Our trigger for discussing admissibility of tests and demonstrations is a decision on June 16 by an intermediate appellate court in Florida, Mitsubishi Motors Corp. v. LaLiberte,1 reversing a multimillion dollar judgment in a products liability case. The front seat passenger of an automobile that rolled over multiple times at high speed, though seat-belted, was partially ejected through the rear passenger window and subsequently died. The significance of the decision is how the court distinguished between two evidentiary scenarios lawyers and even some judges all too frequently conflate or confuse.
Application of the venerable evidentiary doctrine of “substantial similarity,” i.e., that demonstrations or tests proffered into evidence should be substantially similar to the facts of the accident, hangs in the balance. There is a marked distinction between a litigant’s offer of a test, experiment or demonstration aiming to recreate, reproduce or approximate the actual accident circumstances as opposed to a proffer of demonstrative test evidence to illustrate, demonstrate or prove visually a fact that is relevant and probative on the controversy. The latter scenario, usually accompanying, illustrating or confirming some aspect of expert testimony, is not governed by the “substantial similarity” rule. Yet, many lawyers and some judges blur the distinctions. The new decision is informative on the point. More about the Mitsubishi case later. First, we elaborate a few cardinal points about test and demonstrative evidence generally.
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