Identifying OSI Evidence

As a consumer attorney, you should begin working to find OSI evidence as soon as possible, including prior to filing suit. One of the best sources for this evidence is often former plaintiffs in other lawsuits. These are frequently identified through networking with other plaintiffs’ counsel or by researching reported cases. One obvious and important source for potential OSIs is the AAJ Exchange. For attorneys who are members of the AAJ, the Exchange is free to search. If your search finds potential cases, for a modest fee member attorneys can then download detailed information about the OSI including the name and number of the plaintiff attorney who handled each case. Another great source of finding OSIs is often the expert witnesses in your case. Your experts will often provide the names of OSI witnesses who have testified in other cases in which the expert was involved.

Any search for OSIs should also include inquiries through the major internet search engines such as Google and Yahoo. YouTube.com is another great source for potential OSIs, with the potential to yield fantastic video evidence which can be particularly persuasive for a jury. Any search for OSIs involving a car or tire should also include the NHTSA database and the CPSC database for consumer products. Often these government agencies will have a “confidential” file regarding a particular problem or defect investigation, and depending on your case, it may be prudent to hire a consultant to reach out to the government to look for data not contained on the agency’s web site.

Searching the internet is also one of the best ways 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 of the name of a particular ATV manufacturer revealed web sites devoted solely to former customers who want to warn others who have been catastrophically injured when using a certain All-Terrain Vehicle.

An obvious means of locating OSIs is through early discovery to the defendant manufacturer. Discovery requests should seek all consumer complaints, property damage claims and complaints of injuries that did not result in litigation. These requests should be combined with requests for all litigation claims involving the same product. It can be extremely difficult to discover all possible similar incidents that have been reported to the manufacturer because the defendant manufacturer often unilaterally decides that certain incidents are “dissimilar” or are too remote in time to be discoverable. While this should not discourage you from aggressively attempting to discover OSI evidence through the formal discovery process, you should always exhaust all other sources of information.

The Legal Basis for Admitting OSI Evidence

The admissibility of OSI evidence in Florida is governed by Florida Rules of Evidence 401 and 403. As the First DCA stated in the case of Jackson v. H.L. Bouton Co., Inc., 630 So.2d 1173 (Fla. 1st DCA 1994), “... 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 the dangerous character of an instrumentality and also to show the defendant’s knowledge.” (emphasis added).

The First DCA noted in Jackson that one of the primary reasons that OSI evidence is admissible is to show the manufacturer’s knowledge of a defect. The Jackson court said knowledge, or lack of knowledge, of the defect was important because “one measure of the duty element of a negligence cause of action is the defendant’s actual or implied knowledge of a defect....” Accordingly, OSI evidence should be admissible in any products liability case in which negligence is alleged, because duty will always be an element of the negligence cause of action.

The most substantial hurdle to the admissibility of OSI evidence in most cases is whether the other incident is “substantially similar” to the incident in question. The burden of establishing the substantial similarity between an OSI and the subject incident falls on the party seeking its admission. See, Stephenson v. Cobb, 763 So.2d 1195 (Fla. 4th DCA 2000); Ford Motor Co. v. Hall-Edwards, So.2d. , 2007 WL 3274404 (Fla. 3d DCA 11-7-07). While the admission of OSI evidence is within the discretion of the trial court, “[a] judge cannot simply ‘use his discretion to decide that despite a plain lack of substantial similarity in conditions he will, nevertheless, admit the evidence.” Gen. Motors Corp. v. Porritt, 891 So.2d 1056, 1058 (Fla. 2d DCA 2004); Hall-Edwards, Id.

While there are a number of Florida cases that stand for the principle 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, no Florida court has ever articulated a standard or test to define substantial similarity. See, e.g., Railway Express Agency , Inc. v. Fulmer, 227 So.2d 870 (Fla. 1969) and Warn Industries v. Geist, 343 So.2d 44 (Fla. 3d DCA 1977). In Warn v. Geist, the Third DCA held that Florida courts should apply this standard liberally, in favor of admitting this important evidence. The Warn 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.” Citing, Friddle v. Seaboard Coast Line Railroad Company, 306 So.2d 97 (Fla. 1974).

