Defense Digest

Superior Court Decides Expert Studies Do Not Meet Substantial Similarity Test

One of the most difficult tasks for a product defendant is to deal with the issue of other accidents allegedly similar to the accident involved in the particular case under defense. The admission of such an accident into evidence can sway a jury to conclude the product is defective, or worse. A panel of the Superior Court of Pennsylvania has decided unanimously that studies summarizing hundreds of trucking accidents were not admissible against the manufacturer of an allegedly defective truck to prove the existence of a defect, notice of a defect, or the manufacturer's state of mind for punitive damage purposes. Hutchinson v. Penske Truck Leasing Co., 2005 Pa. Super. 179 (May 17, 2005, Pa. Super.).

The case arose from a March 1, 1999, accident where Ryan Hutchinson was driving an 18-wheel tractor trailer combination. Freightliner, LLC manufactured the tractor Hutchinson overturned on a ramp connecting two highways. Hutchinson lost his arm as a result. He claimed this occurred as a result of a faulty cruise control and that the cab of the truck was not crashworthy. Hutchinson prevailed at trial in Philadelphia County on both compensatory and punitive damage claims. The punitive damage claims were dismissed at the trial level on post-trial motions for lack of evidence.

At trial, the court permitted the plaintiff's experts to introduce reports of three studies performed for the National Highway Traffic Safety Administration, the University of Michigan Transportation Research Institute, and the Society of Automotive Engineers regarding heavy truck crashworthiness. Each report provided conclusions and detailed analyses from review of hundreds of other trucking accidents. The plaintiff asserted these reports supported his claim that the truck was not crashworthy. Freightliner objected, asserting that the evidence did not meet the substantial similarity test required to admit evidence of other accidents. This test requires the party seeking to admit evidence of other accidents to prove a substantial similarity in the equipment and the circumstances between the other accidents and the accident at issue.

The trial court ruled that, even though the accidents described within these reports were not substantially similar to the facts of Hutchinson's case to meet the test, the reports were admissible to prove Freightliner's "state of mind" in support of plaintiff's punitive damage claim.

The Superior Court agreed with Freightliner. Under Pennsylvania law, evidence of other incidents is admissible to prove the existence of a defect or notice of a defect. However, the proponent of the evidence must prove that it passes the substantial similarity test. The Superior Court held that these reports did not pass that test. The plaintiff did not prove a substantial similarity between the accidents described in those reports and the accident at issue. Therefore, those accidents were not relevant to Hutchinson's accident and not admissible. Furthermore, the Superior Court held that "state of mind" is nothing more than notice. Categorizing the other accident evidence as "state of mind" evidence does not salvage otherwise dissimilar accidents from inadmissibility. The court also concluded that the admission of evidence was so prejudicial that a new trial was required.

From the practitioner's perspective, it is important to conduct discovery to determine what other incidents the plaintiff intends to seek to admit in evidence. Examine carefully the issue of substantial similarity between those incidents and the case at issue. Focus on the equipment involved and the circumstances of the incident. Determine whether those other incidents are relevant to the issue of defect or notice with regard to the product being defended.

*Keith is a shareholder and Chair of the Product Liability Practice Group and can be reached in our Philadelphia office at 215-575-2640 or at kheinold@mdwcg.com.