360 F.3d 426 | 3rd Cir. | 2004
SMITH, Circuit Judge
a/k/a, d/b/a, t/a John Deere Corporation This products liability case, arising under the law of Pennsylvania, presents a On Appeal From The United States question of admissibility under Federal District Court Rule of Evidence 407 of remedial For The Middle District of Pennsylvania measures offered by a plaintiff to establish (Civ. A. No. 01-CV-00770) that a product is defective. Timothy Diehl was severely injured when his legs became
District Judge: The Honorable James F. McClure, Jr. __________
* The Honorable Louis H. Pollak, Senior District Judge for the United Argued January 9, 2004 States District Court for the Eastern __________ District of Pennsylvania, sitting by designation.
trapped under the rear wheels of a machine I. manufactured by Blaw-Knox. Mr. Diehl
On May 24, 1999, Timothy Diehl and his wife sued Blaw-Knox, [1] alleging was severely injured while working as a that the machine was defective because (1) laborer on a road crew for IA its rear wheels were not enclosed, (2) it Construction, Inc. (“IA”). On the day of lacked a back-up alarm on the rear of the the accident, the road crew was using a machine, and (3) it lacked proper warning machine called a “road widener” to extend signs. The Diehls sought to introduce the shoulder of a road. Manufactured by evidence that, shortly after the accident, Blaw-Knox in 1970, the road widener is the owner of the machine partially used to deposit and spread material to one enclosed the rear wheels, installed a back- side of the roadway. The road widener is up alarm on the rear of the machine, and usually followed by laborers who must placed warning signs on the rear of the perform a number of tasks, including machine. These measures were taken in removing excess material that is order to prevent similar accidents in the inadvertently left on the paved portion of future. The District Court excluded the roadway; removing stones that become evidence of these remedial measures under lodged in the material; leveling off the Rule 407. After trial, a jury returned a material that has been spread; and verdict for Blaw-Knox, and judgment was straightening the outer edge of the entered against the Diehls. We hold that deposited material. The laborers are then Rule 407 does not bar evidence of followed by a roller to press the material. remedial measures taken by a non-party, and that the evidence offered in this case On the day of the accident, Mr. was relevant and would not tend to Diehl was working as one of the laborers confuse or mislead the jury. Because we behind the road widener. The road conclude that the exclusion of this widener had come to a stop, and then evidence was not harmless error, we will began to move in reverse. Mr. Diehl, who reverse the judgment of the District Court was working within “a couple of feet” of and remand for a new trial. the road widener, was not aware that the
machine was reversing toward him. One of the exposed wheels struck M r. Diehl’s right ankle, trapping and crushing his lower leg. The Diehls’ theory of the case was [1] Ingersoll-Rand Corp., Ingersoll- that the road widener was defective in Rand Co., Cooper Industries, Inc., Funk design for three reasons: (1) it lacked a Manufacturing Co., and Deere & Co. did bumper or any other enclosure of the rear not participate in this appeal. Claims wheels; (2) the back-up alarm was against these defendants were dismissed
inaudible, particularly because it was prior to trial. placed on the front of the machine; and (3) 1999 would confuse the jury, whose focus it lacked proper warnings. The Diehls was temporally limited to whether the sought to introduce testimony by an IA product was safe in 1970. mechanic that, shortly after the accident,
The jury returned a verdict for the mechanic modified the road widener Blaw-Knox using a verdict form given by by (1) installing a rear bumper/guard that the District Court. The jury answered enclosed the rear tires; (2) relocating the “No” to question 1, “Was the [road back-up alarm to the rear of the machine; widener] defective in design when and (3) placing warning signs on the rear manufactured and sold by the defendant of the machine (the “IA redesign”). Blaw-Knox?” Finding no defect, the jury According to the mechanic’s testimony, did not consider the remaining issues in the IA redesign was done in response to the case. the accident and for the purpose of p r e v e n t in g s i m i la r a c c i d e n t s . The Diehls filed a timely appeal, Significantly, IA is not a party to this challenging numerous pre-trial and trial lawsuit. rulings by the District Court, including the
court’s decision to exclude evidence of the Blaw-Knox filed a motion in limine IA redesign. We have jurisdiction under prior to trial to prohibit the Diehls from 28 U.S.C. § 1291. [2] We exercise plenary introducing evidence of the IA redesign. review over the D istrict Co urt’s The Diehls filed their own motion in interpretation of the rules of evidence; limine seeking an order allowing them to however, assuming that the evidence could introduce evidence of the IA redesign at be admissible in some circumstances, we trial. The District Court granted Blaw- review the District Court’s decision to Knox’s motion and denied the Diehls’ exclude that evidence for abuse of motion, ruling that the IA redesign was a discretion. Ansell v. Green Acres subsequent remedial measure inadmissible Contracting Co. , 347 F.3d 515, 519 (3d under Fed. R. Evid. 407. Cir. 2003); Stecyk v. Bell Helicopter At trial, the Diehls asked the Textron, Inc. , 295 F.3d 408, 412 (3d Cir. District Court to reconsider its exclusion 2002). of the IA redesign, arguing that Rule 407
II.
