Olson Brooksby handles a wide variety of product liability cases involving products such as helicopter engines, heavy equipment, steel, toys, tools, household appliances and chemicals, paints, and solvents. We frequently work with clients who have had prior claims involving allegedly defective products. In product liability litigation, plaintiffs’ lawyers almost always ask for documentation involving prior claims. Usually, plaintiffs issue a broad request for documents regarding all prior incidents of any kind related to the model of product at issue or any version of that model.
The Standard for Discovery of Prior Claims
In Oregon, evidence regarding prior claims is generally discoverable. ORCP 36 B(1). In order for an opposing or other party to obtain discovery, the evidence should simply be relevant and reasonably likely to lead the discovery of admissible evidence. Therefore, on a motion to compel, product liability defense counsel should expect that documentation concerning prior claims will be discoverable, particularly in cases concerning home appliances and other mechanical products.
An objection to a discovery request on the basis that the evidence may not be admissible at trial is not proper. Oregon trial courts will allow discovery of evidence of prior claims if the products, conditions, or uses are merely “similar” as opposed to “identical.”
By way of a hypothetical example, suppose Large Bike Manufacturing Company manufactured a number of bikes during the past few months or years and the front rim of the tire was bending when bumps were hit that similar bikes were able to withstand. Also suppose that a bicyclist was injured when the front rim on one of the bike models struck a speed bump even though the bicyclist was riding cautiously and reasonably. On a motion to compel, most Oregon state court trial judges would order the production of all prior incidents of injury regarding other bike models with the same wheel, not just the model of bike that the bicyclist was riding. The court would also likely order production of other claims of injury on all bikes, even if such injuries were caused by other mechanical failures.
The Standard for Admissibility of Prior Claims
The admissibility of evidence of other claims is governed by Oregon Evidence Code (“OEC”) 401, which defines relevant evidence; OEC 402, which provides that relevant evidence is generally admissible; and OEC 403, which provides for the exclusion of relevant evidence in the event prejudice, confusion, or undue delay associated with the admission of the disputed evidence, in this case of prior claims, outweighs the probative value or helpfulness to the trier of fact. Whether evidence of prior claims is discoverable and whether such evidence is admissible are two distinct issues.
With respect to the admissibility of evidence of prior claims, as opposed to the mere discovery of prior claims, OEC 401 generally provides that evidence of similar prior conduct, events, accidents, or even negligence, is generally held to be inadmissible to prove negligence or lack of negligence in the case being litigated.
However, evidence of prior similar acts, conduct, or events, which Oregon courts universally have ruled includes prior claims, is often held admissible to prove causation, danger, knowledge, intent, or the existence of a particular defect. One of the seminal cases on this issue is Benjamin v. Wal-Mart Stores, Inc., 185 Or App 444 (2002), rev den, 335 Or 479 (2003). Admissibility of the allegedly similar act will depend on whether prior conduct or events occurred under “similar conditions and circumstances,” although identical circumstances are not required. Lakin v. Senco Products, Inc., 144 Or App 52, (1996), aff’d, 325 Or 438 (1997).
Whether the conditions and circumstances are substantially similar enough to allow admission of the evidence of prior claims is a decision for the court and will be reviewed on appeal under an abuse of discretion standard, which is a high standard. As noted above, identical circumstances or an identical product is not necessary for admission of such evidence. Generally, unless there is clear prejudice, evidence of prior claims will be admissible. The judge will usually comment that defense counsel is free to engage in cross-examination on the differences in the claims and argue that they go to the weight of the evidence.
In a product liability case, regardless of what the product may be, defense counsel should be prepared for a ruling that evidence of prior claims is discoverable. Counsel should also be prepared for a ruling that evidence of prior claims is admissible. Therefore, it may be advantageous to file a motion in limine to exclude evidence of prior claims on the grounds that they are either dissimilar, or that there is insufficient information to even determine whether they are dissimilar. The motion in limine should be filed before trial, so that even if the court admits evidence of prior claims, experts and witnesses can be prepared to address the prior claims in a way that minimizes any perceived wrongdoing. Counsel should also consider the possibility that any product design changes may be considered “subsequent remedial measures” and should plan any motions in limine accordingly.