Early in my career I tried a products liability case in federal court against a ladder manufacturer. I had no evidence that similar accidents had ever occurred before. During a week of trial, I repeatedly endured the defense argument that the product could not be defective because thousands of identical ladders had been used for years with no similar failures. Obviously, the defense argued, the plaintiff had been careless and overloaded the ladder. Not surprisingly, the defense won.
It is not unusual for a plaintiff's attorney to face this situation, even after exhaustive discovery and investigation. The argument is always the same: The defendant manufactured thousands of the product over many years; it has been used millions of times without incident. This plaintiff, who did not exercise proper regard for his or her own safety, found a unique way to get injured.
That argument is difficult to rebut. If you are unsuccessful in finding evidence of other injuries, you should still act. If you do nothing, as I did in the ladder case, the jury will hear a persuasive defense argument that may tip the scales against your client.
File a motion in limine to stop the defense from introducing evidence that the manufacturer did not know of similar injuries. Plaintiffs' attorneys routinely face a defense motion to exclude evidence of any other injuries that are not substantially similar. Likewise, the defense should face the plaintiff's motion to exclude evidence regarding the defendant's lack of knowledge of similar injuries. This evidence is not relevant to whether the product is reasonably safe for its intended use and should not be presented to a jury.
The Colorado Supreme Court has held that this evidence is inadmissible in a strict liability' action. In Anderson v. Heron Engineering Co., the court stated that admitting evidence of no prior claims "introduces an element foreign to the concept of strict liability."1 The focus in a strict liability case is on the product not on the conduct or knowledge of the defendant.2 Stated another way, "the defendant's knowledge of a defect that renders a product unreasonably dangerous is assumed in strict liability cases."3
Colorado courts have allowed evidence of the absence of claims, but only in cases involving a Colorado stature. The statute establishes a rebuttable presumption that a product is safe if no claims are received within 10 years after the product is first marketed.4
When plaintiffs want to introduce evidence of other injuries, they must show the injuries are substantially similar. This can be shown with affirmative proof. But proof of a negative is a difficult task, particularly when it involves a corporation's knowledge-or, more precisely, its lack of knowledge-of other injuries. Courts that allow this type of evidence do so sparingly and only with necessary safeguards.
Even if the court does nor rule the evidence is inadmissible, it should require the defendant to lay an appropriate foundation before the evidence is presented to the jury. The Arizona Supreme Court discussed the problems posed by this evidence in Jones v. PakMor Manufacturing Co.:
~ the defendant's inability' to prove that all other users have used the product in the same way the plaintiff did,
~ the need for the defendant to prove that use of the product "is so extensive as to be sure to include an adequate number of similar situations";
~ the need for the defendant to show that "if there had been prior accidents, the [defendant] probably would have known about them"; and
~ the possibility of "near-accidents" or "fortuitous escapes from injury."6
Several years ago, I had a case involving a 19-year-old woman who had been horribly burned when a deep-fat fryer overturned at the fast-food restaurant where she worked. Despite exhaustive discovery and investigation, I could find no other incidents that were even remotely similar. At trial, the judge granted my motion in limine on the issue. Several times the defense pleaded with the court to reconsider. The court declined, and we settled the case.
I have no doubt that taking away the defense argument on the lack of similar injuries was a primary reason for the settlement.
John C. Cabaniss is a partner in Cunningham Lyons & Cabaniss in Milwaukee, Wisconsin.
Notes
2 Id. at 679.
3 Id.
4 See, e.g. , Hickman v. Thomas C. Thompson Co., 644 F. Supp. 1531, 1535-36 (D. Colo. 1986).
5 700 P.2d 819, 824 (Ariz.), cert. denied, 474 U.S. 948 (1985).
6 Id. at 824-26.
7 Id. at 825.
[Trial, February 1994]