does not apply to subsequent remedial measures taken by a non-party. The The primary issue in this case is District Court again refused to admit the whether Fed. R. Evid. 407 excludes IA redesign, ruling that “Rule 407 by its evidence of subsequent remedial measures terms is not limited to remedial measures taken by the defendant.” Alternatively, the District Court excluded the evidence [2] The District Court had diversity under Fed. R. Evid. 403, finding that jurisdiction under 28 U.S.C. § evidence of remedial measures taken in 1332(a)(1). taken by a non-party such as IA. Rule 407 improving the safety of their products if provides: such changes can be introduced as
evidence that their previous designs were When, after an injury defective. Stecyk , 295 F.3d at 415. or harm allegedly caused by an event, measures are taken This policy is not implicated where that, if taken previously, the evidence concerns remedial measures would have made the injury taken by an individual or entity that is not or harm less likely to occur, a party to the lawsuit. The admission of evidence of the subsequent remedial measures by a non-party measures is not admissible necessarily will not expose that non-party t o p r o v e n e g l i g e n c e, to liability, and therefore will not culpable conduct, a defect in discourage the non-party from taking the a product, a defect in a remedial measures in the first place. It is product’s design, or a need noteworthy that each of the circuits to for a warning or instruction. address this issue has concluded that Rule This rule does not require 407 does not apply to subsequent remedial the exclusion of evidence of measures taken by a non-party. E.g. , subsequent measures when Mehojah v. Drummond , 56 F.3d 1213, offered for another purpose, 1215 (10th Cir. 1995); TLT-Babcock, Inc. such as proving ownership, v. Emerson Elec. Co. , 33 F.3d 397, 400 control, or feasibility of (4th Cir. 1994); Raymond v. Raymond precautionary measures, if Corp. , 938 F.2d 1518, 1523-24 (1st Cir. c o n t r o v e r t e d , o r 1991); Pau v. Yosemite Park & Curry Co. , impeachment. 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. ,
“Rule 407 rests on the strong public policy 754 F.2d 573, 583 (5th Cir. 1985); Lolie v. of encouraging manufacturers to ‘make Ohio Brass Co. , 502 F.2d 741, 744 (7th improvements for greater safety.’” Stecyk , Cir. 1974) (per curiam). See generally 2 295 F.3d at 415 (quoting Kelly v. Crown Weinstein’s Federal Evidence § 407.05[2] Equip. Co. , 970 F.2d 1273, 1276 (3d Cir. (Joseph M. McLaughlin ed., 2d ed. 2003). 1992); see also Fed. R. Evid. 407 advisory
The able District Judge declined to committee’s note (“The other, and more follow these authorities, observing that the impressive, ground for exclusion rests on text of Rule 407 makes no exception for a social policy of encouraging people to subsequent remedial measures taken by a take, or at least not discouraging them non-party. This is true enough, but the from taking, steps in furtherance of added Advisory Committee’s notes to Rule 407 safety.”). The Rule recognizes that state that the rule “in corp orate s manufacturers will be discouraged from conventional doctrine which excludes evidence of subsequent remedial measures “[a]lthough relevant, evidence may be as proof of an admission of fault.” See excluded if its probative value is also Rimkus v. N.W. Colo. Ski Corp. , 706 substantially outweighed by the danger of F.2d 1060, 1064 (10th Cir. 1983) (stating unfair prejudice, confusion of the issues, that Rule 407 “codified the generally or misleading the jury.” A district court’s accepted common law rule”). Prior to the explicit balancing analysis under Rule 403 enactment of Rule 407, conventional should only be disturbed if it is irrational doctrine in this circuit was that the rule or arbitrary. Ansell , 347 F.3d at 525. excluding evidence of repairs made after
