Ludis J. Cooper v. The Firestone Tire & Rubber Co., & the Budd Co., Ludis J. Cooper v. The Firestone Tire & Rubber Co., 945 F.2d 1103 (9th Cir. 1991). · Go Syfert
Ludis J. Cooper v. The Firestone Tire & Rubber Co., & the Budd Co., Ludis J. Cooper v. The Firestone Tire & Rubber Co., 945 F.2d 1103 (9th Cir. 1991). Cases Citing This Book View Copy Cite
“a showing of substantial similarity is required when a plaintiff attempts to introduce evidence of other accidents as direct proof of negligence, a design defect, or notice of the defect.”
136 citation events (96 in the last 25 years) across 24 distinct courts.
Strongest positive: Specter v. Rainbow King Lodge, Inc. (akd, 2020-12-14)
Treatment trajectory · 1992 → 2026 · click a year to view as-of
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discussed Cited as authority (verbatim quote) Specter v. Rainbow King Lodge, Inc. (2×) also: Cited as authority (rule)
D. Alaska · 2020 · signal: see also · quote attribution · 1 verbatim quote · confidence high
a showing of substantial similarity is required when a plaintiff attempts to introduce evidence of other accidents as direct proof of negligence, a design defect, or notice of the defect.
discussed Cited as authority (verbatim quote) Floyd Scott v. J. Palmer
9th Cir. · 2017 · signal: see · quote attribution · 1 verbatim quote · confidence high
the question is whether counsel's misconduct so permeated the trial as to lead to the conclusion the jury was necessarily influenced by passion and prejudice in reaching its verdict.
discussed Cited as authority (verbatim quote) Livingston v. Isuzu Motors, Ltd. (2×) also: Cited as authority (rule)
D. Mont. · 1995 · signal: see, e.g. · quote attribution · 1 verbatim quote · confidence high
evidence of dissimilar accidents may be admitted when relevant to the witness's credibility
discussed Cited as authority (quoted) Kim v. General Motors Corp. (2×) also: Cited as authority (rule)
9th Cir. · 2006 · signal: see · quote attribution · 1 verbatim quote · confidence high
although the other-accident evidence may have had some prejudicial effect, it was highly probative of the credibility of the assertion of appellants' experts that the was generally safe.
discussed Cited as authority (rule) Minden v. Allstate Property and Casualty Insurance Company
D. Nev. · 2025 · confidence medium
The standard is high because raising an objection before the jury 4 begins deliberations allows me to “examine the alleged prejudice and to admonish counsel [] or 5 issue a curative instruction” and “allowing a party to wait to raise the error until after the 6 negative verdict encourages that party to sit silent in the face of claimed error.” Id. (simplified). 7 To determine whether improper closing arguments justify a new trial, I analyze “whether 8 counsel’s misconduct so permeated the trial as to lead to the conclusion [that] the jury was 9 necessarily influenced by passion and…
discussed Cited as authority (rule) Mendis v. BMW of North America LLC
W.D. Wash. · 2025 · confidence medium
(Resp. at 23 n. 26 (citing Cooper v. Firestone 13 Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991)).) “A showing of substantial similarity 14 is required when a plaintiff attempts to introduce evidence of other accidents as direct proof of 15 negligence, a design defect, or notice of the defect.” Cooper, 945 F.2d at 1105 .
discussed Cited as authority (rule) Sandoval v. San Diego, County of
S.D. Cal. · 2024 · confidence medium
Cal. 2022) (quoting Cooper v. Firestone Tire 11 Rubber Co., 945 F.2d 1103, 1107 (9th Cir. 1991) (cleaned up).!© The Court does not 12 || find Plaintiff's statements regarding the “impossible task” of putting a value on human 13 || life and invitation for the jury to “make a statement about the value of life lost” rises to 14 || the level of permeation required for reversal.
discussed Cited as authority (rule) Howard v. Cox
D. Nev. · 2023 · confidence medium
Howard’s counsel’s overblown closing arguments don’t warrant a new trial. 20 Groover also contends that Howard’s counsel’s closing and rebuttal arguments 21 improperly appealed to the passion and prejudice of the jury by “evok[ing] nationwide issues 22 83 Id.; First Nat’l Bank of Circle, 652 F.2d at 886 (noting that pretrial orders should be “liberally 23 construed to permit evidence and theories at trial that can fairly be said to be embraced within its language”). 1 with the prison system [and] concerns about how NDOC as a whole treats Howard and other 2 offenders[,] and s[…
discussed Cited as authority (rule) Mooney v. Roller Bearing Company of America Inc
W.D. Wash. · 2023 · confidence medium
