Customer Complaints Not Enough to Infer a
Product Defect (continued from page 1)
The Texas Supreme Court first addressed the trial court’s admission of evidence of similar accidents. The Court had previously addressed this question some years ago in cases involving evidence of other accidents offered to show a railroad crossing was extra hazardous (therefore requiring additional warnings). The Court found that proof of other accidents may show a crossing is extra- hazardous and may be introduced to show a product is unreasonably dangerous. However, the Court noted several restrictions. the database contained reports received by Nissan. Some reports attributed unintended acceleration to a particular cause, and others did not; but none pointed to the throttle cable. More than 200 of the complaints involved cars that did not even have the allegedly defective throttle mechanism. Complaint letters in a manufacturer’s files may be true, but they may also be accusatory and self-serving; are rarely under oath and never subject to cross-examination. Further, they are out-of- court statements, which are hearsay if offered to prove the truth of the assertions therein-that incidents complained of occurred as reported. While they might constitute a business record that such claims were (or were not) received, they can not be a business record that such claims are true unless the employee making the record had personal knowledge of each claim. Therefore, consumer complaints in a company’s files are generally hearsay within hearsay, requiring their own exception. First, the other incidents must have occurred under reasonably similar (though not necessarily identical) conditions. The degree of similarity required depends on the issue the evidence is offered to prove. Second, evidence of similar incidents is inadmissible if it creates undue prejudice, confusion, or delay. Proof of what happened in a previous accident does not, without more, prove what happened in a current one. Third, the relevance of other accidents depends upon the purpose for offering them. Other accidents are admissible for some purposes and not for others. For example: other accidents may be relevant to show whether 1) the product was unreasonably dangerous; 2) a warning should have been given; 3) safer design was available; and 4) manufacturer was consciously indifferent toward accidents in a claim for exemplary damages. Accident complaints may be admissible if offered to prove something other than truth. The Court noted that a few courts of appeals, including the appellate court in Armstrong, had gone much f u r t h e r, concluding that mere claims of similar accidents are generally admissible because “[t]he fact that causation in the other complaints has not been proven with absolute certainty goes to their weight, not their admissibility.” However, the Texas Supreme Court noted that a hearsay objection goes to admissibility, not weight. Oaths and cross-examination are required not to make evidence absolutely certain, but to make it admissible in the first place. Further, the Court pointed out that they have never held that mere claims of previous accidents can prove a product defective, and they declined to do so in the Armstrong case. Consumer complaints in a company’s files are generally hearsay within hearsay, requiring their own exception. Whether a product was defective must be judged against the technological context existing at the time of its manufacture. Product design and product warnings can take into account accidents occurring before production and sale, but not unforeseeable accidents occurring thereafter. Nor can exemplary damages be assessed based on hindsight. It requires an examination of the events and circumstances from the viewpoint of the defendant at the time of the events, without viewing the matter in hindsight.
The Court in Armstrong did not attempt to categorize each and every instance when other accidents are admissible or are not admissible. Rather, they found that a trial court, in exercising it’s discretion regarding admissibility, must carefully consider the bounds of similarity, prejudice, confusion and sequence before admitting evidence of other accidents involving a product.
Next, the Court turned to the trial court’s admission of third- party complaints that an accident had occurred. The trial court had admitted Nissan’s database of 757 complaints it had received of unintended acceleration in ZX cars. Nissan unsuccessfully objected to the database on relevance and hearsay grounds since
Product defects must be proved; they cannot simply be inferred from a large number of complaints. If the rule were otherwise, product claims would be become a self-fulfilling prophecy – the more that are made, the more likely all must be true. Without proof that a hearsay exception applied or that any of the reported incidents were due to a defect similar to those alleged by Armstrong, the trial court erred in admitting the database of complaints.
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