Evidence of subsequent remedial measures has historically been inadmissible to show negligence, culpable conduct or a defect in a product. The policy for the rule is clear: admitting such evidence will dissuade parties from making the improvements in the first place if those changes will later be used against them. But what of those cases where it is not the party to the action that has taken those measures to prevent further accidents? In a 2004 decision, the Third Circuit has now joined several other federal appellate courts in holding that the above rule does not apply when a non-party has made the improvement.
Fed. Rule of Evid. 407 states, in pertinent part:
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.
Thus, the rule works to preclude evidence of steps taken to reduce the likelihood of future injury after an injury has already occurred.1 In a product liability context, the rule has been based on the laudable social policy of encouraging manufacturers to take appropriate steps to improve the overall safety of their products.2 For those manufacturers and designers, the rule has been construed broadly, encompassing not only changes to the design of a given product, but also protecting evidence of voluntary product recall campaigns, even when those campaigns are undertaken after it is clear that an involuntary product recall would have been ordered.3 Those decisions have made clear that the end result sought by Rule 407 is safer products for end users.
In January, 2004, the Third Circuit was faced with the issue of whether subsequent remedial measures taken by a non-party should be admissible against a party-defendant. In Diehl v. Blaw-Knox,4 the plaintiff was injured while working for a road crew, behind a machine designed to widen a road. When the machine reversed direction without his knowledge, the exposed rear wheel struck his right ankle and rolled over it, pinning his leg beneath the wheel and crushing it. Following the accident, Mr. Diehl's employer made several modifications, including moving the back-up alarm from the front to the back of the vehicle and enclosing the rear wheels behind a bumper. When the Diehls5 sued the manufacturer of the road widener, they sought to introduce the evidence of these changes in order to prove a design defect against the original manufacturer. Both parties moved in limine with respect to the evidence, and the Court ruled for the defendant manufacturer and precluded the evidence of the subsequent measures pursuant to Evidence Rule 407. The plaintiffs renewed their motion to allow introduction of the evidence during the trial, and it was denied again. The jury returned a verdict in favor of the defendant, and the plaintiffs appealed.
The Third Circuit responded to what it deemed to be the primary issue on appeal by reversing the trial court's ruling on the subsequent remedial measure issue and remanding the case for a new trial. In doing so, the Court relied upon rulings in several other Circuit Courts that have held that the policy concerns forming the basis for Evidence Rule 407 are not implicated when the subsequent remedial measures are undertaken by entities outside the cause of action. Because the non-party will necessarily not be exposed to liability as a result of making the changes, the Court reasoned, the non-party is not discouraged from improving the product.6 The Court further explained that while the text of Rule 407 does not discriminate between parties and non-parties, the notes of the Advisory Committee are clear that the rule "incorporates conventional doctrine which excludes evidence of subsequent remedial measures as proof of an admission of fault."7 Where the entity making the changes is not a party to the lawsuit, the danger of the change being perceived as an admission of fault by the jury ceases to exist.
This most recent Third Circuit ruling is hardly new or groundbreaking. Indeed, prior to the promulgation of Evidence Rule 407, preclusion of evidence of subsequent remedial measures was reserved for those efforts undertaken by parties to the action.8 Further, the Diehl court relied heavily upon the decisions of other Circuits, which were unanimous in their holdings on this issue. The First Circuit stated quite plainly that "[b]ecause the social policy which forms the basis of Rule 407 is not furthered"9 by precluding evidence of steps taken by non-parties to improve the safety of a machine, such evidence should not be excluded.
All is not lost, however, if a manufacturer's product has been altered by a non-party subsequent to the injury. The rules concerning relevance are always "in play" when dealing with the admission of evidence. Further, and most importantly in this context, Fed. Evid. Rule 403 may permit the preclusion of otherwise relevant evidence "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."10 Indeed, motions filed to preclude evidence pursuant to Rule 407 are very often linked with the alternative basis for preclusion of the evidence outlined above pursuant to Rule 403.
The possibility of a Rule 403 preclusion of the evidence was not lost on the Diehl court, either below in the Middle District of Pennsylvania or in the Third Circuit. The Circuit panel reversed the lower court's decision on this issue as well, determining that, procedurally, the court below relied too heavily upon Pennsylvania Rule of Evidence 407, and further holding that the evidence of the redesign was relevant and did not fall within the exclusionary principles of Evidence Rule 403.
Certainly, there are concerns that must be expressed to the Court when dealing with evidence of subsequent remedial measures. The Fifth Circuit pointed out that a change in design may result from a number of different reasons, including an admission of error, implementation of an idea that pre-dated the accident, or simply that someone has "built a better mousetrap."11 An additional concern of that Circuit, i.e., that a subsequently-developed alternative design had little bearing on the issue of defect at the time of manufacture,12 was echoed by the District Court in Diehl.13
The particular facts of Diehl, however, did not present the same concerns as some of the other Circuit opinions on this issue. The remedial measures performed by the non-party in Diehl were relatively simple from an engineering standpoint and were, therefore, available when the machine was manufactured in 1970.14 Further, since there was evidence in the record from the injured plaintiff's employer that the redesign was performed in order to prevent future accidents like the one that befell Mr. Diehl, the Circuit panel concluded that there could be no jury confusion as to "other plausible reasons for the redesign," as was the case in Grenada.15
By way of contrast, one of the cases most heavily relied upon by the Diehl Circuit court held that while similar evidence of subsequent remedial measures would be admissible pursuant to Rule 407, the evidence was still inadmissible because of Rule 403. In Raymond v. Raymond Corp., the First Circuit noted that admissibility under Rule 407 "does not necessarily mean, however, that the evidence must be admitted."16 In Raymond, the plaintiff sought to introduce evidence of repairs and modifications to a forklift made six years after the manufacture of the product. The Raymond court relied heavily upon some of the reasoning outlined in the Fifth Circuit.17 Specifically, the Raymond court reasoned that the measures taken to improve safety to the product years after its manufacture "had little bearing on whether or not the [product] was unreasonably dangerous" when manufactured, which must be the focus of the fact-finder when dealing with the manufacturer.18 It is very important for outside counsel to re-focus the Court during pre-trial motions, and re-focus the jury during trial, on the time frame in which plaintiffs must prove a defect. Products which are "state of the art" at the time they leave the control of the manufacturer may nevertheless be improved by developments in engineering and design as time goes on. In such cases, Rule 403 should be used to preclude evidence of these subsequent measures as irrelevant to the issue at hand, to wit, whether the product was defective at the time of its manufacture.
Going forward, one can expect that the most common instance of a non-party making improvements to a product will be the employer of the injured plaintiff, who is generally protected by the workers' compensation laws of the state.19 It is always important to document the condition of the product as soon as possible after the lawsuit has been initiated. Regardless of whether the remedial measures are employed before or after this inspection, it is important for outside counsel to develop the reasons for the change during the discovery phase, both through depositions of those who made the changes and interviews with employees of the manufacture and design teams. Whether the goal is to render the evidence unfairly prejudicial, to show that the change was unavailable at the time of manufacture, or to simply explain the failure to design or manufacture the machine to implement the subsequent change, corporate counsel should encourage their outside counsel to fully investigate the inception of the product's design and develop the company's position on the original design and the change. Doing so may allow for the preclusion of otherwise harmful evidence by relying on the more basic rule of relevance, even when it would be otherwise admissible pursuant to the Diehl court's decision.1 The rule precludes evidence of subsequent remedial measures in order to prove culpable conduct or defect. The rule explicitly permits the evidence if offered for another purpose, such as, ownership, impeachment, control or feasibility of design change, if refuted.
2 The rule was amended in 1997 to confirm case law that applied the rule in a products liability context.
3 Wolf v. Proctor & Gamble Co., 55 F. Supp. 613, 623 (D.N.J. 1982), holding that a product recall campaign was inadmissible, even though the defendant had entered into a consent agreement with the Federal Drug Administration for the recall.
4 Diehl v. Blaw-Knox, (3d Cir., 2004).
5 Mrs. Diehl sued on a per quod claim.
6 Id. at 430.
7 Id. at 430, citing Adv. Comm. Notes to R. 407, other citations omitted.
8 Steele v. Wiedemann Mach. Co., 280 F.2d 380 (3d Cir. 1960).
9 Raymond v. Raymond Corp., 938 F.2d 1518, 1524 (1st Cir. 1991).
10 Fed. Rule of Evidence 403.
11 See Grenada Steel Industries, Inc. v. Alabama Oxygen Co., 695 F.2d 883, 887-88 (5th Cir. 1983).
12 Id. at 889.
13 Diehl at 432.
16 Raymond, supra, at 1524.
17 See fn. 11.
18 Raymond at 1525.
19 See e.g. N.J.S.A. 34:15-8.
Thomas C. Regan practices personal injury and commercial litigation at Pney Hardin LLP, where Mr. Regan is Counsel. This article represents only the author's opinions and does not necessarily reflect the views of Pitney Hardin or any of its clients. Questions concerning the article or Pitney Hardin's practice may be directed to Mr. Regan at (973) 966-8096.