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A good offense against products liability defenses: the absence of prior accidents and evidence of product alterations are two often-used, and effective, defenses in products liability cases. Defeating them is never easy, but case law is on your side.

Article Excerpt
In a products liability trial, the president of the defendant manufacturer is allowed to testify that when he joined the company, he asked numerous people whether there had been prior accidents with the product and received no information. The president then testifies that the absence of accidents means the product is safe and not defective. In closing argument, the defense lawyer tells the jury more than 20 times that the product has a perfect safety record over many years and this is the only accident and injury known to the manufacturer.

In another case, an industrial machine in use for many years underwent several changes, none of which affected the hazard that was present at the time of sale. The defendant argues that the changes mean that the machine is no longer the defendant's product and it is not responsible for the plaintiff's injuries--despite a lack of evidence that any change caused the injury. When asked if the product was in substantially the same condition as when it left the manufacturer, the jury marks "no" on the verdict form.

Although these are hypothetical scenarios, they depict two of the most effective defenses in products liability cases. When the defense claims an absence of prior accidents like the one that injured your client, the jury is often left with the strong impression that a product is safe. Indeed, this type of evidence may be relevant to prove that the product is not defective or dangerous, let alone unreasonably dangerous.

Defendants often use evidence of changes, alterations, and modifications to a product to argue that strict liability should not apply, because the Restatement (Second) of Torts requires that the product reach the user without substantial changes. In addition, this argument allows the defense to claim that any changes are a superseding, intervening, or concurrent cause of the accident, which relieves the manufacturer of liability in whole or in part.

The 'Who knew?' defense

In cases where there is no evidence of prior accidents, defendants often argue that their products are safe: If they weren't, the reasoning goes, there would have been reports of other accidents and injuries. Defendants claim that a lack of prior incidents proves there is no causation between the alleged defect and the injuries the plaintiff suffered--and that those injuries were not foreseeable.

Predictably, testimony that thousands of similar products used in a similar fashion did not yield any complaints, accidents, or injuries severely prejudices the plaintiff's case. If there are, in fact, no prior incidents, this is powerful evidence for the defense, and juries accord substantial weight to such negative evidence. (1)

On the liability question, this evidence shifts the focus to the injured person and his or her employer if the injury was work-related.

The leading case on this subject, Jones v. Pak-Mor Manufacturing Co., illustrates well this defense--and its weakness. In Jones, the plaintiff was riding on the side of a trash compactor truck; when the truck turned sharply along a curve in a narrow alley, the plaintiff was caught between the truck...

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