Proving The Negative: On The Admissibility Of The Lack Of Prior Accidents In A Products Liability Case

Abstract

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. I. 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. …