Discovering OSIs is vitally important to a plaintiff’s lawyer.
Imagine you’re a juror in a products liability trial. The case involves a catastrophically injured plaintiff and a defendant that designed, manufactured and sold a product. The plaintiff suffered her injuries while using the product and claims a product defect caused her injuries. The defendant claims the product was designed and manufactured safely, and the plaintiff’s unfortunate injuries were her own (or someone else’s) fault.
As a juror, you will consider evidence including design drawings, product testing and analysis, marketing materials, and corporate designee and expert testimony. But imagine the impact it would have if the plaintiffs attorney tells you the following information in opening:
“My client isn’t the only victim of this defective product. Twenty-two other people in the last five years alone suffered injuries from similar incidents while using the defendant’s product.”
Now instead imagine another case where the defense attorney says:
“This product has been sold thousands of times over 10 years. And the plaintiff is the only person who injured herself while using this product, despite the hundreds of thousands of hours these products have been in use.”
These statements, and the underlying evidence admitted at trial to prove them, are enormously powerful information for a jury to consider. They can prove a defendant had (or lacked) notice of problems and injuries from its product, or to directly prove that the product was (or was not) defective.
For either party to use this evidence at trial, they must have a detailed discovery plan. Discovery on other similar incidents (OSIs) will require counsel to:
- Identify which of the defendant’s products are similarly designed and should be included in the search of OSIs;
- Identify what constitutes “similarity” of incidents; and
- Determine an appropriate timeframe for production.
The amount of information produced in discovery and admissible at trial will depend on the following factors.
Obtaining OSI Evidence in Discovery
Evidence of OSIs is admissible to establish “a defect or dangerous condition existed or that the defendant had knowledge of the defect.” See Lockley v. CSX Transportation, 5 A.3d 383, 395 (Pa. Super. 2010). See also Hutchinson v. Penske Truck Leasing, 876 A.2d 978, 983 (Pa. Super. 2005); Blumer v. Ford Motor, 20 A.3d 1222 (Pa. Super. 2011). “For other accident evidence to be admissible, the plaintiff must first establish there is a substantial similarity of conditions between the other accidents and the accident that injured the plaintiff.” To determine whether the other accidents are sufficiently similar, courts look to whether they involved the same instrumentality and whether the accidents occurred under the same or similar conditions or circumstances. See also Valentine v. Acme Markets, 687 A.2d 1157, 1163 (Pa. Super. 1997). “If the evidence of other accidents is substantially similar … then that evidence will assist the trier of fact by making the existence of a fact in dispute more or less probable, and the greater the degree of similarity the more relevant the evidence.”
When serving OSI discovery, requests should include “accidents, incidents, near misses, reports, claims, complaints and inquiries” similar to the hazard and incident described in the complaint. Interrogatories, document requests, and requests for admission will reveal whether any of the defendant’s employees discussed or corresponded regarding the hazard described in the complaint, or proposed or took efforts to identify or fix the problem. These requests likely require search terms and parameters for electronically stored information retrieval. The plaintiffs should request other lawsuits arising from similar incidents, including case captions, complaints/answers, discovery, depositions and expert reports. In many cases, other models of the defendant’s product catalog substantially similar designs and should be included in the discovery requests and production.
Disputes often arise in the scope of OSI discovery. The plaintiffs must serve OSI discovery early, review the defendant’s production immediately, and identify areas of dispute so the parties can attempt to resolve these issues and ultimately file appropriate motions with the court. Obtaining meaningful OSI evidence will take months and could require court intervention, so make sure your requests are carefully crafted and your scope is reasonable and based on the facts of your case and history of the product.
Uncovering Defendant’s Accident Tracking Policies (or Lack Thereof)
If there is no evidence of prior, similar incidents, Defendant will attempt to argue the lack of OSIs proves the product is safe. Pennsylvania only allows defendants to admit a lack of OSIs where the defendant’s reporting mechanism for cataloging other accidents is a “comprehensive record of all reports of claims or problems which the [defendant] had received from any source.” See Spino v. John S. Tilley Ladder, 671 A.2d 726, 737, aff’d, 548 Pa. 286, 696 A.2d 1169 (1997). In Spino, the Supreme Court recognized the onus is on the plaintiffs to challenge the reliability of the defendant’s incident cataloging system. The Spino plaintiffs failed to raise any issues related to the reliability of the defendant’s logs and had little ground to challenge its efficacy on appeal.
