Generally, the admission of evidence "regarding prior accidents or complaints is predicated upon a showing that the circumstances surrounding them were substantially similar to those involved in the present case." Ponder v. Warren Tool Corp., 834 F.2d 1553, 1560 (10th Cir. 1987) (internal quotations omitted). The proponent of the evidence has the burden of establishing substantial similarity.

The Court addresses these motions in limine here, as they relate to the same issue. Both parties cite Ponder v. Warren Tool Corp., 834 F.2d 1553 (10th Cir. 1987) for the general rule that evidence "regarding prior accidents or complaints is 'predicated upon a showing that the circumstances surrounding them were substantially similar to those involved in the present case.'" Ponder v. Warren Tool Corp., 834 F.2d 1553, 1560 (10th Cir. 1987) (quoting Karns v. Emerson Elec. Co., 817 F.2d 1452, 1460 (10th Cir. 1987)).

In situations involving the admissibility of other accidents, relevance is determined by the "substantial similarity" test. Ponder v. Warren Tool Corp., 834 F.2d 1553, 1560 (10th Cir. 1987). Accidents bearing substantial similarity to the case before the court make the existence of a fact of consequence to the action before the court more or less probable, while dissimilar accidents are less likely to bear on a fact of consequence to the case before the court.

Both federal and Kansas law permit the introduction of substantially similar accidents in strict products liability actions to demonstrate "notice, the existence of a defect, or to refute testimony given by a defense witness that a given product was designed without safety hazards." Ponder v. Warren Tool Corp., 834 F.2d 1553, 1560 (10th Cir. 1987). Before introducing such evidence, the party seeking its admission must show the circumstances surrounding the other accidents were substantially similar to the accident involved in the present case.

See also First Security Bank v. Union Pacific Railroad Co, 152 F.3d 877-79 (8th Cir., 1998) quoting Thomas v. Chrysler Corp. 717 F.2d 1223, 1225 (8th Cir., 1983) (" Although evidence of prior accidents may be admissible to prove notice on the part of a defendant, any such accidents admitted "must be `sufficiently similar in time, place or circumstances to be probative.") The admission of said evidence is "predicated upon a showing that the circumstances surrounding them were substantially similar to those involved in the present case." Ponder v. Warren Tool Co., 834 F.2d 1553, 1560 (10th Cir., 1987) quoting Karns v. Emerson Elec. Co. 817 F.2d 1452, 1460 (10th Cir., 1987) However, when said evidence is presented to demonstrate notice or defendant's knowledge as to a dangerous condition, the rule requiring substantial similarity of those accidents with the accident at issue is more relaxed, "and any differences in the circumstances surrounding the occurrences go merely to the weight to be given to the evidence." Shields v. Strurm, Ruger and Co, 864 F.2d at 381 citing Jackson v. Firestone Tire Rubber Co, 788 F.2d 1083.

Both federal and Kansas law permit the introduction of similar accidents in product liability actions to prove "notice, the existence of a defect, or to refute testimony given by a defense witness that a given product was designed without safety hazards." Ponder v. Warren Tool Corp., 834 F.2d 1553, 1560 (10th Cir. 1987); see Powers v. Kansas Power Light Co., 671 P.2d 491, 499 (Kan. 1983) ("Evidence of prior similar accidents is admissible to prove foreseeability."). As a prerequisite to admitting such evidence, the proponent must demonstrate "the circumstances surrounding the other accidents were substantially similar to the accident involved in the present case."

Kansas and the Tenth Circuit allow the introduction of other accidents to show "notice, the existence of a defect, or to refute testimony given by a defense witness that a given product was designed without safety hazards." Ponder v. Warren Tool Corp., 834 F.2d 1553, 1560 (10th Cir. 1987). In order for the evidence to be admitted, the prior accidents must be "substantially similar to those involved in the present case."

Admission of evidence "regarding prior accidents or complaints is 'predicated upon a showing that the circumstances surrounding them were substantially similar to those involved in the present case.'" Ponder v. Warren Tool Corp., 834 F.2d 1553, 1560 (10th Cir. 1987) (quoting Karns v. Emerson Elec. Co., 817 F.2d 1452, 1460 (10th Cir. 1987)). "Substantial similarity depends on the underlying theory of the case."

. See Ponder v.Warren Tool Corp., 834 F.2d 1553, 1560 (10th Cir. 1987)(citing federal cases to impose a substantial similarity requirement in a diversity case). The Court's conclusions would not change even if it applied New Mexico law.

Admission of evidence "regarding prior accidents or complaints is 'predicated upon a showing that the circumstances surrounding them were substantially similar to those involved in the present case.'" Ponder v. Warren Tool Corp., 834 F.2d 1553, 1560 (10th Cir. 1987) (quoting Karns v. Emerson Elec. Co., 817 F.2d 1452, 1460 (10th Cir. 1987)). "Substantial similarity depends on the underlying theory of the case."