On November 7, 2007, the Third District Court of Appeal reversed and remanded a $60 million verdict in Ford Motor Company v. Hall-Edwards.

The Third District recognized that there is a four-part test that must be met prior to admitting similar accident evidence (originally set forth in Perret v. Seaboard Coast Line R.R. 299 So.2d 590, 592-94 (Fla. 1974)):

1. The evidence is only admissible to show the dangerous character of the instrumentality and to show knowledge by the manufacturer;
2. The OSIs must involve the same type of product under substantially similar circumstances;
3. The evidence must have a tendency to establish a dangerous condition at a specific place; and
4. The accident cannot be too remote in time to the accident at issue.

Despite it’s recognition that a plaintiff has the burden of meeting the four-part test, the Hall-Edwards case did not shed any light on specifically how a plaintiff would satisfy substantial similarity requirement. Therefore, Florida law still has no specific standard or criteria for laying a foundational requirement for “substantial similarity.” The Hall-Edwards opinion will almost certainly be appealed to Florida Supreme Court, and perhaps some specific criteria for substantial similarity will be generated, if review is granted.

Courts in most other states have also adopted similar rules allowing OSI evidence to be introduced to prove the dangerous or hazardous nature of a product. The Texas Supreme Court, in affirming the admissibility of OSI evidence, articulated some of the purposes for which OSI evidence should be admitted. Nissan Motor Company, Ltd. v. Armstrong, 145 S.W.3d 131 (Tex. 2004). The Armstrong 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 (New Jersey), Inc., 313 N.J. Super. 257, 712 A.2d 1181 (N.J. Super. A.D. 1998) 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. Procter & 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.Ct .921, 66 L.Ed. 840 (1981). . .”

Most of this article has focused on case law supporting admission of OSI evidence. However, 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 non-occurrence 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 provides a good argument that plaintiff attorneys should consider making here in Florida when faced with a similar defense.

Mechanics of Proving OSIs During Trial

In Hall-Edwards, the Third District Court of Appeals focused on the lack of a sufficient evidentiary foundation that the OSIs at issue in that case were substantially similar to the subject rollover. It appears that plaintiff’s counsel relied upon the testimony of their expert as to the similar nature of the other Ford Explorer rollover accidents. The Third DCA obviously found that this testimony was insufficient. This begs the question: regardless of whether the Third DCA was wrong, what is a proper foundation for the practitioner who wants to introduce OSI evidence and who also wants to protect their verdict on appeal? Three suggestions come to mind, which are all discussed below.

The defense will routinely challenge OSI evidence and will vigorously oppose the evidence being shown to the jury. It is imperative to take away every objection possible to avoid problems at trial. As a preliminary matter it is important to disclose OSI information on your exhibit list. Giving the defense ample notice of your intent to use OSI evidence will take away any argument that the OSI evidence was not timely produced.

It will sometimes be necessary to have a hearing on the OSI evidence so that the court can consider whether the evidence is substantially similar and make a ruling on its admissibility. This was the approach that the trial court adopted in Volkswagen of Am., Inc., v. Gentry, 564 S.E. 2d 733 (Ga. App. 2002), and as suggested by the Third Circuit may have been appropriate in Hall-Edwards decision.

1. Interrogatories and Corporate Depositions

One way of laying a “substantial similarity” foundation is through the use of interrogatories and corporate representative depositions. The viability of this option will probably depend on the nature of the alleged defect. For example, as in the Hall-Edwards case, a car maker may contest the substantial similarity of any rollover accident that does not match the identical velocities and dynamic circumstances as the subject accident. Therefore, in a rollover case, interrogatories and corporate representative depositions will probably not bear much fruit. However, for other cases – such as with the recent recall of Aqua Dots toys which contained GHB — the manufacturer might freely admit that a certain number of children had been hospitalized as a result of ingesting their product.

2. Expert Testimony

Often one of the most effective and efficient ways to introduce OSI evidence is through one’s expert witness. As stated in Florida Rule of Evidence 90.704, “the facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence.”

