Disarming the
Defense
John C. Cabaniss
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.:
[E]xperience teaches
us that the problems of prejudice, inability of the opposing party to meet the
evidence, and the danger of misleading the jury are substantial. We are aware,
also, that defendant's "lack of notice of injury does not establish the fact
that no injuries had occurred, and that a "long history of good fortune'' may
not preclude the conclusion that the product was defective and unreasonably
dangerous.5
The court discussed
factors a judge should consider before admitting evidence that no prior injuries
have occurred:
~ the difficulty
the plaintiff will have rebutting the contention when a widely distributed product
is involved;
~ 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
As the court stated,
[I]f the import
of the evidence is no more than testimony that no lawsuits have been tiled,
no claims have been filed, or "we have never heard of and. accidents," the trial
judge generally should refuse the offered evidence since it has very little
probative value and carries much danger of prejudice.7
It is a common mistake
to assume a judge will allow testimony that the defendant knows of no other injuries.
In your desire not to burden the court, you may decide not to file a motion in
limine. That is a critical omission. If you present the issue properly, a favorable
ruling is possible.
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
1 604 P.2d 674,
678 (Colo. 1979).
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]