The court reasoned that the IA an accident was not applicable to repairs redesign would create a danger of unfair made by a non-party. See Steele v. prejudice, confusion of the issues, and Wiedemann Mach. Co. , 280 F.2d 380, 382 misleading of the jury, because “[t]he (3d Cir . 196 0). T he Advisory issue of a defect—as to whether or not Committee’s reference to “an admission of there’s a defect, requires a focus of the fault” reinforces this limitation: it hardly jury on the time of the manufacture of this makes sense to speak of a party’s fault machine in 1970, more than 30 years ago.” being “admitted” by someone other than Under Pennsylvania law, a product is the party. Furthermore, the Advisory defective if it “‘left the supplier’s control Committee was well aware of the courts’ lacking any element necessary to make it consistent interpretation of the rule. The safe for its intended use .” Lewis v. Coffing notes to the 1997 amendment of Rule Hoist Div., Duff-Norton Co. , 528 A.2d 407—making the rule applicable to 590, 593 (Pa. 1987) (quoting Azzarello v. products liability actions— cite with Black Bros. Co. , 391 A.2d 1020, 1027 approval the First Circuit’s opinion in (Pa. 1978) (emphasis added)); accord Raymond v. Raymond Corp. The court in Duchess v. Langston Corp. , 769 A.2d Raymond expressly ruled that “there is no 113 1, 1142 (Pa . 2001) (“[O]u r rationale for excluding third party jurisprudence requires that products are to subsequent repairs under the Rule.” 938 be evaluated at the time of distribution F.2d at 1524. when examining a claim of product Because Rule 407 does not apply to defect.”). “Since the employment of a evidence of subsequent remedial measures subsequent remedial measure by definition taken by a non-party, it was error for the occurs in a different time frame, the District Court to exclude evidence of the evidence is said to be of diminished IA redesign under that rule. relevance.” Duchess , 769 A.2d at 1140.
Still, the implementation of remedial
III.
measures to improve the safety of a The District Court alternatively product is consistent with an inference that excluded evidence of the IA redesign the older product of a similar design was under Fed. R. Evid. 403, which states that defective. Petree v. Victor Fluid Power, Inc. (“Petree I”) , 831 F.2d 1191, 1198 (3d As a general matter, we appreciate Cir. 1987); see also Duchess , 769 A.2d at the potential that subsequent design 1142 (stating that, under Pennsylvania law, changes represent for distracting juries post-sale design changes are “not directly from the issue at hand—whether the relevant, but, at best, can provide an product was defective when it left the inference concerning the product’s earlier manufacturer’s hands. Kelly , 970 F.2d at condition” which “would generally satisfy 1277-78 (“[Rule 407] operates on the the standard of relevancy.”). [3] presumption that undue prejudice is likely
in certain situations, expressing a distrust of a jury’s ability to draw the proper inferences from the evidence.” (internal [3] We are concerned that the citation omitted)), quoted in Stecyk , 295 District Court erroneously discounted the F.3d at 415. As the Fifth Circuit put it in relevance of the IA redesign. Citing Duchess , 769 A.2d at 1145, the District Court stated in a related pre-trial ruling: “As the Supreme Court of Pennsylvania District Court placed too much reliance recently stated, ‘design improvements on Pennsylvania Rule 407, and decisions made after the sale of the product are not of the Pennsylvania courts applying that relevant to the issue presented in a rule. Certainly, Pennsylvania products products liability case, which is whether liability law is critical in determining the product was safe when sold.” The whether particular evidence is relevant. passage quoted by the District Court, Fed. R. Evid. 401 (defining relevance by however, appears to have been taken out reference to facts “of consequence to the of context. The quote is actually from an determination of the action”). However, earlier Pennsylvania Superior Court case, Federal Rule 407’s assessment of the Connelly v. Roper Corp. , 590 A.2d 11, dangers of unfair prejudice and 13 (Pa. Super. 