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DTCI: Admission of subsequent remedial measures

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By Andrew L. Palmison
 

palmison-andrew-mug 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:

Having been enacted by Congress rather than promulgated by the Supreme Court pursuant to the Rules Enabling Act . . . the Federal Rules of Evidence are not subject to the Act’s proviso that rules promulgated under it “shall not abridge, enlarge or modify any substantive right ....” And we have held that Congress intended the Federal Rules of Evidence to apply in [diversity cases]. [internal citation omitted]. But we must not forget that [Erie] held that federal courts were constitutionally obligated to decide diversity cases in accordance with the rules of decision prescribed by state law (statutory or common), though the precise source of this obligation is not clear from the Supreme Court’s opinion. [ . . . ] It is true that, as Erie itself suggests, the obligation is limited to matters of substantive law – “Congress has no power to declare substantive rules of common law applicable in a State,” 304 U.S. at 78. … But the Notes of the Advisory Committee to Proposed Rule 407 indicate that the rule is based primarily (in the Committee’s words) “on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety.” See also McCormick, Handbook on the Law of Evidence 666 (Cleary 2d ed. 1972). As is apparent from Chart, Wisconsin has come to a different conclusion on this question, at least with respect to products liability cases; and it might appear that under Erie this judgment – a judgment on a matter of substantive policy rather than trial management – should be controlling in any case, such as this, where Wisconsin law rather than federal law supplies the standard against which the defendant’s conduct is to be judged.

Id. at 470-71. Yet, Judge Posner rejected this argument, finding instead the FRE 407 is “entwined with procedural considerations” such as ensuring that jurors do not draw incorrect inferences from evidence. Id. at 471-72. Said Judge Posner:

Although Rule 407 has substantive consequences by virtue of affecting incentives to take safety measures after an accident occurs, this just puts the rule in that borderland where procedure and substance are interwoven. The necessary-and-proper clause of Article I extends into the borderland, where are found “matters which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either.”

. . .

[FRE 407] has substantive consequences, but that is true of many procedural and evidentiary rules. A notable example is Rule 35 of the Federal Rules of Civil Procedure, which authorizes compulsory physical and mental examinations of parties to federal diversity (as to other federal) cases. Rule 35 was held valid in Sibbach v. Wilson & Co., 312 U.S. 1 (1941), despite the fact that it both infringes on personal privacy and makes it harder for plaintiffs to get sizable damage awards in personal-injury cases. And the rule has only the authority of the Rules Enabling Act behind it.

. . .

We are reluctant to cast a cloud over the whole federal rulemaking enterprise and open a new chapter in constitutional jurisprudence by holding that a procedural rule is beyond even the power of Congress to enact for application to diversity cases, because the rule affects substantive questions that the Erie doctrine reserves to the states.

Id. at 472.

Both Flaminio and Fasanaro rejected as dicta the 10th Circuit’s discussion in Moe, supra. In Moe, a diversity action arising out of an airplane crash near Denver, Colo., the District Court had determined that the Colorado state court interpretation of Rule 407 (which allowed the admission of subsequent remedial measures in a strict liability action) was not binding on it and excluded the evidence pursuant to FRE 407 and 403. Id. at 930-31. The court affirmed the District Court’s decision with respect to its FRE 403 analysis but concluded that, when state law is clear with respect to the Rule 407 analysis, the state interpretation must govern:

[W]hen state courts have interpreted Rule 407 or its equivalent state counterpart, the question whether subsequent remedial measures are excluded from evidence is a matter of state policy. [internal citation omitted]. The purpose of Rule 407 is not to seek the truth or to expedite trial proceedings; rather, in our view, it is one designed to promote state policy in a substantive law area. See, comments of Professor Schwartz, Vol. 2, Weinstein’s Evidence, Rule 407, 407-1, 2 (1982). . . . We hold that when such conflicts arise, because Rule 407 is based primarily on policy considerations rather than relevancy or truth seeking, the state rule controls because (a) there is no federal products liability law, (b) the elements and proof of a products liability action are governed by the law of the state where the injury occurred and these may, and do, for policy reasons, vary from state to state, and (c) an announced state rule in variance with Rule 407 is so closely tied to the substantive law to which it relates (product liability) that it must be applied in a diversity action in order to effect uniformity and to prevent forum shopping. [internal citation omitted].

Id. at 932. The court rejected the argument that Erie/Hanna required the application of the federal interpretation:

We are not unmindful of the rule laid down in [Hanna] that where the federal and state rules both govern the issue in dispute and are in direct conflict, the federal rule applies in a diversity based case if the federal rule is arguably procedural in nature. However, we observe that while the sufficiency of the evidence is tested against the federal standard in a diversity case . . . the underlying cause of action, with its attendant elements and requirement of proof in a diversity case, is governed by state law. [internal citation omitted]. The ground for exclusion of remedial measures under Rule 407 rests on the social policy of encouraging people to take steps in furtherance of safety. The decision is necessarily a state policy matter. Product liability is not a federal cause of action but, rather, a state cause of action with varying degrees of proof and exclusion from state to state. If a state has not announced controlling rules . . . the federal district court, sitting as a state court in a product liability diversity case, must determine whether Rule 407 applies. Where the state law is expressed in product liability cases, these expressions control the application of Rule 407.

Id.

The majority of federal courts faced with the question whether to apply the state or federal interpretation of the exclusionary rule opted for the federal, finding that the federal rule is procedural. Pursuant to the Erie/Hanna analysis, the rule may rationally be classified as procedural and governs because it was within Congress’s power to enact such a rule. The courts do not (and need not) address the issue of whether the rule is substantive or procedural in light of the policies underlying the Erie analysis. One must question, therefore, whether the interpretation of Rule 407 would be substantive or procedural if not presented in the context of the Erie/Hanna analysis. For example, a claim may pend in a jurisdiction that does not follow the exclusionary rule but the court, pursuant to its choice of law determination, has chosen to apply the substantive law of a jurisdiction that does follow the exclusionary rule. In this context, the determination of whether the interpretation of the rule is substantive or procedural does not hinge upon the Erie/Hanna analysis but rather may implicate the discussion set forth in Moe.•

Mr. Palmison is an associate with Rothberg Logan & Warsco in Fort Wayne and is a member of the DTCI Product Liability Section. The opinions expressed in this article are those of the author.

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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