Id. at 6.5 12 To assess whether improper comments were sufficiently prejudicial to warrant a new trial, 13 the court considers “whether counsel’s misconduct so permeated the trial as to lead to the 14 conclusion the jury was necessarily influenced by passion and prejudice in reaching its verdict.” 15 Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1107 (9th Cir. 1991); see also Kehr v. 16 Smith Barney, Harris Upham & Co., 736 F.2d 1283, 1286 (9th Cir. 1984) (the “flavor of 17 misconduct must sufficiently permeate an entire proceeding to provide conviction that the jury was 18 inf…
discussed Cited as authority (rule) Michael Hartsell v. County of San Diego
9th Cir. · 2023 · confidence medium
To assess whether improper comments were sufficiently prejudicial to warrant a new trial, the court considers “whether counsel’s misconduct so permeated the trial as to lead to the conclusion the jury was necessarily influenced by passion and prejudice in reaching its verdict.” Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1107 (9th Cir. 1991).
discussed Cited as authority (rule) Djemil v. Tesla Inc
W.D. Wash. · 2023 · confidence medium
“A showing of substantial similarity is required when a plaintiff attempts to 21 introduce evidence of other accidents as direct proof of negligence, a design defect, or notice of the defect.” Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991). 22 Plaintiffs have not made such a showing.
discussed Cited as authority (rule) Marco Crane & Rigging Company v. Mi-Jack Products, Inc.
9th Cir. · 2022 · confidence medium
Evid. 402, we require “[a] showing of substantial similarity . . . when a plaintiff attempts to introduce evidence of other accidents as direct proof of negligence, a design defect, or notice of the defect.” Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991).
discussed Cited as authority (rule) Jones v. National Railroad Passenger Corporation
N.D. Cal. · 2022 · confidence medium
Id. 10 “A showing of substantial similarity is required when a plaintiff attempts to introduce 11 evidence of other accidents as direct proof of negligence, a design defect, or notice of the defect.” 12 Cooper v. Firestone Tire and Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991).
discussed Cited as authority (rule) Aguirre Guerra v. Dematic Corp.
D. Nev. · 2022 · confidence medium
ECF 17 No. 141 at 6 (“…the Court finds that information about gates different from the subject gate is 18 irrelevant to the claims and defenses in this case.”) In her objection, Guerra argues that injuries 19 occurring from those other gate models are relevant as they may show a “substantial similarity” 20 between her injury and other injuries occurring from Dematic’s products. 21 The legal principle of “substantial similarity” provides that “[a] showing of substantial 22 similarity is required when a plaintiff attempts to introduce evidence of other accidents as direct 23 pr…
discussed Cited as authority (rule) Mueller v. State of Hawaii Department of Public Safety
D. Haw. · 2022 · confidence medium
Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1107 (9th Cir. 1991) (declining to find reversible error where the alleged misconduct occurred only in the argument phase of the trial, the remarks were isolated rather than persistent, most of counsel’s comments were not objected to at trial, and the opposing party did not move for a mistrial at the end of argument).
cited Cited as authority (rule) Leticia Barron v. State of California
9th Cir. · 2022 · confidence medium
Schs., 371 F.3d 503, 520 (9th Cir. 2004); Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1107 (9th Cir. 1991).
discussed Cited as authority (rule) In Re Pacific Fertility Center Litigation
N.D. Cal. · 2021 · confidence medium
No. 841 (Trial Tr. 10 at 1565:4.) See Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991) 11 (“When an expert testifies that a product is generally safe, as appellants’ experts did, the witness’s 12 credibility can be undermined by showing the witness had knowledge of prior accidents caused by 13 the product.
discussed Cited as authority (rule) In Re Pacific Fertility Center Litigation
N.D. Cal. · 2021 · confidence medium
No. 841 (Trial Tr. 10 at 1565:4.) See Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991) 11 (“When an expert testifies that a product is generally safe, as appellants’ experts did, the witness’s 12 credibility can be undermined by showing the witness had knowledge of prior accidents caused by 13 the product.
discussed Cited as authority (rule) Heinrich v. Ethicon, Inc.
D. Nev. · 2021 · confidence medium
