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Practice Tip: First-of-a-Kind Accidents ' Evidentiary Considerations
Evidentiary Dynamite
Many successful trial specialists consider “other similar incidents” evidence (“OSI”) to be among the most powerful weapons intended to persuade juries that the product in question is truly defective. If they are used, however, two things are necessary: evidence to support the incidents, and careful scrutiny, not only for the familiar standards of so-called “substantial similarity,” but also for true relevance, probativeness and potential for prejudice.
A recent Third Circuit opinion, Forrest v. Beloit Corp., 2005 U.S. App. LEXIS 19904 (3d Cir. Sept. 16, 2005), discusses the other side of the OSI coin that is, evidence proffered by defendants about the absence of other accidents. Sometimes, this is called “no-prior-accident” evidence. Forrest was a product liability case involving a workplace injury. The plaintiff worked at a paper mill. His arm became stuck between two multi-ton rollers, in the “nip” of a so-called “Gloss Calender” machine manufactured by defendant in 1963. The employer made certain changes to facilitate the machine's use in the milling of paper. Experts battled at trial over whether a guard at the nip point would have prevented the injury.
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