Case Information
*2 PRECEDENTIAL Judges, and POLLAK, District Judge. [*] Before: BARRY, SMITH, Circuit UNITED STATES COURT OF
APPEALS (Opinion Filed: March 12, 2004) FOR THE THIRD CIRCUIT
__________ David J. Selingo [Argued] 311 Market Street Case No: 02-3151 Kingston, PA 18074 __________ Counsel for Appellants TIMOTHY DIEHL; ROSE DIEHL, James W. Gicking [Argued]
Marshall, Dennehey, Warner, Appellants Coleman & Goggin 1845 Walnut Street
v. 16th Floor Philadelphia, PA 19103 BLAW-KNOX, a/k/a, d/b/a, t/a Blaw-Knox, a division of Ingersoll Rand Corporation; Counsel for Appellee INGERSOLL-RAND CORPORATION;
INGERSOLL-RAND ____________ COMPANY, Construction and Mining; COOPER
INDUSTRIES, INC.; FUNK OPINION MANUFACTURING COMPANY, ____________ a/k/a, d/b/a, t/a Funk Manufacturing;
DEERE & CO,
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 and his wife sued Blaw-Knox, [1] alleging that the machine was defective because (1) machine, and (3) it lacked proper warning lacked a back-up alarm on the rear of the its rear wheels were not enclosed, (2) it the owner of the machine partially up alarm on the rear of the machine, and machine. These measures were taken in placed warning signs on the rear of the evidence that, shortly after the accident, enclosed the rear wheels, installed a back- signs. The Diehls sought to introduce order to prevent similar accidents in the verdict for Blaw-Knox, and judgment was entered against the Diehls. We hold that remedial measures taken by a non-party, Rule 407 does not bar evidence of evidence of these remedial measures under Rule 407. After trial, a jury returned a future. The District Court excluded the shoulder of a road. Manufactured by used to deposit and spread material to one Blaw-Knox in 1970, the road widener is machine called a “road widener” to extend side of the roadway. The road widener is Construction, Inc. (“IA”). On the day of was severely injured while working as a laborer on a the accident, the road crew was using a straightening the outer edge of the lodged in the material; leveling off the inadvertently left on the paved portion of the roadway; removing stones that become deposited material. The laborers are then removing excess material perform a number of tasks, including usually followed by laborers who must followed by a roller to press the material. material that has been spread; and On May 24, 1999, Timothy Diehl road crew for that IA is 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 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 prior to trial to prohibit the Diehls from introducing evidence of the IA redesign. limine seeking an order allowing them to The Diehls filed their own motion in introduce evidence of the IA redesign at subsequent remedial measure inadmissible Knox’s motion and denied the Diehls’ trial. The District Court granted Blaw- motion, ruling that the IA redesign was a under Fed. R. Evid. 407. Blaw-Knox filed a motion in limine 28 U.S.C. § 1291. We exercise plenary [2] IA redesign. We have jurisdiction under court’s decision to exclude evidence of the Stecyk v. Bell Helicopter be admissible in some circumstances, we interpretation of the rules of evidence; however, assuming that the evidence could review over exclude that evidence for abuse of discretion. review the District Court’s decision to , 347 F.3d 515, 519 (3d Contracting Co. Cir. 2003); Ansell v. Green Acres the D istrict Co urt’s 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 evidence of remedial measures taken in under Fed. R. Evid. 403, finding that jurisdiction under 28 U.S.C. § 1332(a)(1). The District Court had diversity *5 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 *6 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, *7 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 District Court erroneously discounted the relevance of the IA redesign. Citing We are concerned that the citation omitted)), inferences from the evidence.” (internal of a jury’s ability to draw the proper , 295 quoted in Stecyk F.3d at 415. As the Fifth Circuit put it in 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, *9 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 trial court’s Rule 403 balancing, we find no support in the record for the District Court’s concerns that the IA redesign would confuse or mislead the jury. [4] Despite the deference accorded to a that the machine was defective. As it was, redesign creates a permissible inference down to the Diehls’ expert, Dr. Ketchman, the evidence presented on defect came versus Blaw-Knox’s expert, Dr. Barnett. Dr. Barnett testified at length that the
Diehls’ proposed alternative design was *10 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 suggested by plaintiffs and for the very use. [5] Because we conclude that the purpose of making the road widener safer in preventing the admission of evidence on the subject of the lawsuit), tends to rebut Dr. Barnett’s testimony. Moreover, it does so with greater effectiveness than the East Coast Ry. Co. , 772 F.2d 750, 756 (11th Cir. 1985) (“[A] litigant is unduly prejudiced when his opponent is successful than either of the experts, may have substantially buttressed Dr. Ketchman’s testimony. Cf. Borden, Inc. v. Florida measures by a non-party more effective to prove we observe that Blaw-Knox attempted to assertions” of plaintiff’s expert). Finally, performed by IA Construction, which is arguably more familiar with the equipment discredit Dr. Ketchman in part based on his lack of experience with road wideners. E.g. , App. at 685 (closing argument of equipment, Dr. Ketchman? No, he doesn’t.”). Evidence of the redesign know—have you
(indeed, to prevent the very accident that is counsel for Blaw-Knox) (“How good of an expert are you? theoretical testimony of the Diehl’s expert. in closing argument.”). then points to the absence of such evidence a particularly crucial issue in dispute, and Cf. Espeaignnette , 43 F.3d at 6-7 (evidence of subsequent feasibility than “hypothetical Do you really rode construction reme dial and every issue raised by the Diehls on appeal. However, we will address two Committee’s notes to the 1997 allegedly caused by an event.” Fed. R. Evid. 407; see also Advisory redesigned the road widener to fully enclose the rear tires. The Diehls argue that the Blaw-Knox redesign should have been admitted to show feasibility, an exception to Rule 407. The Blaw-Knox redesign, however, should not have been characterized as a subsequent remedial meritless. Second, the District Court should reconsider its exclusion of evidence that Blaw-Knox itself had First, we conclude that the Diehls’ request for an “enhanced injury,” or “crashworthiness” instruction is measure in the first place (a characterization the Diehls did not challenge). The Blaw-Knox redesign was done in 1983, 13 years after manufacture of the road widener and 16 years prior to the accident. Amended in 1997, Rule 407, by its terms, applies to remedial reversible error, we will not address each exclusion of the IA redesign constitutes measures taken “after an injury or harm matters that are likely to arise on remand. Because we find that the 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 *11 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.
[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).