Texas
Rule of Evidence in Product Liability Cases
Subsequent
Remedial Measures: Proof of Safer Alternative Design
After Amendment of Rule 407(a)
I.
Revision Texas Rules of Evidence 407(a)
II. Texas Products Liability Proof
III. Exceptions to Rule 407's Rule of
General Exclusion
IV. What must be Excluded Pursuant to
Rule 407
V. What is Left: Proof of Safer Alternative
Design
I.
Revision Texas Rules of Evidence 407(a)
The 78th Legislature called
upon the Texas Supreme Court to revise Texas
Rule of Evidence 407(a) to prohibit evidence
of subsequent remedial measures in products
liability actions. Texas and other state and
federal courts have long prohibited the use
of such evidence to prove negligence or culpable
conduct.
Texas
Rule 407(a) has been revised to be identical
with the Federal Rule 407. The revised rule is
effective for all cases filed on or after July,
2003. Rule 407(a) does not require the exclusion
of evidence of subsequent remedial measures when
offered for another purpose, such as proving
ownership, control or feasibility of precautionary
measures, if controverted, or impeachment. The
Texas rule, unlike the Federal rule, provides
that recall notices are admissible. See Tex.
R. Evid. 407(b). "A written notification by a
manufacturer of a defect in a product produced
by such manufacturer to purchasers thereof is
admissible against the manufacturer on the issue
of existence of the defect to the extent that
it is relevant." Id. No changes were made to
407(b).
This
paper is designed to provide an overview of the
federal and Texas law interpreting Rule 407.
A.
Historical Policy Considerations
The
policy rationale that forms the basis for both
the Texas and the Federal Rule 407 is to encourage
safety precautions. The concern is that the introduction
of subsequent remedial measures evidence may
provide a disincentive for people to take safety
precautions. "The rule rests on two grounds:
(1) the conduct is not in fact an admission since
the conduct is equally consistent with injury
by mere accident or through contributory negligence.
. . (2) the other, and more impressive, ground
for exclusion rests on a social policy of encouraging
people to take, or at least not discouraging
them from taking, step in furtherance of added
safety." Fed. R. Evid. 407, advisory committee
notes 1972 proposed rules.
B.
1997 Revision to Federal Rule 407
The
Federal Rule was revised in 1997, effective December
1, 1997, to extend the exclusion of evidence
of subsequent remedial measures to products liability
actions. The other change made to Rule 407 clarified
that the rule applies only to changes made after
the injury producing event made the basis of
the litigation. "Evidence of measures taken by
the defendant prior to the eventÕ causing
injury or harmÕ do not fall within the
exclusionary scope of Rule 407 even if they occurred
after the manufacture or design of the product." Fed.
R. Evid. 407, advisory committee notes to 1997
amendments.
C.Texas
Legislature is Presumed to Know Federal Interpretation
"When
the Legislature adopts a federal statute, we
presume that it knew of the federal court's
construction of the federal statute and intended
to adopt that construction. City of Garland v.
The Dallas Morning News, 22 S.W.3d 351, 360 (Tex.
2000); Blackmon v. Hansen, 140 Tex. 536, 169
S.W.2d 962, 964-65 (1943). The legislature directed
the Texas Supreme Court to revise a Texas rule
to become identical with the federal rule; thus
we may presume that the Legislature knew of the
deliberations and policy behind the 1997 version
of Federal Rule 407. See Beavers v. Northrop
Worldwide Aircraft Servs., Inc., 821 S.W.2d 669,
677 (Tex. App.ÑAmarillo 1992, writ denied)
(considering Rule 407 before federal amendment).
Our courts will rely on the federal interpretation
of the identical rule when applying the new Texas
rule.
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II.
Texas Products Liability Proof
A.
Chapter 82 Codified Products Liability Practice
in Part
In
design defect cases, section 82.005 provides
that a claimant must prove by a preponderance
of the evidence that there was a safer alternative
design. A safer alternative design is defined
as Ôa product design other than the one
actually used that in reasonable probability:
(1) would have prevented or significantly reduced
the risk of the claimant's personal injury,
property damage, or death without substantially
impairing the product's utility; and (2)
was economically and technologically feasible
at the time the product left the control of the
manufacturer or seller by the application of
existing or reasonably achievable scientific
knowledge. Tex. Civ. Prac. & Rem. Code Ann. ¤ 82.005(b)
(Vernon 1997). Proof of a safer alternative design
alone does not meet the requirements to prove
defect. Hernandez v. Tokai Corp., 2 S.W.3d 251,
256 (Tex. 1999).
