Product Liability lawyers in our firm spend a great deal of time handling claims against automobile manufacturers. In order to be successful in a case against an automobile manufacturer, the lawyer must show that their client was injured because of a defect in the automobile designed and sold by the automakers. One of the ways a lawyer can prove that the automobile in question was defective is to show that the manufacturer knew that other incidents like the one in the case were occurring. These are called “other similar incidents” or “OSIs” and they are extremely important in this type litigation. I will give a brief explanation of how OSI’s are used in litigation.
In Alabama, OSIs can be used to prove not only the defective nature of the vehicle but notice of the defect, negligence or the standard of care, a defendant’s ability to correct a known defect, lack of safety for the intended use, strength of a product and causation. However, the party attempting to use OSIs as evidence must lay the proper foundation by showing that the OSI is “substantially similar” to the accident at issue. The other incident does not need to be exactly like the accident at issue. As long as the other incident occurred in reasonably similar conditions, the evidence is admissible.
In a product liability case, the only factor that must be the same is the type of defect. Lawyers can use evidence of accidents involving different products as long as those products had the same defect. The reason for allowing other similar incidents involving the same defect is because, “In a product liability action . . . the primary evidence of a defect is the fact that other people exposed to the same defect suffered injury. The greater the number of such incidents, the greater the likelihood that the defect, in fact, exists rather than some anecdotal explanation.” Ex parte Cooper Tire & Rubber Co., 987 So. 2d 1090, 1098 (Ala. 2007).
Another obstacle to using OSIs as evidence is finding a way around the evidence being excluded as hearsay. Most OSIs are out-of-court statements. However, the argument can be made that the evidence is not being offered to prove the truth of the matter asserted, i.e. that the accident occurred. Instead, the evidence of OSIs is being used to prove defect, notice, or danger. Also, OSIs may fall under a non-hearsay exception, such as a party opponent admission.
The method in which a lawyer introduces OSI evidence to the jury is just as important as laying the proper foundation. The best method for introducing this evidence is through an expert. If the OSI evidence is being offered for the expert to demonstrate and explain how that particular type of accident occurred, it is not required to meet the substantially similar standard. However, if the evidence is being used to show that the manufacturer had notice of the defect, it must meet the substantial similarity test.
Another effective way of presenting OSI evidence is through a witness who actually observed or was injured in another similar incident. This can be done at trial through presenting that witness’s deposition testimony or having the witness come testify at trial. However, the costs of using witnesses who experienced an OSI may outweigh the benefits. Usually, OSI witnesses are located in various parts of the country. It may be too time-consuming and expensive to identify, locate, and visit each one to take a deposition to present at trial.
OSI evidence is a necessary and indispensable part of product liability litigation. It is important for lawyers to ask for OSI evidence early in the discovery phase. Our lawyers plan out how they will meet the substantial similarity test as soon as they know OSI evidence exists. Laying the proper foundation for OSI evidence could make or break a products case, especially against automobile manufacturers. If you need additional information on this subject, contact Greg Allen, our firm’s Senior Products Liability lawyer, at 800-898-2034 or by email at Greg.Allen@beasleyallen.com. Stephanie Monplaisir, another lawyers in the Section, contributed to this part of the report and she has done considerable research on this evidentiary subject.
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