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, Building a Solid Foundation Through Incident Reporting Procedures, and More TUESDAY, SEPTEMBER 6, 2016 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Stephen J. McConnell, Partner, Reed Smith , Philadelphia Sean P . Wajert, Esq., Managing Partner, Shook Hardy & Bacon , Philadelphia 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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Products Liability Litigation: Addressing Other Similar Incidents and Lack of Prior Accidents Evidence Presented By: Stephen J. McConnell Sean P. Wajert Partner Partner Reed Smith – Philadelphia Shook, Hardy & Bacon – Philadelphia smcconnell@reedsmith.com swajert@shb.com 5
The Power of Other Similar Incident Evidence • Merely “circumstantial” evidence? • Or reversible error? General Motors Corp. v. Moseley , 213 Ga. App. 875, 447 S.E.2d 302 (1994). 6
The Potential Relevance of Other Similar Incident Evidence • Strict liability and negligence • Complexity of approaches • Existence and nature of the defect • Magnitude of danger/risk • Feasible safer alternative? • Lovett ex rel. Lovett v. Union Pac. R. Co. , 201 F.3d 1074, 1081 (8th Cir. 2000) (evidence of similar incidents may be relevant to prove the magnitude of the danger, the product's lack of safety for intended uses) • Shipler v. Gen. Motors Corp ., 710 N.W.2d 807, 834 – 35 (Neb. 2006) (evidence of other similar incidents allowed to support allegation that the design of the Blazer's roof structure was defective) 7
The Potential Relevance of Other Similar Incident Evidence • Causation • Circumstantial • Causation of the other incident • Impact on such other issues as contributory negligence, misuse, alteration • Bass v. Cincinnati, Inc. , 536 N.E.2d 831, 833 (Ill. App. 1989) ( 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”) 8
The Potential Relevance of Other Similar Incident Evidence • Notice • Notice of what? • Failure to warn issues • A word about timing of the similar incidents • Limited use = limited scope? • Any reason to admit knowledge? • E.g., Olson v. Ford Motor Co. , 410 F. Supp. 2d 855, 863 – 64 (D.N.D. 2006) 9
The Potential Relevance of Other Similar Incident Evidence • Witness issues • Impeachment of fact witness / rebuttal • Expert credentials / Impeach the expert • E.g., Graves v. CAS Medical Systems , 735 S.E.2d 650 (S.C. 2012) 10
The Potential Relevance of Other Similar Incident Evidence • Punitive Damages? • State Farm v. Campbell , 538 U.S. 408 (2003) 11
How Similar is Similar? Foundation 12
How Similar is Similar? Burden on Plaintiff -- even during cross-examination of defense expert Wheeler v. John Deere Co., 862 F.2d 1404 (10 th Cir. 1998) 13
How Similar is Similar? Sliding Scale • Defect v. Notice 14
How Similar is Similar? • Product • Defect • Conduct 15
How Similar is Similar? • Circumstances • Injuries • Timing 16
How Similar is Similar? • Planes: Sheesdy v. Cessna Aircraft Co., 2006 U.S. Dist. LEXIS 77919 (D.S.D. Oct. 24, 2006) • Buses: Surles v. Greyhound Lines, Inc., 474 F.3d 288 (6 th Cir. 2007) • Automobiles: Ford Motor Co. v. Hall-Edwards , 2007 Fl. App. LEXIS 17738 (Nov. 7, 2007) 17
Potential Sources of Other Similar Incident Evidence • Government reports • Recalls • Customer complaints (informal to formal) • Other lawsuits • Incident reports • Adverse event reports • Internal investigations or testing/company records • Warranty claims 18
Potential Sources of Other Similar Incident Evidence • Not all evidence created equal • Discovery observations 19
Methods of Proof, Part 1 - Mini-trials - Documents - Hearsay? 20
Methods of Proof, Part 2 - Experts - Experiments - Discovery - Pending Lawsuits? 21
Rule 403 • Probative value is substantially outweighed by prejudice • Confusion • Waste of time 22
Rule 404(b) • No “character” evidence • Crimes, Wrongs, or Other Acts • Permitted uses: “such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident” 23
Non-Occurrence of Other Similar Incidents • Mirror? • absence of the defect or condition alleged • lack of a causal relationship between the injury and the defect or condition charged • nonexistence of an unduly dangerous situation • want of knowledge (or of grounds to realize) the danger 24
Non-Occurrence of Other Similar Incidents • Does absence of evidence = absence of incidents? • E.g., Forrest v. Beloit Corp ., 424 F.3d 344 (3d Cir. 2005) 25
Non-Occurrence of Other Similar Incidents • Evolving approaches • Estate of Thompson v. Kawasaki Heavy Industries , Ltd., 933 F. Supp. 2d 1111, 1143 – 46 (N.D. Iowa 2013) 26
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