THE “SUBSTANTIAL SIMILARITY” REQUIREMENT OF CASES USED AS EVIDENCE IN PRODUCT LIABILITY CASES
QUESTION: What is the threshold for establishing “substantial similarity” in a product liability suit?
LEGAL DISCUSSION: The general rule with respect to the admissibility of evidence of similar occurrences is that it is admissible only upon a showing that the events arose out of the same or substantially similar circumstances. Ford Motor Co. v. Massey, 313 Ark. 345, 855 S.W.2d 897 (1993). Whether an occurrence is substantially similar to the matter at hand depends on the underlying theory of the case. Id. (citing Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979 F.2d 1434 (10th Cir.1992); Wheeler v. John Deere Co., 862 F.2d 1404 (10th Cir.1988)). For example, evidence submitted to demonstrate a dangerous condition necessitates a high degree of similarity because it weighs directly on the ultimate issue to be decided by the jury. Id. However, the requirement of substantial similarity is relaxed when the evidence of other incidents is used to show notice or awareness of a potential defect in a product. Id.
In Ford Motor Co. v. Massey, a truck owner brought products liability action against a manufacturer and a dealer for injuries suffered in accident. 313 Ark. 345, 855 S.W.2d 897 (1993). The driver introduced evidence showing that Ford Motor Co. had repaired over 100 identical Ford Bronco throttle cables. Id. Ford Motor Co.’s attorneys appealed claiming that the trial court judge should have struck this evidence. Id. The attorneys further argued that by allowing the evidence, a compiled document listing the 106 warranty repairs, overlooked the legal element, which requires the party introducing the evidence to show “substantial similarity.” Id. The burden rests on the party offering the evidence to prove that the necessary similarity of conditions exists. Id. The relevancy of such evidence is within the trial judge’s discretion, subject to reversal only if an abuse of discretion is demonstrated. Id. The Court of Appeals held that the substantial similarity was obvious and agreed with the ruling of the trial court judge. Id.
In Thomas v. Chrysler Corp., a Dodge van owner was suing Chrysler for a defective door on his Dodge van. The door would appear to be closed fully and would then fly open while driving. 717 F.2d 1223, (C.A.Ark.,1983). At the close of the case, appellants sought to introduce the testimony of two owners of Dodge vans who would have testified that their van doors opened while the vans were in motion. Id. The trial court excluded the testimony on the ground of relevancy stating that “the trial court has a wide area of discretion…. The trial judge is in a position to weigh the exigencies of a particular case, and his discretion when expressed within the proper limits will not be disturbed.” Simpson v. Norwesco, Inc., 583 F.2d 1007, 1013 (8th Cir.1978) (citations omitted). Evidence of prior accidents may be relevant to demonstrate, amongst other things, the existence of a defect, notice to a defendant, or causation. Id. (citing Ramos v. Liberty Mutual Insurance Co., 615 F.2d 334, 338-39 (5th Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 921, 66 L.Ed.2d 840 (1981)). However, the accidents must be “sufficiently similar in time, place or circumstances to be probative.” Hampton v. Kroger Co., 618 F.2d 498, 499 (8th Cir.1980) (per curiam). Chrysler argued and the judge agreed that appellants’ offer of proof does not demonstrate sufficient similarity of the conditions of the vans or the circumstances of the accidents.
Also, evidence of the absence of other accidents involving similar tractors and circumstances generally will be admissible to show that the tractor was not defective, or that it did not cause the plaintiff’s injuries. See generally Thomas R. Malia, J.D., Products Liability: Admissibility of Evidence of Absence of Other Accidents, 51 A.L.R. 4th 1186.
CONCLUSION: Courts determine the parameters of “substantially similar” based on the surrounding facts. If used to find causation, courts tend to require more substantiality than if used to show notice of the defect. Courts will also allow evidence of the absence of other accidents involving similar tractors. Overall, the determination of substantiality is at the judge’s discretion and the surrounding facts in addition to the purpose for the introduction of the evidence will come into consideration when making such a determination.