By Andrew L. Palmison
In September 2011, this author concluded that, in the context of a strict liability claim arising under Indiana law, Indiana Rule of Evidence (IRE) 407 would likely preclude the admission of subsequent remedial measures. Indiana Lawyer, Sept. 14, 2011, “Admissibility of Subsequent Product Modifications.” Other states, such as California, hold that the subsequent remedial measures would be admissible. See Ault v. Int’l Harvester Co., 528 P.2d 1148, 1151 (Cal. 1974). If a conflict arises between a state which does not follow the exclusionary rule and either a state or federal district which does, the question arises as to whether the interpretation of the rule of evidence is substantive or procedural. This article concludes that, in such a conflict in a diversity action, a majority treats the rule as procedural and applies the federal interpretation. The result is unclear, however, in a state court action in which the court applies the substantive law of a state whose interpretation of the rule differs from its own.
In Fasanaro v. Mooney Aircraft Corp., plaintiff’s husband was killed while piloting an aircraft designed and manufactured by Mooney. 687 F. Supp. 482, 483 (N.D. Cal. 1988). The estate brought a products liability action in a California state court that was subsequently removed to a California District Court. Evidence emerged that, subsequent to the accident, Mooney had undertaken a number of remedial measures related to the design, manufacture and warnings associated with the aircraft. Mooney moved to exclude such evidence pursuant to Federal Rule of Evidence (FRE) 407.
Pursuant to Ault, California Evidence Code § 1151 would not bar the subsequent remedial measures undertaken by Mooney. Under FRE 407, however, the evidence would be inadmissible. The court, analyzing the conflict under the Erie doctrine, articulated that when, in a diversity case, the court is faced with a question of the applicability of a federal rule over a contrary state provision, the court is to apply the two-part test of Hanna v. Plumer, 380 U.S. 460, 471 (1965), as restated in Walker v. Armco Steel, 446 U.S. 740 (1981). Under the foregoing test, the court first asks whether the federal rule directly covers the situation before it. If not, the court then evaluates the choice of law in light of the policies underlying the Erie doctrine. If, however, the court finds that the situation before it is covered by the federal rule, then the federal rule is followed provided that it was within the power of Congress and the Supreme Court through the Rules Enabling Act.
Finding that the rule can be rationally classified as procedural, the court noted that the advisory committee notes reflect a congressional judgment that juries will make the error of treating subsequent remedial measures as admissions of fault, when “[t]he conduct is not in fact an admission, [but] is equally consistent with injury by mere accident or through contributory negligence.” Id. at 485. The foregoing represents a congressional concern that the admission of certain evidence will unduly emphasize certain evidence for the jury. Id. In addition, the admission of subsequent remedial measures would open the door for a defendant to rebut the evidence, creating a “mini-trial” of tangential issues. Id. Consequently, the court determined, the rule advances the procedural goals of accuracy of the evidence, preventing undue bias, and advancing judicial economy. Id. at 485-86. Having concluded that FRE could rationally be classified as procedural, the court next determined whether plaintiff’s attempt to admit the evidence of subsequent remedial measures was covered by the FRE 407, which it clearly was. Id. In the face of a controlling Federal Rule, the only remaining issue was whether Congress had the power to enact the rule. Id. at 486. Clearly, Congress has the power to regulate the proceedings in Article III courts under the Necessary and Proper Clause of the United States Constitution. Id. Based on the foregoing, the Fasanaro court had little trouble concluding that FRE 407 is procedural and that the federal interpretation of FRE 407 would govern the admissibility of the evidence of subsequent remedial measures. Id.
The Fasanaro court compared the approaches for the 7th Circuit in Flaminio v. Honda Motor Corp., 733 F.2d 463 (7th Cir. 1984), and the 10th Circuit in Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917 (10th Cir. 1984). In Flaminio, the plaintiff was injured while riding a motorcycle manufactured by Honda. The rider felt a vibration in the front end of the motorcycle and rose from his seat to attempt to identify the source of the vibration. While doing so, the motorcycle began to wobble uncontrollably resulting in an accident, which left the rider a paraplegic. According to the plaintiffs, Honda subsequently reinforced the struts in an effort to reduce front-end wobble. The plaintiffs sought to introduce blueprints demonstrating the foregoing, an effort the District Court denied. The District Court, sitting in diversity, applied Wisconsin substantive law. The Wisconsin Supreme Court had interpreted its equivalent of FRE 407 to permit evidence of subsequent remedial measures when at least one of the plaintiff’s liability theories is strict liability. Id. at 470 (citing Chart v. General Motors Corp., 258 N.W.2d 680, 684 (1977)). The 7th Circuit concluded, on the other hand, that FRE 407 bars such evidence. Flaminio, 733 F.2d at 469-70. Judge Posner, addressing the “difficult question” of whether the state or federal interpretation should apply, addressed the argument that the application of the federal rule would contravene Erie’s mandate that Congress not invalidate the substantive laws of a state: