Diligent, proactive tracking of accidents or product failures resulting in personal injury can provide significant benefits to manufacturers in defending product liability claims. The manner in which a manufacturer seeks out and retains information about accidents involving its products can also provide the foundation for compelling evidence of a product’s safety by demonstrating the rarity of injuries actually occurring “in the field” while using the product in the manner intended.
Although it may seem counter-intuitive, the greater efforts a manufacturer makes to track accidents involving its products and to retain reasonably detailed records of these incidents in an organized database, the more likely it is that these efforts will benefit the manufacturer in the event it issued in a product liability lawsuit. Tracking accidents is important because, under the law of most jurisdictions, in order to establish the absence of other similar incidents, the manufacturer must show that had other incidents occurred, it would have likely been aware of them. The level of detail and the degree to which incidents are deemed significant will vary depending on the product, but from a product liability perspective, any incident that involves personal injury or substantial property damage should probably be recorded in a database.
Tracking significant product-related incidents can also be an important tool for a manufacturer to analyze trends in the occurrence of accidents or malfunctions. In the event it appears consumers are being injured in a certain manner or while using the product in a manner not anticipated, this information can be used as a basis for improving product design from both a technical and safety perspective.
And while it is true that this information can be a double-edged sword when required to be disclosed in litigation, in most cases the benefits of diligent record-keeping, if acted upon responsibly, significantly outweigh the potential risks. The number of truly similar accidents should be insignificant as compared to the number of products in the marketplace and the number of hours they have been used.
Just as plaintiffs must establish the similarity of other incidents in order for the evidence to be admitted as relevant, a manufacturer must establish the relevance of the absence of other incidents. While each jurisdiction has its own standards for the admission of evidence, courts examining this issue have generally ruled that if a sufficient foundation is established, evidence showing the lack of prior accidents involving the product at issue can be relevant to the issues of product defect, intended use, and causation.
Evidence concerning the absence of other similar accidents is admissible if the manufacturer can establish the requisite foundation. For those jurisdictions which allow the introduction of such evidence, the standard for its admission is generally similar: The manufacturer must maintain a comprehensive incident reporting system.
For example, in Spino v. John S. Tilley Ladder Co.,, the Pennsylvania Supreme Court set forth two requirements for the introduction of lack of prior claims testimony: (1) the evidence must be relevant to the issue of causation, and (2) the offering party must lay a proper foundation. The Court held that in determining whether a proper foundation has been laid, a trial court must determine whether the offering party has established that “they would have known about the prior, substantially similar accidents involving the product at issue.” The manufacturer must be able to present evidence that it is likely to have known about prior accidents had occurred.
Conversely, in Forrest v. Beloit Corporation, the court concluded that it was reversible error to admit testimony regarding the absence of prior accidents where the offering party kept no records regarding other accidents involving the product at issue in the decades prior to the plaintiff’s accident.
The law does not require a manufacturer to establish that it has knowledge of every accident involving one of its products or that is learned of accidents immediately following their occurrence. The standard is generally satisfied when a manufacturer can put forward sufficient facts to demonstrate that it tracks and monitors incidents involving its product and affirmatively seeks out such information.
It is therefore wise for manufacturers to proactively seek out incident information from all reasonably available sources. These sources can include dealer or distributor networks, an incident reporting hotline, systematic Internet searches, media coverage, and lawsuits and other claims information. Employees should also be encouraged to let management know of incidents they hear about. Once an incident is entered into the database, it should be kept forever and never be destroyed.
These steps will provide the foundation by which testimony about the absence of prior similar accidents may be admitted.