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. 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
Transcript
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.
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
General Motors Corp. v. Moseley, 213 Ga. App. 875, 447 S.E.2d 302 (1994).
The Potential Relevance of Other Similar Incident Evidence
7
• 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)
The Potential Relevance of Other Similar Incident Evidence
8
• 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”)
The Potential Relevance of Other Similar Incident Evidence
9
• 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)
The Potential Relevance of Other Similar Incident Evidence
10
• 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)
The Potential Relevance of Other Similar Incident Evidence
11
• Punitive Damages?
• State Farm v. Campbell, 538 U.S. 408 (2003)
How Similar is Similar?
12
Foundation
How Similar is Similar?
13
Burden on Plaintiff
-- even during cross-examination of defense expert Wheeler v. John Deere Co., 862 F.2d 1404 (10th Cir. 1998)
How Similar is Similar?
14
Sliding Scale
• Defect v. Notice
How Similar is Similar?
15
• Product
• Defect
• Conduct
How Similar is Similar?
16
• Circumstances
• Injuries
• Timing
How Similar is Similar?
17
• Planes: Sheesdy v. Cessna Aircraft Co., 2006 U.S. Dist. LEXIS 77919 (D.S.D. Oct. 24, 2006)
