Other Similar Incidents
Brien Roche
The concept of duty has been addressed elsewhere on this site on the Premises Liability page. Although other similar incidents (OSI) doesn’t necessarily serve as the source of a duty that is owed, it may define the extent of the duty. In any negligence case the extent of the duty or the amount of care must be in proportion to the risk. That risk may be defined by frequency or severity as stated above.
Other Similar Incidents: Frequency or Severity
Other similar incidents become relevant either because of their frequency or their severity. That is, if they’re frequent but minor, they may be relevant. If they’re severe, they may be relevant. By “severe” I mean producing severe injury.
OSI evidence includes relevant proof that similar incidents or injuries occurred due to the same defect. The two (2) key factors that the court looks at are proximity in time and substantial similarity. To prove substantial similarity, you need to look at whether the product involved is the same or substantially similar, is the defect similar, was the defect the cause of injury in your case and the others and finally, has the plaintiff reasonably excluded other factors as being the cause.
The similarity requirement is the test for admissibility. This test may follow a somewhat sliding scale. The more lenient standard only requires that the defendant know about the prior incident while the stricter standard requires that the two (2) incidents be identical.
OSI evidence may be introduced to show essentially three (3) different things: (1) The existence of a dangerous condition. (2) To prove causation. (3) To show notice or knowledge of a defect. When the evidence is offered to show the first two, the foundation requirement may be stronger. There is a somewhat lower standard for purposes of notice. That is, a manufacturer is expected to identify all foreseeable hazards that might exist with a product. Having identified those hazards, a manufacturer has a duty to design out those hazards if practical.
Safe Design Reduces Danger
It may be relevant to show that the defendant knew of the risk and therefore had to exercise a greater degree of care. In the alternative, it may be used to show that a safer design in fact eliminates the other similar incidents. That is, the lack of other similar incidents where there is in fact a safer design may show that the alleged defective design is in fact a defect. This would show how effective the alternative design is.
In a trucking case, the absence of accidents where the trainer is sitting alongside the trainee and is fully awake may be relevant. That is, in that circumstance the number of accidents is considerably reduced. In the alternative when the trainer is asleep, the number of accidents may go up. This difference may be evidence of the increased risk.
Two-Edged Sword
The point to be driven home is that OSI can truly be a two-edged sword. It can be used to show not only the degree of care that should be used but also to show causation. The prevalence of OSI may prove the risk. The absence of OSI may prove that the safe design advocated by the plaintiff eliminates the risk.
Relevant OSI evidence may be excluded because it is prejudicial. That is, if the evidence tends to suggest a decision will be made on an improper basis. That may be an emotional one. Therefore it may not be admissible.
Discovery
The standard in discovery for OSI evidence is very broad. The inquiry should be whether there is any possibility that the information sought is relevant. Your requests therefore need to be somewhat broad.
Make full use of FOIA through requests to agencies such as OSHA, Consumer Product Safety Commission, local police and fire departments, the FDA MAUDE Service and others.
Your corporate designee deposition should in large measure be based upon prior incidents where you pin the defendant down as to when and how they found out about the incidents, whether there were any internal changes to design, materials, warnings, policies or procedures after these incidents.
Other Similar Incidents: Your Expert
Your expert should be able to identify specific criteria about your incident that make it substantially similar to the others. Identify at least three (3) defining features of your incident and make sure the expert is prepared to explain why those features define the analysis.
Once you’ve identified other similar incidents, then pick the three to five prior incidents that are the most similar to yours and lay out the specific similarities.
For more info on this subject contact us.
Also for more info on injury claims see Wikipedia.