The plaintiffs also 1 contend this evidence is allowed to test witness credibility and may be offered for non-hearsay 2 purposes. 3 A. Substantial Similarity 4 “A showing of substantial similarity is required when a plaintiff attempts to introduce 5 evidence of other accidents as direct proof of negligence, a design defect, or notice of the 6 defect.” Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991).
cited Cited as authority (rule) Laloli v. C R Bard Incorporated
N.D. Cal. · 2021 · confidence medium
Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991); 25 Maiorano v. Home Depot U.S.A., Inc., No. 3:16-CV-02862-BEN(MDD), 2018 WL 2128609 , at *3 26 (S.D.
discussed Cited as authority (rule) In re Crash of Aircraft N93PC on July 7, 2013, at Soldotna, Alaska
D. Alaska · 2021 · confidence medium
But, “[m]inor or immaterial dissimilarity does not prevent admissibility.” White v. Ford Motor Co., 312 F.3d 998, 1009 (9th Cir. 2002). “‘The rule rests on the concern that evidence of dissimilar accidents lacks the relevance required for admissibility under [FRE] 401 and 402.’” Specter, 2020 WL 7358989 , at *2 (quoting Cooper v. Firestone Tire and Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991)). “‘Substantial similarity depends upon the underlying theory of the case.
cited Cited as authority (rule) Marco Crane & Rigging Company v. Greenfield Products LLC
D. Ariz. · 2021 · confidence medium
Cooper v. Firestone 15 Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991).
discussed Cited as authority (rule) In Re Pacific Fertility Center Litigation
N.D. Cal. · 2021 · confidence medium
Chart insists that Plaintiffs have not shown that these incidents are 23 substantially similar or that there was any common causation. 24 Generally, “[a] showing of substantial similarity is required when a plaintiff attempts to 25 introduce evidence of other accidents as direct proof of negligence, a design defect, or notice of 26 the defect.” Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991).
cited Cited as authority (rule) Crystal Holmes v. Rosalina Harris
9th Cir. · 2021 · confidence medium
Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1107 (9th Cir. 1991).
examined Cited as authority (rule) Jacob Beaty v. Ford Motor Company (3×) also: Cited "see"
9th Cir. · 2021 · confidence medium
We disagree. “[W]hen a plaintiff attempts to introduce evidence of other accidents” to prove the defendant’s “notice of [a] defect,” “[a] showing of substantial similarity is required.” Cooper v. and we decline to reach this “alternate, fact-intensive bas[is] for affirming.” See Petersen v. Boeing Co., 715 F.3d 276, 283 (9th Cir. 2013). 4 Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991).
discussed Cited as authority (rule) Sikkelee v. Precision Airmotive Corporation
M.D. Penn. · 2021 · confidence medium
Evid. 401. 53 Cf. Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991) (holding “that evidence of dissimilar accidents may be admitted when relevant to the witness’s credibility. accident is unique.”54 Despite this cautionary note, the McCreary white paper reaches conclusions about propeller damage signatures that are generally indicative of high or low power based upon “common findings” in all airplane accidents.55 Thus, the fact that the general characteristics of a high power impact may not exist in all accidents where the engine was producing high power does…
discussed Cited as authority (rule) Alsadi v. Intel Corporation
D. Ariz. · 2020 · confidence medium
Intel’s MIL Regarding Certain OSHA Regulations (Doc. 236). 15 The Ninth Circuit has recognized that “safety standards such as those contained in 16 OSHA assist ‘a jury’s determination of negligence because they represent the community’s 17 judgment as to what conduct is reasonable and what conduct is not.’” Cooper v. Firestone 18 Tire & Rubber Co., 945 F.2d 1103, 1107 (9th Cir. 1991) (citations omitted).
cited Cited as authority (rule) Beaty v. Ford Motor Company
W.D. Wash. · 2020 · confidence medium
Cooper v. Firestone Tire & 11 Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991).
discussed Cited as authority (rule) Foster v. American Honda Motor Co., Inc.
W.D. Wash. · 2019 · confidence medium
See 23 Dkts. #49, #51, #61, #63, and #65. 24 When a plaintiff attempts to introduce evidence of other incidences or accidents as direct 25 proof of a design defect or causation in a products liability case, he or she has the burden of 26 establishing “substantial similarity” between the other incidents and the incident at issue. 27 28 Daniel v. Coleman Co. Inc., 599 F.3d 1045, 1048 (9th Cir. 2010); Cooper v. Firestone Tire & Rubber, 945 F.2d 1103, 1005 (9th Cir. 1991).
discussed Cited as authority (rule) Alsadi v. Intel Corporation
D. Ariz. · 2019 · confidence medium