B.
What is a Safer Alternative Design?
A
safer alternative design must prevent or significantly
reduce the risk of the claimant's injury
or death without substantially impairing the
utility of the product. Tex. Civ. Prac. & Rem.
Code Ann. ¤ 82.005(b). In addition, it
must increase the overall safety of the product. "It
is not sufficient that the alternative design
would have reduced or prevented the harm the
plaintiff suffered if the alternative would introduce
into the product other dangers of equal or greater
magnitude." Restatement (Third) of Torts: Products
Liability ¤16, cmt. (b) (1997). In reviewing
the advantages and disadvantages of the alternative
design, the finder of fact may consider the effect
of the alternative design on production costs,
product longevity, maintenance, repair, aesthetics,
and the range of consumer choice among products.
See Uniroyal Goodrich Tire Co. v. Martinez, 977
S.W.2d 328, 335 (Tex.1998).
C.
Proof of Feasibility
In
a products liability case, a plaintiff is required
to prove both economic and technological feasibility.
Tex. Civ. Prac. & Rem. Code ¤ 82.005(b);
Smith v. Aqua-Flow, Inc., 23 S.W.3d 473, 477
(Tex. App.ÑHouston [1st Dist.] 2000, pet.
denied); see also Honda of Am. Manufacturing,
Inc. v. Norman, 104 S.W.3d 600, 607 (Tex. App.ÑHouston[1st
Dist.] 2003, pet. Denied). Historically the two
were treated together, and earlier Texas cases
do not address the specifics of proof of economic
feasibility.
Evidence
that a particular technology was available at
the time of manufacture addresses technological
feasibility. Smith, 23 S.W.3d at 477. The existence
of technological advancement also goes to technological
feasibility, "while the cost of applying that
technology to a particular design goes to economic
feasibility." Id. "Evidence of use in the market
place alone is not sufficient to establish economic
feasibility under Texas law. To establish economic
feasibility, the plaintiff must introduce proof
of the cost of incorporating this technology.Õ" Honda
of Am. Manufacturing, Inc., 104 S.W.3d at 607.
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III.
Exceptions to Rule 407's Rule of General
Exclusion
Within
its text, Rule 407 explicitly excepts certain
kinds of evidence from the rule of general exclusion.
Among those exceptions are: evidence "offered
for another purpose, such as proving ownership,
control, or feasibility of precautionary measures,
if controverted, or impeachment." Tex. R. Evid.
407. By far, the greatest number of cases are
found on the issue of feasibility. Proof of control
and impeachment follow. Although some courts
recognize that "other purposes" provide a basis
for additional exceptions, few are to be found
in the cases.
A.
Feasibility, if Controverted
If
controverted, evidence of subsequent remedial
measures may be used to prove feasibility. Tex.
R. Evid. 407(a). Webster's defines feasibility
as "capable of being done or carried out, capable
of being used or dealt with successfully. Webster's
New Encyclopedic Dictionary, 367 (1993). In Texas,
both technological and economic feasibility must
be proven. The courts are divided on what constitutes
feasibility and whether there must be a formal
stipulation by the defendant for the defendant
to benefit from Rule 407's exclusion of evidence.
"Whether
something is feasible relates not only to physical
possibility costs and convenience, but also to
ultimate utility and success in intended performance.
. . Mercury's suggestion during trial that
only the retailer could properly instruct the
ultimate consumer regarding kill-switch use clearly
controverts the utility and likelihood of success
of direct manufacturer warnings." Where a manufacturer
disputed its ability to provide adequate warnings,
the trial court admitted a later model year owner's
manual containing warnings not found in prior
year manuals. Reese v. Mercury Marine Division
of Brunswick Corp., 793 F.2d 1416, 1428-29 (5th
Cir. 1986).
"Where
the feasibility of remedial measures is as apparent.
