 21 N.E. 613 (111. 1889).

(7) LaDue v. Lebanon Twp., 222 Mich. 301, 192 N.W. 636, 638 (1923) (evidence of absence of accidents usually involves generally unreliable "negative evidence").

(8) 82 F.3d 376 (10th Cir. 1996).

(9) Pandit, 82 F.3d at 378-379.

(10) Id. at 379.

(11) Id. at 380.

(12) Id

(13) Id.

(14) Id Here, the court relies upon Klonowski v. International Armament Corp., 17 F.3d 992, 996 (7th Cir. 1994), a case in which the exclusion of testimony by a trial judge relating to the lack of prior similar claims was upheld because the foundation was deemed to be lacking.

(15) 264 Ga. 732, 450 S.E.2d 671 (Ga. 1994).

(16) Banks, 450 S.E.2nd at 673 n. 2.

(17) Restatement (Third) of Torts: Product Liability, Section 2(a) (1998) ("[A] manufacturing defect is a departure from a product unit's design specifications." Id. section 2 cmt. c).

(18) 145 Ariz. 121, 700 P.2d 819 (Ariz. 1985).

(19) Jones, 700 P.2d at 824-827.

(20) Id. at 826 n. 4.

(21) 2007 U.S. Dist. LEXIS 56188 (S.D. Ohio June 5, 2007).

(22) Id. at *10.

(23) No. CV 10-3345, 2013 U.S. Dist. LEXIS 135158, *35 n. 2 (C.D. Calif. September 20, 2013).

(24) See, e.g., Pandit, 82 F.3d 376; Espeaignnette v. Tierney, 43 F.3d 1 (1st Cir. 1994); Hines v Joy Mfg. Co., 850 F.2d 1146, (6th Cir. 1988); Church Ins. Co. v. Trippe Mfg. Co., No. 04-CV6111, 2005 WL 3462726 (S.D.N.Y. December 19, 2005).

(25) 4 35 A.2d 411 (Me. 1981).

(26) Id. at 412.

(27) Id. at 413.

(28) Id.

(29) 424 F.3d 344, 358 (3rd Cir. 2005).

(30) Forrest, 424 F.3d at 347.

(31) Id. at 353-354.

(32) Id. at 356.

(33) Id. The Third Circuit relied upon Pandit, 82 F.3d at 380; Espeaignnette, 43 F.3d at 9-10 and Hines, 830 F.2d at 1132.

(34) Id. at 358, emphasis in original. Compare this test to the one articulated by the Tenth Circuit in Pandit: Evidence of the absence of prior similar claims will not be admitted unless it relates to a substantially similar product used in settings and circumstances sufficiently similar to those surrounding the product at the time of the accident to allow the jury to connect past experience with the accident sued upon, 82 F.3d at 380 (citing Klonowski, 17 F.3d at 996).

(35) McCormick, Evidence, [section] 200 (6th Ed. 2006).

(36) Pandit, 82 F.3d at 381.

(37) See Webb v. Thomas, 296 P.2d 1036, 1040 (Colo. 1956) (over 12,000 persons using swimming pool up to time of trial with only plaintiff injured from diving in shallow end); Stein v. Transworld Airlines, Inc., 25 A.D.2d 732 (N.Y. Sup. Ct.1st Dep't 1966) (err to exclude evidence that many thousands had walked through the same area in air terminal without slipping); Erickson v. Walgreen Drug Co., 232 P.2d 210, 214 (Utah 1951) (Utah Supreme Court admitted evidence of the absence of prior accidents despite the defendant not establishing substantial similarity because the experience sought to be proved was so extensive it surely included an adequate number of similar situations); Mobbs v. Central Cermont R.R., Inc., 583 A.2d 566, 576 (Vt. 1990).

(38) Forrest, 424 F.3d at 359.

(39) Hooker v. Norfolk S. Ry., 204 F.R.D. 124, 126 (S.D. Ind. 2001).

(40) Barron v. Caterpillar, Inc., 168 F.R.D. 175, 177 (E.D. Pa. 1996) (corporate designee often lacks sufficient knowledge of relevant facts to provide adequate responses to discovering party's request; in such situation, onus falls on corporation to present additional designee capable of providing sufficient answers to requests).

(41) National Electronic Injury Surveillance System, available at www.CPSC.gov/en/ResearchStatistics/NEISS-Injury-Data.

(42) The NEISS website provides the following illustration:
   For example, the following query could be
   made: Number of males between the ages of 50
   and 70 testing in hospital emergency rooms
   between February 1999 and October 1999 for
   injuries associated with use of a ladder at home.
   The response would include the actual number
   of cases/injuries in the NEISS sample, and an
   estimate for the entire nation.


(43) 6 48 F. Supp.2d 1075 (C.D. 111 2009).

(44) Id. At 1081-1082.

(45) Id at 1083.

(46) Id. at 1085.

(47) Micheti v. Linde Baker Material Handling Corp., 969 F. Supp. 286, 287 (E.D. Pa. 1997) (the possibility that persons may have sustained injuries without filing claims should not prevent the admission of pertinent evidence, and its negative aspect merely goes to the weakness and weight of such evidence rather than its admissibility).

(48) No. 11-CIV-432, 2013 WL 1337155 (W.D. Okla. March 29, 2013).

(49) 2013 WL 1337155 at *1.

(50) Id. at *2.

(51) Id.

(52) 82 F.3d 376 (10th Cir. 1996).

(53) 232 111. App. 3d 1028, 600 N.E.2d 424 (1992).

(54) Id. at 425.

(55) Id.

(56) Id. At 426.

(57) Id.

(58) Id.

(59) Id. at 427.

(60) 871 F. Supp. 56 (D. Me. 1944).

(61) 871 F. Supp. at 58.

(62) Id. at 59.

(63) Id. at 60.

(64) 548 Pa. 286, 696 A.2d 1169 (Pa. 1997).

(65) Id. at 1173.
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Author:Johnson, Gary L.
Publication:Defense Counsel Journal
Date:Apr 1, 2015
Words:6062
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