The parties can address their factual disagreements at trial, and Intel can object to 12 any expert testimony it believes is inadmissible under Rule 702. 13 The Ninth Circuit has recognized that “safety standards such as those contained in 14 OSHA assist ‘a jury’s determination of negligence because they represent the community’s 15 judgment as to what conduct is reasonable and what conduct is not.’” Cooper v. Firestone 16 Tire & Rubber Co., 945 F.2d 1103, 1107 (9th Cir. 1991) (citations omitted).
discussed Cited as authority (rule) Benson Tower Condominium Owners Ass'n v. Victaulic Co. (2×) also: Cited "see"
9th Cir. · 2017 · confidence medium
Cooper v. Firestone Tire and Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991).
discussed Cited as authority (rule) Eisenbise v. Crown Equipment Corp.
S.D. Cal. · 2017 · confidence medium
No. 61-1, at 25-29.) “A showing of substantial similarity is required when a plaintiff attempts to introduce evidence of other accidents as direct proof of negligence, a design defect, or notice of the defect,” Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991).
cited Cited as authority (rule) Unicolors, Inc. v. Urban Outfitters, Inc.
9th Cir. · 2017 · confidence medium
Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1106 (9th Cir. 1991).
discussed Cited as authority (rule) in Re: Michelin North America, Inc.
Tex. App. · 2015 · confidence medium
App. 2009) ("Funda1nentallyi the scope of discovery is obviously much broader 28 than the scope of admissible evidence, and evidence of incident.'> involving other products besides 12 MR 0472 1 the exact model at issue can be adn1issible, and therefore, obviously, discoverablc.")(emphasis 2 added); Cohalcm v. Genie Indus., Inc., 276 F.R.D. 161, 166-67 (S.D.N.Y. 2011) ("Unlike at trial, 3 where evidence of similar accidents is admissible only if those accidents are shown to be 'substantially 4 similar,' a court may allow discovery of siinilar accidents provided that the 'circumstances 5 surroun…
cited Cited as authority (rule) DSPT International, Inc. v. Nahum
9th Cir. · 2010 · confidence medium
Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1107-08 (9th Cir.1991). 5 .
discussed Cited as authority (rule) Wendland v. ADOBEAIR, INC.
Ariz. Ct. App. · 2009 · confidence medium
As recognized by the Ninth Circuit Court of Appeals, safety standards such as those contained in OSHA assist “a jury’s determination of negligence because they represent the community’s judgment as to what conduct is reasonable and what conduct is not.” Cooper v. Firestone Tire and Rubber Co., 945 F.2d 1103, 1107 (9th Cir.1991) (citing Prosser and Keeton on the Law of Torts § 36, at 220 (5th ed.1984); 3 F. Harper, F. James & O.
discussed Cited as authority (rule) Akkerman v. Mecta Corp.
9th Cir. · 2007 · confidence medium
Plaintiff argues that the district court erroneously excluded bodies of evidence on the grounds that it was “anecdotal.” Under Federal Rules of Evidence 401 and 402, a “showing of substantial similarity is required when a plaintiff attempts to introduce evidence of other accidents as direct proof of negligence, a design defect, or notice of the defect.” Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir.1991).
discussed Cited as authority (rule) Gallagher v. City of West Covina
9th Cir. · 2005 · confidence medium
See Doe v. Glanzer, 232 F.3d 1258, 1270-71 (9th Cir.2000); see also Hemmings v. Tidyman’s, Inc., 285 F.3d 1174 , 1193 (9th Cir.2002); Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1107 (9th Cir.1991).
discussed Cited as authority (rule) United Oil Co. v. Parts Associates, Inc.
D. Maryland · 2005 · confidence medium
It is at that juncture that courts require the plaintiff to demonstrate the “substantial similarity” of other accidents, complaints, claims or lawsuits. 4 Drabik v. Stanley-Bostitch, Inc., 997 F.2d 496, 508 (8th Cir.1993) (placing burden on plaintiffs for evidence of other accidents), Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir.1991) (requiring a “showing” of substantial similarity when a plaintiff attempts to introduce evidence of other accidents as direct proof of negligence, a design defect, or notice of a defect.); Buckman v. Bombardier Corp., 893 F.Supp. 54…
discussed Cited as authority (rule) Jaramillo v. Ford Motor Co.
9th Cir. · 2004 · confidence medium
While this substantial-similarity doctrine has normally been applied to preclude other-accident evidence offered by plaintiffs, we have explained that the doctrine “rests on the concern that evidence of dissimilar accidents lacks the relevance required for admissibility under Federal Rules of Evidence 401 and 402.” Cooper v. Firestone Tire and Rubber Co., 945 F.2d 1103, 1105 (9th Cir.1991).
