Proving the negative: on the admissibility of the lack of prior accidents in a products liability case.

• Author: Johnson, Gary L.

MANY of us have encountered the situation where the plaintiff is trying to introduce evidence of prior accidents involving the use of our client's products. (1) Less frequently, however, do we encounter the opportunity to convince a court that we should be allowed to present to the jury evidence of the lack of prior accidents from the use of our client's products. The purpose of this article is to provide some guidance on how to persuade the court to allow you to provide this helpful information to a jury.

Generally, all relevant evidence is admissible. (2) Evidence is relevant if it has any tendency to make the existence of a material fact more or less probable than it would be without the evidence. (3) However, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. (4)

Our trial courts have wrestled with the troubling issue of the "relevance" and "prejudice" of the admissibility of the lack of prior accidents, first in negligence cases and then in products liability cases, for over a hundred years. In 1891, in Langworthy v. Green Township, (5) the Supreme Court of Michigan held that the lower court properly excluded testimony as to whether the witness had ever known of anyone being injured previously upon an obstruction, citing to an earlier Illinois case, Hodges v. Bearse. (6) In Hodges, a lower court's refusal to admit evidence of an elevator's accident-free history was upheld, with the court finding that such evidence was immaterial because it would not rebut evidence of negligent construction and operation and because it would distract the jury with collateral issues.

In this article, we will review the salient case law and identify those issues that have proven crucial to the admissibility of the lack of prior, similar accidents. We will first examine an exemplar case, and then review the foundational requirements courts have imposed on the admissibility of evidence concerning lack of prior accidents.

1. Admitting the Negative Evidence (7)

   In Pandit v. American Honda Motor Co., (8) the plaintiff was traveling on Interstate 70 through western Kansas when the headlights on the Honda Accord driven by her husband began to twitch and gradually to dim. Plaintiff's husband could detect no warning lights being activated on the instrument panel and he mentioned the problem to his brother, traveling in the backseat with his wife, and the two men began to look for an exit from the interstate. The headlights suddenly became so dim that the plaintiff's husband was unable to see the road. He reduced the speed of the Accord and began to pull off to the side of the road when the engine stalled and the charge warning light activated. As these things go, the car came to a stop in the right-hand lane and was struck from behind by a Ford Bronco, severely injuring the plaintiff and killing her in-laws.

   Plaintiff sued the driver of the Bronco and Honda. After setting with the driver, the plaintiff went to trial against Honda on a strict liability defective design theory. (9) At

   trial, the court allowed the defendants to cross-examine plaintiffs expert witnesses about their knowledge of prior similar claims and to question one of their own expert witnesses about the absence of prior similar claims. Additionally, another of the defendant's experts testified that he did not believe the Accord's warning system was defectively designed because many automobiles contain the system and he had heard of no similar complaints. (10) The jury returned a verdict in favor of defendants.

   On appeal, the plaintiff asserted that the trial court had erred in admitting evidence of the lack of prior similar claims. The Tenth Circuit panel began its analysis of the issue by observing that while it had held that evidence of similar accidents is admissible in a products liability case, it had not addressed the converse: whether the lack of prior similar accidents is likewise admissible. After casting its net into the sea of precedent, the Tenth Circuit concluded that other courts and commentators generally agreed that evidence of the lack of similar accidents is relevant to show:

   (1) Absence of the defect or other condition alleged;

   (2) Lack of a causal relationship between the injury and the defect or condition charged; and

   (3) Nonexistence of an unduly dangerous situation. (11)

   Characterizing the approach of admitting evidence of the lack of prior accidents as being "supported by the greater weight of persuasive authority," and as the "better reasoned view," (12) the panel concluded that evidence of the absence of similar accidents or claims is admissible "as long as the proponent provides adequate foundation." (13)

   The court then addressed the foundational requirements for the admissibility of evidence of the absence of prior similar claims. The court stated that such evidence will not be admitted unless it relates to (1) a substantially similar product, (2) used in settings and circumstances sufficiently similar to those surrounding the product at the time of the accident to (3) allow the jury to connect past experience with the acts sued upon. (14) Based on the record before it, the court concluded that proper foundation had been laid.

   The real battleground in the admissibility of evidence of the lack of prior accidents involving your client's product is laying the proper foundation for the testimony. We will now turn to that thorny problem.

2. Foundation Issues in Manufacturing Defect Cases

   As the Georgia Supreme Court observed in Banks v. ICI America's, (15) a manufacturing defect is a defect that is "subject to measurement against a built-in objective standard or norm of proper manufacture." (16)

   Section 2(a) of the Restatement (Third) of Torts: Product Liability provides

   that a product contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product. (17) In other words, a manufacturing defect exists in a product when it leaves the hands of the manufacturer in a defective condition because it was not manufactured or assembled in accordance with its own specifications. This necessary element spells the death knell for the introduction of the lack of prior accidents in a manufacturing defect case.

   In Jones v. Pak-Mor Manufacturing, (18) Mr. Jones was injured while working on a side-loading refuse compaction and collection machine. At trial, the defendant had attempted to introduce the evidence of the lack of any prior accidents, which both the trial courts and the court of appeals concluded was inadmissible. The Arizona Supreme Court, in a thorough opinion well worth the read, reversed and held that in a product liability case involving a claim of defective design, the trial court had discretion to admit evidence of safety history concerning both the existence and the nonexistence of prior accident, provided that the proponent establishes the necessary foundation for the evidence. (19) The Arizona Supreme Court, however, declined to extend the rule of admissibility to manufacturing defect cases. The court observed:

   We emphasize that this is a rule applicable to defective design cases and not those involving a manufacturing flaw. Cases involving a manufacturing flaw do not implicate the inherent design or quality of the entire line of products in question, but only the quality of a particular unit or number of units of that product. In such cases, the fact that the product as a whole has a demonstrated safety-history is irrelevant. (20) This observation by the Arizona Supreme Court has proven persuasive to subsequent courts who have addressed the admissibility of evidence of the lack of prior accidents. In Lokcti v. Mac Tools, (21) the plaintiff was injured when part of a wrench he was using broke off and struck him in the eye. The defendant attempted to introduce testimony concerning the lack of prior known wrench failures involving the model of the wrench that was the subject of the litigation.

   The District Court, however, noted that the plaintiff had expressly abandoned any design defect claim and was proceeding on a manufacturing defect claim only. Citing Jones v. Pak-More Mfg., the trial court...