finding that a new trial was warranted because the jury used impeachment evidence to decide main issue in case
How later courts described this case
- finding that a new trial was warranted because the jury used impeachment evidence to decide main issue in case
- applying the holding in Maggio to closing arguments
Written by the judges who cited it.
The opinion
Holmes, J.,
concurring in judgment. In a products liability case, the matter of prior safety history, inclusive of prior accidents, or absence of prior accidents, relating to a certain product should be admissible if emphasis is placed upon and shown that all such evidence pertains to a similar product. McKinnon v. Skil Corp. (C.A. 1, 1981), 638 F. 2d 270 ; Wojciechowski v. Long-Airdox Div. of Marmon Group, Inc. (C.A. 3, 1973), 488 F. 2d 1111 ; Hoppe v. Midwest Conveyor Co. (C.A. 8, 1973), 485 F. 2d 1196 ; Sturm v. Clark Equipment Co. (W.D. Mo. 1982), 547 F. Supp. 144 ; Caldwell v. Yamaha Motor Co., Ltd. (Wyo. 1982), 648 P. 2d 519 ; Reiger v. Toby Enterprises (1980), 45 Ore. App. 679 , 609 P. 2d 402 . See, also, McCormick, Evidence (3 Ed. Cleary Ed. 1984) 591-592, Other Accidents and Injuries, Section 200, wherein it is stated:
“* * * However, the possibility that a very general safety record may obscure the influence of an important factor merely counsels for applying the traditional requirement of substantial similarity to evidence of the absence as well as the presence of other accidents. When the experience sought to be proved is so extensive as to be sure to include an adequate number of similar situations, the similarity requirement should be considered satisfied.
((* * *
“Consequently, few recent decisions can be found applying a general rule of exclusion. A large number of cases recognize that lack of other accidents may be admissible to show (1) absence of the defect or condition alleged, (2) the lack of a causal relationship between the injury and the defect or condition charged, (3) the nonexistence of an unduly dangerous situation, or (4) want of knowledge (or of grounds to realize) the danger.”
Here, the trial court excluded evidence relating to the prior safety history of Caterpillar’s sideboom tractor other than for purposes of im *350 peachment of expert testimony. In my view, there should have been no such exclusion. However, appellant did not appeal such issue to the court of appeals, but only addressed the issue of the alleged improper argument by counsel relating to the safety history. There was no direct evidence by either party on the safety history of the product, and the only reference to such was by way of cross-examination where both parties exacted a modicum of commentary concerning the prior safety history of the equipment — neither commentary being sufficient in my view to support either the presence or the absence of a propensity for accidents of such machine.
I believe this to be a very close case when one measures the specific language of counsel’s closing argument as against what was adduced upon cross-examination of the experts of the parties. However, I conclude, as did Judge Stephenson of the court of appeals, that under the circumstances the jury should not have been allowed to draw inferences from the nonproduction of evidence by the opponent. The appellant should have adduced its own direct evidence upon the prior safety history of the product.
Accordingly, I would affirm the judgment of the court of appeals.
W. Brown, J., concurs in the foregoing opinion.