. . manufacturers should be deemed to controvert
that feasibility unless they unequivocally admit
it. The failure by manufacturers to clarify this
actual matter for the jury will mean that evidence
of subsequent remedial measures should be admitted
under the controverted feasibility exception
to Rule 407." Herndon v. Seven Bar Flying Serv.,
Inc., 716 F.2d 1322, 1329 (10th Cir. 1983). Yet,
the court in Werner v. Upjohn Co., Inc., 628
F.2d 848, 853-54 (4th Cir. 1980), held "it is
clear from the face of the rule that an affirmative
concession is not required. Rather feasibility
is not in issue unless controverted by the defendant." Id.
at 855.
Another
case in which the manufacturer contested feasibility,
Dixon v. International Harvester Co., 754 F.2d
573, 583-84 (5th Cir. 1985), resulted in the
court permitting photographs of subsequent year
tractors equipped with the same protection for
the operator in the cab that plaintiff claimed
would have protected his decedent. Additionally,
the trial court permitted evidence that the employer
repaired the tractor after the incident by adding
metal and screening to give the tractor operator
additional protection. The trial court held Rule
407 did not apply because the repairs were made
by a non-party, relying upon Grenada Steel Indus.,
Inc. v. Alabama Oxygen Co., 695 F.2d 883 (5th
Cir. 1983). The manufacturer had claimed that
modifications like those made by the employer
would dangerously impede visibility; the employer's
changes demonstrated that visibility was not
impaired.
In
a pre-rule change summary judgment case, evidence
of changes to the following year's model
tractor equipped with ROPS and a seatbelt as
standard equipment was evidence that a safer
design was capable of being implemented without
destroying the utility of the product. Allen
v. W.A.Virnau & Sons, Inc., 28 S.W.3d 226, 232-33
(Tex. App.ÑBeaumont 2000, pet. Denied).
Under the new rule, if feasibility were not contested,
that evidence would likely not be admissible.
When
a manufacturer stipulates to feasibility, evidence
of subsequent remedial measures becomes inadmissible.
J.B. Hunt Transport, Inc. v. General Motors Corp.,
243 F.3d 441, 445 (8th Cir. 2001). The stipulation
in this seat design case, held to be sufficient
by the Eighth Circuit, provided that "From time
to time before the date of the accident in this
case, General Motors tested proposed seating
systems that were both stronger and not as strong
as the seating system in the 1991 Camaro." Id.
Such a stipulation may not adequately benefit
a Texas plaintiff who must prove both technological
and economic feasibility. Cf. Ross v. Black & Decker,
Inc., 977 F.2d 1178, 1184-85 (7th Cir. 1992).
In Ross, Black & Decker disputed feasibility.
The trial court allowed evidence that the defendant
added a lower blade guard to its saw once underwriters
laboratory safety standards required the additional
guard. "The defendant could have stipulated to
the feasibility, or included the admission as
an uncontested fact in the pre-trial memorandums
submitted by the parties. . . .
" Similarly,
in Hardy v. Chemetron Corp., 870 F.2d 1007, 1010-1011
(5th Cir. 1989) the trial court excluded evidence
of the subsequent change in the wiring of a bacon
slicing machine. Chemetron admitted pre-trial
that the wiring change was both technically and
economically feasible and it was not aware of
any disadvantages of rewiring. Exclusion of the
rewiring evidence was held to be proper on this
record. Id.
Cases
in which feasibility was admitted and subsequent
changes excluded: Burks v. Firestone Tire & Rubber
Co., 633 F.2d 1152, 1153 (5th Cir. 1981) (stipulation
by Defendant, "We would like the record to show
that Firestone does stipulate that at the time
of the manufacture of the side ring in question,
that is 1966, it was feasible to manufacture
a multi-piece wheel of a different design than
the RH5 and in fact this Defendant did design
and sell other multi-piece rims in 1966, which
did not employ an internal interference fit design
and thus the static condition would eliminate
the so-called explosive separation."); Foster
v. Ford Motor Co., 621 F.2d 715, 721 (5th Cir.
1980) (Ford's concession that the alternate
design was practical made actual physical evidence
of subsequent design changes irrelevant); Bauman
v. Volkswagenwerk Aktiengesellschaft, 621 F.2d
230 (6th Cir. 1980) (reversing because trial
court admitted subsequent changes in door latch
design).
B.
Impeachment As an Exception to Exclusion
Subsequent
changes may be admissible for purposes of impeachment.
