Survival of the Fittest? The Origins and Evolution of the Substantial-Similarity Doctrine

49 Pages Posted: 12 Aug 2011 Last revised: 21 May 2016

See all articles by Jeremy Kidd

Jeremy Kidd

Mercer University - Walter F. George School of Law

David C. Viano

Wayne State University

Evan Stephenson

Wheeler Trigg O'Donnell LLP

Date Written: August 11, 2011

Abstract

The substantial-similarity doctrine had its origins in the nineteenth century, arising as a way of aiding courts in determining whether accident re-creation evidence, either through actual re-creation or analysis of other similar accidents, is relevant and admissible. In recent decades, the doctrine has become an enigma for some courts, in part because its foundational principles had become so well-understood that for many years they were never expressly stated. A small but growing number of courts are replacing this useful tool for evaluating evidence with a near-blanket rule of exclusion that rejects relevant and reliable evidence. A review of the doctrine’s birth and evolution, combined with a series of thought-experiments, helps define the appropriate bounds for the doctrine. The substantial-similarity doctrine, in its original form, is defended against the emerging trends towards blanket rules, both in terms of coherency of the legal system and in terms of product safety.

Keywords: admissibility, Benjamin Cardozo, bright-line, Carmichael, causation, Daubert, David Owen, discovery, evidentiary, experimental, Federal Rules, Firestone Tire & Rubber Co., Jonathan Hoffman, Kumho, liability, litigation, motions in limine, Jackson, relevance, safety, Stovall v. DaimlerChrysler Motors

JEL Classification: K13, K41

Suggested Citation

Kidd, Jeremy and Viano, David C. and Stephenson, Evan, Survival of the Fittest? The Origins and Evolution of the Substantial-Similarity Doctrine (August 11, 2011). Wayne Law Review, Vol. 57, 2012; George Mason Law & Economics Research Paper No. 11-35. Available at SSRN: https://ssrn.com/abstract=1908412 or http://dx.doi.org/10.2139/ssrn.1908412

Jeremy Kidd (Contact Author)

Mercer University - Walter F. George School of Law ( email )

1021 Georgia Ave
Macon, GA 31207-0001
United States

David C. Viano

Wayne State University ( email )

Detroit, MI 48202
United States

Evan Stephenson

Wheeler Trigg O'Donnell LLP ( email )

1801 California Street
Suite 3600
Denver, CO 80203
United States

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