pdf July 2013

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1 pdf I suggest the following simple ten ways to avoid malpractice in litigation: q PRODUCT LIABILITY July 2013 IN THIS ISSUE This article summarizes recent case law in which courts have implemented the substantial similarity standard to exclude prior incidents involving the defendant s product. The Exclusion of Other Incident Evidence in Product Liability Litigation ABOUT THE AUTHORS Elbert S. Dorn is a member of Nexsen Pruet, LLC and practices in its Myrtle Beach and Charleston, South Carolina offices. With more than twenty-five (25) years of trial experience, he devotes his practice to product liability, pharmaceutical and class action litigation. He has been a member of IADC since He can be reached at edorn@nexsenpruet.com. Burl F. Williams is an associate practicing in the business litigation group of Nexsen Pruet, LLC in its Greenville, South Carolina office. His practice is focused on the litigation and appeal of product liability, class action, and general commercial disputes. He can be reached at bwilliams@nexsenpruet.com. ABOUT THE COMMITTEE The Product Liability Committee serves all members who defend manufacturers, product sellers and product designers. Committee members publish newsletters and Journal articles and present educational seminars for the IADC membership at large and mini-seminars for the committee membership. Opportunities for networking and business referral are plentiful. With one listserv message post, members can obtain information on experts from the entire Committee membership. Learn more about the Committee at To contribute a newsletter article, contact: Mollie F. Benedict Vice Chair of Newsletters Tucker Ellis LLP (213) mollie.benedict@tuckerellis.com The serves a distinguished, invitation-only membership of corporate and insurance defense lawyers. The IADC dedicates itself to enhancing the development of skills, professionalism and camaraderie in the practice of law in order to serve and benefit the civil justice system, the legal profession, society and our members.

2 - 2 - A crucial issue in the successful defense of a product liability case is the exclusion of other incidents and accidents involving products of the manufacturer. In old school parlance, prior incidents were often referred to as other similar incidents or OSI, a term which should be avoided because it presupposes similarity which does not necessarily exist. The specter of other incidents, if not addressed consistently and aggressively throughout the course of the litigation, can transform an otherwise defensible case into a problematic one. The primary defense tool for excluding other incident evidence is the substantial similarity standard. While the concept of substantial similarity is not novel, this article surveys recent case law from various jurisdictions which reinforce this important evidentiary standard. 1 When effectively applied, the substantial similarity test serves as a potent legal basis to resist and limit discovery, to exclude opposing experts, to support motions in limine, and to substantiate exclusion of evidence and even dismissal of claims at trial. Left unchallenged, evidence of other incidents has the real potential to distract the fact finder from proper legal determinations by injecting unrelated and prejudicial facts and allegations of defect which have not withstood proper evidentiary scrutiny. The following summary provides current case law to buttress the assault on other incident evidence. In Graves v. CAS Medical Systems, 735 S.E.2d 650 (S.C. 2012), the South Carolina 1 The authors recognize, and presume that the reader is aware, that some jurisdictions follow a relaxed standard of mere similarity or reasonable similarity when other incidents are offered solely to show notice (when relevant) rather than to prove the existence of a defect. Supreme Court applied the substantial similarity test in affirming the exclusion of three expert witnesses under South Carolina s expert evidence standard. Graves is instructive in this regard because it demonstrates that the substantial similarity rule can be invoked not only to exclude other incident evidence itself but also to challenge expert testimony that relies on such evidence. Six month-old India Graves died while being monitored by a CAS Medical System product. Graves, 735 S.E.2d at 652. Her parents, Kareem and Tara Graves, filed a product liability lawsuit against CAS, alleging that the monitor was defectively designed and failed to alert them when India s heart rate and breathing slowed. Id. India Graves was a triplet, born premature, and that condition required her hospitalization for 6 weeks. Id. When she was released, the treating physician, as a precaution, instructed the Graves to use the CAS product to monitor the infant s breathing and heart rates. Id. The product included a loud alarm that would sound if the infant were to stop breathing or have any major fluctuations in heart rate. Id. The product incorporated many intricate features and redundant safety measures, including a backup alarm along with a recording system that kept a log of alarm soundings. Id. India died in her sleep while she was hooked up to the system, but, according to the Graves, the alarm never sounded. Id. at 653. Contrary to that allegation, the product s recording system reported that the alarm did sound. Id. The Graves claims centered on a software design defect theory involving spaghetti code, defined as a condition when computer code becomes unstructured and creates a rather tangled mess. Id. Three experts were utilized to support the Graves theory, initially identifying three potential causes:

3 - 3 - reasonable secondary explanations. Id. Applying this test, the Court noted that [w]hile the products in the FDA report are similar to the one here, the record contains no evidence suggesting any further connection to or whether a software error was even involved in these other cases. Id. The Court concluded that [i]n order to deem these other incidents substantially similar, we would have to automatically equate an alleged failure with a software defect of the kind claimed by the Graves without any evidentiary basis for doing so. Id. The Court stated that it would not make that evidentiary leap. Because the underlying incidents were not proven to be substantially similar, expert opinions based on hardware error, software error, and complaint error. Id. All three experts opined that software error was deemed the most probable cause after the possibilities of hardware and complaint error were ruled out by them. Id. at 654. CAS moved to exclude all three experts, contending that their testimony was not reliable because each relied on reports of other alleged failures to support their conclusion that software error was the cause. Id.at The trial court excluded the three experts and granted summary judgment. The Graves court began its exclusion analysis by acknowledging that an expert, in certain circumstances, can base his conclusion on a form of differential diagnosis that is, by eliminating the likely causes until the most probable one is isolated. Id. at 656. The Court limited the admissibility of a differential diagnosis opinion, however, by holding that the opinion must provide a reasonable, objective explanation for the rejection of possible alternative causes in order for the opinion to be admissible under Rule 702. Id. Based upon that holding, the Court segued into the use of the substantial similarity test. The Graves court noted that the experts improperly relied on [FDA] reports of other failures to bolster their conclusions that software error was to blame. Id. at 657. In reaching that conclusion, the Court articulated the relationship between the substantial similarity test and the requisite reliability of an expert s opinion. It began its analysis with the rule: [e]vidence of other similar incidents is admissible where there is some special relationship between the accidents tending to prove or disprove some fact in dispute. Id. It then turned to the test: [a] plaintiff bears the burden of demonstrating that the products are similar, the alleged defect is similar, the defect caused the other accidents, and there are no other them were not reliable. Accordingly, the Court affirmed the exclusion of the expert witnesses and the granting of summary judgment. The legal underpinning for the Graves decision derives from the significant case of Watson v. Ford Motor Co., 699 S.E.2d 169 (S.C. 2010). The Watson case addressed the application of the substantial similarity test in the context of a sudden acceleration, design defect claim involving a Ford Explorer. The plaintiffs alleged that electromagnetic interference (EMI) caused the Ford Explorer s cruise control to malfunction, resulting in sudden and uncontrollable acceleration of the vehicle. According to the opinion, EMI is an unwanted disturbance caused by electromagnetic radiation that interferes with an electric circuit. Id. at 173. Sonya L. Watson was rendered quadriplegic following the single vehicle rollover accident in her Ford Explorer. Id. A passenger in her vehicle, Patricia Carter, died in the accident. Id. Watson testified that as she entered the interstate, she immediately set the cruise control, and shortly thereafter, the Explorer began to suddenly accelerate. Id. Because of the alleged sudden acceleration, Watson lost