1991). Duchess in fact confusion of the issues are procedural departed from Connelly : “ Connelly . . . matters that govern in a federal court relied upon a conclusion that design notwithstanding a state policy to the changes are irrelevant in a products contrary. Kelly , 970 F.2d at 1277-78. liability case, whereas our holding Regardless, we observe that embodies a different assessment of Pennsylvania Rule 407 is expressly relevance and consideration of pertinent limited to remedial measures taken by public policy.” Duchess , 769 A.2d at parties to the case: “evidence of the 1145. As discussed above, Duchess subsequent measures is not admissible to explicitly acknowledged that subsequent prove that the party who took the design changes are capable of an measures . . . produced, sold, designed, inference of defect. or manufactured a product with a defect
or a need for a warning or instruction.” We are also concerned that the (Emphasis added). Grenada Steel Industries, Inc. v. Alabama measures taken by a non-party. Although Oxygen Co. : the court in that case recognized that Rule
407 is inapplicable to non-party remedial A p r i o ri j u d g m e n t s measures, the evidence nevertheless c o n c e r n i n g w h y implicated Rule 403 concerns: manufacturers do or do not alter their products, made by [W]e think the district such dubious experts as court’s exclusion of this judges, lawyers, and law e v i d e n ce w a s p r o p e r professors, suffer from because it lacked sufficient excessive reliance on logical probative value and injected deduction and surm ise the dangers of confusion without the benefit of and misleading the jury. . . e v i d e n c e o f i n d u s t r y . Alternative designs may p r a c t ic e o r e c on o m ic indicate that the product was factors. It seems to us, with unreasonably dangerous, but no greater expertise than only if they were available like-trained lawyers and at the time of manufacture. judges, that changes in We fail to see how an design or in manufacturing a l t e r n a t i v e d e s i g n , process might be made after developed by another person an accident for a number of years after the product in different reasons: simply to question was manufactured, avoid another injury, as a is relevant to whether the sort of admission of error, product was reasonably safe because a better way has at the time it was made. been discovered, or to implement an idea or plan c o n c e iv e d befo re th e Grenada Steel , 695 F.2d at 889 (internal accident. citations omitted).
The instant case, however, presents none of the risks discussed in Grenada 695 F.2d 883, 887-88 (5th Cir. 1983); cf. Steel , or in other cases analyzing the Duchess , 769 A.2d at 1140 (citing potential for confusion in products liability Gren ada Stee l and sta ting that cases. For one, the state of the art is not an “manufacturers may modify product issue in this case, i.e. , it is undisputed that design for many reasons other than to the measures taken by IA— merely remedy a defect”). Grenada Steel is welding a bumper onto the rear of the road particularly instructive because that case widener—were available to Blaw-Knox at also involved subsequen t remedial the time of the manufacture. Accordingly, there is no temporal distinction for the jury Because the evidence is probative of to overlook between a feature reasonably whether the road widener lacked a feature necessary to make the road widener safe in reasonably necessary to make the machine 1999, and a feature reasonably necessary safe for its intended use, and because its to make the road widener safe in 1970. relevance was not outweighed by other See generally Espeaignnette v. Gene dangers, we find that the District Court Tierney Co., Inc. , 43 F.3d 1, 7 (1st Cir. abused its discretion by excluding 1994) (holding that evidence of subsequent evidence of the IA redesign. remedial measures taken by a non-party
IV.
