*1 It ing grounds.” mootness concluded evi- Nor has PIRG offered ration. was, ill-equipped to appellate “as an aquatic of the River has that the life dence questions in the first instance.” salinity these from some- decide suffered excess Church, at Presbyterian MEI’s sodium 529. more vulnerable to dis- how organisms that oc- charges than those penalty phase was goal during the PIRG’s cupy the Creek. particular harms its mem- not to document Majority Majority Op. Op. at 123. also See again standing is a live Now that bers. (“[T]he attempt affiant no makes at opportunity issue, given the it should be affect salt show how MEI’s excursions might be able to so. Given that PIRG do salinity that comes out water level of position, I support its prove facts sufficient to plant. if MEI even the treatment court, “persuaded am, Presbyterian like the faithfully, report all of excursions were to its re- prudent course of action is to that the concerning lack information he still would pro- for further mand to district court potability drinking Similarly, of his water. standing. ceedings” regarding of its the basis affiants would continue lack the other Id. at 528. toxicity of regarding the fish information River.”). the Delaware argu- majority also dismisses PIRG’s high TOC levels could ment River, impact on not-
negative the Delaware the TOC in this case benefitted
ing that “[i]f by adding Creek nutrients
the Wickecheoke waters, cannot under- oxygen to its we Complaint time, COAL could, CONSOLIDATION same harm stand how COMPANY, of the Motor Ves- as Owner Majority Op. at River.” 123. the Delaware Barge Elizabeth sel Charterer Ultimately, majority criticizes PIRG Exoneration From Number MC for support producing stand- for not evidence Liability. or Limitation of during notice ing, PIRG was not on but standing- penalty phase litigation of this George Newman, Appellant. may As there remained a live issue. No. 96-3434. prove relevant certain evidence I prove damages, standing, but not Appeals, States United Court remand, could introduce remand. On PIRG Third Circuit. regarding the effect of increased evidence and on the salinity on the Delaware River Argued June explain attempt It could also affiants. Aug. Decided a nutrient- an increase nutrients how may ecosystem an have a poor portion of of a nu-
negative impact on the remainder Clearly, ecosystem. it is for
trient-rich issues. such fact-intensive
us to decide Presbyterian the Ninth Circuit noted
As
(9th Cir.1989),
U.S.,
Church v. position in a than an court is better findings of fact court to make re-
appellate case, standing.
garding provided allegations complaint in a standing, adequate foundation to deter- to the remanded allegations could be
mine whether suspicion
proved. spite It did this in the “case should be dismissed stand- *4 PA, (argued), Pittsburgh,
Paul L. Hammer Appellant. for Dickie, Miller (argued), R. McCam- James PA, Chilcote, ey Pittsburgh, Appellee. for & McKEE, Before: GREENBERG GREENAWAY,* Judges, and Circuit Judge. District OPINION THE COURT OF GREENBERG, Judge. Circuit appeal case is this court on This before exonerating order the district court’s (“Consol”) from Coal Co. Consolidation injuries employee George liability for to its presents complicated appeal This Newman. admiralty procedure. and unusual issues of Consequently, we forth convoluted set history procedural of ease at and factual length. considerable I. HISTORY CASE History A. Procedural 27, 1989, injured April Newman was On working as a deckhand Consol. while Thereafter, his wife filed suit Newman and of in the Court Common against Consol Pennsylvania, Allegheny County, as- Pleas of negli- of serting claims unseaworthiness Act, App. U.S.C. gence under the Jones 20, 1990, July in- Subsequently, § § jurisdiction voking under U.S.C. * Jr., sitting designation. Jersey, Greenaway, Judge Joseph New A. Honorable Court for the District States District United Pennsyl- findings. jury’s pursu- court filed suit (“Limi- Supreme Liability Courts Act vania and United States
