Proving Up Other Similar Incidents or Claims After Cooper Tire

By
Lance A. Cooper
and
Scott B. Cooper

[ This article was first published in the April 2002 publication of the Product Liability Law Section of the State Bar of Georgia. ]

I. Introduction

In product liability actions, Georgia courts have long allowed the admission of other similar incidents or claims (“OSIs”) to prove various elements of a plaintiff’s case. OSIs are admissible and relevant to the issues of whether the subject product is defective, whether the manufacturer had notice or knowledge of the defect, and whether the manufacturer’s conduct in the face of this knowledge rises to the level of conscious indifference sufficient to support an award of punitive damages. 1 The manufacturer’s knowledge of a product’s dangerous propensities can also demonstrate a duty to warn. 2

The Georgia court have made it equally clear that other incidents or claims are only admissible if the party offering the evidence can show that these OSIs are “substantially similar” to the incident or claim at issue in the case. “Without a showing of substantial similarity, the evidence is irrelevant as a matter of law.” 3 The admissibility of this evidence then turns on the definition of substantially similar.

The Georgia Supreme Court last year addressed the issue of substantial similarity as it applies to product liability cases in Cooper Tire & Rubber Co. v. Crosby . 4 In Cooper Tire , the tread separated from the left rear tire on the Crosby’s Ford Bronco II. This caused Bobby Crosby to lose control of the vehicle, which ultimately rolled over, killing Bobby and seriously injuring his wife and daughter. 5

At trial, the plaintiff sought to introduce evidence of Cooper Tire ‘s adjustment statistics for the previous nine years at the plant where the accident tire was manufactured. 6 “Adjustments” are claims made by consumers that are honored by the manufacturer, and adjustment statistics usually show the total number of adjusted tires and the ratio of the number of tires adjusted to the number of tires manufactured.

The trial court excluded the Crosby’s adjustment evidence, and a defense verdict followed. The Court of Appeals reversed and remanded, holding that the trial court erred in excluding the adjustment statistics. The Supreme Court reversed the Court of Appeals on the ground that the plaintiff did not make the requisite “substantial similarity” showing with respect to the adjustment data. 7

II. The Cooper Tire Factors

In its opinion, the Court listed three deficiencies in plaintiff’s proof with respect to the adjustment data. According to the Court, plaintiff failed to meet the substantial similarity test because “the adjustment evidence was proffered at trial without any showing that: (1) Crosby’s tires and the adjusted tires shared a common design and manufacturing process; (2) suffered from a common defect; and (3) that any common defects shared the same causation.” 8 Based on these enumerated deficiencies, the Court held that the trial court had not abused its discretion in excluding the evidence from trial.

It is not clear whether the Court meant to establish these as new factors by which to analyze all future OSI evidence in product liability cases or whether it was simply citing to those factors as shortcomings specific to that case. 9 Nevertheless, based on the opinion, it would be prudent for all plaintiffs offering OSIs to marshal the evidence necessary to make these showings in preparation for the inevitable motion in limine to exclude the OSIs. According to the Cooper Tire language, the plaintiff should be prepared to show: – The product at issue in the case shares a common design and manufacturing process with the products involved in the other incidents or claims;
– The products suffered from a common defect; and
– Any common defects shared the same causation.
As with virtually all product liability claims, it will almost always be necessary to retain an expert witness to assist in making these showings to the trial court. Through either affidavits or, if necessary, live testimony, the expert can explain to the Court how the product in your case and those at issue in the OSI’s meet each similarity showing enumerated in Cooper Tire .

A. Common Design and Manufacturing Process

With respect to this first factor, it is important to note that the products do not have to be the same as long as the design and manufacturing processes are the same. A search for OSIs, therefore, should not be limited to the particular product that is at issue in your case. For instance, identical cars may be sold under different model names or even different brands. As another example, a single tire manufacturing plant will usually produce many different lines of tires, some or all of which may share common design and manufacturing processes. Lawyers pursuing product liability claims need to thoroughly investigate all potentially similar products and not focus on just the product that failed.

