Wednesday, May 25, 2016

MBE Fast Fact: Negative Evidence

A term I encounter often in the practice questions is "negative evidence." It's likely to show up in an evidence question involving products liability and the following example illustrates how the concept comes up:

Assume that x is in a car accident and asserts a personal injury claim against the car manufacturer claiming that a defect in the car caused the accident. At trial, the defendant calls a witness to testify that although he is in charge of hearing all complaints for the car company regarding product safety, there has never been a complaint similar to the one that plaintiff is claiming caused the accident, and many thousands of cars identical to plaintiff's have been sold. Is the absence of similar complaints admissible evidence to prove that the plaintiff's complaint in this case is unwarranted? In other words, is this "negative evidence" admissible?

If a proper foundation is laid, evidence that a particular product has been used many times without accident is admissible as circumstantial evidence that its condition is not dangerous. You'll want to ensure that the conditions under which the product was previously used are identical to those that exist at the time of the accident that is the subject of the current case and that the witness would have heard if there had been any previous accidents.

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