Federal Evidence Review

In product liability action by plaintiff gun user against defendant gun manufacturer and distributor, excluding evidence of similar accidents involving other muzzleloader rifles that exploded when fired; the plaintiff's proffer of two other muzzleloader explosions were not substantially similar to that suffered by the plaintiff because they imvolved firing mechanisms of different length and size than plaintiff's gun, involved a different model and design of muzzleloader, and the explosions happened under distinctly different circumstances, in Katzenmeier v. Blackpowder Products, Inc., __ F.3d __ (8th Cir. Dec. 10, 2010) (No. 09-1146)

Whether evidence of a "similar" accident is relevant in a product liability suit depends on what this proffered evidence is designed to show and how strongly it shows it. In a product liability action, “[e]vidence of similar incidents may be relevant to prove the defendant's notice of defects, the defendant's ability to correct known defects, the magnitude of the danger, the product's lack of safety for intended uses, or causation.” Lovett v. Union Pac. R.R. Co., 201 F.3d 1074, 1081 (8th Cir. 2000). Last week the Eighth Circuit considered a case involving admissibility of an alleged "similar" accident in a product liability case. In rejecting the plaintiff's similar accident evidence involving muzzleloader weapons, the circuit noted the care that must accompany an effort to identify precisely what is similar so that the other evidence is considered "substantially similar."

In the case, defendant Blackpowder was sued by plaintiff Katzenmeier for injuries suffered when "a muzzleloader rifle manufactured and distributed by Blackpowder" which he had received as a Christmas gift, "exploded when he fired it for the first time." According to the circuit, "Katzenmeier's theory at trial was that the gun failed because the breech plug 'stripped[ ]' loose due to the formation of the barrel. To show this, Katzenmeier put forth testimony that he properly loaded the Kodiak with the specified amount and type of propellant and that an inadequate engagement between the threads of the barrel and the breech plug caused the failure." The defendants "contended that excess pressure from a higher than proper load caused the failure," in short, that the plaintiff had overloaded the gun with powder.

At trial, the plaintiff proffered evidence of two other muzzleloader guns which exploded, referred to as the "Zenger and Cashdollar incident[s]" after the name of the victims in the two explosions. The trial judge excluded the evidence as not "substantially similar." Ultimately, the jury rendered a verdict for the defendant. The plaintiff appealed this result, contending that the exclusion of the Zenger and Cashdollar accidents was erroneous and that it possibly would raise "extraneous controversial issues, confuse the issues, and be more prejudicial than probative.” Katzenmeier, __ F.3d at __ (quoting Lovett v. Union Pac. R.R. Co., 201 F.3d 1074, 1081 (8th Cir. 2000)).

The Eighth Circuit's explanation of why the trial court was correct that the other two muzzleloader incidents were not substantially similar:

First, the Cashdollar and Zenger muzzleloaders involved different breech plugs than the Kodiak: the breech plugs were different in length and thread size than the Kodiak. The Kodiak also involved internal rolled threads, which [defendant] did not begin manufacturing until around 2003; the Cashdollar and Zenger muzzleloaders were made using cut threads before then. Next, Cashdollar and Zenger's muzzleloaders were a different model and design than in this case. The Kodiak was manufactured in 2004 and consists of a falling block, stand-alone model. By contrast, the Zenger gun includes a two-piece design with a barrel and receiver silver-soldered together; and the Cashdollar muzzleloader, known as an Eclipse, had a monoblock design. Lastly, the circumstances surrounding the incidents vary: Zenger purchased his gun two years after the gun had been recalled and used it for two years before his incident; Cashdollar shot his gun a 'couple of hundred' times. Based on our review of the record, we are satisfied that the incidents were not 'substantially similar' to Katzenmeier's accident, and the district court did not abuse its discretion by refusing to admit the evidence.

Katzenmeier, __ F.3d at __ (emphasis added) (citing Lovett v. Union Pac. R.R. Co., 201 F.3d 1074, 1081 (8th Cir. 2000) (“[A]dmitting similar-incident evidence also threatens to raise extraneous controversial issues, confuse the issues, and be more prejudicial than probative. For these reasons, the facts and circumstances of the other incidents must be ‘substantially similar’ to the case at bar to be admissible.”) (citation omitted)).

In short, the different construction, model design, and circumstances of the accident rendered exclusion of the "similar accident" evidence not an abuse of discretion. Because the plaintiff's burden in the case was to show causation, the other muzzleloader accidents were not explanatory as to the cause. For a contrasting case, in which he evidence involving a gun was not found to be too dissimilar, consider Weeks v. Remington Arms Co., Inc., 733 F.2d 1485, 1491–92 (11th Cir. 1984) (in gun accident case in which plaintiff's claimed the accident occurred while the gun's safety catch was engaged, reversing and remanding because of trial court's exclusion of evidence of other gun safety catch failures, particularly in light of its probative value in disproving an “alternative theory of causation” to that shown by plaintiff).