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The 3d U.S. Circuit Court of Appeals has ordered a new trial in a products liability suit because the defense lawyers were improperly permitted to present evidence of the “absence of prior accidents” with a piece of factory equipment. Forrest v. Beloit Corp., No. 04-2184. “The absence of prior accidents may simply mean that the plaintiff was the first to be injured; there is always a first victim,” U.S. Circuit Judge D. Brooks Smith wrote on behalf of the panel. The decision revives a suit brought by a paper mill worker whose arm became stuck between two multiton rollers, requiring partial amputations of his left arm and right leg. Under Pennsylvania law, Smith found, courts have recognized that there is a “heightened risk that testimony concerning the alleged absence of prior accidents may confuse or mislead the jury.” Smith concluded that U.S. District Judge Bruce W. Kauffman erred by allowing testimony of the absence of prior accidents in Paul Forrest’s lawsuit against Beloit because the witnesses were Forrest’s co-workers who had knowledge of only one such machine being accident-free. Beloit has manufactured many such machines, Smith noted, and “admits that it has compiled no information concerning the safety history” of them. Thus, it was “prejudicial error” for Kauffman to permit the defense lawyers to “extract anecdotal testimony” about a single machine and then use that testimony as support for a closing argument in which a defense lawyer told the jury that “the only accident we know of in 36 years . . . was Mr. Forrest’s.” Forrest, a Jefferson-Smurfit employee, was trying to clear a paper jam in a 100-yard line of machines that transform wood pulp slurry into large rolls of dry paper. At the dry end of the line, the paper is run through two sets of calenders, or “dry stacks,” which are large rotating rollers that feed the gloss calender. As Forrest attempted to feed the paper, his hand got pulled into the rollers. Forrest required amputation of his left arm above the elbow and his right leg below the knee. After a three-week trial that ended in February 2004, a jury returned a defense verdict, now overturned by the 3d Circuit. “First,” Smith wrote, “the mere fact that a witness does not know of any prior accidents does not prove that no such accidents occurred. “Second, generalized assertions concerning an alleged absence of accidents over an extended period of time can be directly rebutted only with specific evidence of prior occurrences, but such evidence may be difficult or impossible for a plaintiff to obtain in cases where the defendant has not kept records concerning the safety history of its products.” The plaintiff may simply be the “first victim,” Smith noted, and testimony about the absence of prior accidents “does not tell us how many near-accidents, nor how many fortuitous escapes from injury, may have occurred.” Under Pennsylvania law, Smith said, a product is deemed defective if it “left the supplier’s control lacking any element necessary to make it safe for its intended use.” A jury’s focus is on the product and “specifically on whether the product as designed presents a potential danger to the intended user.” The nature of that inquiry by the jury, Smith said, “is such that evidence of near misses or fortuitous escapes would be highly probative of the existence of a danger, and thus of the existence of a defect.” Such evidence, however, “is by definition extremely difficult to obtain, if for no other reason than that a user who has fortuitously escaped injury may not even recognize that he was exposed to danger in the first place.” Therefore, Smith said, “permitting a product liability defendant to introduce testimony concerning an alleged absence of prior accidents may . . . create a misleading impression as to whether a defect exists.”

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