Non-Party Subsequent Remedial Repairs Held Admissible
February, 2004
Federal Rule of Evidence (“FRE”) 407 provides, as follows:
When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, of impeachment.
The United States Court of Appeals for the Third Circuit (which has jurisdiction over federal cases in New Jersey, Delaware and Pennsylvania) recently held that when subsequent remedial conduct is performed by a non-party, it is admissible. Diehl v. Blaw-Knox, 360 F.3d 426 (3d Cir. 2004). Far from being an aberration, other courts that have considered the issue have come to the same conclusion. See e.g., Mehojah v. Drummond, 56 F.3d 1213, 1215 (10th Cir.1995); TLT-Babcock, Inc. v. Emerson Elec. Co., 33 F.3d 397, 400 (4th Cir.1994); Raymond v. Raymond Corp., 938 F.2d 1518, 1523-24 (1st Cir.1991); Pau v. Yosemite Park & Curry Co., 928 F.2d 880, 888 (9th Cir.1991); O’Dell v. Hercules, Inc., 904 F.2d 1194, 1204 (8th Cir.1990); Dixon v. Int’l Harvester Co., 754 F.2d 573, 583 (5th Cir.1985); Lolie v. Ohio Brass Co., 502 F.2d 741, 744 (7th Cir.1974) (per curiam). See generally 2 Weinstein’s Federal Evidence § 407.05[2] (Joseph M. McLaughlin ed., 2d ed.2003).
Timothy Diehl was a laborer on a road crew for IA Construction, Inc. (“IA”). His job required him to work behind a machine that widened the road. On May 24, 1999, the machine he was working behind stopped abruptly and unexpectedly began to reverse, injuring Diehl. Suit was brought against the machine’s manufacturer, Blaw-Know, and Diehl alleged that the machine was defective. The alleged defect was that the machine’s rear wheels were not enclosed and that the unit lacked a backup alarm.
Shortly after the accident, IA modified its road widener by enclosing the rear wheels, relocating a backup alarm to the rear of the widener and placed warning signs behind the machine. Blaw-Knox sought to have the evidence of IA’s subsequent remedial conduct excluded under FRE 407. U.S. District Judge James McLure, Jr., sided with the defense. The Third Circuit reversed and held that FRE 407 was not applicable to non-parties, because such preclusion would in no way encourage manufacturers to make their products safer.
The Third Circuit noted that the FRE 407 “recognizes that manufacturers will be discouraged from improving the safety of their products if such changes can be introduced as evidence that their previous designs were defective.” Diehl, at 430 (citation omitted). However, the Third Circuit also stated that “[t]his policy is not implicated where the evidence concerns remedial measures taken by an individual or entity that is not a party to the lawsuit. The admission of remedial measures by a non-party necessarily will not expose that non-party to liability, and therefore will not discourage the non-party from taking the remedial measures in the first place.” Id. at 430.
Learning Point:
Where a non-party operator has performed subsequent remedial improvements, which could have prevented an injury, the change will form powerful evidence that the product was defective and an injury could have been prevented. It is possible to preclude this evidence by making the operator a party to a claim of indemnity. When analyzing a product defect claim, keep in mind that because of worker’s compensation law, the product’s operator is not likely to be sued by its employee. •
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