Tex. R. Civ. P. 407(a). In an older Texas case,
where the defense expert testified that there
were no feasible alternatives to the warnings
in the manual at issue, subsequent changes in
the ownersÕ manual were held to be admissible
for impeachment. Ford Motor Co. v. Nowak, 638
S.W.2d 582, 591 (Tex. App.ÑCorpus Christi
1982, writ refÕd n.r.e.).
The
leading case on the use of subsequent measures
for impeachment is Muzyka v. Remington Arms Co.,
Inc., 774 F.2d 1309, 1313 (5th Cir. 1985). In
that case, the defendant manufacturer lauded
the rifle at issue as the embodiment of gun safety,
the best, the safest, and the standard against
which all other guns were measured. The trial
court excluded evidence of design changes effecting
the safety of the rifle. On appeal, the Fifth
Circuit reversed holding that the trial court
should have allowed evidence of manufacturing
changes made after the injury to impeach the
defendant's position. Id.; see also Anderson
v. Malloy, 700 F.2d 1208, 1212-14 (8th Cir. 1983)
(subsequent remedial measures allowed to impeach
defendant's testimony that he had checked
the area pre-accident and done everything possible
to make it safe); Wood v. Morbark Indust., Inc.,
70 F.3d 1201, 1208 (11th Cir. 1995) (subsequent
change to length of chipper chute admissible
to impeach defendant's testimony that the
chute length used was the safest length chute
you could possibly put on the machine).
C.
Subsequent Measures May be Admissible as Evidence
of Control
The
Texas rule has long permitted evidence of subsequent
remedial measures to prove control in negligence
cases. These Texas cases will be instructive
for future products cases. In Tyson Foods, Inc.
v. Guzman, 116 S.W.3d 233, (Tex. App.ÑTyler
2003, no pet.), the issue was whether Tyson controlled
safety procedures. Evidence that Tyson subsequently
required subcontractor's employees to wear
reflective vests was admitted to demonstrate
Tyson's control over safety devices. Id.
Because the plaintiff was required to prove that
Tyson owed him a legal duty, which Tyson denied,
the issue of control was contested and thus the
evidence was properly admitted. Similarly in
Lee Lewis Constr., Inc. v. Harrison, 64 S.W.3d
1, 12-13 (Tex. App.ÑAmarillo 1999), affÕd,
70 S.W.3d 778 (Tex. 2001), the issue was whether
a general contractor had the right to control
the conduct of the subcontractor in using fall
prevention devices. The general contractor claimed
he did not. At trial, the court permitted evidence
that after the plaintiff fell to his death, the
general contractor undertook to make certain
that no similar accident occurred and that the
subcontractors on the job attached their lanyards
to a steel cable installed by the defendant.
See also Exxon Corp. v. Roberts, 724 S.W.2d 863,
869 (Tex. App.ÑTexarkana 1987, writ refÕd
n.r.e.) (Admitting evidence that Exxon called
subsequent safety meetings and changed safety
procedures where Exxon disputed ability to control
safety on the job).
D.
Other Purposes for Subsequent Remedial Measures
The
language of 407(a) describing its exceptions
is not exclusive, but only illustrative. Albrecht
v. Baltimore & Ohio R. Co., 808 F.2d 329, 332
(4th Cir. 1987). But courts are reluctant to
carve out new exceptions concerned that doing
so will interfere with the policy of encouraging
subsequent remedial measures. Id.
In
one Texas negligence case, photographs of the
repaired premises were admitted at trial because
they were the only evidence available to show
the jury the lay of the land, the proximity of
nearby structures, lighting, the construction
and material used in the walkway. E.V.R. II Associates,
Ltd. v. Brundige, 813 S.W.2d 552, 556-57 (Tex.
App.ÑDallas 1991, no writ). "Though the
pictures may incidentally show repair, they also
tend to enhance the jury's understanding
of other issues. There is a basis for admission
of the pictures into evidence; consequently no
abuse of discretion is shown." Id. Although the
discussion of Rule 407 is brief, the court acknowledged
the good policy behind it, "[t]he same authorities
make it clear that the rule is inapplicable where
the evidence would be valid as to other issues
which also exist in the case.
