Product Liability and Other Similar Incidents: Evidence That Passes the “Substantial Similarity” Standard and Methods of Protection for Defendant Manufacturers
Product Liability and Other Similar Incidents: Evidence That Passes the “Substantial Similarity” Standard and Methods of Protection for Defendant Manufacturers
The admissibility of evidence of “other similar incidents” (“OSI”) frequently arises in product liability cases. Both plaintiffs and defendants may seek to admit such evidence in order to demonstrate or defeat liability and/or causation. In Florida, and in many other jurisdictions around the country, courts apply the “substantial similarity” test to determine whether OSI evidence will be admitted. Under this standard, evidence of the occurrence or nonoccurrence of prior accidents is admissible only where the evidence pertains to the same type of product/equipment/appliance/incident under substantially similar circumstances. The party seeking admission of the evidence bears the burden of meeting this standard. This article will explore the guidance offered by Florida case law on the admissibility of OSI, with particular examples in which plaintiffs and defendants were barred from admitting such evidence. It will also touch on how courts beyond Florida state courts handle OSI evidence. Finally, it will offer suggestions to defendants opposing plaintiffs seeking to obtain or admit such evidence at trial as well as to defendants seeking to admit their own OSI evidence.
Florida Case Law
The Florida Evidence Code does not include a specific provision directly pertaining to the admissibility of similar accident evidence. As such, Florida courts look to sections 90.401 and 90.403 of the Florida Statutes for guidance. See Ford Motor Co. v. Hall-Edwards, 971 So.2d 854, 858 (Fla. 3d DCA 2007). Sec. 90.401 provides, “Relevant evidence is evidence tending to prove or disprove a material fact.” Sec. 90.403 provides, “Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” While Florida case law on OSI evidence can hardly be considered voluminous, there are several decisions that offer some guidance on when OSI evidence may or may not be admitted.
“Substantial Similarity” Standard for Admissibility
The circumstances surrounding the OSI must be substantially similar, in terms of location and type of accident, as the subject incident. The Florida Supreme Court has explained that “[e]vidence of the occurrence or non-occurrence or prior accidents is admissible only if it pertains to the use of the same type of appliance or equipment under substantially similar conditions.” Railway Exp. Agency, Inc. v. Fulmer, 227 So.2d 870, 873 (Fla. 1969) (emphasis added). In Railway Exp. Agency, the Court held that in order to meet this substantial similarity test, the other accident must not be too remote in time and must be for the purpose of showing the dangerous character of the place and the defendant’s knowledge thereof. For instance, in a case where an employee claimed injuries sustained while working at a conveyor belt sorting packages, evidence of “other accidents of a similar nature happening at other places on the conveyor line” was not admitted where such other accidents were of a different type than that of the plaintiff. The facts distinguished the conveyor where the plaintiff was injured from the other conveyor systems on the defendant’s premises where other accidents had occurred. As such, the Court determined the plaintiff had failed to establish substantial similarity between the conveyors in question. However, the Court did also note that if this deficiency could be corrected on retrial, the evidence should be admitted. Railway Exp. Agency, Inc., 227 So.2d at 873.
Furthermore, it is well-established in Florida that a party seeking to admit OSI evidence bears the burden of satisfying four elements: (1) evidence may not be offered to prove negligence or culpability, but may be admissible to show the dangerous character of an instrumentality and to show the defendant’s knowledge; (2) similar accidents must pertain to the same type of appliance or equipment under substantially similar circumstances; (3) evidence must have a tendency to establish a dangerous condition at a specific place; and (4) prior accident must not be too remote in time to the accident at issue, thereby causing it to lack sufficient probative value. Ford Motor Co., 971 So.2d at 858. The party seeking admission must also lay a sufficient predicate to establish similarity between the two incidents, and the failure to do so renders the evidence irrelevant as a matter of law. Id. at 859.
Accordingly, testimony to the effect of a manufacturer causing “hundreds” of injuries and deaths in other rollover accidents involving the Ford Explorer without laying a foundation for substantial similarity between those accidents and the one involving the plaintiff should not be admitted. See Ford Motor Co., 971 So.2d at 860. The plaintiff argued that the requisite showing of substantial similarity is reduced or eliminated when the issue of punitive damages is involved, but the Court firmly dispelled this claim. Id. at 859. The Court also noted, “No precautions or measures were taken to ensure that the other accidents were not too remote in time or that the conditions of the accidents were similar.” Id. at 860. Specifically, the trial judge did not inquire into the general characteristics of the other accidents. Id. As such, the Court set aside the verdict and remanded the case for a new trial.