ant to the Limitation § alloca- seeking petitions for Act”), App. respectively then denied tation U.S.C. any liability or limitation of exoneration from tur and certiorari. may As have had the Newmans. 15, 1995, Newman moved On June convenience, refer to Con- matter we will After action revived.2 limitation “limitation action.” simply sol’s case case, a mo- Newman filed restored the court Act, to the Limitation the district Pursuant adopt seeking the district court tion to have proceedings. enjoined the state jury, but the district of the state §
See U.S.C. ap- then that motion. Newman court denied ac- filing his claim in the limitation After petitioned pealed denial this court and (in trial), he which demanded grant for a of mandamus this court writ 18, 1991, January to dis- Newman moved on We, however, dismissed him relief. similar proceedings. stay of the solve the a final clearly was not from appeal, injunction court dissolved petition for a writ and denied the judgment, stipulated:' after Newman court thereafter of mandamus. The district 1. The waive claim Claimants damages. jury’s assessment of adopted *5 any judgment judicata upon ob- res based the court at a bench Accordingly, proceeding. in the tained State Court action novo on heard the limitation de trial Company shall 2. Coal Consolidation admiralty is- liability as well as on certain relating right litigate to all issues have the The sues, we need not here set forth. and exoneration of claim of limitation its on in favor of Consol district court found present proceeding.... remaining liability, rendering the issues of limita- 3. issue of valuation the The moot. re- shall remain an issue to be fund by District Court solved the United States History B. Factual Pennsylva- of for the Western District injury, employed time of Consol At the his nia. ... 1989, April On Newman as deckhand. time, At the the district at 132. same serving capacity in that on was Newman administratively limita- dismissed the Elizabeth, tug, Timothy Stin- the with M/V subject reopening after conclu- tion action being pilot. Elizabeth son as the was proceedings. New- sion of the state court barge, empty an No. from used to move though stipulation even man into entered yard, Monongahela the repair across Consol’s rejected He instead could he have it. could yards fleet of couple of hundred to a river a the of to this court from denial appealed barges. empty injunction if the to dissolve the a motion injunc- refused to dissolve the district court long, Barge 1029 was about feet stipulation. the See 28 U.S.C. tion without deep. and and feet feet wide Stinson 1292(a)(1). § inserting Barge into a were Newman empty removing after anoth- of the fleet row in the state court The case then continued barge repair yard. the er Newman (his Newman wife where in November line, Barge tie claims) using rope, verdict her obtained a had withdrawn barge at halfhead. adjoining the the 1029 to negligent the un- and vessel Consol already attached the ends of had damages at Newman seaworthy setting Newman’s and barges the with wires. Stinson testified of $1,327,00o.1 exception an issue With the away briefly, he turned interest, he and when Pennsylvania Superi- looked concerning back, going through the Newman was judgment of the com- “Mr. affirmed the or Court court; a little bit of force-” air backwards with pleas disturb mon thus tug trial showed that the The evidence jury found contribu- 1. The also Newman 11.83% $120,000, barge far less had total value of torily negligent. molded the ver- and $1,244,519.50 damages the state making adjust- recovered in than the certain dict court. ments we need not detail. memory adopt of motion to has no of ment the denial his App. at findings. fell into the accident. Newman bottom state Newman also severely barge, head hitting and that the district court’s part he of injuring himself. said saw clearly Stinson the exoneration issue were erroneous. half-head, line still attached to further contends that the court’s exclu- He part Stinson untied sion, measure, down Newman. subsequent as a remedial of a repair took across barge and it back to the safety about memo issued Newman’s facility bring aid. Newman medical accident was erroneous as was denial of made motion he to dismiss limitation barge out of lifted spoliation action reason evidence. Mi- on the bank to await ambulance. set argument predicated spoliation He on the Hughes, operating assistant chael Consol’s if was cut contention that the line after the manager piece retrieved cut it. accident Consol must have the barge. from the Thomas line bottom Brown, facility, repair at the foreman II. DISCUSSION piece eye line with the from
