The Admissibility of “Absence” Evidence

Evidence is the foundation of any successful lawsuit – a single piece of evidence can make or break an entire case. Not all evidence, however, can be presented to the jury. There are strict rules that the courts use to determine whether a specific piece of evidence will be admitted. Given the effect a single piece of evidence can have, these rules attempt to provide the appropriate balance in as many cases as possible. Courts may therefore allow a piece of evidence in one trial, but disallow that same piece of evidence in another based upon the individual factual scenarios of each trial. One area of evidence which highlights this dichotomy is the use and application of “absence evidence.”

“Absence evidence” is evidence that there are no prior documented occurrences of a certain event. Attorneys use “absence evidence” to argue that because there are no prior documented occurrences of said event, it is not likely that said event would have occurred on this occasion. One of the primary uses of absence evidence is in products liability cases. For example, manufacturers of an older product might want to show the jury that their product has not caused any accidents over the last twenty-years and thus it is less likely that their product is defective in the current lawsuit. When a party wishes to use absence evidence, particularly in these kinds of cases, the court must determine whether evidence that a prior event has not occurred is accurate and if so, is it fair to present such evidence to the jury.

1.  Does the lack of a prior occurrence accurately reflect the prior history of the occurrence?

Despite its apparent usefulness, absence evidence is frequently not helpful in showing what actually happened in a case. One of the central problems with absence evidence is that there is often no logical connection between what the evidence claims to show, and what it actually shows. In Forrest v. Beloit Corporation, 424 F. 3d 344, 355 (3rd Cir. 2005) the court recognized this issue and went on to identify three distinct relevance problems with absence evidence: 1) the event that is the basis of the lawsuit could be the first event, 2) evidence showing a lack of an event generally fails to show how many near-events have occurred in the past, and 3) ignorance of the event occurring is not an absence of the event.

As to the first issue, it stands to reason that there can never be a history of an event where the event which makes the basis of the lawsuit happened for the first time. Thus, any “absence evidence” suggesting that because there are no prior documented occurrences of the event, the event could not have occurred is inherently flawed. Thus admitting the product’s history in that case is meaningless and not relevant. It simply doesn’t show what it is intended to show – that the product is safe. As to the second issue, the lack of prior events does not necessarily reveal how many near-events might have occurred in the past. For example, there is not likely to be a record of instances where a worker avoided a massive accident by correcting for a faulty machine. Courts are justifiably concerned that lucky escapes could be used to convince a jury that a defective product is safe. The final relevance problem is particularly important. Absence evidence often comes in the form of witness testimony – a person swearing, under oath, that they have no knowledge about any prior events. However, a person’s lack of knowledge about prior events is not useful if the person simply not apprised of the fact that prior events that did in fact occur. To combat this issue, some courts have established a checklist to ferret out instances where the testimony is due to ignorance, rather than an actual lack of prior events. In order to use testimony to establish a lack of prior events in products liability cases, some courts require: 1) that there be a significant number of identical products that were used over a period of time in substantially similar circumstances, 2) the testifying witness must have been in a position that made them likely to be aware of any accidents, and 3) to the witness’s knowledge, no such prior accidents have occurred. See e.g., Forrest, 424 F.3d at 357. Without meeting these three requirements, courts are less likely to consider witness testimony on absence evidence useful or relevant.

2.  Would it be “fair” to admit evidence of no prior occurences?

Assuming the Judge determines that the “absence evidence” does accurately reflect the occurrences history, the Judge must then decide whether or not admitting such evidence would be unfairly prejudicial, mislead the jury, or lead to a considerable waste of time, energy, and court resources. See Jones v. Pak-Mor Manufacturing. Company, 700 P.2d 819, 824 (Ariz. 1985). To do this, the Judge must engage in a balancing test wherein the Judge weighs the underlying fairness of admitting or excluding the evidence. See id.

Absence evidence can be unfairly prejudicial because the burden of rebutting such evidence can oftentimes be impossible to meet. In order to show that something occurred previously, a party only need present evidence of the previous occurrence. However, in a products liability context, where a manufacturer keeps no records of prior accidents, there will be no evidence to present showing that prior accidents have occurred. Therefore, when a manufacturer presents absence evidence showing that no prior accidents occurred but does not keep accurate records, the opposing party is unable to point to any specific instance to rebut the general assertion. This unfairly restricts the party seeking to rebut the evidence – the manufacturer can claim that no accidents have occurred based on the lack of an accident record, which in turn prevents the opposing party from showing otherwise. This also could encourage manufacturers to not keep records of accidents, allowing them to point to the absence of accidents whenever a new case arises. Furthermore, even where proper records are kept, it is a significant burden on a party to discover a few defective products out of millions sold. Some courts consider this situation unfairly prejudicial which weighs against the presentation of absence evidence.

Absence evidence also suffers from the risk of misleading the jury and confusing the true issues in the case. When a manufacturer presents absence evidence, the jury may be misled into thinking that the evidence automatically tends to show that it is less likely the product at issue was defective. This leads to a confusion of the issues – the manufacturer’s other products are not germane, only the one involved in the current case should be considered by the jury. Furthermore, a court may be concerned that a jury would want to reward a manufacturer for their safe track record, despite what actually happened in the case at hand. There is a justifiable concern that a jury could wrongly consider a manufacturer with a reputable history to still have a decent safety record, when in reality the manufacturer might have been lucky or allowed their standards to slip over time.

Finally, given the complexity of products liability cases and potential issues with adequate accident records, absence evidence can ultimately lead to considerable delay and a waste of time and resources. Depending on the product at issue, and the relative importance of the evidence, opposing parties could argue at length over whether the absence evidence should or should not be admitted. The parties could spend considerable time and resources supporting their position. This directly translates into more time spent on the issue by the court, who must hear and consider both sides in determining whether to allow the absence evidence. Given the high number of lawsuits awaiting trial at any one time, such delay and resources are counted against admitting such evidence.

Ultimately, determining whether the “absence evidence” will be deemed admissible and thus presented to the jury is determined by the Judge and the particular facts of each case. However, given the well-documented problems that absence evidence presents, the Court should be hesitant to admit such evidence without due consideration.

The Law Firm of Hollis, Wright, Clay & Vail practices daily facing all the challenges that civil law has to offer including serious personal injury and wrongful death resulting from motor vehicle accidents, premises liability, products liability and dangerous drugs and medical devices. If you or a loved one have been harmed in an accident, contact the Law Firm of Hollis Wright for a free consultation. All cases at Hollis Wright are handled under a contingency fee agreement, which means there are no fees or expenses unless we obtain a recovery for you.

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