Admissibility of Other Similar Incidents in Civil Litigation

, Texas Lawyer


In civil litigation in state courts in Texas, evidence of other similar incidents (OSIs) generally is admissible if three things are true: The OSIs occurred under "reasonably similar," though not necessarily identical, conditions to the incident at issue; the evidence does not create undue prejudice, confusion or delay; and the evidence is relevant. Trial courts also may admit evidence of OSIs under other circumstances, depending upon the purpose for which the OSIs are offered, but that is a topic for another day.

Litigants fight most OSI battles on two issues: whether the requisite degree of similarity exists between the previous incidents and the incident being litigated, and whether the probative value of the previous incidents substantially outweighs the danger of unfair prejudice, as required by Texas Rule of Evidence 403.

The OSIs need only be "reasonably similar" to the incident at issue, not identical. In Henry v. Mrs. Baird's Bakery (1971), the 2nd Court of Appeals in Fort Worth Court defined "similar" as "resembling or having a general likeness." In Mitchell v. Fruehauf Corp. (1978), the 5th U.S. Circuit Court of Appeals, applying Texas law, observed that "the requisite degree of similarity plainly is not very high." In In Re Exmark Manufacturing Co. (2009), a products liability case, the 13th Court of Appeals in Corpus Christi noted that any differences among the products in OSIs "may merely go to the weight of the evidence and not its discoverability or admissibility."

How do courts resolve disputes over what kinds of occurrences meet these definitions of "similar"? In Missouri-Pacific Railroad Co. v. Cooper (1978), a railroad-crossing case involving a deadly collision in dark and foggy conditions, the Texas Supreme Court found that the plaintiffs did not establish the proper predicate for the admissibility of evidence of 1. a previous collision in daytime conditions and 2. a previous collision in unspecified conditions, because the plaintiffs failed to show that either previous collision occurred under similar circumstances to the collision at issue.

Litigators must parse how similar the incidents must be for a judge to find them similar enough. In Uniroyal Goodrich Tire Co. v. Martinez (1998), a mechanic and his family sued Goodrich after the mechanic was injured while mounting a 16-inch Goodrich tire on a 16.5-inch rim. Goodrich appealed the trial court's admission of evidence of 34 other lawsuits against Goodrich involving mismatched tires. Goodrich's primary complaint was that 33 of the 34 previous lawsuits, unlike the lawsuit at issue, involved tires without pictographic warnings. The Texas Supreme Court rejected this argument, reasoning that the absence of pictographic warnings on tires did not render the suits so dissimilar as to prevent their admission, but merely went to the weight of the evidence.

OSIs are useful for a range of purposes. In Nissan Motor Co. Ltd v. Armstrong (2004), an unintended-acceleration case, the Texas Supreme Court stated that evidence of OSIs in products liability cases may be relevant to show that a product was unreasonably dangerous, a warning should have been given, a safer design was available, or a manufacturer was consciously indifferent toward accidents in a claim for exemplary damages. The court nevertheless held inadmissible complaints, narrative reports and testimony regarding the unintended acceleration of other Nissan vehicles, because there was nothing to suggest that the cause of the acceleration in the excluded incidents was similar to the cause of the acceleration in the incident at issue.

Courts closely scrutinize each relevant element of proposed OSIs. In Service Corp. International v. Guerra (2011), a cemetery moved the decedent's body from one cemetery plot to another without the plaintiffs' permission. The Texas Supreme Court held that the OSI evidence of other lawsuits, verdicts and judgments against the subsidiary corporation relating to the double sale of cemetery plots was improperly admitted, because the OSIs occurred at different cemeteries than the cemetery at issue, and there was no evidence that any of the same employees were involved in the other incidents or that the OSIs occurred under the same or similar circumstances as the incident at issue.

Establishing or thwarting admissibility of OSIs may call for expert testimony. U-Haul International v. Waldrip (2012) involved a man who was injured when his rented U-Haul truck rolled backwards onto him, allegedly due to problems with the truck's parking brake and transmission. The accident happened in Texas, but the plaintiffs offered testimony from a safety advocate about deficiencies in U-Haul's safety practices in Canada. The plaintiffs argued that the evidence was relevant on the issue of the condition of the entire fleet, including the truck at issue, and that the evidence was relevant on the issue of U-Haul's indifference to the "system-wide failures of its maintenance and inspection program."

The Texas Supreme Court, however, found that the safety advocate's testimony should have been excluded, because there was no evidence that the Canadian trucks were the same or similar to the plaintiff's truck, no evidence that the Canadian trucks were subject to the same or similar maintenance requirements as the plaintiff's truck, and no evidence that problems with the Canadian trucks were caused by issues with the parking brakes or transmissions, as opposed to by other issues.

Prejudicial or Probative?

Texas Rule of Evidence 403 allows courts to exclude relevant evidence if the "danger of unfair prejudice" substantially outweighs the relevance of such evidence. John Deere Co. v. May (1989) was a products liability case involving a bulldozer that killed the plaintiff when it backed over him. In that case, Waco's 10th Court of Appeals conducted an extensive discussion of the prejudicial nature of OSIs.

The court began by noting that the relevance of such evidence can be "extraordinarily high" because "[p]roving one hundred other occurrences, rather than thirty-four, only would have increased the probability that the [decedent's] death would have occurred as the plaintiffs alleged." Although evidence of OSIs can be "extremely harmful," the evidence should not be excluded "just because it may prejudice the opposing party before the fact-finder."

The May court found that the trial court "effectively removed or diluted" the prejudicial effect of the OSI evidence by instructing the jury that it was to consider the evidence only on the issue of notice to John Deere of a potential problem with the bulldozer, and not on the issue of whether the bulldozer was defective.

Parties seeking to admit OSI evidence in Texas generally face two surmountable hurdles: showing that the OSIs are "reasonably similar" to the incident they're litigating, and showing that any prejudice from the OSIs is not "substantially outweighed" by the probative value of the evidence.

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