removed Hughes possession half-head. then took A. of Keview Standard office, line, put it in his and later of the whole appeal two highlights This areas for The line bagged and labeled it. was taken first the legal review. The arises from con analy- Pittsburgh Testing Laboratory for flowing sequences circumstance (the Clegg. Clarence Warren Orr sis that the accident led to both state and feder (assistant port captain), Louis Truntich essentially proceedings. al area is This foreman) they both observed testified inqui area legal in character. The second it had thought fine after the accident ry plena on the We have focuses trial itself. did not cut. Brown stated been *6 ry legal over the district court’s deter review freshly instead and look cut but was old Minerals, minations. Inc. v. C.A. Universal witness, expert Clegg, testi- worn. Consol’s Cir.1981). (3d Co., 98, 102 Hughes & 669 F.2d sharp cut that the had been with a fied affirm the district court’s factu But we must instrument, except for a few strands on clearly they al unless erroneous. ten- have broken under outside could 52(a); Corp. FMC v. United Fed.R.Civ.P. employees All the testified Consol who sion. Commerce, 833, F.3d Dep’t 29 838 States practice was for stated standard (3d Cir.1994) (in banc). using inspect replace a and person out, have a although if worn Consol did not evi We review the district court’s policy to this effect. New written rulings dentiary principally on abuse of needing to line was available for deckhands Philadelphia v. standard. Glass discretion replace old line. Cir.1994). (3d Co., 188, 191 34 F.3d We Elec. however, review, of its rul July 18,1996, plenary the district court entered exercise On they legal the extent are based on a exonerating ings decision and order its of Evi liability, interpretation there of the Federal Rules finding that was neither from Co., v. F.3d Barker Deere and 60 negligence. The court dence. nor unseaworthiness (3d Christos, fell, Cir.1995); 158, Lippay v. 161 slipped fact and as a that Newman found Cir.1993). 1490, (3d re entirely through F.2d 1496 We cut 996 line was and court’s motion seek result view the decision the accident. This obviated spoliation of by reason of ing a dismissal court decide need for on an abuse of discretion standard. then evidence liability issues. Newman limitation Corp., Tool 13 v. Milwaukee Elec. jurisdiction pursuant Schmid appealed. We have (3d Cir.1994). 76, § 78 F.3d 28 U.S.C. appeal argues that the district On Admiralty Background Law B. stipulate him to improperly forced provides Act that when judicata The Limitation res effect claim
he
privity
accident
“without the
judgment;
chal- maritime
occurs
he also
from the
owner,”
shipown-
knowledge of [the]
the Seventh Amend-
lenges as violative of
enjoined
pursuing common law actions
liability
not ... exceed the amount
er’s
“shall
Dammers,
at 755
836 F.2d
interest
such owner
such
other forums.”
or value of the
omitted).
(citation
vessel,
pending.”
derives from
freight then
The conflict
and her
183(a).
Amendment,
shipowner facing
§
A
the Amendment
App. U.S.C.
the Seventh
as
law,
potential
liability
complaint
only
brought
can
applies
file
at common
cases
admiralty. Waring
brought
limitation of
in a federal district
not those
(5 How.)
stay
441, 458-60,
Clarke,
all
court which then is authorized to
46 U.S.
(1847).
proceedings against
shipowner
and
other
L.Ed. 226
185;
§
all
receive
claims. 46
U.S.C.
exceptions
There are two
F(4).
Supp.
Fed.R.Civ.P.
Rule
admiralty jurisdiction over Limita
exclusive
Supplemental
Rule F
Under
proceedings. The first arises when
tion Act
Admiralty
Rules for Certain
and Maritime
freight
exceeds
the value of
vessel
Claims,
“may
shipowner
demand exoner
is,
claims,
fund is ade
that of all
liability.”
from well as limitation of
ation
against the
quate to cover all claims filed
Williams,
765,
47 F.3d
769 n.
See Texaco v.
Henn,
Corp. v.
owner. See Lake Tankers
Cir.1995).
