Products Liability Litigation: Addressing Other Similar Incidents...

transcript

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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

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

TUESDAY, SEPTEMBER 6, 2016

Stephen J. McConnell, Partner, Reed Smith, Philadelphia

Sean P. Wajert, Esq., Managing Partner, Shook Hardy & Bacon, Philadelphia

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Products Liability Litigation: Addressing Other Similar Incidents

and Lack of Prior Accidents Evidence

Presented By:

Stephen J. McConnell Partner Reed Smith – Philadelphia smcconnell@reedsmith.com

Sean P. Wajert Partner Shook, Hardy & Bacon – Philadelphia swajert@shb.com

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).

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)

• 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”)

• 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)

• 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)

• Punitive Damages?

• State Farm v. Campbell, 538 U.S. 408 (2003)

How Similar is Similar?

Foundation

Burden on Plaintiff

-- even during cross-examination of defense expert Wheeler v. John Deere Co., 862 F.2d 1404 (10th Cir. 1998)

Sliding Scale

• Defect v. Notice

• Product

• Defect

• Conduct

• Circumstances

• Injuries

• Timing

• 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 (6th Cir. 2007)

• Automobiles: Ford Motor Co. v. Hall-Edwards, 2007 Fl. App. LEXIS 17738 (Nov. 7, 2007)

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

Potential Sources of Other Similar Incident Evidence

• Not all evidence created equal

• Discovery observations

Methods of Proof, Part 1

- Mini-trials

- Documents

- Hearsay?

Methods of Proof, Part 2

- Experts

- Experiments

- Discovery

- Pending Lawsuits?

Rule 403

• Probative value is substantially outweighed by prejudice

• Confusion

• Waste of time

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”

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

• Does absence of evidence = absence of incidents?

• E.g., Forrest v. Beloit Corp., 424 F.3d 344 (3d Cir. 2005)

• Evolving approaches

• Estate of Thompson v. Kawasaki Heavy Industries, Ltd., 933 F. Supp. 2d 1111,

1143–46 (N.D. Iowa 2013)