Assessing "Similar Incident" Evidence Under FRE 401

In personal injury accident suit based on plaintiff's injury as result on another passenger attacking their bus driver, defendant bus company’s prior incident reports involving passenger assault on a driver or grabbing control of the bus were admissible to show the defendant had notice of problems likely to cause the type of injury the plaintiff suffered, as these incident reports were within four years of the incident in which the plaintiff was injured in a similar incident on defendant's bus, in Surles ex rel Johnson v. Greyhound Lines, Inc., 474 F.3d 288 (6th Cir. Jan 18, 2007) (Nos. 05-6713, 05-6743)

Frequently in personal injury litigation in federal courts evidence of similar injury incidents is often deemed relevant under FRE 401 to show that a party's notice, expected standard of care, causation, magnitude of scope of danger, or the defendant's ability to cure known defects or conditions. There are a broad set of probative conclusions, whose relevance is pretty much left to argument. A Sixth Circuit case several years usefully highlighted this aspect of determining relevance.

In the case, plaintiff Surles sued defendant Greyhound after becoming a paraplegic as a result of a crash on one of the defendant’s buses. The bus crashed when a passenger attacked the driver, forcing him to lose control. The plaintiff sought to recover for the injuries incurred in the accident. The defendant filed a motion in limine to exclude evidence of prior accidents and incidents on its buses.

The trial judge granted the defendant's motion to exclude prior incidents, in part, but ultimately the court allowed the plaintiff to introduce prior incident reports of forty-two "incidents" on the defendant's buses. At the close of the seven-day trial, the jury returned a verdict for the plaintiff. The defendant appealed, based in part on the trial court's admission of the prior incident reports as requested by the plaintiff.

The circuit affirmed the admission of the prior incident reports. The circuit noted that the plaintiff proffered the prior incident reports to show that the defendant had been on notice of the incidents which was likely to lead to the kind of injury suffered by plaintiff (e.g., injury when drivers lost control of a bus after being attacked by a passenger on the bus).

Only prior incidents that are “substantially similar” to the one at issue will be admissible in evidence. This is so in large part because all evidence deemed admissible by the district court must meet the minimal standards of relevancy articulated in Federal Rules of Evidence 401 and 403. Incidents which “occurred under similar circumstances or share the same cause” can properly be deemed substantially similar. The proffering party bears the burden of proof to establish substantial similarity. A showing of substantial similarity insures that the evidence meets the relevancy requirements of Rules 401 and 403.
Surles,474 F.3d at 297 (citing Rye v. Black & Decker Mfg. Co., 889 F.2d 100, 102 (6th Cir. 1989) (citing Koloda v. Gen. Motors Parts Div., Gen. Motors Corp., 716 F.2d 373, 376 (6th Cir. 1983)).

Using this test, the Sixth Circuit described how the incidents admitted by the court “were substantially similar” to the crash in which the plaintiff was injured (e.g., they involved either passenger interference with the bus driver, or a passenger's attempt to take control of the bus's steering wheel or brakes). The circuit concluded that the alleged incident "occurred under “similar circumstances” or “share the same cause” as the incident that injured the plaintiff. Surles, 474 F.3d at 298 (citing Rye v. Black & Decker Mfg. Co., 889 F.2d 100, 102 (6th Cir. 1989)(see also Morales v. American Honda Motor Co., Inc., 151 F.3d 500, 512 (6th Cir. 1998) (finding the “substantially similar” requirement satisfied and accident statistics involving “minibikes and small vehicles of the same sort” admissible because the “vehicles perform a similar purpose”)).

The circuit rejected the defendant’s “attempts to distinguish the prior incident reports by framing” the plaintiff’s accident “with great specificity” such as whether the attacking passenger in the other incident reports were armed, or whether the driver was seriously injured by the attack. The circuit found these distinctions not sufficient to displace the trial court’s determination of sufficient similarity, particularly because the prior reports were tendered only for the purpose of showing notice of the general problem, not the causation or sequence of a particular accident.

Additionally, the circuit rejected the plaintiff’s contention in a cross-appeal that the trial court erroneously excluded certain incident reports as too remote. The circuit noted that the “relevance of similar incidents depends in part on their proximity in time to the incident at issue in the case before the court.” The trial court properly excluded reports more than four years old. Although a bit less explicit in its discussion, the circuit also indicated that trial court’s exclusion of prior incident reports that were older than four years old was a permissible exercise of FRE 403. The court cited other cases involving the remoteness of prior incidents as too prejudicial. Surles474 F.3d at 298 (citing Jones v. Otis Elevator Co., 861 F.2d 655, 661-62 (11th Cir. 1988) (“Because of the potential prejudicial impact of prior accidents, courts have developed limitations governing their admissibility,” including that “the prior accident must not have occurred too remote in time”)).

While there was nothing unusual about the circuit's conclusion, it needed to cite an unpublished case as “persuasive” to the proposition that “if a “prior occurrence is offered to prove notice, … a lesser degree of similarity is required provided the accident would have tended to warn the defendant.” 474 F.3d at 297-98 (citing Bryan v. Emerson Elec. Co., Inc., 856 F.2d 192, 1988 WL 90910, at *5 (6th Cir.1988) (unpublished) (declining to “adopt any fixed definition of the degree of ‘similarity’ required before prior accidents or occurrences become relevant.”)

The circuit did not avail itself of other circuit's published explanations which were similar. See, e.g., Four Corners Helicopters v. Turbomeca, 979 F.2d 1434, 1440 (10th Cir. 1992) ("the requirement of substantial similarity is relaxed, however, when the evidence of other incidents is used to demonstrate notice or awareness of a potential defect.") (quoting Wheeler v. John Deere Co., 862 F.2d 1404, 1407 (10th Cir.1988)); Exum v. General Elec. Co., 819 F.2d 1158, 1162-63 (D.C.Cir. 1987) ("If the accident is offered to prove notice, a lack of exact similarity of conditions will not cause exclusion provided the accident was of a kind which should have served to warn the defendant..”) (quoting Weinstein & Berger, Weinstein's Evidence § 401[10] at 401-66-67)).

Federal Rules of Evidence