(5th
complaint under
147, 152,
1272, 1
354 U.S.
S.Ct.
process.
two-step
Limitation Act
Gorman,2
(1957);
F.3d
L.Ed.2d
admiralty
sitting in
with
The district
when there is
exception
The second
arises
“
jury,
first determines
‘whether there
out
claim exceeds the
one claimant whose
negligence;
negli
if there was
[second]
freight.3 In this
value
the vessel and its
gence,
privity
whether it was without
case,
exception applied,
because the second
owner;
[finally] if
knowledge of the
limi
obliged
to dissolve the
granted, how
[limitation]
tation is
fund
stay
if
against
proceedings
other
”
Complaint
In re
should be distributed.’
stipulated to
district court’s exclusive
Scheepvaart
&
Dammers & Vanderheide
relating
jurisdiction to
all
determine
issues
(2d
B.V.,
Maats Christina
See,
liability.
e.g.,
parte
Ex
limitation of
Cir.1988) (quoting
Towing Co. v.
Universal
Green,
437, 438-40,
286 U.S.
52 S.Ct.
Cir.1979)).
(8th
Barrale,
414, 417
595 F.2d
602-03,
(1932); Langnes v.
indicate, that we have serious court. so; action, admiralty do thus an case that the claimant must doubts tation/exoneration opin- read right jury courts should not this to a trial. As which there is no for requirement approving implicitly Gorman, a ion as 2 in F.3d at a indicated we judicata stipulation res waiving heard proceeding the Limitation-Act is under must the state court action include effect of jury. admiralty in a by sitting court without a liability issues. limitation not allow a claimant a We will jury trials in the to obtain consecutive action Jury D. Trial and the Seventh through the device of courts state federal Amendment ac- characterizing his claim in limitation argues further Newman Act or being predicated Jones even if retrial of the exoneration issue in Thus, no how matter unseaworthiness. appropriate, federal court it should have was limi- claim in the characterizes his Newman problem jury. been a Newman’s here before part action, a of that his claim was tation jury Congress provide can is that while Co., McCarthy action. See In re Bros. cases, as admiralty trials in it has done under (“Claimants right no to a F.3d Act, Amendment does Jones the Seventh actions, admiralty their jury in and thus lose provide right jury a to a trial admiral common law remedies before right pursue to Co., ty. Fitzgerald v. Lines United States un- admiralty jury a when forced into court 16, 20, 1646, 1650, 10 83 S.Ct. U.S. omitted). Act.”) (citation the Limitation der (1963). admiralty an L.Ed.2d 720 While action, trying admiralty the district by jury a may claim be when it is heard independently considered issues decid- court joined right a with claim for which there a jury, trial, id., by the state court but ed earlier jury bring a a result. Yet the inconsis- Act and claims in fed reached different Jones unseaworthiness entirely might tency appropriate because New- eral court where he have been able was judicata jury relating any a trial on the claims res obtain man waived claim to based proceeding respect exoneration.7 See Simko v. C & C Marine on the state court (3d Co., Maintenance Cir. emphasize that are not exoneration. we We 1979); Towing v. Red Star & Trans. Co. a in which a concerned here with situation (S.D.N.Y. Giant, Ming F.Supp. Act and brings claimant his Jones unseawor- 1982). Instead, brought his Jones in a district court and then thiness claims Act claims state and unseaworthiness brings shipowner a limitation action. stipulations later entered into stay action Consol’s exoneration/limitation by trying he a and return where won novo, judge de the district exoneration issue jury in the district verdict. case re-examining found the state facts entirely admiralty case jury contrary to Amend the Seventh jury. right to a trial did not include See But cases Newman cites on ment. (3d Cooper Loper, point trial or all involved situations where the 1991). We are not aware of authori Cir. rejected jury’s appellate court or modified a nonjury admiralty ty holding that claim Here, the finding in the same case. jury joined when it is not must tried were in a different forum. right claim which carries with another Normally, estoppel judicata collateral res *9 jury trial. apply in such because would circumstances the state claims and the exonera both to think that the
