Third Circuit Clarifies Admissibility Requirements for “No Prior Accidents” Evidence
September 14, 2006
Lisa Ann Ellis - Chicago
Taking a page from the plaintiff’s lawyers’ playbook, defendants in product liability actions have successfully presented evidence regarding the absence of other similar incidents to establish that the product at issue is not defective. However, the Third Circuit recently curtailed a defendant’s ability to introduce “no prior accidents” evidence holding that a Pennsylvania district court had abused its discretion in allowing certain testimony at trial regarding the alleged absence of prior accidents involving the defendant’s product.
In Forrest v. Beloit Corp., 424 F.3d 344 (3rd Cir. 2005), Paul Forrest, a paper mill worker, was injured when his arm became stuck between two multi-ton rollers of a gloss calender machine manufactured by the defendant, Beloit Corporation, in 1963. Although his employer had made certain changes to the machine to facilitate its use, Forrest sued Beloit in federal court alleging negligence and strict liability under state law.
At trial, the defense, over repeated objections from the plaintiff, introduced no prior accidents evidence through the cross-examination of two former employees who had worked at the paper mill for 17 and 35 years respectively. Both witnesses testified that the method in which Forrest attempted to thread the calender machine on the night of the accident was no different than that used by any other mill employee. The witnesses also testified that they were not aware of any similar accidents involving the subject calender machine during their many years of employment with the company. In closing arguments, defense counsel referred to these statements as evidence that no prior accidents had occurred and, therefore, that the machine was not defective. In repeated objections, including a pretrial motion in limine, the plaintiff argued that there was no foundation for this testimony because Beloit’s former chief engineer and corporate designee admitted in his deposition that Beloit kept no records relating to either safety complaints by Beloit customers or past accidents involving its gloss calenders. The district court, however, allowed the testimony and the jury reached a defense verdict.
Federal vs. State Law Interpretation
Analyzing this evidentiary issue under federal rather than state law, the Third Circuit held that the no prior accidents testimony elicited at trial should not have been admitted. Although the Court acknowledged that such evidence is indeed relevant under Federal Rule of Evidence 402, the Court found that no prior accident evidence “if offered without a proper foundation, can create the risk of unfair prejudice that may substantially outweigh whatever probative value the evidence otherwise has.” Id. at 356.
The Court elaborated on various ways in which such evidence, without proper foundation, could result in unfair prejudice. The Court cited the following examples: (1) the mere fact that a witness does not know of any prior accidents does not prove that no such accidents occurred; (2) generalized assertions of the absence of accidents over an extended period of time can be directly rebutted only with specific evidence of prior occurrences, but such evidence may be difficult or impossible for a plaintiff to obtain in cases where the defendant has not kept records concerning the safety history of its products; (3) the absence of prior accidents may simply mean that the plaintiff was the first to be injured; and (4) no prior accident testimony “does not tell us how many near-accidents nor how many fortuitous escapes from injury may have occurred.” Id. at 357 (citing Jones v. Pak-Mor Mfg. Co., 700 P.2d 819 (Ariz. 1985)). The Court considered this fourth factor particularly important because Pennsylvania substantive law requires the jury to focus specifically on whether the product as designed presents a potential danger to the intended user.
Recognizing the “recurring difficulties” of the district courts in deciding whether to admit this type of evidence, the Third Circuit set forth specific foundational requirements a defendant must meet before “no prior acts” evidence may be properly admitted under the federal rules. In order to admit evidence of prior accident history, the proponent must establish that (1) the testimony relates to substantially identical products used in similar circumstances; (2) the number of products sold and the frequency of their use; and (3) the defendant would likely be aware of any prior accidents had they occurred. Id. at 358.
Near Accidents and Fortuitous Escapes
After applying the facts of the case, the Forrest Court found that these foundational requirements had not been met. The Court noted that the testimony Beloit elicited from the plaintiff’s witnesses referred only to the gloss calender machine at the plant where they and Forrest worked, and they would have no knowledge regarding the accident history of other gloss calender machines manufactured by the defendant. Moreover, this testimony did not account for any “near accidents” or “fortuitous escapes” that may have occurred. The Court further observed that Beloit had sold a large number of its machines to many different customers in the years prior to Forrest’s accident but had failed to compile any accident history data.
The Court reasoned that without such data, there was no way for the trial court to reliably determine whether the anecdotal testimony of two mill workers from the same plant, working on the same piece of equipment had any probative value. According to the Court, this uncertainty would undermine the plaintiff’s ability to respond to such evidence because the plaintiff’s speculation that other accidents involving the defendant’s machines had occurred could never be as persuasive as the concrete testimony of the former mill workers.
While the Court recognized that much of the potential prejudice arose from the unique facts of the case, the opinion also noted that “the mere existence of potential unfair prejudice does not in and of itself justify the exclusion of safety history evidence …” Id. at 361. That such concerns are always present, however, “will invariably implicate the strength of showing a defendant must make in terms of establishing probative value under Rule 403.” Id.
The lesson imparted by this case is simple. If a product liability defendant plans to incorporate the absence of other accidents into its defense, it must be prepared to lay a proper foundation. Generalized testimony regarding the particular product at issue will not be enough to overcome this evidentiary hurdle. Instead, a defendant must present concrete evidence of the safety history of substantially identical products used in similar circumstances, and this evidence must be presented by a witness with direct knowledge of the product’s safety record. Without tangible evidence of a safety record, a court will likely exclude no prior accidents evidence on the basis that any probative value is substantially outweighed by the danger of unfair prejudice under Rule 403.
For more information, e-mail Lisa A. Ellis at lisa.ellis@hklaw.com or call toll free, 1-888-688-8500.