Extracted from Law360
Whether an individual product liability suit or an economic loss class action, a plaintiff in an automobile design defect case must prove that there is something wrong with his or her vehicle. Proving a specific defect or failure can be tricky for plaintiffs. To address this challenge, plaintiffs may seek to utilize evidence of other incidents or accidents in the same or similar vehicles to help convince a jury that the manufacturer should be liable even when there is little or no hard proof of a specific defect and failure of the vehicle.
Often, this “other incidents” evidence comes in the form of customer complaints. These complaints can include those submitted directly to the vehicle manufacturer or compiled by government agencies, such as the National Highway Traffic Safety Administration. Consumers can submit complaints to NHTSA online, which are publicly searchable on its website. These complaints are unverified and contain varying levels of specificity regarding the alleged incidents. Finding for a plaintiff in a defect case and holding an automaker liable for large damages awards based — even in part — on unverified “other incident” complaints raises serious concerns.
Recognizing this, courts have faced two important, related issues surrounding the use of customer complaints as evidence of a defect: (1) whether the complaints are admissible as evidence; and (2) if the complaints are admissible, whether they are sufficient to establish a specific defect.
Regardless of the role that customer complaints can play in proving a design defect, plaintiffs may rely only on admissible evidence. The rules of evidence, therefore, limit a plaintiff’s use of complaints as evidence to prove a defect. Numerous courts have held that customer complaints are inadmissible if offered to prove the truth of the complaint because they constitute hearsay. Nevertheless, plaintiffs may use the customer complaints for non-hearsay purposes, such as to show the manufacturer’s knowledge or notice of a potential problem. Plaintiffs’ experts may also use customer complaints that are otherwise inadmissible hearsay to form their expert opinions. Courts may even admit the complaints into evidence, with limiting instructions, if they are necessary for the jury to understand the basis of the expert’s opinion.
But even if plaintiffs proffer the evidence for a valid non-hearsay purpose, the evidence must still be relevant for the purpose offered (i.e., “have the tendency to make a fact more or less probable than it would be without the evidence,” Fed. R. Evid. 401). If relevant, the evidence may still be excluded under Federal Rule of Evidence 403 (“probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury …”) or a state equivalent. Applying these relevancy rules, most courts have held that in order to introduce evidence of other complaints, a plaintiff must demonstrate that the complaints are “substantially similar” to the accident or incident at issue in the case.
Accordingly, absent a showing of similarity (often through expert testimony), courts exclude databases, studies, or other complaint compilations that relate to different makes, models, years of vehicles and relevant component parts and, most importantly, different alleged defects. Otherwise, plaintiffs could parade a large number of unrelated and irrelevant complaints in front of the jury to suggest the existence of a defect, which is not difficult given the number of vehicles sold and number of unverified customer complaints filed against automobile manufacturers on NHTSA’s website.
For causes of action that require proof of a defect, customer complaints alone should not suffice to prove a defect. The Supreme Court of Texas best articulated the reasons why in Nissan Motor Co. v. Armstrong, a product liability action involving allegations of unintended acceleration in certain Nissan vehicles.
The court explained that proof of a design defect requires expert testimony and objective proof identifying and explaining the defect. The court noted that there are many potential causes of unintended acceleration, such as inadvertently stepping on the wrong pedal, which may be untraceable and unknown to the driver. Subjective accounts of incidents — no matter how numerous — are insufficient alone to support a product liability claim in the automotive context. The court in Armstrong summed it up in the following way: “[P]roduct defects must be proved; they cannot simply be inferred from a large number of complaints. If the rule were otherwise, product claims would become a self-fulfilling prophecy — the more that are made, the more likely all must be true.”
Still, some courts have given some limited consideration to complaints as circumstantial evidence of a design defect. In Falk v. General Motors Corp., the Northern District of California highlighted that complaints collected from the Internet “suggest strongly that there was a defect in the design of certain GM speedometers ...” While that statement was made in the context of deciding the sufficiency of the pleadings at the motion to dismiss stage, it suggests that unverified customer complaints can hold some value as circumstantial evidence of a design defect. Perhaps recognizing the problems associated with exposing automobile manufacturers to excessive liability based predominantly on unverified complaints, few courts have used language as strong as Falk.