In
another Texas case, Fisher v. M & E Food Mart,
Inc. #2, 1997 WL 465267 at *5-6 (Tex. App.ÑBeaumont
1997, no pet.) (Designated unpublished), the
court excluded photographs even though that evidence
was the only evidence from which it could possibly
be determined whether the ramp on which plaintiff
tripped had a lip before the accident. On appeal,
the Beaumont court noted that "This rule [407]
does not require the exclusion of evidence of
subsequent remedial measures when offered for
another purpose, such as proving ownership, control
or feasibility of precautionary measures, if
controverted, or impeachment," Id. (emphasis
in original) but did not reverse.
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IV.
What must be Excluded Pursuant to Rule 407
A.Changes
Made Post-Accident by Other Than the Defendant
The
primary policy supporting Rule 407 is to avoid
punishing those persons who institute remedial
measures after they become aware of a potential
hazard. See Fed. R. Evid 407, advisory committee
notes. That policy is not implicated when someone
other than the defendant makes changes. Yet,
Texas and federal cases are split on the propriety
of the admission of evidence of changes made
by someone other than the defendant.
In
Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d
194, 207 (Tex. App.ÑTexarkana 2000, pet.
Denied), changes to an intersection were held
to be properly admitted when made by the State
who was not a party to the lawsuit. "[T]he subsequent
remedial measures were not offered to prove negligence
or culpable conduct of the Texas Department of
Transportation, because it is not a defendant.
. . because the department is not a defendant,
the purpose of the rule was not implicated and
this evidence was admissible." Id. The evidence
was proffered by the defendant who sought to
blame the construction of the intersection for
the collision.
Federal
cases permitting evidence of repairs or subsequent
modifications by non-defendants include: TLT-Babcock,
Inc. v. Emerson Elec. Co., 33 F.3d 397, 400 (4th
Cir. 1994); Pau v. Yosemite Park and Curry Co.,
928 F.2d 880, 886 (9th Cir. 1991) ("a non-defendant
will not be inhibited from taking remedial measures
if such actions are allowed into evidence against
a defendant. The trial court abused its discretion
in holding that the sign erected by the park
service should be excluded from evidence on the
basis of Rule 407."); Dixon v. International
Harvester Co., 754 F.2d 573, 583 (5th Cir. 1985)
(subsequent repairs by employer). In an unusual
case, In re Aircraft Disaster, 86 F.3d 498, 528-30
(6th Cir. 1996), one defendant made changes to
its aircraft after the crash and sought to admit
those changes as proof that the manufacturer
defendant was culpable. The trial court excluded
the evidence, which decision was affirmed on
appeal. In doing so, the court used broad language: "[t]here
is nothing in the text of Rule 407 that limits
its application to measures by a responsibleÕ partyÐi.e.,
measures by a party against whom the evidence
is offered. . . by its terms, the rule seems
to exclude evidence of remedial measures regardless
of who undertook them." Id. at 529. In part,
the court excluded the evidence because it found
it to be suspicious. It considered Rule 407's
additional policy ground which is to bar a "class
of evidence that is very poor proof of negligence
or defectiveness." Id. "[A]lthough applying the
rule to measures taken by plaintiffs does not
serve the rule's purpose to encourage safety
precautions, it does serve the rule's purpose
of excluding inherently unreliable evidence." Id.
at 530. The court also noted that Rule 403 provided
a sufficient basis for exclusion.
B.
Measures Taken Before the Injury Causing Event
One
purpose of the 1997 rule change was to limit
the exclusion of evidence to those measures that
took place after the injury producing event.
Evidence of measures taken after manufacture
of a product, but before the injury causing event
are admissible under Rule 407. Fed. R. Evid.
407, advisory committee notes. The event referred
to in the rule is the plaintiff's accident
and injury, not some other event such as manufacture.
There
are few federal cases decided after the 1997
rule change. In Figueroa v. Boston Scientific
Corp., 2003 WL 21488012 at *5 (S.D.N.Y., June
27, 2003), the defendant recalled a medical device
four months before discovery and diagnosis of
plaintiff's injury and five months before
the device was removed. "By its terms . . . Rule
407 bars evidence of remedial measures taken
after an injury or harm. Rule 407 does not apply
to pre-accident conduct." Id. (emphasis in original);
see also Humphries v. Mack Trucks, Inc., 198
F.3d 236 (4th Cir. 1999) (TABLE, text in Westlaw)
(designated unpublished) (evidence of retrofit
that occurred pre-injury not excludable under
Rule 407).