Well-crafted discovery requests and corporate designee areas of inquiry will allow plaintiffs counsel to learn the defendant’s methods for receiving information; its procedures for investigating incidents; and its policies for tracking and recording incident information. Many companies simply do not have an adequate system to learn of and retain OSIs that permits them to argue no other similar incidents have occurred.
Discovery and corporate designee questioning should include:
- Defendant’s policies for identifying and investigating incidents, and tracking, cataloging and retaining this information;
- Identifying written information on the product and accompanying literature directing users to contact the company in the event of an incident;
- Information provided to dealers regarding what they should do if an incident is reported to them;
- Who the corporation designates to receive information on accidents and what that person does with the information; and
- How often the defendant learns of accidents from lawsuits and how the defendant learned of the plaintiff’s accident.
In many situations, the defendant learns of the plaintiff’s accident through a lawsuit. If no lawsuit was brought, the defendant never would have learned of the accident. Even when a defendant claims to have an accident reporting and tracking system, it may not have an accident report for your client’s accident, or for other accidents uncovered through diligent investigation. When a product manufacturer uses a dealer network, it may only require dealers to notify the manufacturer of lawsuits, and not when the dealer learns of accidents that do not result in litigation. The following exchanges occurred at a recent deposition:
Q: Do you have any information that your company would have known about this accident that resulted in quadriplegia to my client without him hiring an attorney?
A: Not that I know of today.
Q: Has the defendant done anything to determine if your dealers are providing accident reports for every single injury and accident they learn of?
Q: Is there a section of your website where people who learn of an accident can let you know of an accident?
A: Not those specifics.
If the defendant’s system does not adequately capture, investigate, record and retain incidents, and does not give information on how to report incidents, the defendant will not be permitted to introduce evidence that no other similar accidents exist.
Motions in Limine and Trial
In cases where the parties seek to introduce OSIs or lack thereof, it is vital to file motions in limine in advance. Even if these issues came before the court during discovery, there is a different standard for the information’s relevance and admissibility at trial. The plaintiff’s counsel will often file two motions: one to admit the OSI evidence, and another to preclude the defendant from arguing there are no other incidents. The plaintiff’s counsel should argue that, if they have discovered OSIs despite the defendant’s deficient incident reporting and tracking program, the defendant must be precluded from arguing the incidents found are the only incidents that ever occurred, and the plaintiff must be permitted to state there are at least X number of OSIs.
The court may permit only a portion of the other similar incidents the plaintiff uncovered, or perhaps none at all, if the substantial similarity has not been adequately identified. For this reason, it is necessary that the parties understand exactly which OSIs will be admitted at trial, and for what purpose. In product liability cases, the parties will often file dozens of motions in limine collectively. In cases where certain motions in limine, such as OSI evidence, would benefit the parties and the court if heard in advance, consider requesting an early trial assignment to prepare openings and witness examinations based upon the court’s rulings. The parties should use OSI information in openings, and should provide notice to opposing counsel in advance and receive permission from the court to use the items that have been determined to be admissible during trial.
During trial, OSI evidence should be used during the defendant’s corporate designee examination, as well as through each party’s experts. The experts should identify in their reports the OSI information relevant to their opinions so they may discuss these topics at trial. The parties should not simply admit the OSI evidence through one witness and move on to other issues. They must allow all relevant witnesses to explain why the information is important in a way in which jurors can connect. Visual aids should be used, including timelines of incidents reported to the defendant, and photos or video from other substantially similarity accidents.
Discovering OSIs is vitally important to a plaintiff’s lawyer. Similarly, defense attorneys must find out early in the case how comprehensive their client’s accident reporting, investigation and retention policies are.
Larry Bendesky is the managing shareholder of Saltz Mongeluzzi & Bendesky. He has handled more than 150 catastrophic injury and accident cases resulting in verdicts or settlements that have exceeded $1 million. His email address is LBendesky@smbb.com.
Robert W. Zimmerman is a partner at the firm. He focuses his practice on products liability, construction and workplace accidents, and other catastrophic injury cases. His email address is RZimmerman@smbb.com.