Legal Memorandum: Admissibility of Other Similar Incidents

Issue: What authority supports the proposition that OSIs (Other Similar Incidents) are admissible if they are substantially similar from the standpoint of the defect?

Area of Law: Personal Injury & Negligence
Keywords: Other Similar Incidents (OSI); Admissible evidence; Defective product
Jurisdiction: Federal, Minnesota
Cited Cases: None
Cited Statutes: None
Date: 10/01/2010

It is well-settled that evidence of other accidents is admissible, even though other models, sizes, weights or even other manufacturers’ products are involved, and even where the various accidents originated or unfolded in varying ways, as long as the alleged defect itself is substantially similar. 

Smith v. Ingersoll-Rand Co., 214 F.3d 1235 (10th Cir. 2000).  This products-liability case involved a milling machine where the defect alleged was that the machine lacked mirrors and without them the machine had blind spots that prevented the operator from seeing certain nearby workers.  The trial court admitted evidence of prior incidents which involved milling machines where blind spots allegedly contributed to the operator striking nearby workers even though the earlier accidents involved many different circumstances, including different machine sizes and even different manufacturers.  On appeal, the Tenth Circuit upheld the admission of such OSIs because, “[t]he rule requires substantial similarity among the variables relevant to plaintiff’s theory of the defect.”  214 F.3d at 1248 (emphasis added).  The court explained:

Although the milling machines are of different sizes, and thus their blind spots are not identical, they are substantially similar when viewed from the standpoint of this allegation of defect.


. . .

Similarity of circumstances is, like similarity of the product, viewpoint dependent. . . .  We select the appropriate viewpoint by reference to the plaintiff’s theory of the defect.  In this case, plaintiff’s theory regarding lack of visibility is broad enough to encompass all six incidents.


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