Harman v. Honeywell Int’l, Inc., No. 130627 in the Virginia Supreme Court, are consolidated wrongful death appeals arising out of product liability lawsuits for a private plane crash in Chesterfield County, Virginia. The second issue covered by Mr. Waterman in his Reply Brief Amicus Curiae of Virginia Trial Lawyers in Support of Appellants is “absence of other incidents” evidence.
The Virginia Supreme Court long has prohibited all use of “absence of other incidents” evidence. “It is firmly established that evidence of the absence of other injuries is not admissible…when timely objection is made,” regardless “whether the action lies in negligence or implied warranty.” Goins v. Wendy’s Int’l, Inc., 242 Va. 333, 335 (1991)(emphasis in original). Wood v. Woolfolk Properties, Inc., 258 Va. 133, 138 (1999); Sanitary Grocery Co., Inc. v. Steinbrecher, 183 Va. 495, 499-500 (1945).
Virginia’s doctrine recognizes that other incidents may go undiscovered, unreported, unrecorded, misattributed, unacknowledged, etc.; and thereby are problematical, irrelevant, prejudicial. “Indeed, a departure from the rule would interject evidence so problematical, due to the potential for lack of reporting, and the variables of circumstances and conditions, that such evidence would have slight, if any, relevancy or probative value.” Goins, 242 Va. at 335-336. Wood, 258 Va. at 138.
The Virginia Supreme Court’s salutary rule against Defendants admitting “absence of prior incidents” is the mirror-image of its rule against Plaintiffs admitting “fact of prior incidents” as evidence substantively to prove or corroborate negligence, breach of warranty and/or causation in a product liability case. E.g., Stottlemyer v. Ghramm, 268 Va. 7, 12 (2004); Jones v. Ford Motor Co., 263 Va. 237, 255 (2002). Thus, the public policy ends of fundamental fairness and consistency mandate that Defendants cannot disprove breach and/or causation by “absence of prior incidents” evidence, since Plaintiffs cannot prove either with “facts of prior incidents”.
In addition to litigation practicalities and equities, public policy in the interest of safety also demands that Plaintiffs not have to disprove defense claims of “absence of prior incidents,” and that the public at large not have to suffer multiple widely-known injuries and deaths under substantially similar circumstances before a product unreasonably dangerous to normal use in fact can be found dangerous. There always must be a “first case;” Plaintiffs having to disprove the manufacturers’ claimed negatives is too expensive, time-consuming, and otherwise burdensome and possibly futile; and there is no minimum quantum of public casualties required to reach a critical evidentiary mass to maintain a product defect case.
When Defendants violate the rule against absence of other incidents evidence, Virginia law and public policy hold that the judge must take corrective action, such as a curative instruction; instead of increasing the prejudicial impact by condonation and apparent judicial approval. Velocity Express Mid-Atlantic v. Hugen, 266 Va. 188, 201 (2003). It is unsound, inequitable, and insufficient that victim Plaintiffs by their mere protests be expected to overcome, or (worse) even be deemed to have waived, the prejudice of Defendants and the weight of judiciary.
“Such evidence introduces into the trial collateral issues, remote to the issue at trial, which would tend to distract, mislead, and confuse the jury.” Goins, 242 Va. at 335. Wood, 258 Va. at 138 (“we are unable to say that it did not confuse or mislead the jury”). Further, the “probably prejudicial impact of this argument is significant because the improper argument focused on the central dispute”. Velocity Express, 266 Va. at 201.
“The circuit court refused to take any corrective action to eliminate the adverse prejudicial effect on the jury of [Defendant’s] improper argument,” observed the Virginia Supreme Court in Velocity Express, before finding prejudice, reversing and remanding. “Based on the record before the Court, we conclude that the probability of prejudice upon the jury…was increased by the apparent approval given by the circuit court because of that court’s refusal to take corrective action.” Id. (reversed and remanded for new trial). Reid v. Baumgardner, 217 Va. 769, 774 (1977)(same).