Motion in Limine in Product Liability Claim Against Walt Disney

Civil Division

– Plaintiff,
– Defendants.

Case No. 24-C-09-040796

Plaintiff’s Fourth Motion in Limine to Bar Defendants from Presenting Evidence of a Lack of Prior Incidents Involving the Product

Plaintiff, Richard Dennison, by and through his counsel, Miller & Zois, LLC, hereby files Plaintiff’s Fourth Motion In Limine to Bar Defendants From Presenting Evidence of a Lack of Prior Incidents Involving the Product. It is expected that Defendants will seek to introduce evidence that the deck cart at issue in this case had been loaded and unloaded many times and in many different places without incident. Because such evidence would be irrelevant, and because its limited probative value would be greatly outweighed by the risk of unfair prejudice, it should be barred.


1. Evidence of a lack of prior incidents is inadmissible under Md. Rule 5-403.

Md. Rule 5-403 states that “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” “Evidence of a lack of complaints is inadmissible in this case, because its probative value, if any, is far outweighed by the prejudicial effect.” Blue Circle Atlantic, Inc. v. Falcon Materials, Inc., 760 F.Supp. 516, 522 (1991)(Smalkin, J.). The Court of Appeals of Maryland has confirmed that this type of “negative evidence” is inadmissible. Lai v. Sagle, 373 Md. 306, 323, 818 A.2d 237, 248 (2003).

The issue is analytically identical to the more common situation where a court must consider the admissibility of prior complaints or events. Generally, the existence of prior incidents or events is excluded in civil cases. Joseph F. Murphy, Jr., Maryland Evidence Handbook §1508(A), p. 154 (3d ed. 1999). “Evidence of other accidents, particularly where the circumstances are not identical, have little probative value and are calculated to prejudice the jury.” Smith v. Hercules Co., 204 Md. 379, 385, 104 A.2d 590 (1954). The genesis of this rule reaches back to 1892, in a case regarding an injury allegedly suffered as a result of a defective and dangerously constructed elevator. Wise v. Ackerman, 76 Md. 375, 25 A. 424 (1892). There, the Court of Appeals of Maryland held that evidence of a prior accident involving a similar elevator should not have been admitted:

It would seem to be well-settled upon the soundest principles, that evidence of other similar occurrences, or other occasions, is not admissible for the purpose of raising a presumption that the accident complained of happened in a particular manner, or that the accident occurred without the fault of the plaintiff but by the neglect and want of due care of the defendants. The facts of the particular transaction are the only legitimate evidence of the injury and the manner and cause of its occurrence and not other and different occurrences.

Id. at 391, 25 A. at 426.

“In order to present evidence as to past accidents, tendencies or defects, there must be a similarity of time, place and circumstance, and in the discretion of the trial court, the evidence must not cause an unfair surprise or confusion by raising collateral issues.” Southern Management Corp. v. Mariner, 144 Md.App. 188, 194, 797 A.2d 110, 114 (2002). There, the appellate court took care to note that the cases that have held “other accidents” evidence inadmissible (such as Smith, supra) were cases where the circumstances surrounding the other accidents were not identical. Id. at 195, 797 A.2d at 114.

Here, Defendants wish to put before the jury evidence that the deck cart had been unloaded and loaded on many occasions, by many different people, in many different places and under many different conditions. The inference they would like the jury to draw is that because of this lack of prior problems, the product was not defective. Logically, in order for this to be admissible, Defendants must show that each place the cart was used without incident was similar to the place it was used by Plaintiff, and that it was used without incident in similar circumstances to those in which it was used by the plaintiff. Otherwise, admitting evidence of a lack of prior problems just leads to the injection of collateral issues of the circumstances of each and every time the cart had previously been used, and how similar or different those circumstances were to those present here. Accordingly, Defendants should be barred from presenting evidence of a lack of prior incidents involving the deck cart.


Defendants should be barred from presenting evidence of a lack of prior problems involving the deck cart. This evidence is inadmissible because it has minimal probative value, yet poses a great risk of prejudice, as well as the injection into the trial of collateral matters. Moreover, defendants cannot show “a similarity of time, place and circumstance” between the prior uses and the occurrence at issue in this case. Accordingly, Plaintiff’s Fourth Motion In Limine to Bar Defendants From Presenting Evidence of a Lack of Prior Incidents Involving the Product should be granted.

Miller & Zois, LLC
Laura G. Zois
John B. Bratt
1 South St, #2450
Baltimore, MD 21202
410-760-8922 (fax)
Attorneys for Plaintiff

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