# Tansy v. Dacomed Corp. > Supreme Court of Oklahoma · December 20, 1994 · 65 O.B.A.J. 4192 URL: https://www.frixlaw.com/law-library/cases/9794112 ## Case - **Full name:** Robert TANSY, Appellant, v. DACOMED CORPORATION, Appellee - **Court:** Supreme Court of Oklahoma - **Decided:** December 20, 1994 - **Citations:** 65 O.B.A.J. 4192; 890 P.2d 881; 1994 OK 146; 1994 Okla. LEXIS 166; 1994 WL 705473 - **Precedential status:** Published - **Opinion:** Concurring in part by Simms - **Judges:** Summers, Ala, Lavender, Hargrave, Opala, Wilson, Watt, Hodges, Kauger, Simms - **Cited by:** 43 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9794112 ## How later opinions describe it (automated extraction) - noting that comment k could be raised as an affirmative defense where a medical device was incapable of being made safe but its societal benefit warranted its production - observing that “inadequate warmings” can render a product defective - observing that “inadequate warnings” can render a product defective ## Opinion text SIMMS, Justice, concurring in part, dissenting in part: I respectfully dissent to that portion of the majority opinion dealing with evidence of previous implantations by the doctor being admissible as character evidence. I fear the majority opinion may be misleading as Dr. Barnes’s character is not an issue in this case. Neither is his propensity to err while implanting prosthetic devices. The witness’s testimony has to be judged by the standard of relevance set out in section § 2401. I believe that the questioned testimony was, at best, barely relevant. Tansy has not shown any prejudice resulting from its admission, however, and for that sole reason the trial court’s ruling should be affirmed. The majority’s treatment of this question appears certain to cause confusion in later decisions involving evidentiary rulings, as it unnecessarily discusses issues which are not presented by the facts of this case. *891 Title 12 O.S.1991 § 2404 provides that evidence of a person’s character is not admissible in evidence except when a criminal defendant puts his character in issue; as evidence by an accused in a criminal case, or by the prosecution to show either aggressiveness or peacefulness of a victim of a crime on the question of who was the aggressor. Sections 2607 and 2608 deal with attacking the credibility of a witness through character evidence. Section 2609 addresses the impeachment of a witness by evidence of conviction of crime. The last three mentioned sections of the evidence code are referred to in § 2404(A)(3). As the majority acknowledges, there is no civil case, as distinguished from criminal case, in Oklahoma dealing with prior activities of a party or a witness under the rubric of “character evidence”. From an evidentiary standpoint, what we deal with in this case is the question of admissibility of other acts of a person as imputing knowledge. This type of evidence is admissible under § 2404(B) of the evidence code. Section B clearly states that this evidence is not admissible to prove character, but may be admitted to establish, inter alia, knowledge of, or absence of, mistake or accident. Admissibility of prior acts, as addressed by our Evidence Code, is neither new nor novel to Oklahoma jurisprudence. In Kurn v. Radencic, 193 Okla. 126 , 141 P.2d 680 (1943) this Court recognized that it is the general rule that proof of “an act charged against a person may not be proved by showing a like previous act to have been committed by the same person.” (Citations Omitted) However, the court went on to point out that there are many instances where proof of acts or similar misconduct is permitted because such evidence may have a bearing on some phase of the case. In concluding that such evidence had a bearing" on the issue of knowledge, the -court stated: “Thus in each class of cases when the question of inquiry into collateral matters is presented and it is sought to establish a rule, opposing considerations must be weighed and the value of the proposed evidence on the issue or phase of issue must be weighed against the normal objections that arise in connection therewith. A certain amount of discretion may be and is, in some instances and respects, vested in trial tribunals”. Id. 141 P.2d at 582 . In Kum, evidence of other acts was admitted under a cautionary admonition by the trial judge to the jury. For example, in Hackbarb v. Cincinnati Bengals Inc, and Charles “Booby” Clark, (10th Cir.1979) 601 F.2d 516 , the Tenth Circuit in addressing other violent acts by football players, observed at Id. at P. 525, “The other aspect, namely the proof of character of the plaintiff by production of prior acts, would be admissible only if his character was an issue in the case. Unless the plaintiff was shown to have been an unlawful aggressor in the immediate incident, his'prior acts could not be relevant. The indications from the picture of the action here are that he threw a body block and after the lapse of * * * a short period of time, the blow was struck while Haekbart was down on his knee watching the action. Therefore, this evidence would appear to be questionable if not irrelevant.” (Emphasis added) The majority opinion misinterprets this dissenting in part writing. We do not say the evidence code is inapplicable to the questioned evidence in this case. We simply point out that § 2404 addresses two separate types of evidence. Subsection A deals with the admissibility of character evidence, while Subsection B addresses the subject of evidence of “other acts”. These are separate and distinct types of evidence. The cases cited by the majority in footnote 3 of its opinion do not support the conclusion that evidence of “other acts” is admissible as evidence of “character”. Lee v. Hodge, supra, the Arizona case, addresses the admissibility of evidence of other acts of damage to customers cars while being repaired in defendant’s shop. Boettcher & Co. v. Munson, supra, dealt with other acts committed in defendant’s course of business as bearing on the intent to defraud an investor. This was discussed under the provisions of our § 2404(B). Jay Edwards, Inc. v. New England Toyota Distrib., Inc., supra, also presents the question of prior acts of a defendant to show retaliatory practices per our § 2404(B). In Crowston v. Goodyear Tire & Rubber, supra, the court permitted evidence of a per *892 sonality disorder which would bear on a plaintiffs ability to read a warning, but the court specifically excluded character evidence. Also, in the Tenth Circuit case of Eaves v. Penn, supra, evidence of other allegedly improper acts were properly admitted as proving motive, opportunity or intent. We do not urge, as the majority implies, that evidence of other acts are never admissible in a civil action. Dr. Barnes’s character is not at issue. The majority’s failure to distinguish between evidence of other acts which might bear on the issue of knowledge and “character evidence” is ill advised. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9794112. Public record. Not legal advice.