Newman seems from the same set action arose un his Jones Act and district court retried tion/limitation Here, however, explicit Newman That of events. belief is not cor seaworthiness claims. judicata ly any right to res on the in the state waived rect. Those claims were tried course, We, before us. rule he have the situation we describe is not do not that could of jury as in these circumstances obtained trial that’s, Thus, that issues.8 theories. I don’t know is limitation and exoneration Then, the, theory.” not forbid the inde- Id. after Consol’s Amendment did Seventh attorney admiralty responded, case of the court “But pendent examination in the said: they certainly have, adjudicated I’ve seen it in their previously the issues in the state jury pretrial report, trial for mentioned court case. Newman received there.” circumstances, attorney’s in which he Consol’s statement those claims forum was easily response seen to the court entitled to one. can be as although only theory, that it not the it was by facts Adopting the found the state court possible theory. was a pro- mean would state ceedings judicata application res on the had This with conclusion is consistent Consol’s issue would eliminate Con- exoneration earlier on the matter. statements right litigate the exoneration issue in sol’s pretrial argued in its statements that application court. Such an cut, rope it it but did not know when was was contrary stipulation directly be to Newman’s cut, and if it had been cut before the accident right to liti- in the district court to Consol’s replaced it Newman should have seen relating in gate the district court all issues 88-89,1086 (“It rope. App. present- is and limitation. The district both exoneration ques- ly precisely rope in unknown when jury’s adopt findings did on dam- cut, cut, except it was was whom damages ages because the issue was not brought prior being cut was judicata. covered Newman’s waiver res ways landing marine Consolidation’s Thus, the court trial was not a “com- accident.”). state alleged These statements nullity” Newman now New- plete as claims. sufficiently with the consistent court’s may in man his efforts state court to consider factual that Consol cannot be deemed time, given have been a waste the final waived disclaimed the issue. result, sought who party but he was is Newman also that there no he entered into the as support finding that evidence to the court’s result, stipulations which have led to this he memory slipped. Newman Newman has no consequences. must live their Stinson, accident, witness, only away began looking Newman was when Findings E. District Court Factual fall and turned back when inquiry turn now to the second area of We already falling New was backwards. relating appeal, the area to the trial itself. on is there is direct evi man correct that no argues that fac- the district court’s slipped, that Newman nor could there dence support decision to tual apparently be. The district court inferred clearly were exonerate Consol slipped after the court first that Newman First, respects. he con- erroneous in several break, rope but was found that pretrial tends that Consol did not disclose accident. cannot find these cut after the We claiming proceedings that was findings clearly erroneous because was cut after the line Newman used support for them in the record. there clear accident. The evidence Newman has witness, expert Clegg, the testified response from Consol’s at- contention is one entirely cut rope New- had been almost torney at After pretrial conference. (of yarns through except for 156 total legal theory a few attorney if the man’s asked rope) yarns in the the outside of rope was after the on case that the cut “No, ap- accident, under tension. Newman attorney I don’t which broke said: Consol’s argue the line cut before theory.” pears at 1110. is the believe that accident, mention, however, partly but remained at least does attorney’s pulled it so that it attached until Newman responded first to Newman’s “Well, breaking remaining intact men- was the inquiry by saying: that has been theory the, certainly yarns that caused him to fall. This one of the tioned one *10 preclusion. 2 encompasses the of issue that term doctrine This in Gorman held "res stipulation F.3d judicata” action also at 528-29. in a limitation 136 facts, a employee fell after line broke and
consistent with the
but so is the one
ropes
employees
inspect
all
to
rope
that the
cautioned
reached
object-
carefully
through
using them. Consol
This
before
was cut
after the accident.
subsequent
that
memo
a
remedi-
particularly plausible,
ed
this
was
conclusion is
because
fairly
if
al measure and thus inadmissible under Fed.
rope
a
held
would be
obvious
was
407,
agreed. While
yarns,
R.Evid.
and the court
together by only a few of 156
and
argues
is not a
the dissent
memo
re-
Newman testified that he would have
subsequent
remedial measure within the
it. We
not
placed
had he noticed
do
bad
only
meaning of Rule 407 because Newman
facts we find
decide which version
dealing
portion
with
sought
to admit
probable.
more
The district
decided
accident, dissent
investigation of the
Consol’s
rope
after
and
was cut
the accident
19,
supporting the exclu-
authority
there
clearly
say
finding
this
was
we cannot
investiga-
post-accident
of evidence of
sion
erroneous.