Additionally, evidence of problem occurrences involving other products with no showing that the other incidents were caused by substantially similar defects will likely not be admitted into evidence. In Godfrey v. Precision Airmotive Corp., 46 So.3d 1020, 1021 (Fla. 5th DCA 2010), the plaintiffs brought suit for damages they suffered when their airplane crashed, allegedly as a result of a faulty carburetor with a build-up of carbon in the engine. The trial court permitted the plaintiffs to introduce evidence of more than 100 problem occurrences involving other aircraft engines in order to purportedly show that the defendant was on notice of the carburetor defect. However, the Court of Appeals held that evidence of other engine failures did not meet the similarity requirement for admission of prior accident evidence. In fact, most of the incidents involved larger aircraft built by a competing manufacturer and used a different carburetor than the one used with the engine at issue in the case. Id. at 1022. Moreover, the Court held that even if all the other incidents had involved the same engine, that showing alone would not have been sufficient to admit the evidence because there are many other potential causes of carbon build-up, and there was no way of knowing whether the build-up in the other cases was caused by the same condition alleged as a defect in this case. Id.
Substantial Similarity Applied to Discovery
While these OSI issues address the admissibility of the evidence at trial, Florida courts also apply the substantial similarity test to the discoverability of such evidence. Alvarez v. Cooper Tire & Rubber Co., 75 So.3d 789 (Fla. 4th DCA 2011). In Alvarez, the plaintiff’s personal representative claimed that a defective design of a Cooper-made tire on a truck caused the driver of the truck to lose control, the truck to roll over, and his brother, a passenger in the truck, to be killed. Id. at 790. The plaintiff filed discovery requests demanding discovery of information and documents regarding all light truck tires manufactured by Cooper. Id. at 791. Cooper objected to the discovery on the basis of trade secret, burdensomeness, and that the plaintiff was only entitled to discovery for those tires which were substantially similar to the tire which was the subject of the lawsuit, which was produced pursuant to Green Tire Specification 3011 and was substantially similar to Green Tire Specification 3163. Id. The plaintiff claimed that the all tires manufactured to Green Tire Specifications were substantially similar in that all Cooper tires were manufactured using the same basic processes. Id. In response, Cooper argued that there were differences in the processing and specifications that made each GTS tire different. Id. The trial court limited discovery to the “subject tire and substantially similar tires,” defined as “tires designed and manufactured according to Green Tire Specifications 3011 and 3163.” Id. at 793.
The Court of Appeal noted that Florida courts have “uniformly held that the other products must be ‘substantially similar’ to the subject product” when a plaintiff seeks discovery regarding other products manufactured by the defendant in product liability actions. Id. at 794.
Similarly, in Caterpillar Industrial, Inc. v. Keskes, 639 So.2d 1129 (Fla. 5th DCA 1994), the Fifth District quashed a discovery order requiring Caterpillar to produce all accident reports from 1978 involving all forklifts which “don’t have cabs.” Such production would have required the disclosure of incident reports of seventy-three different models and excluded only sixteen clearly different models which were “great big ones that have cabs on them.” Id. at 1130. The Court made it clear that there must be a connection between the discovery sought and the injury claimed – otherwise it is an improper fishing expedition. Id. Accordingly, the plaintiff must establish substantial similarity before similar accidents or incidents are discoverable. Id.
The Second District relied on Keskes in its decision in American Medical Systems, Inc. v. Osborne, 651 So.2d 209, 210 (Fla. 2d DCA 1995), a product liability action wherein the manufacturer sought to quash a discovery order requiring the manufacturer to respond to interrogatories relating to an entire model series of penile implants. The Court held that the discovery order was overbroad in light of sworn affidavits from the manufacturer indicating that the particular model involved in the case was different in design and performance from other models within the series. Id. However, the Court also noted that if the plaintiffs were to provide the trial court with proof that there was no significant difference in the different models, this would contradict the manufacturer’s affidavits and the trial court could then revisit the issue. Id.
