By Stephen R. Bough & Brett A. Emison
Product liability cases in the State of Missouri are faced with a plethora of traps for the unwary. From discovery to admissibility of evidence at trial, Missouri practitioners who work in the area of product liability must be cognizant of several areas. Three of these issues will be addressed in this article.
I. Admissibility of Seat Belt Use
One area of product liability involves automotive manufacturers. Manufacturers are required by Federal Motor Vehicle Safety Standards and by common law to design vehicles which are “crashworthy” or which are designed to allow an occupant to safety survive a wreck. An issue which often arises in these cases is the admissibility of seat belt testimony. Missouri Revised Statute 307.178 states, In any action to recover damages arising out of the ownership, common maintenance or operation of a motor vehicle, failure to wear a safety belt in violation of this section shall not be considered evidence of comparative negligence. Failure to wear a safety belt in violation of this section may be admitted to mitigate damages, but only under the following circumstances: (1) parties seeking to introduce evidence of the failure to wear a safety belt in violation of the section must first introduce expert evidence proving that a failure to wear a safety belt contributed to the injuries claimed by plaintiff; (2) if the evidence supports such a finding, the trier of fact may find that the plaintiff’s failure to wear a safety belt in violation of this section contributed to the plaintiff’s claimed injuries, and may reduce the amount of the plaintiff’s recovery by any amount not to exceed 1% of the damages awarded after any reduction for comparative negligence.
It is important to note that this statute puts the burden of proof on the defendant to introduce expert evidence where the failure to wear a safety belt contributed to the injuries claimed by the plaintiff. Even if testimony is provided, the jury can only reduce the damages by 1%. Some have argued that if a trial court ever decides to admit this type of evidence, that if the plaintiff would simply make an offer to reduce the award by 1%, then the seat belt evidence is not probative of any fact at issue in the case.
II. Scope of Discovery
Another issue which often arises in products liability cases is the scope of discovery which may be conducted in any given matter. Plaintiffs typically desire to seek discovery on earlier models of the product to determine if the same issues regarding a potential defect have arisen, as well as seeking discovery on newer versions of the product to determine if the problem still exists or whether any changes have been made.
Missouri Rule of Evidence 56.01(b) governs the scope of discovery and states that parties are able to obtain discovery regarding any matter which is relevant to the subject matter of the pending litigation. Admissibility is not a proper objection and Rule 56.01(b) is identical to the language of Federal Rule 26(b)(1). “Subject matter” is to be broadly construed. Creighton v. Jackson, 879 S.W.2d 639 (Mo.Ct.App. 1994).
In the case of Herman v. Andrews, 50 S.W.3d 836 (Mo.Ct.App. 2001), the Eastern District Court of Appeals dealt with several discovery issues related to a BB pellet/air rifle. The plaintiff in that case requested discovery on substantially similar products, and the trial court limited the request to only identical models. The trial court also limited the scope of discovery to four years of manufacturing, rather than the ten years requested by plaintiffs. The Court of Appeals held that, “We find that plaintiffs’ request to substantially similar product types for the ten year period of time from the date of service of the request was not overbroad, unduly burdensome, or oppressive.” Counsel for both plaintiffs and defendants should pay close attention to the Herman decision as it gives excellent pointers on the proper scope of discovery.
III. Other Similar Incidents
Evidence of other similar incidents are often admissible to establish several key legal elements of a products liability claim. Other similar incidents, or OSIs, may be admitted at trial to prove the existence and nature of the defect, to establish that the defect caused the injury, to demonstrate notice on the part of defendant of the dangerous condition, to impeach the testimony of adverse witnesses, and to prove conscious disregard for the safety of consumers. The Court of Appeals in Herman only briefly addressed the issue of other similar incidents. As a general proposition, other similar incidents must be “substantially similar.”
The Missouri Supreme Court in Alcorn v. Union Pacific Railroad Company, 50 S.W.3d 226 (Mo.Banc. 2001) has set forth the Missouri standard for other similar incidents. “The trial court must satisfy itself that the evidence was relevant and that the evidence of such occurrences sufficiently resembled the injury-causing incident. The trial court must weigh the possibility of undue prejudice of confusion of issues.” The Court went on to state that “previous incidents need only be such as to call defendant’s attention to the dangerous situation.”
The discovery of other similar incidents is often the source of much debate between plaintiff and defense counsel. However, the Supreme Court’s ruling in Alcorn gives clear direction on how a trial court should rule on this issue. As a hypothetical, consider an automotive manufacturer who sold and designed three similar sport utility vehicles. Plaintiff is injured in a rollover in one model of that sport utility vehicle. Plaintiff will most likely seek discovery on other rollovers on all three sport utility vehicles. Under the Supreme Court’s ruling in Alcorn, rollovers in any vehicle would “call defendant’s attention to the dangerous situation” and should be discoverable and admissible at trial.
These are only a sample of the countless issues which arise in products liability cases. These complicated legal and factual issues make practicing in this area of the law enjoyable for both plaintiff and defense counsel.
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