4 - 4 - control of the vehicle, [and it] veered off the left side of the interstate and rolled four times. Id. Watson and the Estate of Carter ( the Plaintiffs ) brought design defect claims alleging that the Explorer s cruise control system was defective because it allowed electromagnetic interference (EMI) to affect the system. Id. In an effort to bolster their design defect claims, the Plaintiffs sought to introduce evidence of other incidents where a Ford Explorer allegedly accelerated in a sudden or unintended manner. Over the objection of Ford, the evidence was admitted at trial. The jury returned a verdict against Ford, awarding $15 million to Watson and $3 million to the Estate of Patricia Carter. Id. On appeal, Ford argued, among other grounds, that the trial court erred by admitting evidence of other incidents. The South Carolina Supreme Court agreed and established the test later cited in the Graves decision above. In analyzing the other incident evidence, the Court noted that the Plaintiffs introduced a deposition of a former Ford employee who investigated a number of claims of unintended acceleration of Explorers driven in Britain. Id. The former employee testified to an that referenced 35 incidents that have been categorized as unexplainable in which the vehicles suddenly accelerated. Id. The Plaintiffs also presented testimony from three witnesses that had experienced sudden acceleration in their Ford Explorers when their cruise control would not disengage. Id. Based upon its review of that evidence, the Court held that the trial court abused its discretion in admitting it. The Court listed a number of reasons why the other incident evidence did not meet the substantial similarity requirements. First, the products were not similar because most of the other incidents involved Explorers that were made in different years from the Watson Explorer and were completely different models with the driver s seat located on the right side of the vehicle. Id. The Court also noted that the plaintiffs failed to show a similarity of causation between the malfunction in th[eir] case and the malfunction in the other incidents. Finally, honing in on the requirement that the alleged defect be the same, the court noted that the Plaintiffs only presented the testimony of the other drivers and did not present any expert evidence to show that EMI was a factor in the malfunction in the other incidents. Id. Based upon the inadequacies in the other incident evidence, and the Plaintiffs failure to show that the other incidents were caused by the same alleged design defect, the court ruled that the evidence was not relevant: [T]his evidence was not relevant because [Plaintiffs] failed to show that evidence of these incidents made the existence of the EMI defect in this case more probable. Id. at 179. The court also pointed out that this type of evidence is highly and extremely prejudicial, and for that reason, the plaintiff must establish a factual foundation to show substantial similarity. Id. at The Court noted that, counsel highlighted this improper evidence in closing arguments and thereby possibly induced the jury to speculate as to other causes of the accident not supported by any evidence. Id. at 180. Based upon the trial court s error in admitting the other incident evidence, and other evidentiary failures, the Court reversed the judgment for Plaintiffs and entered judgment for Ford. In Funkhouser v. Ford Motor Co., 736 S.E.2d 309 (Va. 2013), the Virginia Supreme Court recently addressed the application of the substantial similarity test in the context of a

5 - 5 - failure to warn claim arising from a vehicle fire. The case is notable in that the Court applied a stringent standard for the admissibility of other incident evidence regarding a failure to warn claim. Emily, the three year old daughter of Steven K. Funkhouser, died after receiving severe burns while playing unattended in the Funkhouser s Ford Windstar. Mr. Funkhouser filed a product liability lawsuit against Ford Motor Company for failure to warn of the risk of fire while the vehicle is not in operation. The plaintiffs alleged that the daughter was playing inside the family s 2001 Ford Windstar, while the keys were not in the ignition and the car was turned off. Id. at 311. A fire engulfed the passenger side of the van, and severely burned Emily, which ultimately led to her death. Id. According to plaintiff s expert, the fire was caused by heat energy generated by abnormal and undesired electrical activity within the lower portion of the center instrument panel in the vicinity of the wiring harness, cigarette lighter and the controls for the vehicle s heating and air conditioning system. Id. Further, the expert opined that the source of ignition was most likely electrical activity coming from one of the wires or connectors in that vicinity. Id. He also concluded that Ford possessed information that should have put it on notice that these particular Ford Windstar minivans were unreasonably dangerous for the use for which they were sold. Id. at 311. Funkhouser sought to introduce evidence of seven other Windstar fires, but the trial court excluded the evidence. circumstances; he cannot show that the fires were caused by the same or similar defects. Id. at 314. Based upon that weakness in the other incident evidence, the Court held that the trial court properly excluded the other Windstar fires. Id. Funkhouser further challenged the trial court s evidentiary ruling, however, by arguing that application of the substantial similarity test to a failure to warn claim actually results in an evidentiary threshold that is higher than what is required to prove the merits of his