At a trial in a civil case, one common question jurors have is, “what kind of record does the defendant have in dealing with the problem at issue in this case?”
The question of whether the parties will be able to discuss the prior history of the defendant can be complicated, and to a large degree, it will depend heavily on the trial judge’s discretion in determining if other similar incidents (OSIs) will be admissible at trial. Our friends from The Babcock Law Firm, P.C. has provided some insight on OSI evidence in your case.
First of all, a plaintiff has to gather such evidence in the discovery process. One method may be through informal discovery and open records requests or Freedom of Information Requests to government agencies. Using the formal discovery process in litigation, a plaintiff can expect the defense may stonewall them and resist turning over such evidence willingly. That is because it can be very damaging evidence, at worst showing a pattern of ignoring a problem where people are getting hurt or killed, with the company doing little or nothing to correct the problem. If the defense won’t produce this evidence willingly, the plaintiff will have to ask the court to order the production of such evidence with a motion to compel. The court should order the production of such evidence, as discoverability and admissibility are separate concepts and should not be conflated (as the defense may try to do).
Once you get the evidence, what do you do with it? It depends on the case, but consider interviewing and deposing law enforcement about the OSIs, deposing corporate representatives about them, and think about whether the evidence may affect the opinions of the experts in your case.
When can such evidence actually be considered by the jury at trial? It can be admitted when it goes to issues of notice, foreseeability, a duty to fix or otherwise address the problems at issue, or warn of the danger.
What if the similar incidents post-date the injury at issue in your trial? The issue can be more fraught. In some cases, that evidence can come in to show feasibility of a repair, causation, control or ownership, or for impeachment purposes.
In seeking the admissibility of OSI evidence, expect a hard fight and a skeptical judge. A trial lawyer should be prepared to show the court substantial similarity between your case and the OSIs, and be prepared to go on the offensive to get the Court to consider the issue well in advance of trial. This is not an issue that you are going to want to raise in the middle of trial, or expect to do so effectively in most cases. Instead, well before the trial date, ask for an evidentiary hearing on the admissibility of OSI evidence. Keep in mind that the evidence does not have to be identical, but it is going to need to be “substantially similar.” And it will be up to the trial court to determine what comes into trial and what will not, and just how similar the evidence will need to be.