The mechanics of introducing OSI evidence through an expert require preparation long in advance of the expert’s deposition. Your investigation and discovery of OSI information must be complete. It is prudent to obtain documentation regarding the specific facts of each allegedly similar incident. Often it is helpful to have your expert interview witnesses or victims who had direct knowledge of the incident. Under 90.704, even though this information would otherwise be inadmissible as hearsay, if the information the expert reviewed and relied upon was sufficiently reliable, the court should allow the expert to testify about the OSIs if they are factually similar to the instant incident.

One example where this approach was very successful involved an investigation of a particular vehicle’s rollover propensity. The plaintiffs sought discovery of OSIs from the manufacturer, who produced only a small number of incidents. The plaintiff’s attorneys then commissioned an exhaustive multi-state investigation to obtain copies of all police reports across the country which involved rollovers of the subject SUV. These reports were then input into a database with the relevant facts for each incident. The database was expanded with other incidents which were discovered through networking with other plaintiff attorneys and searches of news reports. The incidents were then culled for factual similarities to the subject rollover. For the incidents which were subjectively deemed to be similar, an additional investigation was conducted to obtain photographs and witness statements. A file was then compiled for each of these “similar” rollovers, containing – at a minimum – a police report and factual description of the accident.
This information was then given to the plaintiff’s testifying expert. The expert reviewed the files and was given a copy of the database fields of information for each similar incident. Despite the hearsay nature of the evidence, due to the reliability and substantially similar facts of the OSIs to the subject rollover, the court allowed the expert to testify and the OSI evidence to be admitted.

3. OSI Testimony

Although not required from an evidentiary perspective, often the most powerfully persuasive effect of OSI evidence comes from a witness who can testify about having observed or participated in another incident. This can be done effectively during trial through either the presentation of deposition testimony or from a live witness. The problem with presenting OSI evidence through witness testimony is the high costs and substantial time requirements for obtaining such testimony. OSI witnesses are typically geographically diverse. The investigative costs and time for identifying them can be substantial. Once the witnesses are identified, it is necessary for the attorney to arrange for a court reporter and videographer, coordinate with opposing counsel and the witness’s schedule, and travel to the witness’s location for the deposition.

Several years ago a group of attorneys who had cases involving the same alleged defect pooled their resources to build a “library” of “OSI depositions” involving an alleged design defect regarding the crashworthiness of a particular SUV. The SUV at issue was alleged to have insufficient roof strength to protect an occupant protection during a rollover. Through their own client materials and from discovery from the manufacturer, the attorneys had identified approximately 30 rollover accidents which were deemed to be factually similar. Moreover, the photographs of the SUVs involved in the OSIs – when taken from the same angles with respect to each individual vehicle – looked almost identical in terms of the relative crush damage.

The group of six attorneys then divided up the 30 incidents by geography. Each attorney was then responsible for five incidences. A “key witness” from each incident was identified. A standard list of questions was developed for each deposition. Every deposition was videotaped, and lasted approximately 10 minutes. During the deposition the witness was asked about the facts of the incident. The answers to these questions gave enough factual basis for both the court and the jury to understand what was obvious from looking at the photographs – that the particular SUV’s roof crushed in a particular way whenever it rolled over. Moreover, a single frontal view photograph from each incident was affixed to a very large board.

These photographs were extremely powerful when viewed together in court, especially combined with the 10-minute testimony from each witness. This was especially true because many of the witnesses had been severely injured or had lost loved ones during the incident. Moreover, because of the combined efforts and coordination between plaintiffs’ counsel, this OSI Library project was a cost efficient solution to the dual problem of first, providing a sufficient evidentiary foundation for the admission of the OSI evidence, and second, presenting the evidence is a persuasive manner to the jury.

In summary, OSIs evidence is often a critical part of any products liability case. However, care must be taken to lay a sufficient foundation for its admission. The solution is to investigate and discover OSI evidence early. Plan out how you will meet your burden of proving the “substantial similarity” of the incidents and, once you’ve laid the proper foundations, how you will present this powerful evidence to the jury.