examined Cited as authority (rule) Ginny v. White Jimmie D. White v. Ford Motor Company, a Delaware Corporation, and Orscheln Company, a Missouri Corporation (4×)
9th Cir. · 2002 · confidence medium
Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir.1991). .
discussed Cited as authority (rule) Jones v. Williams
9th Cir. · 2002 · confidence medium
Reversal on the grounds of attorney misconduct is rare, and is granted only when the misconduct permeates an entire proceeding such that “the jury was necessarily influenced by passion and prejudice in reaching its verdict.” Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1107 (9th Cir.1991).
discussed Cited as authority (rule) Jones v. Williams
9th Cir. · 2002 · confidence medium
Reversal on the grounds of attorney misconduct is rare, and is granted only when the misconduct permeates an entire proceeding such that “the jury was necessarily influenced by passion and prejudice in reaching its verdict.” Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1107 (9th Cir.1991).
cited Cited as authority (rule) McMillan v. Weathersby
9th Cir. · 2002 · confidence medium
Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1107 (9th Cir.1991).
cited Cited as authority (rule) Faye Schwartz v. New Castle Corporation, Dba/the Excalibur Hotel & Casino, a Nevada Corporation
9th Cir. · 1997 · confidence medium
Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir.1991).
cited Cited as authority (rule) Aleksandrov v. Chevrolet Motor Division
9th Cir. · 1997 · confidence medium
Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir.1991).
discussed Cited as authority (rule) Mahon v. Prunty
9th Cir. · 1997 · confidence medium
Counsel mentioned the high level of security at Mahon's prison and that defendants would be personally liable if judgment were entered against them. 1 4 A court must grant a new trial when impermissible statements "so permeated the trial as to lead to the conclusion the jury was necessarily influenced by passion and prejudice in reaching its verdict." Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1107 (9th Cir.1991).
cited Cited as authority (rule) Paulsen v. Case Corp.
C.D. Cal. · 1996 · confidence medium
Defendant corporation’s reliance on Cooper v. Firestone Tire and Rubber Co., 945 F.2d 1103, 1105 (9th Cir.1990), to preclude discovery is misplaced.
discussed Cited as authority (rule) David C. BARKER and Christina L. Barker, Husband/Wife, v. DEERE AND COMPANY, Appellant
3rd Cir. · 1995 · confidence medium
See Burke v. Deere & Co., 6 F.3d 497, 506 (8th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1063 , 127 L.Ed.2d 383 (1994); Lockley v. Deere & Co., 933 F.2d 1378, 1386 (8th Cir.1991); Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 554 (D.C.Cir.1993); Ross v. Black & Decker, Inc., 977 F.2d 1178, 1185 (7th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1274 , 122 L.Ed.2d 669 (1993); Cooper v. Firestone Tire and Rubber Co., 945 F.2d 1103, 1105 (9th Cir.1991); Anderson v. Whittaker Corp., 894 F.2d 804, 813 (6th Cir.1990); Hessen v. Jaguar Cars, Inc., 915 F.2d 641, 649 (11th Cir.1990); Melton…
discussed Cited as authority (rule) Earl Deponte v. Kenneth Kamada
9th Cir. · 1994 · confidence medium
Kamada's lawyer's remark, if it was wrong, was not a wrong which "so permeated the trial as to lead to the conclusion [that] the jury was necessarily influenced by passion and prejudice in reaching its verdict." Cooper v. Firestone Tire and Rubber Co., 945 F.2d 1103, 1107 (9th Cir.1991). 6 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument.
Ludis J. COOPER, Plaintiff-Appellee,
v.
the FIRESTONE TIRE AND RUBBER COMPANY, Defendant, and the Budd Company, Defendant-Appellant; Ludis J. COOPER, Plaintiff-Appellee, v. the FIRESTONE TIRE AND RUBBER COMPANY, Defendant-Appellant
88-15520, 88-15538.
Court of Appeals for the Ninth Circuit.
Sep 26, 1991.
945 F.2d 1103
Dean B. Allison and Scott D. Bertzyk, Jones, Day, Reavis and Pogue, Los Ange-les, Cal., Richard Davis, Mesch, Clark & Rothschild, Tucson, Ariz., Harvey M. Grossman, Los Angeles, Cal., for defendant-appellant Firestone Tire & Rubber Co., Tom Slutes, Slutes, Sakrison, Even, Grant & Pelander, Tucson, Ariz., Thomas P. Schult, Bryan, Cave, McPheeters & McRoberts, Kansas City, Mo., Frank S. Perkin, Jr., Troy, Mich., for defendant-appellant Budd Co., John C. Risjord and Randy W. James, John C. Risjord & Associates, Overland Park, Kan., Thomas J. Davis, Davis & Epp-stein, Tucson, Ariz., for plaintiff-appellee.
Browning, Pregerson, Trott.
Cited by 94 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 80%
Citer courts: Ninth Circuit (1)
JAMES R. BROWNING, Circuit Judge:

Firestone Tire & Rubber Co. and The Budd Co. appeal from the district court’s denial of their motion for new trial or re-mittur. We affirm.

BACKGROUND

Ludís J. Cooper was injured in the course of his employment as a tire repairman when a multi-piece truck rim, known as the RH5 degree, explosively separated as he was servicing a wheel and tire. The injury required amputation of Cooper’s right hand and part of his right forearm and increased the risk of quadriplegia upon any subsequent trauma to his head or neck.

Cooper sued appellant Firestone, manufacturer of the RH5 degree, and appellant Budd, manufacturer of the mounting disc to which the RH5 degree was affixed. Federal jurisdiction was based upon diversity of citizenship. Cooper’s second amended complaint asserted negligence and strict liability based upon design and manufacturing defects and failure to warn, and sought punitive damages. The district court dismissed the strict liability and failure to warn claims prior to trial and granted a directed verdict on the manufacturing defect and punitive damages claims at the close of his case. The jury found in favor of Cooper on the remaining claim of negligent design. The jury also found Cooper contributorily negligent in failing to use a restraining device while servicing the wheel and tire. The jury allocated 55% fault to Firestone, 35% to Budd and 10% to Cooper. Damages were awarded in the sum of $2,199,366.30. Appellants' motion for a new trial or remittur was denied by the trial court. This appeal followed. We affirm.

[*1105] I

Appellants contend the trial court erred in admitting evidence of other accidents involving the RH5 degree to impeach appellants’ experts without showing a “substantial similarity” between the other accidents and Cooper’s accident. Appellants’ experts had testified the RH5 degree design was safe and competent, and the evidence of other accidents involving the RH5 degree was introduced by Cooper during cross-examination of these witnesses to test their credibility. Appellants argue it was improper for the court to admit such evidence even for impeachment purposes without a showing of substantial similarity.

A showing of substantial similarity is required when a plaintiff attempts to introduce evidence of other accidents as direct proof of negligence, a design defect, or notice of the defect. See, e.g., Pau v. Yosemite Park and Curry Co., 928 F.2d 880, 889 (9th Cir.1991); Jackson v. Firestone Tire & Rubber Co., 788 F.2d 1070, 1082-83 (5th Cir.1986); Brooks v. Chrysler Corp., 786 F.2d 1191, 1195 (D.C.Cir.1986); Borden, Inc. v. Florida East Coast Ry. Co., 772 F.2d 750, 754 (11th Cir.1985); McKinnon v. Skil Corp., 638 F.2d 270, 277 (1st Cir.1981); Julander v. Ford Motor Co., 488 F.2d 839, 846-47 (10th Cir.1973). The rule rests on the concern that evidence of dissimilar accidents lacks the relevance required for admissibility under Federal Rules of Evidence 401 and 402. See Pettyjohn v. Kalamazoo Center Corp., 868 F.2d 879, 881 (6th Cir.1989); McGonigal v. Gearhart Indus., Inc., 851 F.2d 774, 778 (5th Cir.1988).

The circuits are split regarding whether evidence of dissimilar accidents is admissible for impeachment. Compare Wheeler v. John Deere Co., 862 F.2d 1404, 1409 (10th Cir.1988) (inadmissible) with Hale v. Firestone Tire & Rubber Co., 820 F.2d 928, 934-35 (8th Cir.1987) (admissible). We agree with the Eighth Circuit that evidence of dissimilar accidents may be admitted when relevant to the witness’s credibility. The problem of relevancy involved when plaintiffs have sought to introduce evidence of dissimilar accidents in their case-in-chief is not present when the evidence is relevant to credibility.