Jensen,
Specht
under Rule 407. See
v.
tions
rope
not
Given the
did
Cir.1988)
700,
(10th
(uphold-
F.2d
863
701-02
break,
cut,
permissible
but was
if not
press
detailing city
ing exclusion of
release
necessary inference to be drawn is that New-
response
investigation of incident and
to
walking along
slipped.
man
He was
a 2-3
discovered);9
Stauffer,
problem
Alimenta v.
gunnel
large
barge
drop-offs
foot
on the
with
(N.D.Ga.1984) (exclud-
F.Supp.
side,
presents a
on either
a situation which
post-incident report and
ing
recommenda-
slipping hazard. We cannot find clear
severe
Furthermore,
improvement).
for
New-
tions
fell in
error in the conclusion that he
these
the memo should have been
man
circumstances.
to
exception
an
Rule
admitted under
break,
cut
rope
If
and was
that he offered memo
he contends
accident,
after
then
not defective.
was
testimony
impeach the
of Truntich
theory
liability for his unsea-
Newman’s
cut
like it
with an ax.
line looked
had been
negligence
claims was that
worthiness
properly
considered
provided
rope. Newman
Consol
defective
memo
the framework of Rule 407.
within
negli-
offered no other evidence of Consol’s
It can be reversible error
ex
tug
gence
the unseaworthiness of
or
subsequent
of a
remedial
clude evidence
barge.
Inasmuch as the court found that
entirely
it is
for im
measure when
offered
defective,
affirm the
was
and we
peachment purposes. Petree v. Victor Fluid
conclusion,
findings supporting
this'
(3d Cir.1989).
Power, Inc.,
34, 38
887 F.2d
negli-
legal finding
there
neither
interpret
impeachment
Yet a court must
must
af-
gence nor unseaworthiness also
be
circumspectly
exception Rule
because
firmed.
subsequent remedial mea
“any evidence of
thought
might
to contradict
so
sures
Evidentiary Rulings
F.
party’s]
impeach
in a
testimo
[a
sense
Co.,
ny_”
v. Honda Motor
challenges certain evi
Flaminio
Newman also
Cir.1984)
(7th
(emphasis
add
rulings by the district court. New F.2d
dentiary
ed).
safety
Accordingly, the evidence offered for
attempted
introduce a Consol
man
memo,
impeachment must contradict the
witness’s
regarding
memo
the accident.
(five
Kelly
testimony directly.
May
days
See
Crown
prepared
Co.,
(3d Cir.1992).
1273, 1278
accident)
Kreutzer,
Equip.
an
stated that
David
lines,
Rocky
Helicop
and advise them of measures to avoid
Mountain
worn
9. The dissent relies on
(10th
Helicopters,
danger,
inspection.
Cir.
inherently
ters v. Bell
closer
This is
1986),
post-event
proposition that
"tests
for the
designed
pre
subsequent
remedial measure
of Rule 407.
reports”
are not within the ambit
investigation
than
vent future accidents rather
Rocky
dealt
See
at 138 n. 3.
Mountain
dissent
purpose
...
test "conducted
discov
or
ering]
specifically
reports designed
tests
might
gone wrong
right.”