Defendants’ Response to Customer Complaints Evidence
Given customer complaints’ evidentiary place in design defect cases, how should manufacturers respond when such evidence is presented? As an initial matter, if the only evidence of a defect is the volume of these complaints, summary judgment is likely appropriate. But if there is some additional evidence of a defect (e.g., expert testimony, manufacturer admissions, etc.), manufacturers should seek to limit the scope and use of customer complaints evidence.
Play Good Defense
Manufacturers should seek to limit how plaintiffs can use customer complaints on the basis of hearsay and relevance. First, the hearsay rules should prevent plaintiffs from citing other customer complaints to establish the truth of the statements made in those complaints. While a court may be persuaded to admit evidence of the number of complaints submitted to show a manufacturer’s knowledge of an extensive number of complaints, a plaintiff should not be permitted to offer other customer complaints to prove that the complainant’s accident happened as described in the complaint. In this way, a manufacturer should object as necessary to cabin the use of customer complaints evidence and seek appropriate limiting instructions from the judge.
Second, relevance objections will also limit the number of complaints plaintiffs can admit into evidence, since only those that plaintiff has shown to be “substantially similar” are admissible. For example, a manufacturer should be able to limit the other complaints evidence to models containing the same exact part or system and/or accidents occurring under the same or similar driving conditions as the plaintiffs. If a court fails to exclude evidence of these types of dissimilar complaints, even the strongest design defect defense can turn ugly as the jury consumes waves of complaints against the manufacturer.
But Don’t Forget Offense
If plaintiffs are permitted to use complaints as evidence of a defect, defendants should consider using them too. Defendants can often affirmatively use the complaints to support the absence of a defect. In addition to highlighting the unverified and unreliable nature of customer complaints, defendants can offer statistical expert testimony that establishes the percentage of vehicles that have received similar complaints.
At first blush, hundreds or thousands of complaints may seem like an overwhelming number to a jury. But when viewed in context of hundreds of thousands or millions of vehicles on the road, and all of the various unrelated complaints made against those other vehicles, the rarity of the complaints relating to the vehicle and issue in question may actually help convince the jury of the absence of a defect. In other words, by including only those vehicles and accidents that occurred under the same or very similar circumstances, a manufacturer’s expert may be able to not only rebut the plaintiffs’ complaint evidence and discredit any plaintiffs’ expert relying on such complaint data, but this evidence may also help demonstrate that there is no defect.
Additionally, in economic loss class actions, manufacturers can often effectively use varying complaint levels across vehicle models and model years against plaintiffs to help defeat class certification. When the plaintiffs try to bolster their defect theory with customer complaints, a manufacturer should be prepared to use those same complaints to highlight critical variations among the members of the proposed class.
 Olson v. Ford Motor Co., 410 F. Supp. 2d 855, 861-62 (D.N.D. 2006); Guild v. Gen. Motors Corp., 53 F. Supp. 2d 363, 368 (W.D.N.Y. 1999); Babb v. Ford Motor Co., 535 N.E.2d 676, 679-80 (Ohio Ct. App. 1987).
 Olson, 410 F. Supp. 2d at 862-63; Guild, 53 F. Supp. 2d at 368; see also White v. Ford Motor Co., 312 F.3d 998, 1009 (9th Cir. 2002).
 See Olson, 410 F. Supp. 2d at 864.
 See id. at 866.
 See id.; see also Cooper v. Firestone Tire and Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991).
 See, e.g., Ahlberg v. Chrysler Corp., 481 F.3d 630, 637 (8th Cir. 2007); Jones v. Ford Motor Co., 204 F. App’x 280, 286-87 (4th Cir. 2006); Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 141 (Tex. 2004).
 Armstrong, 145 S.W.3d at 131.
 Id. at 137-38.
 Id. at 142.
 496 F. Supp. 2d 1088, 1096 (N.D. Cal. 2007).
 See also Oller v. Ford Motor Co., 938 F. Supp. 817, 819 (M.D. Fla. 1996) (“[D]espite incomplete discovery, the depositions that have been taken from non-Ford witnesses, and the numerous reports to Ford of similar incidents of sudden unexpected acceleration involving Ford Aerostar minivans, clearly establish a prima facie case for both strict liability and negligence sufficient to defeat [summary judgment].”).