Presenting a live 90-minute webinar with interactive Q&A 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 THURSDAY, APRIL 30, 2015 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Frederick E. Blakelock, Partner, Butler Pappas Weihmuller Katz Craig , Philadelphia William P . Schoel, Partner, Butler Pappas Weihmuller Katz Craig , Tampa, Fla. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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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 • • O THER S IMILAR I NCIDENTS • “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. 11 11
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 16 16
MOTIONS IN LIMINE • When to file? – Advise court in pre-trial conference specifically that motion will be filed – File early – Request a hearing 17 17
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. 18 18
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. 19 19
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. 20 20
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 21 21
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
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