One of the most powerful components of a products liability trial is evidence of Other Similar Incidences, or “OSIs.” While manufacturers routinely deny that their products are defective or dangerous, such a denial can be met head on with OSI evidence to show that other consumers have been injured by their product in the same way the plaintiff was injured.
To prepare a products liability case for trial it is critical to propound discovery of OSI evidence at the outset of the case. Furthermore, it is also important to anticipate what the defendant’s objections and response will be to such discovery requests. Unfortunately, due to the powerful nature of this evidence, defendants typically fight very aggressively to thwart producing OSI information and routinely object to such requests for a host of reasons.
Because discovery issues regarding OSIs are typically fact driven, we have used a hypothetical case to frame the discussion. This hypothetical allows us to point out some of the most common issues and objections plaintiffs will typically face when seeking this type of discovery.
On April 19, 2004, four year old Johnny Baxter sustained catastrophic injuries when the riding lawn mower his father was operating backed over his legs. This accident occurred while Johnny’s father was backing up the riding lawn mower in order to reposition it to mow forward. Based on the manner in which Johnny was injured, his parents asserted strict liability and negligence claims against the defendant manufacturer of the riding lawn mower alleging, among other things, that the mower is defective because it was not equipped with a safety device referred to in the industry as “No Mow In Reverse.” “No Mow In Reverse” prevents lawn mower blades from operating while the mower is traveling in reverse.
Plaintiffs’ OSI Interrogatory and Defendant’s Response
When the plaintiffs’ complaint was served it was accompanied with their first set of interrogatories. One of the interrogatories sought information regarding OSIs. This request, which was a typical request for OSI information, stated:
• Has Defendant ever received notice of any alleged back-over accident(s) involving riding lawn mowers that resulted in alleged personal injuries or death? If so, please describe each such accident, injury and/or death of which Defendant has been notified, the name, address and telephone number of the claimant or his/he attorney, the cause number, the style of the case and location of the Court, date of the accident and make and model of the subject lawn mower.
Not surprisingly, defendant responded to plaintiff’s OSI interrogatory by asserting a laundry list of objections and attempting to limit the number of occurrences disclosed. Specifically, defendant responded as follows:
• Defendant objects to this Interrogatory on the grounds it is overbroad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence in that Plaintiffs have not limited the scope of this interrogatory to the product, issues or time period relevant to this cause of action. In particular, Plaintiffs seek information regarding numerous products that are dissimilar to the product at issue. Moreover, this Interrogatory seeks information regarding other alleged occurrences without regard to whether there was any similarity whatsoever between other occurrences and the occurrence in question in this case, much less the “substantial similarity” the law requires. By responding to this Interrogatory subject to these objections, Defendant makes no admissions or representations regarding the similarity between the incidents disclosed and the occurrence giving rise to this litigation. Subject to these objections, according to present records, during the five (5) year period before the subject mower was manufactured, Defendant received notice of the following incidents alleging injuries involving lawn tractors manufactured by Defendant, where an operator, operating such lawn mower in derogation of clear and unambiguous instructions, warnings and/or safe operating procedures, caused the mower’s blades to contact a child bystander while the machine was allegedly being operated in reverse: *** Defendant’s response went on to identify ten (10) occurrences that occurred during the five (5) year period before the subject riding lawn mower was manufactured.
Plaintiffs’ Motion to Overrule Objections and Compel
As is often the case, the plaintiffs served a simple interrogatory seeking OSI information. As is also often the case, rather than simply providing the requested information, the defendants in this hypothetical have attempted to stonewall plaintiffs by filing obstructionist objections. Despite being directly in conflict with the spirit of the Rules of Civil Procedure, this tactic has become commonplace.
Notwithstanding the fact that judges despise discovery disputes, it is imperative that plaintiffs attempt to have the court address the issue. This will usually be accomplished by filing a Motion to Compel. Because there will undoubtedly be other objections and attempts to stonewall the plaintiffs in the discovery process, it is important to get the ball rolling in their favor early in the case. Often, with a defendant who is adamant about not producing this potentially damaging evidence, it will take several sequential motions and orders compelling the defendant to produce the information before a meaningful response is actually received.
