Jury Trial-Pretrial Evidentiary Issues, Pt. 2

Between the time the Plaintiff starts a lawsuit by filing the Complaint and the actual trial, there is an extensive period of time generally referred to as discovery. During this time the lawyers have various 'tools' available to them to discover what evidence the other side has or, for that matter, that anyone has, in order to prove their case. At some point, the discovery process stops or 'closes,' and all discovery must be complete.

At almost any time prior to trial, but usually after the close of discovery, the parties engage in what is called "motion practice." (Motions can and are also filed during trial and after.) A motion is a written document whereby a party asks the Court to do something or "moves" for some "relief" of some kind. These pretrial motions are a good way to get the judge to rule on things before trial, thus making it easier to plan your proof. They are also good for issues that require a little more analysis than perhaps the judge can spare during the heat of the trial. In "Jury Trial-Pretrial Evidentiary Issues, Pt. 1," I discuss the issue of subsequent remedial measures. That issue was raised by a motion before trial, and the judge ruled in advance so that we knew we could offer that evidence at trial.

One of the discovery tools we used in this case is called a Request for Production. We asked Albertson's to produce records relating to other incidents where people were hurt by automatic doors. In response to our request, Albertson's allowed my partner to travel to its home office in Boise, Idaho, and inspect its files regarding other claims. In doing so, she discovered a myriad of automatic door claims throughout the Albertson's system. Given that Albertson's therefore had corporate knowledge of the danger of these doors and still failed to take the safety measures suggested by the door manufacturers, fairly early in the case we asked the judge to allow us to amend our complaint to seek punitive damages, or damages designed to punish Albertson's.

One of the grounds for punitive damages is the existence of "actual malice." A "defendant is guilty of actual malice if the defendant has knowledge of facts or intentionally disregards facts that create a high probability of injury to the plaintiff and...deliberately proceeds to act with indifference to the high probability of injury to the plaintiff." In other words, our theory was that Albertson's had knowledge of the danger of these doors and acted indifferently to such danger by failing to do even the basic safety check recommended by the manufacturer. And we intended to prove this knowledge by introducing evidence of the other incidents where customers were injured by these automatic doors.

Albertson's opposed the introduction of the evidence of these other incidents for three main reasons. First, it contended that the number of incidents where people were injured was miniscule compared to all of the events of people walking in and out of the doors. Second, Albertson's alleged that we could not prove that these other incidents were the same kind of door (sliding doors vs. swinging doors, sensor activated vs. mat activated, etc.) and occurred in the same fashion and, therefore, the fact that Mr. X was hurt by a swinging door didn't necessarily give them notice that a sliding door might hurt Mr. Y. Finally, Albertson's made what in my opinion was the somewhat circular argument that the evidence we wanted to offer about other incidents would create a trial made up of hundreds of 'mini-trials' concerning all of these other incidents. (I thought this was circular because Albertson's had set up two arguments so they couldn't lose: First, you can't introduce the evidence unless you prove the other incidents were similar and second, you couldn't prove the other incidents were similar without inundating the jury with 'mini-trials.')

We responded that we did not need to prove the other incidents were identical. Nor did we need to have mini-trials. We merely needed to admit enough evidence to establish what we thought should have been a fairly reasonable proposition: Albertson's knew that automatic doors could hurt people. They would, of course, be free to argue that the number of people hurt is relatively small, but whether they consciously disregarded a known risk would be for the jury.

We won this issue. The judge ruled that the evidence of other incidents could come in at trial.