Finding OSI Witnesses

OSI witnesses should be identified as early as possible in order to get an accurate record of their experience before they are contacted and possibly influenced by representatives of other parties. Other similar incident witnesses are often former plaintiffs in their own lawsuits and are frequently identified through networking with other plaintiffs’ counsel, or by researching reported cases. Your expert witnesses in a case can sometimes provide the names of OSI witnesses who have testified in other cases in which the expert was involved. Former plaintiffs are often more familiar with the issues and more litigation savvy as a result of their own lawsuits, which may or may not work to a plaintiff’s advantage. While former plaintiffs may have a better sense of the relevant information they need to relay as a witness, they may also be perceived by the jury as biased or litigious as a result of their prior experience.

The internet has created other means for locating OSI witnesses, and it is certainly the best way to find OSI witnesses whose experiences did not result in injuries or who, for whatever reason, never filed a lawsuit. If you search the internet for just about any product name, in most instances, your search will turn up postings from consumers regarding their experiences with the product. A recent search on the name of a major furniture manufacturer revealed two web sites devoted solely to former customers who want to warn others about negative experiences they had with that manufacturer.

Potential OSI witnesses can also be found by joining web groups or relevant list servers if you can get on the list of recipients. In one recent case, many of the OSI witnesses who testified were located through an online newsletter for camping enthusiasts.

When it comes time to offer an OSI witnesses’ testimony, you can count on some healthy opposition from the defendant and the key issue is going to be how similar the other incident is to your clients’ experience. Therefore, it is important to identify all possible points of similarity between your incident and the OSI witness before that witness’ deposition and to be prepared to elicit clear and concise statements from the witness on each point of similarity. The burden is on the person proffering OSI evidence to lay a predicate for its admissibility, and the best way to do that is by an easy-to-read table with citations to the witness’s deposition that can be plugged into your memorandum in opposition to the inevitable motion in limine to exclude the testimony.

The Legal Basis for Admitting OSI Evidence

The defendants’ first line of defense against OSI testimony is Evidence Rules 401 (relevance) and 403 (prejudice and confusion of issues)(Fla. R. Evid. 90.401 and 90.403). Defendants often cite, with authority, the “general rule” that a plaintiff cannot use OSI testimony to prove negligence in his or her own case. However, in In Jackson v. Bouton, 630 So.2d 1173 (Fla. 1st Cir. 1994), the court stated that “. . . as a general rule, evidence of the occurrence or non-occurrence of prior accidents is admissible where such pertains to the same type of appliance or equipment under substantially similar circumstances. Such evidence is admissible for the purpose of showing he dangerous character of an instrumentality and also to show the defendant’s knowledge.” (Citations omitted, emphasis added).

The First DCA ruled in Jackson v. Bouton that the evidence of the non-occurrence of other accidents was admissible. It has been argued that Jackson v. Bouton is more limited than the broad statement made above because the court went on to say that the evidence was admissible “because it went directly to the issue of the Bouton’s knowledge (or lack thereof) of a danger”. Thus, some parties have claimed that the holding is limited to those situations in which the evidence is offered for the purpose of proving knowledge of the alleged defect. However, it should be noted that the conjunctive phrase used by the court was “and also” meaning that OSI evidence is admissible to show knowledge and also to show the dangerous character of the instrumentality.

Additionally, the court in Jackson v. Bouton went on to say that the reason the manufacturer’s knowledge (or lack of knowledge) of the defect was important was that “[o]ne measure of the duty element of a negligence cause of action is the defendant’s actual or implied knowledge of a defect. . .”. This should, presumably, open the door for OSI evidence in any products liability case in which negligence is alleged, because duty will always be an element of the negligence cause of action and knowledge is a “measure of the duty element”.

It is not uncommon for the plaintiff to proffer OSI evidence and the defendant in the same case to proffer “negative OSI evidence”, that is, evidence that the product was used under similar conditions in the past and no malfunction or injury occurred. In fact, in the Jackson v. Bouton case, it was the defendant who was attempting to admit evidence of the non-occurrence of prior accidents. In that case, the defendant submitted evidence (over the objection of Plaintiff’s counsel) that its safety glasses had been used for a number of years and that no one had ever raised an issue before as to the safety of the particular component of the glasses claimed to be defective.

In Warn Industries v. Geist, 630 So.2d 1173 (Fla. 3rd DCA 1977), the court commented that there is a trend “toward treating the question of sufficiency of similarity of conditions as primarily a matter for the trial court’s discretion, and to freely admit the evidence of the prior accident together with evidence of variations in conditions, which is treated as going to weight rather than admissibility.”, 630 So.2d 1173 at 1177, citing Friddle v. Seaboard Coast Line Railroad Company, 306 So.2d 97 (Fla. 1974). Thus, it is clear that, despite the arguments of defense counsel to the contrary, the conditions of the prior incident can vary somewhat from conditions in your case.