what
though,
problem,
the nature of
while
determine
Mountain,
Thus, Specht
Rocky
Brown testified cut, freshly obviously the district court but order the district court entered trial. In the rejected that evidence at the 18,1996, exonerating from July liabil- circumstances, hardly it conceivable that Therefore, ity not be affirmed. we need will at trial could introduction of memo arguments Newman’s that Consol consider in of the bench trial have altered the outcome knowledge thus is not privity and had suggests that case. the dissent this While liability. entitled to limitation Brown’s memo would have corroborated testimony, we do not see how could McKEE, dissenting Judge, part in Circuit any to the evi- further corroboration added concurring part. showing of a at the trial in the absence dence part “investigation” respectfully led to Kreut- from II.F. I must dissent sending Although I majority opinion. memo led to information concur zer of the aware, analysis, I majority’s at trial. As far as we the rest of the available showing. make court erred exclud- such that the district Newman did believe say under Certainly he did. memorandum Rule ing his brief does not the Kreutzer Rules of Evidence. More- of the Federal evidentiary ruling second over, error I do this not believe of mo challenges is the denial harmless, and therefore remand for I would spoli action for to dismiss this limitation proceedings. further of evidence. ation rope “leaving line” The condition motion is inconsistent with denial of Consoli- rope crucial to the determination was cut was court’s factual cut, liability. lines are used Those dation Coal’s because if it was Con- the accident can, good barges together and condi- prevented tie must have cut sol 18,000 pounds. tion, piece, a force over in one withstand examining *12 138 damage been leaving line should have the and the
The district court concluded that
holding when he fell had
out
service.
line Newman was
taken
of
Clearly, if that
was cut after
been cut.
line
added).1
dis-
(emphasis
at
The
App.
1279a
concluded,
plaintiff fell, as the
Rule
trict court excluded this evidence under
Coal would not be liable.
Consolidation
as a
of
Federal Rules of Evidence
407
the
However,
fall,
if before the
the line had been
subsequent
presumably
remedial measure
condition,
in
cut or was
defective
Consolida-
that,
goes
memo
on to announce
because the
may
v.
well be liable. See Earles Union
future,
the
“careful examination of
(3d
Corp.,
Barge Line
1104
prior
lines
to their
rigging and
shall be made
Cir.1973) (A shipowner
duty
a
“to furnish
has
App.
Rule
any operation.”
at 1279a.
use
place
working
reasonably
for ... one
a
safe
407 states:
barge
...
perform his chores
aboard the
event,
When,
tak-
after an
measures are
duty]
breach of that
results
[The
which,
previously,
if
would have
en
taken
negligence
proximately
when the breach
occur,
likely to
evi-
made the event less
injury
person.”).
causes
to a foreseeable
subsequent
is not
dence of the
measures
seaworthy
shipowner’s duty
to furnish
“[A]
prove negligence....
This
admissible
completely independent
ship is absolute and
require
rule
the exclusion of evi-
does
duty ...
of his
to exercise reasonable
of-
subsequent
dence
measures when
of
(internal quotations
at
care....”
Id.
purpose, such as ...
fered for another
omitted);
Edynak
Ship-
also
v. Atlantic
see
impeachment.
Cir.1977).
Inc.,
(3d
ping,
562 F.2d
if
Certainly,
407.
Fed.R.Evid.
Truntich,
foreman at
Louie
the assistant
sought
language
about
admit the memo’s
accident,
time of the
testified that he saw
the
lines,
examining
then Rule 407
the
would
day
leaving line on the
the accident
of
reflects,
implicated.
clearly
The
how-
record
fall,
appeared
it
to have
after Newman’s
and
ever,
only sought to admit that
that Newman
just a
“cut
an axe....
It was
been
company’s investiga-
portion related
nice, smooth,
at
straight
cut.”
1271a.
tion into
I do not believe that
his accident.2
testimony
sought to
this
discredit
proffered
scope
this
evidence was within the
days
by introducing a
circulated five
memo
Therefore,
Rule
I
remand this
407.
Kreutzer,
top
his
David
after
accident
for a determination
case
the district court
day
company
official
the scene
of whether that evidence could have been
part:
That
stated in
accident.
memorandum
grounds
other
it
excluded on
whether
investigation showed that
the line
Our
should have been admitted.
damage
prior
although
and
had suffered
Even if the memo’s statement about
MPO
[inch]
normal 1-1/2
investigation
company’s
into Newman’s acci-
typically
purpose,
close
line
used for
measure,3
pointed
subsequent
inspection
have
dent is
remedial
should
out
Major-
Although
investigations
specifically men-
under Rule 407.”
1.
the memo does not
accident
name,
ity Op.
support
position,
its
it is clear from content
at
tion Newman’s
136.