There is no doubt that the evidence of dissimilar accidents involving the RH5 degree introduced in this case was relevant to the credibility of appellants’ expert witnesses. When an expert testifies that a product is generally safe, as appellants’ experts did, the witness’s credibility can be undermined by showing the witness had knowledge of prior accidents caused by the product. See Hale, 820 F.2d at 935. The evidence of other accidents, whether similar or not, tends to show the witness’s claims of product safety are overstated and the witness therefore may not be reliable.

Appellants argue nonetheless that it would be bad policy to allow such impeachment because it would deter manufacturers from bringing knowledgeable experts into court, since experts with wide practical experience are likely to have encountered dissimilar accidents. It is not the expert’s knowledge of prior accidents that triggers the admissibility of evidence of other accidents, however, but the expert’s assertion that the product involved is generally safe. If an expert restricts his testimony to the product’s safety with respect to the type of accident at issue, or acknowledges on direct examination the occurrence of prior accidents in dissimilar circumstances, evidence of such accidents will not be relevant to his credibility and will not be admissible.

Appellants argue appellee’s evidence of other accidents should have been excluded under Federal Rule of Evidence 403. “We review the district court’s decisions balancing the probative value of evidence against its prejudicial effect for abuse of discretion.” United States v. Kessi, 868 F.2d 1097, 1107 (9th Cir.1989). Although the other-accident evidence may have had some prejudicial effect, it was also highly probative of the credibility of the assertion of appellants’ experts that the RH5 degree was generally safe. We cannot say its admission was an abuse of discretion. [1]

[*1106] II

Appellants asked the court to instruct the jury that Cooper’s failure to inspect the RH5 degree after assembling its component parts could be the basis for a finding of contributory negligence. The court refused on the ground that the proposed instruction would be redundant in view of the instructions given. The relevant instructions given by the court read as follows:

3. Was plaintiff, Ludis Cooper, negligent and was such negligence a proximate cause of his injuries?
Yes_No_
3.(a) If your answer to 3 was yes, please indicate the basis for your decision (you may find any or all applicable)
1. Not properly assembling the RH5 degree rim; _
2. Failing to use available restraining devices during inflation of the tire;
3. Being under the influence of alcohol at the time of the accident. _

The district court rejected appellants’ proposed instruction, reasoning that inspection is “all part of proper assembling” and concluding that the proposed instruction was therefore subsumed within the instruction requiring a finding of contributory negligence if Cooper improperly assembled the RH5 degree.

The court’s view was not unreasonable. The trial judge has substantial latitude in tailoring jury instructions; challenges are reviewed only for abuse of discretion. United States v. Beltran-Rios, 878 F.2d 1208, 1214 (9th Cir.1989). We agree with appellants that the district court might have stated the possible bases for a finding of contributory negligence more explicitly, but we cannot say the court abused its discretion in determining that the instructions it gave were sufficient.

III

Appellants contend the district court erroneously excluded evidence of OSHA regulations adopted by Arizona as workplace safety standards that mandated use of a restraining device while servicing multi-piece rims, see 29 C.F.R. § 1910.177(f)(4) (1980), [2] and inspection of multi-piece rims after inflation, see id. § 1910.177(f)(7) (1980). The court rejected the evidence on the ground the regulations set standards for employers, not employees. We need not reach that issue. If error occurred, it was harmless.

Whether an error in a diversity action is harmless is governed by federal law. Conway v. Chemical Leaman Tank Lines, Inc., 540 F.2d 837, 838 (5th Cir.1976); 11 C. Wright & A. Miller, Federal Practice and Procedure, § 2883, at 279 (1973). Under the law of this circuit, “[j]ust as the verdict in a civil case need only be more probably than not true, so an error in a civil trial need only be more probably than not harmless.” Haddad v. Lockheed California Corp., 720 F.2d 1454, 1459 (9th Cir.1983).

Appellants contend exclusion of evidence of the OSHA regulation requiring use of a restraining device deprived them of an opportunity to establish that Cooper’s failure to use such a device was negligence per se, see J.H. Welch & Son Contracting Co. v. Gardner, 96 Ariz. 95, 392 P.2d 567, 570 (1964) (violation of a safety statute establishes negligence per se), or at least simple negligence. However, appellants did establish Cooper’s negligence. Though they were not permitted to rely upon Cooper’s alleged violation of the OSHA regulation, appellants presented other evidence of Cooper’s negligence and the jury found Cooper contributorily negligent based upon this evidence. Admission of the OSHA[*1107] regulation therefore would not have benefited appellants; the jury reached the conclusion for which appellants contended without that evidence. See Pratico v. Portland Terminal Co., 783 F.2d 255, 269 (1st Cir.1985) (Campbell, C.J., dissenting on other grounds) (exclusion of a statute or regulation is of little effect when the jury finds the defendant’s conduct was negligent for other reasons).

