Other Similar Incidents, or OSI’s, are an essential part of discovery in many types of cases. While lawyers typically think of OSI’s in product liability cases (cases where a consumer device injures a person), OSI discovery is important in medical malpractice cases and other negligence lawsuits.
Plaintiff counsel will have to learn more about each incident to determine if the OSIs are admissible at trial. Evidence of similar incidents may be relevant to prove the defendant’s notice of defects, the defendant’s ability to correct known defects, the magnitude of the danger, the product’s lack of safety for intended uses, or causation. Lovett v. Union Pacific R. Co., 201 F.3d 1074, 1081 (8th Cir. 2000). However, before the evidence is admissible, plaintiffs must show that the facts and circumstances of the other incidents are “substantially similar” to the case at bar. Torbit v. Ryder System, Inc., 416 F.3d 898, 903 (8th Cir. 2005).
Examples of this discovery includes
- Identifying other complaints from consumers
- Identifying other suits brought against the defendant
- Looking at OSI’s both before and after the plaintiff’s injury
Experienced counsel knows that while limiting discovery to the same or similar products and relevant time frame are required under the rules, that the discovery of the OSI’s based on if the information is admissible at trial, just that the discovery could lead to the discovery of admissible evidence. Noting that distinction, conducting research on the product prior to filing written discovery and aggressively pursing written discovery is often the key to victory.