§20.7 Evidentiary Issues Created by Substantive Products Liability Law

LibraryTorts (OSBar) (2012 Ed.)
§20.7 EVIDENTIARY ISSUES CREATED BY SUBSTANTIVE PRODUCTS LIABILITY LAW

§20.7-1 Overview

Almost every major products liability claim includes disputed issues in the discovery and admissibility of certain kinds of evidence peculiar to products liability cases. Several frequently occurring and highly contested evidentiary issues are the discovery and admissibility of evidence of other accidents and injuries or harm created by the same product (discussed in §20.7-2) and the discovery and admissibility of any subsequent remedial design changes, recall letters, or other remedial action (discussed in §20.7-3).

Also, parties frequently attempt to exclude or limit expert testimony as lacking sufficient scientific reliability to be presented to a jury. These attempts to exclude expert testimony gained traction with the United States Supreme Court decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579, 113 S Ct 2786, 125 L Ed2d 469 (1993), General Elec. Co. v. Joiner, 522 US 136, 118 S Ct 512, 139 L Ed2d 508 (1997), and Kumho Tire Co., Ltd. v. Carmichael, 526 US 137, 119 S Ct 1167, 143 L Ed2d 238 (1999). Guidance on these evidentiary issues can best be obtained from some of the major treatises on products liability law and evidence. See §20.1 .

§20.7-2 Prior Similar Incidents of Product's Causing Injury

Sometimes a product having a design or other defect that is common to many units of the product will cause the same or similar type of injury to several people. Or a product may have more than one defect and cause quite different types of injuries to various persons. The extent to which a plaintiff may apprise a jury of these other injuries allegedly caused by the same product is often a difficult evidentiary question for the trial judge.

Evidence of product-related accidents that occurred before the sale of the injury-causing unit is generally admissible to prove that the defendant had notice of the product's dangerous character if the prior accidents occurred under substantially similar circumstances. Trial courts have broad discretion in applying the substantially-similar-circumstances test. See Benjamin v. Wal-Mart Stores, Inc., 185 Or App 444, 464-468, 61 P3d 257 (2002) (court allowed proof of prior similar incidents of deaths by asphyxiation involving propane heater).

Although evidence of prior similar occurrences is not admissible to prove a specific act of negligence, such evidence is admissible

"to prove the existence of a continuing defect or a continuing course of negligent conduct, and that the condition or course of conduct is in fact dangerous, or that the defendant had notice of its dangerous character. The admissibility of such evidence for these purposes is, however, subject to the requirement that the prior accidents must have occurred under similar conditions and circumstances.

. . .

"Only substantial similarity, not complete identity of circumstances, is required. What elements must be similar will depend, of course, on the nature of the allegedly dangerous condition in each case."

Lakin v. Senco Products, Inc., 144 Or App 52, 61, 925 P2d 107 (1996), aff'd, 329 Or 62 (1999) (quoting Rader v. Gibbons & Reed Co., 261 Or 354, 359-360, 494 P2d 412 (1972)).

The fact that the similar incidents occurred long before hearings on the incident that is the subject of litigation goes to the weight of the evidence and not its admissibility. Waddill v. Anchor Hocking, Inc., 149 Or App 464, 468, 944 P2d 957 (1997), rev'd on other grounds, 330 Or 376 (2000). Additionally, it is not material that the prior incidents were based on a different type of defect theory than the plaintiff is asserting in his or her case (e.g., manufacturing defect versus warning defect). Waddill, 149 Or App at 468-469. The fact that the prior similar accidents relate to un-proven allegations of defect and negligence goes to the weight of the evidence rather than its admissibility, as does the fact that the prior claims do not pertain to the exact product model that is the subject of litigation. A trial court's evidentiary rulings on these issues are reversible only for abuse of...

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