The
cases before the rule change vary in their treatment
of design changes or other changes occurring
subsequent to manufacture but prior to injury.
In Kelly v. Crown Equipment Co., 970 F.2d 1273
(3rd Cir. 1992) the court extended Rule 407 to
pre-accident conduct, following Petree v. Victor
Fluid Power, Inc., 831 F.2d 1191 (3rd Cir. 1987).
But, the First Circuit noted as early as 1991
that the event referenced in Rule 407 was the
accident or injury precipitating the litigation
and held that where design modifications of the
product at issue were on the drawing board prior
to manufacture of the alleged defective product,
that evidence was not excludable pursuant to
Rule 407. Raymond v. Raymond Corp., 938 F.2d
1518, 1523 (1st Cir. 1991); see also Arceneaux
v. Texaco, Inc., 623 F.2d 924, 928 (5th Cir.
1980) (trial court improperly excluded evidence
of change in location of gas tank after manufacture
of plaintiff's vehicle but before collision);
Cates v. Sears Roebuck & Co., 928 F.2d 679, 680-86
(5th Cir. 1991) (warnings excluded erroneously
when designed after sale but prior to injury);
Huffman v. Caterpillar Tractor Co., 908 F.2d
1470, 1481 (10th Cir. 1990) (event refers to
time of accident or injury to plaintiff, not
to time of manufacture of product or creation
of hazard; rule does not encompass remedial measures
taken before the event); In re Aircraft Bali,
Indonesia, 871 F.2d 812 (9th Cir. 1989) (report
of defendant on safety record and problems dated
a day after air crash where report was researched
for many months before the crash was not a response
to the crash and was not excludable pursuant
to Rule 407); Rozier v. Ford Motor Co., 573 F.2d
1332, 1342-43 (5th Cir. 1978) (407 does not exclude
cost benefit analysis prepared before accident);
Trull v. Volkswagen of American, Inc., 187 F.3d
88, 96 (1st Cir. 1999) (trial court excluded
evidence of European design of similar vehicle
manufactured before his collision but not excludable
under Rule 407); Ake v. General Motors Corp.,
942 F. Supp. 869 (W.D.N.Y. 1996) (Rule 407 is
not applicable to pre-accident conduct); Bush
v. Michelin Tire Corp., 963 F. Supp. 1436 (W.D.Ky.
1996) (testing of alternate design by defendant
before date of accident and date of manufacture
is not excludable pursuant to Rule 407); but
see Wusinich v. Aeroquip Corp., 843 F. Supp.
959 (E.D.Pa. 1994) (pre-accident remedial measures
held to be inadmissible pursuant to Rule 407).
For
other cases see Products Liability: Admissibility
of Evidence of Subsequent Repairs or Other Remedial
Measures by Third Party Other Than Defendant,
64 ALR 5th 119, ¤ 5 (1998); Michael H.
Graham, Handbook of Federal Evidence, (5th ed.
Article IV (2003 & supp. 2004).
C.
Rule 407 Does Not Exclude Subsequent Changes
Made in Response to Regulatory Requirements
Several
circuits have recognized another exception to
Rule 407 based upon the public policy basis for
the rule. Evidence of subsequent changes when
made in response to rule making such that the
defendant's changes are not voluntary, are
not subject to Rule 407. In OÕDell v.
Hercules, Inc., 904 F.2d 1194, 1204 (8th Cir.
1990), Rule 407 did not preclude evidence of
subsequent remedial activities where the changes
were forced upon the defendant by superior governmental
authority. Such evidence is a recognized exception
to Rule 407 "because the policy goal of encouraging
remediation would not necessarily be furthered
by exclusion of such evidence." See also Rozier
v. Ford Motor Co., 573 F.2d 1332, 1343 (5th Cir.
1978) (exclusion of cost benefit analysis on
407 grounds is "particularly inappropriate since
the estimate was prepared not out of a sense
of social responsibility but because the remedial
measure was to be required in any event by a
superior authority, the National Highway Traffic
Safety Administration"). For other cases see
Products Liability: Admissibility of Evidence
of Subsequent Repairs or Other Remedial Measures
by Third Party Other Than Defendant, 64 ALR 5th
119, ¤ 5 (1998); Michael H. Graham, Handbook
of Federal Evidence, (5th ed. Article IV (2003 & supp.
