Legal Memorandum: OSI Evidence in a Tort Action in MO

Issue: Under Missouri law, may a plaintiff seek evidence in its requests for production (RFP) regarding ‘other similar incidents’ (‘OSI’) in a tort action?

Evidence of other similar incidents (OSI) is highly relevant for multiple purposes, including inter alia, establishing a dangerous or defective condition; showing that a defendant had notice of the risk and of potential solutions to reduce or eliminate the risk; and showing that the dangerous or defective condition could have been substantially reduced or eliminated without impairing the usefulness of the product or making it unduly expensive.  See Pierce v. Platte–Clay Elec. Co-op., Inc., 769 S.W.2d 769, 775 (Mo. banc 1989); Stokes v. Nat’l Presto Indus., Inc., 168 S.W.3d 481, 485-86 (Mo. App. W.D. 2005); Herman v. Andrews, 50 S.W.3d 836 (Mo. App. E.D. 2001); Doyle v. St. Louis–San Francisco Ry. Co., 571 S.W.2d 717 (Mo. Ct. App. 1978). 

To be within the scope of discovery under modern Missouri law, OSI evidence need not involve the identical model product; instead, to be “sufficiently similar” for discovery purposes the evidence must only involve incidents that are, “(1) of like character, (2) occur under substantially the same circumstances, and (3) result from the same cause.”  Stokes v. Nat’l Presto Indus., Inc., 168 S.W.3d at 484.  

Sixteen years after the Missouri Court of Appeals issued its decision in State ex rel. Kawasaki Motors Corp., U.S.A. v. Ryan, 777 S.W.2d 247 (Mo. App. E.D. 1989), it issued a more modern interpretation that expressly held that to be admissible or discoverable, there is no requirement that the model product involved be identical to the […]