While there are a number of Florida cases that stand for the principal that OSI evidence is admissible where the similar incident occurred under “substantially similar circumstances” and that the decision about what is and is not “substantially similar” is within the discretion of the trial court (see, e.g., Railway Express Agency , Inc. v. Fulmer, 227 So.2d 870 (Fla. 1969) and Warn Industries v. Geist, supra), no definition or test has been established in Florida case law to help trial courts determine what it means to be substantially similar. The court’s use of the words “freely admit” in Ware v. Geist suggests that the differences between your incident and other incidents must be significant to be excluded. By way of example, in Otis Elevator v. Equitable Live Assurance Society of the United States, 861 F.2d 655, the Eleventh Circuit affirmed a trial court decision that an incident in which an elevator stopped between floors and disengaged when the normal stopping device malfunctioned (and no injuries occurred) was similar enough to the plaintiff’s accident in which the normal stopping device malfunctioned, but the elevator did not disengage. Id. at 662. There were very few similarities between the two incidents in Otis Elevator, however, the court found it was sufficient that each incident involved a malfunction in the normal stopping device.

In the premises liability context, it has been held that OSI evidence is admissible to show the existence of dangerous premises at the time of the litigated incident (given, of course substantial similarity between incidents). Perret v. Seaboard Coast Line R.R. Co., 299 So.2d 590 (Fla. 1974); Stephenson v. Cobb, 763 So.2d 1195 (Fla. 4th Cir. 2000). This situation is analogous to products liability cases in which OSI evidence is being admitted to show the dangerous nature of a product, and therefore theses cases, to some extent, support the admissibility of OSI evidence in the products liability context.

In the federal context, the Eleventh Circuit Court of Appeals held that OSI evidence was admissible under certain conditions and for certain purposes in Hessen v. Jaguar Cars, Inc., 915 F.2d 641 (11th Cir. 1990). In Hessen, the court reiterated the “substantial similarity” requirement, the requirement that the similar incident not be too remote in time. Significantly, the court also listed some purposes for which OSI evidences is admissible, such as: 1.) to show defendant's notice of particular defect or danger, 2.) to show the magnitude of defect or danger involved, 3.) to show defendant's ability to correct a known defect, 4.) to show a lack of safety for intended uses, 5.) to show the strength of product, 6.) to show the proper standard of care, and 7.) to prove causation. Id. at 650. See also, Jones v. Otis, supra.

Courts in most other states have adopted the rule that OSI evidence is admissible to prove the dangerous or hazardous nature of a product, including the Texas Supreme Court , which also listed some of the purposes for which OSI evidence should be admitted. Nissan Motor Company v. Armstrong, 145 S.W.3d 131 (Tex. 2004). In Nissan v. Armstrong, the court offered the following four examples of proper purposes for admitting OSI evidence: 1.) to show that a product was unreasonably dangerous 2.) to show that a warning should have been given 3.) to show whether a safer alternative design was available and 4.) to show whether a manufacturer was consciously indifferent towards accidents in support of a claim for punitive damages. Nissan at 139.

In Harris v. Peridot Chemical, 313 N.J. Super. 257, the New Jersey Superior Court affirmed a trial court decision to admit OSI evidence and stated: “. . . other jurisdictions uniformly permit the introduction of evidence of other similar accidents or occurrences in a negligence action to show a defective or dangerous condition or causation. See, e.g., Kehm v. Proctor & Gamble Mfg. Co., 724 F.2d 613, 625-26 (8th Cir. 1983); Gumbs v. International Harvester, Inc., 718 F.2d 88, 97-98 (3rd Cir. 1983); Ramos v. Liberty Mut. Ins. Co., 615 F.2d 334, 338-40 (5th Cir.), modified, 620 F.2d 464 (5th Cir. 1980), cert. denied soub nom, Rucker Co. v.Shell Oil Co., 449 U.S. 1112, 101 S.Ec.t 921, 66 L.Ed. 840 (1981). . .” (additional citations omitted).

Most of this article has focused on case law supporting admission of OSI evidence. As stated previously, these cases can cut both ways, as it is often the defendant who wants to admit evidence of the non-occurrence of prior similar incidents. At least one case from outside Florida has held that evidence of the nonoccurrence of prior incidents to demonstrate the safety of a product is admissible only if the defendant shows that NO prior accidents have occurred involving the same product used under conditions substantially similar to those existing at the time of the accident. Green v. Union Pacific Railroad, 647 N.E.2d 1092 (Ill.App., 5th Dist. 1995). Thus, a manufacturer should not be able to unilaterally pick a cut off point in time before which it will not produce evidence of prior incidents and then use the “safe” period following prior incidents as evidence of the non-occurrence of prior incidents. The holding in Green v. Union Pacific is fair and the argument is worthy of making here in Florida.

Finally, the same similarity requirement that applies to admissibility of OSI evidence applies to the discovery of OSI evidence. Caterpillar Industrial v. Keskes, 639 So.2d 1129 (Fla. 5th Cir. 1994). It can be nearly impossible to discover all possible similar incidents that have been reported to the manufacturer because they can and do unilaterally decide that certain incidents of which they are aware are dissimilar or are too remote in time to be discoverable. While this should not discourage you from aggressively attempting to discover OSI evidence that should be produced, you should always exhaust all other sources of information, such as reported cases, NHTSA complaints and inquiries, etc., to try to identify the best OSI witnesses for your case.