Errors Made by Defendants in Attempting to Admit OSI
There may be circumstances where it would be beneficial for a defendant to admit evidence of the nonoccurrence of other similar accidents in order to defeat claims against it. However, defendants are subject to the same substantial similarity standard when seeking to admit their own OSI evidence.
In order for nonoccurrence evidence to be admissible, it must be shown that the causing conditions were substantially similar to when the accident occurred. In Hogan v. Gable, 30 So.3d 573, 574 (Fla. 2010), the plaintiff claimed that he lacerated his hand on a metal mesh attached to a dunking booth loaned by the defendant. The defendant sought to offer evidence that there had been no complaints of injury related to the dunking booth since its construction in 1990. Id. However, testimony showed that modifications were made to the booth – including the addition of the wire mesh – sometime between 2000 and 2002, after which the subject accident occurred. Id. The defendant also could not show that the booth had previously been used at night under the same lighting conditions. Id. Nevertheless, the trial court found that a showing of substantial similarity was not necessary because the purpose of offering the evidence was to show that the defendant was not on notice of the dangerous condition of the booth. Id. The Court of Appeals later held the trial court abused its discretion by failing to determine whether the booth was in a substantially similar condition as its previous use before determining whether the nonoccurrence evidence was admissible. Id. at 575. As such, the defendant was not permitted to admit the nonoccurrence evidence.
Moreover, evidence of failures of different products, where there is no evidence connecting the failure of the product at issue with the failures of the other products, will not be admitted.
In Arizona Chemical Company, LLC v. Mohawk Industries, Inc., 193 So.3d 95, 96 (Fla. 1st DCA 2016), a carpet manufacturer sued a manufacturer of a particular resin used in one type of carpet’s backing system, Unibond. Mohawk became aware of defects with Unibond when consumers’ claims against Unibond’s lifetime warranty began to rise sharply. Id. Arizona Chemical Company, the manufacturer of Unibond, sought to admit evidence of claims spikes experienced by other Mohawk carpet lines contemporaneously with the spike in claims with Unibond, where those carpets were manufactured at the same facility as Unibond. Id. at 97. Arizona intended to show possible alternative causes of the backing defects and resulting claims spike and to rebut Mohawk’s expert testimony on causation. Id. Before trial, Mohawk moved in limine to exclude evidence concerning the claims spikes for other Mohawk products that were not manufactured with Unibond, arguing the other products’ claims rates were irrelevant because they were distinct products with different manufacturing processes and unrelated defects. Id. The trial court granted Mohawk’s motion, and the Court of Appeals affirmed. Id. at 98. The Court noted that, while evidence of “possible explanations” for the plaintiff’s harm other than the defendant’s negligence generally is relevant and must be admitted, “the defendant must provide a competent evidentiary link between the plaintiff’s harm and the defendant’s theory.” Id. at 102. Here, Arizona failed to show a direct connection between the other products’ failures and Unibond’s failures, and thus the evidence of other claims spikes was properly excluded as legally irrelevant to the issue of liability. Id. at 102.
OSI on the National Stage
Florida federal courts have also applied the substantial similarity doctrine, requiring the proponent of evidence of prior accidents to show that conditions substantially similar to the occurrence at issue caused the prior accidents. Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1287 (11th Cir. 2015) (affirming the district court’s finding that none of the 22 previous “slips and falls” could be introduced because they all involved different conditions and locations from Sorrel’s fall, including unknown wet substances as opposed to rainwater, different shoes, while performing different activities, and different ages).
However, the doctrine does not apply where the evidence is “pointedly dissimilar” and “not offered to reenact the accident.” Tran v. Toyota Motor Corp., 420 F.3d 1310, 1316 (11th Cir. 2005). For instance, in Tran, the plaintiff was severely injured in a head-on collision with another vehicle and claimed her 1983 Toyota Cressida’s automatic shoulder belt was defective because it improperly fit shorter passengers like the plaintiff. The defendant, Toyota, sought to admit evidence of a study of Cressida accidents performed in the 1980s in order to demonstrate the restraint system’s overall effectiveness in a wide array of accidents. The plaintiff sought to exclude the study on the basis that Toyota did not prove that the accidents were “substantially similar” to hers. However, the Court held that the substantial similarity doctrine did not apply in this case because the evidence was “pointedly dissimilar” and was “not offered to reenact the accident.” Id. Moreover, the Court considered that while the study may have had some prejudicial effect on the plaintiff’s case by showing that the Cressida restraint system generally performed well in a variety of accidents, the prejudice was not outweighed by the probative value of the study as part of Toyota’s case that its restraint system was not defectively designed. Thus, the Court affirmed the District Court’s decision to admit the study into evidence.