You can establish a common design and manufacturing process through a number of sources. Through written discovery, you can obtain documents and admissions about the design and manufacturing process, as well as what other products are made in a similar manner. You can also take 30(b)(6) corporate representative depositions of people familiar with the design and manufacture of the products at issue. If your case warrants it, an inspection of the manufacturing plant under Rule 34 often leads to helpful information. You should also conduct an independent investigation, which can include finding and interviewing ex-employees or others in the industry and reviewing the website of the manufacturer, which oftentimes reveals a surprising amount of information about the company and its products.

B. A Common Defect

The important word used in this second factor is “a” — the products must share “a” common defect. This is significant because the products being litigated are often complex, and plaintiffs will frequently assert multiple defects in support of their claims. The defense may try to capitalize on that fact and argue that the other products do not share all of the same defects alleged in the product at issue in the case. According to the opinion, the plaintiff need only show a single common defect among the various products to meet this element of substantial similarity.

Demonstrating this common defect requires thorough discovery and investigation of the type discussed above. With respect to design defect claims, establishing the first element (a common design) will usually satisfy the second. If you have evidence that the design of a product or one of its components is defective, and you can show that the other similar products share the same design, then you can argue you have shown a common defect. Claims based on a manufacturing defect are, by their nature, more specific to each product. If, however, you can uncover evidence of a pattern of shoddy manufacturing practices at a particular plant that would have affected all products produced there, you can go a long way toward proving the common manufacturing defect.

C. Any Common Defects Shared the Same Causation

This is perhaps the most important, and potentially misunderstood, aspect of the Court’s ruling. The Court found that Crosby failed to show “that any common defects shared the same causation.” 10 In other words, the analysis is not whether the defect caused the other incident (the product failure or the accident). The similarity of causation required by Cooper Tire is focused instead on the defects .

Tire tread separations provide a good illustration of this distinction. Defects in tires can and do cause tread separations, and tread separations can and do cause accidents. In order to offer other similar tires into evidence, however, you do not need to prove that the defects in those tires actually caused a tread separation or an accident. Under Cooper Tire , you only need to show that those other tires had a common defect as the subject tire and that the common defect shared the same causation. In other words, whether the defect was caused by the same design or manufacturing deficiency.

This analysis is consistent with the purposes for admitting OSIs – to prove a defect and the manufacturer’s knowledge of the defect. It is not necessary that the defect in the other similar tires actually causes an “incident.” The relevant facts are that the defect exists and the manufacturer knows of it. Suppose, for example, that a tire is brought back to the manufacturer, and the manufacturer determines that the tire had begun to separate internally, but that internal separation had not yet caused an actual tread separation or accident. Under Cooper Tire , that other similar tire is still admissible because it provides evidence of a common defect and the manufacturer’s knowledge of that defect.

As for proving the shared causation, that will again be the result of investigation, discovery, and consultation with your expert witness. As with the common defect, however, once you are able to prove a common design process, you have gone a long way towards proving shared causation.

III. Cooper Tire Applies to All Statistical Evidence

The increased burdens imposed by Cooper Tire are generally seen as making it more difficult for plaintiffs to present other similar incidents or claims at trial. The underlying reasoning of the case, however, applies equally to defense evidence. For example, the defense in a products case will oftentimes offer statistical evidence to show that its product performs better, or at least no worse than, comparable products in the marketplace. Although all of the Cooper Tire factors may not apply to every case, statistical evidence offered to defend a product should be put through no less scrutiny than comparable statistical evidence being offered by the plaintiff. This should not only alert defense counsel to be prepared to defend their statistical evidence on substantial similarity grounds, it should also remind plaintiff’s counsel to challenge defense statistical evidence on this often overlooked theory.

IV. Conclusion

Many people, including the dissenting justices, have read Cooper Tire as imposing a higher standard for the admissibility of similar occurrences in product liability actions. 11 Time will tell how rigorously the Cooper Tire factors will be applied outside of the tire adjustment context. 12 Nevertheless, even if those factors are strictly applied in other product liability cases, the burdens are by no means insurmountable. 13 With a thorough investigation, exhaustive discovery, and an organized presentation to the trial court, the party offering the evidence can meet these standards and use this powerful evidence at trial.

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