claim. Id. Funkhouser argued for a relaxed test in a failure to warn claim because liability under a failure to warn claim does not require a showing of any defect, only a showing that the manufacturer knows or has reason to know that its product is dangerous. Id. Accordingly, he argued that the proper test should allow a plaintiff to interchange the words defect and dangerous. After enunciating the substantial similarity test, including its causation prong, the court rejected Funkhouser s argument for a relaxed similarity test and concluded that removing the defect requirement from the causation prong would allow a plaintiff to attribute notice and actual knowledge to a manufacturer based on the mere existence of a generalized danger. Id. The court recited the common rejoinder that a manufacturer is not an insurer of its product s safety. Id. Therefore, in order for the subject evidence to be admissible, the court held that Funkhouser was required to show that the other Windstar fires were caused by the same or similar defect. Id. at 315. The evidentiary battleground centered upon the cause of the seven other Windstar fires. The Court noted that, [i]n the present case, all Funkhouser can show is that the incidents occurred under substantially the same Similar to the Graves court s refusal to allow an expert witness to opine that a product s software was defective based upon an FDA report showing similar products had failed, the Funkhouser court tracked the same line of

6 - 6 - It noted that, Funkhouser is Stokes alleged that the Ford Explorer was defectively designed because a safer design alternative existed to protect the driver during [a] rollover. Id. at 650. Stokes alleged that the subject Ford Explorer should have contained a Safety Canopy System (SCS), which was available three months before the Explorer at issue was manufactured. Id. at Although the SCS was available as an option feature, it was not implemented in the subject Ford Explorer as standard equipment. Id. at 651. reasoning. asking this Court to invert the test and infer similar causes, i.e., defects, from the existence of similar effects, i.e., fires. Id. at 314. As a matter of logic, the Court noted that [t]his inversion simply does not work: although a faulty cigarette lighter may cause a key-off dashboard electrical fire, not all keyoff dashboard electrical fires are caused by a faulty cigarette lighter. Id. Accordingly, the court concluded that the seven prior incidents along with the accompanying expert testimony were properly excluded. Finally, Stokes v. Ford Motor Co., 300 P.3d 648 (Mont. 2013), is a significant case because it demonstrates that the foundational requirement of substantial similarity can serve as a powerful grounds for the exclusion of other incident evidence. In Stokes, plaintiff took an aggressive position with respect to the discovery of voluminous other incident information. The court entertained, but ultimately denied, a motion for discovery sanctions. At the trial of the case, however, the court excluded all of the other incident evidence because the plaintiff failed to provide the proper foundation. The Montana Supreme Court affirmed. In Stokes, Peter Andrew Carter, an Australian resident, rented a Ford Explorer while in Montana on business. Stokes, 300 P.3d at 650. On November 7, 2007, while driving on the highway, Carter collided with another car at a speed between 76 and 83 miles per hour. Id. The impact resulted in the vehicle rolling five times over a distance of 286 feet. Id. Carter was partially ejected from the vehicle and killed. Id. Dennis Stokes, the personal representative of the Carter estate, filed a wrongful death and survival claim against multiple defendants. Id. At the trial of the case, Stokes sought to introduce other incident evidence that he independently obtained, consisting of a summary compilation of over 3,000 crashes which was offered to establish that Ford had actual notice of Explorer rollovers. Id. at 653. Ford objected to the introduction of the evidence, noting that there has to be some base level showing of substantial similarity for the introduction of this evidence. Id. Stokes failed to provide the foundation that his other incident evidence was substantially similar, and the court excluded the evidence. Id. at The Montana Supreme Court began its consideration of that ruling by noting that [e]vidence of other similar instances may be admitted to show notice or knowledge of the existence of a danger or a defect. Id. at 654. Further, [t]he test of admissibility for evidence of the accidents in a product liability case is whether the circumstances surrounding the product involved in other accidents were substantially the same or similar to the accident at issue. Id. Important to the foundational requirement, the court also stated that [a] concerted effort should be made by [the trial] court to allow the admission of evidence of only those accidents where both the product and the circumstances surrounding the accident were similar to the case at bar. Id.