Before filing a motion to compel, plaintiff’s counsel must first write a letter to defense counsel requesting that his client reconsider its objection and disclose all OSIs. After defense counsel fails to respond to this letter or responds by stating that, “Defendant’s objections and response comply with the Florida Rules of Civil Procedure,” counsel must, in accordance with most local rules, confer in a good faith attempt to resolve the issues that will be raised in Plaintiff’s Motion to Overrule Defendant’s Objection and to Compel. Once the “good faith conferral” has occurred, plaintiffs are free to file their motion.
When drafting Plaintiffs’ Motion to Overrule Objections and to Compel there are three separate issues that must be addressed: (1) Defendant’s overbroad and unduly burdensome objection; (2) Defendant’s “substantial similarity” argument; and (3) Defendant’s unilateral attempt to restrict the relevant time frame.
Pursuant to the Fourth District Court’s decision in First City Developments of Fla., Inc. v. Hallmark of Hollywood Condo. Ass’n, Inc., 545 So.2d 502, 503 (Fla. 4th DCA 1989), defendant’s “overbroad” and “unduly burdensome” objections, standing alone, are insufficient to justify withholding OSIs. Specifically, in First City, the court explained this rule by stating the following:
Lastly, we turn our attention to petitioners’ objection that some of the discovery sought was “overly broad” or “burdensome.” Such objections, standing alone, would not constitute a basis for granting certiorari relief. More importantly, such words of art have little meaning without substantive support. Is this objection raised because petitioners would be required to produce a railroad boxcar full of documents, or are they merely objecting to the production of a half-inch thick file folder? Since the trial court has to consider petitioners’ other objections, it is incumbent upon petitioners to quantify for the trial court the manner in which such discovery might be overly broad or burdensome. They must be able to show the volume of documents, the number of man-hours required in their production, or some other quantitative factor that would make it so.
Id. (internal citation omitted).
Because plaintiffs are merely requesting that defendant disclose notice of any alleged back-over accident(s) involving riding lawn mowers that resulted in alleged personal injuries or death, it is highly unlikely defendant will be able to produce sufficient “quantitative” evidence to support its overly broad and unduly burdensome objections.
Next, plaintiffs’ counsel will turn to defendant’s anticipated argument that plaintiffs’ OSI interrogatory will elicit incidents that are not “substantially similar” to Johnny’s accident. In support of this argument, defendant will likely cite the Fifth District’s decision in Caterpillar Industrial, Inc. v. Keskes, 639 So.2d 1129 (Fla. 5th DCA 1994). While Keskes has been cited by other courts as standing for the proposition that the “substantial similarity” requirement applies to both the admissibility and discoverability of OSIs, an argument can be made that a connection less than “substantial” similarity is all that is required.1 In fact, Keskes does not expressly state that the “substantial similarity” requirement applies to discovery; rather, it states “there must still be a connection between the discovery sought and the injury claimed.” Keskes, 639 So.2d at 1130. Regardless of whether it is the “substantial similarity” test of something less that is required, it will be plaintiffs’ burden to establish there is a connection between what is sought by plaintiffs’ OSI interrogatory and Johnny’s accident.
In order to establish this burden, plaintiffs will explain to the Court that plaintiffs’ OSI interrogatory was carefully drafted so as to only elicit incidents that involve (1) a back-over accident, (2) a riding lawn mower, and (3) injuries or death. While defendant will argue that the “substantial similarity” test requires identical products, components and injuries, plaintiffs will counter with caselaw that suggests the test is satisfied when the OSI involves a product with the same defect as the subject riding lawn mower.2
With regard to defendant’s unilateral decision to restrict the time frame of plaintiffs’ OSI interrogatory, plaintiffs will need to articulate why all other back-over accidents involving riding lawn mowers, regardless of whether they occurred before the subject riding lawn mower was manufactured or after the subject accident, are relevant and discoverable to show the dangerous character of the subject mower and defendant’s knowledge thereof.3 Articulating why all incidents that occurred prior to the manufacture of the subject mower are relevant to show defendant’s knowledge of the dangers associated with the use of its mower is relatively straight forward. Establishing that incidents which occurred after the subject accident, on the other hand, will be more complicated.
