Legal Memorandum: Admissibility of OSI Evidence in TX

Issue: What is the applicable law in Texas related to admission of OSI evidence in a products liability case?

Under Texas law, evidence of other similar incidents (OSI) may be admitted in a products-liability case subject to certain qualifications and restrictions, Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 138 (Tex. 2004); see Estate of Muniz v. Ford Motor Co., No. 04-12-00263-CV (Tex. App.–San Antonio June 12, 2013).  In Nissan, the Texas Supreme Court emphasized three principal qualifications.

First, “the other incidents must have occurred under reasonably similar (though not necessarily identical) conditions.”  Id.  “‘Reasonably similar circumstances generally means the same type of occurrence.'”  Penalver v. Living Ctrs. of Tex., Inc., No. 04–02–00920–CV (Tex. App.–San Antonio June 23, 2004, no pet.). 

The similarity predicate required does not necessarily demand demonstration of numerous similar facts.  See Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 341, n.7 (Tex. 1998).  As in several other jurisdictions around the country, similarity is gauged largely by the nature of the defect alleged.  Thus, “[t]o prove the proper predicate in a product defect case, the proponent of the evidence must establish that the defect that caused the other incidents was similar to the defect alleged in the case at hand.”  See Estate of Muniz, supra. 

“Second, evidence of similar incidents is inadmissible if it creates undue prejudice, confusion or delay.  Proof of what happened in a previous accident does not, without more, prove what happened in a current one.  Further, prolonged proof of what happened in other accidents cannot be used to distract a jury’s attention […]