2004).
D.
Evidence Not Technically Excludable Under Rule
407 May Be Excluded Pursuant to Rules 401,
402 or 403
Evidence
that may be excludable pursuant to Rule 407 may
also be excluded for other reasons such as relevance
or undue prejudice. See Myers v. Pennzoil Co.,
889 F.2d 1457 (5th Cir. 1990) (evidence that
employer made post accident repairs properly
excludable even though employer not a party,
fault of employer was immaterial); Granada Steel
Indust., Inc. v. Alabama Oxygen Co., Inc., 695
F.2d 883, 889 (5th Cir. 1983) (trial court excluded
evidence that another manufacturer offered alternatively
designed valve on grounds of relevance).
Rule
403 is used as a basis for exclusion more often
than Rule 407. In Eoff v. Hal & Charlie Peterson
Foundation, 811 S.W.2d 187, 196 (Tex. App.ÑSan
Antonio 1991, no writ), the trial court excluded
evidence that post-injury the defendant hospital,
placed a sign in its emergency room that physicians
were not hospital employees. The trial court
characterized the sign as a subsequent remedial
measure inadmissible pursuant to Rule 407(a).
The plaintiff claimed the signs showed ownership
and control. The court held that the evidence
was properly excluded pursuant to Rule 403. Accord
Bogosian v. Mercedes-Benz of N. Am., Inc., 104
F.3d 472, 480-81 (5th Cir. 1997) (Rule 407 does
not apply to pre-accident modifications, but
evidence relating to such modification excluded
on Rule 403 grounds where feasibility is not
disputed); Mills v. Beech Aircraft Corp., 886
F.2d 758, 762 (5th Cir. 1989) (letter regarding
installation error that could cause aileron lockup
inadmissible because letter did not state under
what conditions lockup occurred and was thus
more prejudicial than probative pursuant to Rule
403); Middleton v. Harris Press & Shear, Inc.,
796 F.2d 747, 751 (5th Cir. 1986) (modifications
to product made post-accident by employer not
barred by Rule 407, excluded Rule 403 grounds);
Gardner v. Chevron U.S.A., Inc., 675 F.2d 658,
660 (5th Cir. 1982) (trial court properly excluded
evidence of repair with different grade pipe
pursuant to Rule 403).
Further
discussion of admissibility of evidence of subsequent
remedial measures may be found at Admissibility
of Evidence of Subsequent Remedial Measures Under
Rule 407 of Federal Rules of Evidence, 158 ALR
Fed. 609 (1999) and Products Liability: Admissibility
of Evidence of Subsequent Repairs or Other Remedial
Measures by Third Party Other Than Defendant,
64 ALR 5th 1919 ¤ 5(b) (1998).
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V.
What is Left: Proof of Safer Alternative
Design
The
following evidence of safer alternative design
is not excludable on Rule 407 grounds: designs
used by other than the defendant in the case;
modification by the defendant manufacturer to
the product that occurred between the date of
manufacture and the date of the injury producing
event; modifications to a product made by someone
other than the defendant for purposes of improving
its safety; subsequent design changes by the
manufacturer that prove economic or technological
feasibility when contested; internal documents
generated by the manufacturer considering design
changes that pre-date the injury causing event;
or subsequent design changes by the manufacturer
when used to impeach the manufacturer or its
experts.
Although
the change to Rule 407 makes proof of a safer
alternative design, now mandated by statute,
more difficult, plaintiffs can still make the
necessary proof. Plaintiffs will have to be more
creative and ready to defend their evidence with
citation to authority.
TOP
STRENGTH. INTEGRITY.
EXPERTISE.
Perry & Haas does not offer any guarantee of
case results.
Past success in litigation does not guarantee success in any new or future
lawsuit.
Our web site describes some of the cases that the attorneys of Perry & Haas have worked on in the past.
Our description of those cases is summary in nature.
You should be aware that the results obtained in each of the cases we have
worked on was dependent on the particular facts of each case. The results of
other cases will differ based on the different facts involved.