Florida courts have been all over the map with regard to the relevant time period for OSI evidence.4 This fact confirms that there is not a one size fits all time period for OSI evidence. Rather, the relevant time period for a particular discovery request depends the facts of the case at issue. Accordingly, plaintiffs’ counsel will need to develop a factual basis, through other discovery mechanisms such as corporate representative depositions, to support an argument that incidents occurring both after the subject mower was manufactured and after the subject accident occurred are relevant.
When a litigating a products case, it is imperative that counsel do three things with regard to OSI evidence. First, counsel must carefully draft OSI discovery requests that are directly tied to plaintiffs’ defect allegation. Second, counsel should engage the court immediately after receiving a defendant’s evasive response to ensure all OSIs are disclosed. Third, counsel should gather other discovery to support an argument for a broad time period within which defendant must disclose OSIs.
It is also imperative not to rely solely on the defendant’s responses to interrogatories for OSIs. The defendant is clearly the sole source for a complete list of all OSIs. However, because of the temptation to withhold evidence, even after filing a response pursuant to a court order, Defendants in the past have been known to withhold evidence. It is often a good idea to try to find other OSIs through networking with other plaintiffs lawyers and other sources to verify whether the defendants have been forthcoming. In past cases courts have obviously frowned on defendants who can be shown to have withheld OSIs that should have been produced.
OSIs are critical evidence. Juries will often expect to hear evidence of OSI evidence, and without such evidence, your client’s case may be in jeopardy. Because Defendants will always fight – both fairly and often unfairly – to keep OSI evidence from ever seeing the light of a courthouse, you too must fight to obtain OSI discovery.
 American Medical Systems, Inc. v. Osborne, 651 So.2d 209, 211 (Fla. 2d DCA 1995); Nissan Motors Corp v. Espinosa, 716 So.2d 279, 280 (Fla. 4th DCA 1998).
 Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1248 (10th Cir. 2000); Culligan v. Yamaha Motor Corp., 110 F.R.D. 122, 124-126 (S.D.N.Y 1986); Uitts v. General Motors Corp., 58 F.R.D. 450, 452 (E.D. Pa. 1972).
 Railway Express Agency, Inc. v. Fulmer, 227 So.2d 870, 872 (Fla 1969); Caterpillar Indus., Inc. v. Keskes, 639 So.2d at 1130; Frazier v. Otis Elevator Co., 645 So.2d 100, 101 (Fla. 3d DCA 1994); Emerson Electric Co. v. Garcia, 632 So.2d 523, 524 (Fla. 3d DCA 1993); Wood v. Walt Disney World Co., 396 So.2d 769, 770 (Fla. 4th DCA 1981).
 Perret v. Seaboard Coast Line R.R,:., 299 So.2d 590, 591 (Fla. 1974) (two weeks earlier allowed); Warn Indus v. Geist, 343 So.2d 44, 46 (Fla. 3d DCA 1977) (accidents five years prior to plaintiff’s accident discovered); Christmas v. Seaboard Coast Line R.R. Co., 294 So.2d 384, 385 (Fla. 2d DCA 1974) (three years earlier not allowed because of failure to meet substantial similarity requirement); Friddle v. Seaboard Coast Line R.R. Co., 306 So.2d 97,98 (Fla. 1974) (greater that two years earlier allowed); Florida Power & Light Co. v. Limeburner, 390 So.2d 133, 134 (Fla. 4th DCA 1980) (accidents three years prior to plaintiff’s accident discovered); Town of Belleair v. Taylor, 425 So.2d 669, 671 (Fla. 2d DCA 1983 (four years earlier too remote); Reinhart v. Seaboard Coast Line R.R. Co., 422 So.2d 41, 44 (Fla. 2d DCA 1982) (five years earlier allowed).
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