Appellants argue nonetheless that if the jury had known of the OSHA regulation it might have assessed Cooper’s comparative fault at a higher level. We disagree. Statutory and regulatory violations are relevant to a jury’s determination of negligence because they represent the community’s judgment as to what conduct is reasonable and what conduct is not. Prosser and Keeton on the Law of Torts § 36, at 220 (5th ed. 1984); 3 F. Harper, F. James & O. Gray, The Law of Torts § 17.6, at 621 (2d ed.1986). In determining the relative fault of the parties, it would have made no difference if the jury was guided by the standard of reasonableness set by the OSHA regulation rather than the standard of reasonableness derived by the jury from other evidence. For purposes of this case, both standards were the same; both required the use of a restraining device and the jury assessed Cooper’s share of fault based upon his failure to use such a device.

Exclusion of evidence of the OSHA regulation mandating inspection of multi-piece wheel rims after inflation, 29 C.F.R. § 1910.177(f)(7) (1980), was also harmless. The purpose of inspection is to determine whether the rim has been assembled properly. See 29 C.F.R. § 1910.177(f)(7) (1980). Since the jury found Cooper had not been negligent in assembling the rim, it could not have found Cooper’s failure to inspect the properly-assembled rim contributed to the accident.

IV

Appellants argue the conduct of Cooper’s counsel in closing argument deprived them of a fair trial requiring a new trial or a remittur. Appellants complain of counsel’s calls for the “punishment” of Firestone and Budd despite the directed verdict on punitive damages, counsel’s characterization of a low verdict as “a hunting license,” and counsel’s request that the jury, “through compensation for this man, for this injury, ... make sure that these people, Firestone and Budd, never forget about [the accident].” [3]

The question is whether counsel’s misconduct so permeated the trial as to lead to the conclusion the jury was necessarily influenced by passion and prejudice in reaching its verdict. Kehr v. Smith Barney, Harris Upham & Co., Inc., 736 F.2d 1283, 1286 (9th Cir.1984). The trial court, which “is in a far better position to gauge the prejudicial effect of improper comments than an appellate court which reviews only the cold record,” id., found it was not. As in Kehr, the alleged misconduct occurred only in the argument phase of the trial; as in Kehr, the remarks were isolated rather than persistent; [4] as in Kehr, most of counsel’s comments were not objected to at trial and appellants did not move for a mistrial at the end of the argument. Finally, as in Kehr, we find, as did the district court, that the award of damages was not excessive. In light of all these factors, we conclude[*1108] the district court did not abuse its discretion in refusing to grant a new trial or remittur.

AFFIRMED.

1

. Firestone argues that since Cooper’s only surviving claim was for negligence, evidence of[*1106] accidents occurring after 1969, when the rim components at issue were manufactured, was not relevant, citing Dart v. Wiebe Mfg., Inc., 147 Ariz. 242, 709 P.2d 876, 881 (1985). However, Cooper did not offer evidence of dissimilar accidents to prove negligence. He offered the evidence only for impeachment and the only issue is whether admitting it for that purpose was proper.

2

. Citations are to the OSHA regulations in effect on February 20, 1984, the date of Cooper's accident.

3

. Budd objects to a variety of other remarks and arguments by counsel. Most fall into two categories: references to evidence of other accidents and allegations that appellants suppressed damaging evidence. The evidence of other accidents was properly admitted and the assertions of suppression of evidence were not objected to at trial.

Budd also objects to counsel's references during closing argument to a videotape of an RH5 degree exploding in a laboratory test. The parties had stipulated that the RH5 degree in the film was rigged to explode for demonstration purposes, but counsel asserted in closing argument that the videotape demonstrated that a properly assembled RH5 degree could explode. The district court concluded counsel had made an innocent mistake and advised appellants’ counsel to direct the jury’s attention to the stipulation in their closing argument. The court thereby cured any error.

4

. Appellants describe Cooper’s misconduct during closing argument as persistent. However, when the claims of misconduct which have no merit are eliminated, see supra note 3, the alleged instances of misconduct are few.