How Similar are your "Other Similar Incidents?" Re: Product Liability
In many cases that we defend, the issue or battleground is not only about the particular incident that caused a plaintiff personal injury. In other words, we aren’t just arguing about whether the product at issue in a particular instance was misused, contained proper warnings or had been materially altered in some way. Many times, the bigger and broader battleground is over “other similar incidents.” In products liability cases, "evidence of other accidents may be relevant (1) to prove the existence of a particular physical condition or defect, (2) to show that the defect or dangerous situation caused the injury, (3) to show the risk that defendant's conduct created, and (4) to prove that defendant had notice of the danger." Govreau v. Nu-Way Concrete Forms, Inc., 73 S.W.3d 737, 741-42 (Mo. App. E.D.2002). In products liability cases, evidence of an accident similar in nature to that which injured the plaintiff is admissible provided the evidence is relevant and sufficiently similar to the injury-causing accident so as to outweigh concerns of undue prejudice and confusion of the issues. Thornton v. Gray Auto. Parts Co., 62 S.W.3d 575, 583 (Mo.App. W.D.2001)(citing Newman v. Ford Motor Co., 975 S.W.2d 147, 151 (Mo. banc 1998)). To be sufficiently similar, each occurrence must: (1) be of like character; (2) occur under substantially the same circumstances; and (3) result from the same cause as that alleged to have caused the accident in question. Lopez v. Three Rivers Elec. Co-op. Inc., 26 S.W.3d 151, 159 (Mo. banc 2000);Gerow v. Mitch Crawford Holiday Motors, 987 S.W.2d 359, 364-65 (Mo.App. W.D.1999).
As you can see, there are many points to argue to a trial court that the OSIs are dissimilar and therefore not admissible. But before these arguments are even made, initial arguments can be made about how burdensome it may be to locate OSIs and/or whether the production of OSIs should be subject to a protective order. Too many times, OSIs that are produced turn up again in subsequent litigation.
While the above factors can be rehashed to show why OSIs are irrelevant, it is far easier and more economical if a protective order prevents disclosure of these incidents outside the current litigation. Early prevention with proper objections and protections may end up saving your company in the end from ever having to reach the admissibility of OSIs at trial.