The 8th Circuit Court of Appeals held that evidence of prior incidents is admissible in a product liability action only if the proponent of the evidence shows that the accident occurred under circumstances substantially similar to those at issue in the case at bar.
Adams v. Toyota Motor Company, 867 F.3d 903, 911 (8th Cir. 2017), The plaintiff in Adams alleged that a defect in a Toyota Camry’s acceleration system led to the subject collision and resultant injuries. Id. at 910. Prior to trial, Toyota moved to exclude evidence of other similar instances of unintended acceleration. Id. The district court allowed the plaintiff to present such OSI evidence. Id. On appeal, the Court of Appeals noted that an OSI need not “occur in precisely the same manner in order to qualify as being substantially similar.” Id. (internal citation omitted). Toyota argued that the plaintiff failed to establish that the OSIs were caused by the same defect alleged in this case. Id.at 913. However, the Court of Appeals found that the evidence in fact showed that the circumstances surrounding each OSI and the subject accident were similar, and the OSI witnesses testified that they experienced similar accelerations when they removed their feet from the gas pedal on at least one occasion, the brakes were ineffective, and they were unable to regain control within 600 feet of first experiencing the acceleration, just like the plaintiff. Id. at 913-914. The Court noted that while it did not want the OSI evidence to confuse the jury, the record demonstrated that the circumstances surrounding the OSIs were substantially similar to the incident at hand. Id. at 914.
In the federal court system, parties may also rely on Rules 401 and 403 of the Federal Rules of Evidence in support of a motion to exclude references to OSI. While evidence of prior accidents may be admitted in product liability cases, such evidence may still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion, or waste of time. See Crouch v. John Jewell Aircraft, Inc., 2016 WL 1274001 at *2 (W.D. Ken. Mar. 30, 2016). In Crouch, the defendant sought to exclude all evidence or OSI in which it was involved. However, the Court noted that the defendant did not point to any particular incident or accident that it contends is inadmissible, and so, without more context, the court could not rule in its favor.
What Can Defendants Do?
A defendant’s best course of action is to raise the issue of the admissibility of OSI evidence at the first available opportunity. Generally, the issue will arise when the plaintiff propounds a request for production seeking evidence relating to “all models” of a particular product. Defense counsel should object to the request, arguing that such a request is overly burdensome and oppressive, and give the court an early opportunity to rule on both the discoverability and the admissibility of the OSI evidence.
In the face of a plaintiff seeking to admit OSI evidence at trial, defendant should file a pretrial motion, such as a motion in limine, to bar the plaintiff from admitting OSI evidence without making the required substantial similarity showing, and seek an order from the court requiring the plaintiff to make the required showing in writing. Taking additional guidance from courts outside Florida, it would be prudent for the defendant to point to specific OSI that are inadmissible for failure to meet the substantial similarity framework, rather than to exert a blanket objection. If the court denies the motion without a sufficient showing of substantial similarity, the defendant may need to later move for a new trial on the grounds that the trial court judge abused his discretion or consider appellate remedies.
On the other hand, if it is the defendant who is seeking to admit OSI evidence in its defense, the defendant must make sure that the subject evidence meets the four part test set forth in Ford Motor Co., as well as that it lays a sufficient predicate for the nexus between the two incidents. Florida case law does not yet offer guidance on the admission of the absence of any OSI evidence pertaining to a certain product; however, it will certainly be interesting when this issue is presented to the courts, especially the effectiveness of such evidence.
Regardless of what the defendant seeks for the OSI evidence, the substantially similar circumstance standard remains the metric by which a Florida Court will determine whether such evidence will be admitted or denied at trial.