7 - 7 - trial is an invaluable and crucial strategy in Analyzing the evidentiary challenge, the the defense of product litigation. Court noted that Stokes tried to introduce his evidence by presenting a compilation summarizing [the] 3,000 rollover cases and that he sought to provide a foundation for that evidence by introducing the deposition testimony of a Ford representative... in an unrelated case. Id. The court further found that after Ford made its objection to the evidence, Stokes failed to demonstrate that his proposed evidence satisfied the requirement of substantial similarity. Id. The court held that based upon the record before it, the trial court did not abuse its discretion by excluding the evidence. Id. Accordingly, a jury verdict in favor of Ford was affirmed. In conclusion, the recent court decisions highlighted above serve as strong pronouncements of the substantial similarity rule in high exposure product liability cases. 2 They provide authority and guidance for mounting an effective legal challenge to other incident evidence in addition to the commonly advanced grounds of hearsay, lack of foundation, judicial economy and undue prejudice. Effective use of the substantial similarity rule from the discovery phase to 2 Several recent unpublished opinions also provide further insight on application of the substantial similarity requirement. Steede v. General Motors, LLC, 2013 WL (W.D. Tenn. January 11, 2013) ( bald assertions without citation to specific evidence and detailed analysis demonstrating substantial similarity do not suffice ); Buck v. Ford Motor Co., 2013 WL (6th Cir. May 16, 2013) (affirming summary judgment on grounds that other incidents utilized to prove defect were not substantially similar); Paul v. Henri-Line Machine Tools, Inc., 2013 WL (E.D. Mich. March 30, 2013) (holding other incidents were not substantially similar and granting summary judgment).

8 - 8 - PAST COMMITTEE NEWSLETTERS Visit the Committee s newsletter archive online at to read other articles published by the Committee. Prior articles include: JUNE 2013 Can You Save Your Limitations Defense From an Assertion of Fraudulent Concealment? Stephanie M. Rippee and Robert B. Ireland, III MAY 2013 SCOTUS Evidentiary Proof Required for Class Certification as Merits Are Considered Julie A. Callsen and Matthew I. Kaplan APRIL 2013 New Jersey Federal Court Rejects Component Theory Advanced to Avoid Medical Device Preemption Kenneth R. Meyer and Genevieve M. Spires MARCH 2013 Innocent Sellers and Such Robert G. Smith FEBRUARY 2013 State By State Analysis of Non-Economic Damage Caps Walter H. Boone, J. Chase Bryan, and Jordan M. Mason JANUARY 2013 Products Liability in Spain and its Legal Regulation José Garzón García DECEMBER 2012 The Mississippi Supreme Court Issues A Get-Out-of-Jail Card to Unlicensed Engineers Offering Expert Testimony Chris Berdy and Will Thomas A Simple Reminder For Settlement Don t Forget Vacation Darby V. Doan NOVEMBER 2012 The Shirt Off My Back: Using the Relationship Between a Product and a Service to Your Advantage Brigid M. Carpenter and Caldwell G. Collins OCTOBER 2012 Are Non-Economic and Punitive Damage Caps Constitutional? J. Chase Bryan and Walter Boone