Jensen,
referring
majority
Specht
date
it is
fail.
cites
v.
Cir.1988)
(10th
Stauffer,
v.
701-02
Alimenta
(N.D.Ga.1984).
could have been redacted
exclude
F.Supp.
memo
Both
regarding
"subsequent
language
remedial
attempt
party
cases involved an
one
to admit
subsequent
measure.’’
specifically
for the
reme-
document
explained
I
dial measures
above,
contained. As
excerpt
Arguably,
above
here;
the last few lines
clearly
that is not
case
suggest
fall
action that would
within
remedial
wanted to admit the
from Consoli-
scope
inspection
Rule
"[A]
407:
close
investigation, namely,
had
dation’s
"that
line
damage
pointed
out the
should
damage,”
company’s
prior
suffered
re-
App. at
out of
should have been taken
service.”
sponse thereto.
However,
added).
(emphasis
that infer-
1279a
explained
This
in the Tenth Cir-
distinction is
ence
tenuous
best.
opinion Rocky
Helicopters
cuit’s
Mountain
(10th Cir.1986),
Helicopters,
suggests
Bell
the memorandum would have corroborated
the
usual concern
was bench trial so
court’s
Brown,
testimony
the
the
of Thomas
foreman
impeachment
the
misuse the
that
will
facility.
repair
that
at the
Brown testified
majori-
Accordingly,
is
the
evidence
absent.
freshly
rope
look
cut.
the
did not
ty
dangers
is far more concerned about the
admitting
“remedial action”
evidence
majority suggests
memoran-
by the
is warranted
circumstances of
than
directly
Truntieh’s
did not
contradict
dum
majority op,
(quoting
case. See
at 136
this
Sears,
testimony
cites Harrison v.
Roe-
Co.,
Motor
F.2d
Flaminio Honda
(1st
Co.,
Cir.1992), in
&
F.2d
buck
(7th
“any
Cir.1984)(suggesting that
evi-
support of its statement that “Truntich
subsequent
remedial measures
dence
opinion
appearance of
offering his
of the
thought
impeach”)).
...
might be
immediately following
the acci-
[Tjhere
greater
...
‘a
nexus
must be
dent.
reason
remedial
[of
“The
exclusion
im-
sought
to be
between the statement
encourage
after an
is to
accident]
measures
peached
the remedial measure than
post-accident
safety precautions
or
repairs
” Majority Op. at 16. Howev-
ease at bar.’
safety.” Kenny,
public
interest of
immediately
er,
rope
appearance
of the
public
not fur-
policy
at 351. That
is
F.2d
following
In-
the fall was crucial evidence.
by
excluding
language
Kreut-
thered
deed,
I can think of no other basis for
simply
memo
described
condi-
zer’s
rope
had
district court’s conclusion
rope
of the
and stated that
cut
the fall than how the
been
prior damage.”
at
line “had suffered
immediately
appeared
afterwards.
1279a.
Although
could have re-
Pennsylvania
the district court
Kenny
In
v. Southeastern
(3d jected
Truntich’s
accepted
Transportation Authority, 581 F.2d
evidence
testimony
Cir.1978),
testimony, I
was so
light
believe
allowed evidence of new
we
to have the
is entitled
installed on a train
crucial
ing fixtures that were
admissibility of
impeach
court reconsider the
an assault there
platform after
If the court determines that
testimony
employee
this evidence.
SEPTA
receiving
daily.
no
In Pe
other obstacle to
lights
inspected
there
platform
were
Inc.,
evidence,
Power,
then
court should
into
bility in
cordingly, respectfully I dissent from section opinion. majority
II.F. of *14 of America
UNITED STATES D’Andrea; SMITH; David
J. Steven
Joseph La Porta.
* GTECH, Intervenor in D.C. Co.; Ledger Morning Texas
Newark Cox Inc.;
Publications, Morning Dallas D.C., Appel
News, Inc., Intervenors
lants.
No. 97-5176. Appeals, Court of
United States
Third Circuit.
Argued June Aug.
Decided
* Amended 5/15/97.