was not misleading or unfairly prejudicial on the issue of defect where evidence Finally, we are unable to conclude would not have introduced design choices that the District Court’s error was not known or feasible at the time of harmless. A District Court’s evidentiary manufacture). rulings can be affirmed if, notwithstanding
the error, we conclude that it is “highly Furthermore, we find no dispute in probable” that the error did not prejudice the record that the IA redesign was done in the appe llant’s su bstantive righ ts. direct response to Mr. Diehl’s accident and McQueeney v. Wilmington Trust Co. , 779 for the sole purpose of preventing such F.2d 916, 927-28 (3d Cir. 1985). Several accidents. The IA mechanic that aspects of the record in this case convince performed the redesign testified in us that admission of the IA redesign could deposition that the redesign was done to have affected the jury’s decision on the prevent the accident that befell Mr. Diehl. issue of defect. Because the purpose of the redesign was not contested, there was no danger that the First and foremost, the sole issue jury would discount other plausible decided by the jury was the road widener’s reasons for the redesign. defectiveness, and evidence of the IA
redesign creates a permissible inference Despite the deference accorded to a that the machine was defective. As it was, trial court’s Rule 403 balancing, we find the evidence presented on defect came no support in the record for the District down to the Diehls’ expert, Dr. Ketchman, Court’s concerns that the IA redesign versus Blaw-Knox’s expert, Dr. Barnett. would confuse or mislead the jury. [4] Dr. Barnett testified at length that the Diehls’ proposed alternative design was
not any safer than Blaw-Knox’s 1970 redesign would not have affected the design of the road widener. Evidence that jury’s conclusion that the 1970 design the owner of the road widener had, in fact, lacked a feature reasonably necessary to redesigned the machine in the manner make the machine safe for its intended use. [5] Because we conclude that the suggested by plaintiffs and for the very purpose of making the road widener safer (indeed, to prevent the very accident that is the subject of the lawsuit), tends to rebut [5] Because we find that the Dr. Barnett’s testimony. Moreover, it does exclusion of the IA redesign constitutes so with greater effectiveness than the reversible error, we will not address each theoretical testimony of the Diehl’s expert. and every issue raised by the Diehls on Cf. Espeaignnette , 43 F.3d at 6-7 appeal. However, we will address two (evidence of subsequent reme dial matters that are likely to arise on remand. measures by a non-party more effective to First, we conclude that the Diehls’ prove feasibility than “hypothetical request for an “enhanced injury,” or assertions” of plaintiff’s expert). Finally, “crashworthiness” instruction is we observe that Blaw-Knox attempted to meritless. Second, the District Court discredit Dr. Ketchman in part based on should reconsider its exclusion of his lack of experience with road wideners. evidence that Blaw-Knox itself had E.g. , App. at 685 (closing argument of redesigned the road widener to fully counsel for Blaw-Knox) (“How good of an enclose the rear tires. The Diehls argue expert are you? Do you really that the Blaw-Knox redesign should have know—have you rode construction been admitted to show feasibility, an equipment, Dr. Ketchman? No, he exception to Rule 407. The Blaw-Knox doesn’t.”). Evidence of the redesign redesign, however, should not have been performed by IA Construction, which is characterized as a subsequent remedial arguably more familiar with the equipment measure in the first place (a than either of the experts, may have characterization the Diehls did not substantially buttressed Dr. Ketchman’s challenge). The Blaw-Knox redesign was testimony. Cf. Borden, Inc. v. Florida done in 1983, 13 years after manufacture East Coast Ry. Co. , 772 F.2d 750, 756 of the road widener and 16 years prior to (11th Cir. 1985) (“[A] litigant is unduly the accident. Amended in 1997, Rule prejudiced when his opponent is successful 407, by its terms, applies to remedial in preventing the admission of evidence on measures taken “after an injury or harm a particularly crucial issue in dispute, and allegedly caused by an event.” Fed. R. then points to the absence of such evidence Evid. 407; see also Advisory in closing argument.”). Committee’s notes to the 1997 amendment (“Evidence of measures We therefore cannot say that it is taken by the defendant prior to the highly probable that evidence of the IA ‘event’ causing ‘injury or harm’ do not exclusion of this evidence was not harmless error, we will reverse the judgment of the District Court and remand for a new trial. fall within the exclusionary scope of Rule 407 even if they occurred after the manufacture or design of the product.”). The 1997 amendment abrogated decisions of this Circuit to the contrary. See Kelly , 970 F.2d at 1277; Petree I , 831 F.2d at 1198. Because the Blaw- Knox redesign was done in 1983, 16 years prior to the accident, Rule 407 does not apply. Evidence of the Blaw-Knox redesign, of course, must still be analyzed under Rules 401 and 403.
NOTES
[4] Although we cannot discern any potential for confusion on the record F.2d 34, 41 (3d Cir. 1989) (allowing before us, we also note that a limiting subsequent remedial measures evidence instruction was neither suggested by the where tendency towards unfair prejudice parties nor considered by the court. See could be alleviated by a limiting Petree v. Victor Fluid Power, Inc. , 887 instruction).
