ILNews

DTCI: Admissibility of subsequent product modifications

Back to TopCommentsE-mailPrint

By Andrew L. Palmison
 

palmison-andrew-mug Palmison

Indiana Rule of Evidence (IRE) 407 generally precludes admission of evidence of subsequent remedial measures. In strict liability claims, some jurisdictions have determined that evidence of subsequent remedial repairs or modifications taken by a defendant is admissible. The primary reasoning for allowing such evidence is that Rule 407 excludes evidence of subsequent remedial measures only when offered to prove “negligence or culpable conduct.” According to some jurisdictions, because negligence is not an element of a strict liability claim, evidence of subsequent remedial measures is admissible. Indiana appears to follow the rule that evidence of subsequent repairs or modifications taken by a defendant after an accident are inadmissible, even in a strict liability action; however, the question has not been addressed since the enactment of Indiana’s Product Liability Act (IPLA).

IRE 407, like Federal Rule of Evidence (FRE) 407 and that of many states, provides as follows:

When after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

IRE 407. The primary rationale for the exclusionary rule is that exclusion of subsequent remedial measures is necessary to avoid deterring individuals from making improvements or repairs after an accident occurs. Ault v. International Harvester Co., 528 P.2d 1148, 1151 (Cal. 1974).

Several jurisdictions, interpreting a substantially similar rule of evidence, have found that evidence of subsequent modifications is admissible, even if feasibility is not controverted, on the basis that negligence is not an element of a strict liability claim. Porchia v. Design Equip. Co., a Div. of Griffith Labs., 113 F.3d 877, 880 (8th Cir. 1997)(“[FRE] 407 . . . does not require the exclusion of evidence of subsequent remedial measures in strict liability cases [brought in Eighth Circuit].”); Herndon v. Seven Bar Flying Service, Inc., 716 F.2d 1322 (10th Cir. 1983); Ford Motor Co. v. Fulkerson, 812 S.W.2d 119 (Ky. 1991) (finding that reasons for excluding evidence of subsequent remedial measures in negligence actions do not apply to strict products liability cases); Sanderson v. Steve Snyder Enters., Inc., 491 A.2d 389 (Conn. 1985); Ault, 528 P.2d at 1151.

Other courts, however, preserve the exclusionary rule in strict liability actions. See Krause v. Am. Aerolights, Inc., 762 P.2d 1011 (Or. 1988); Davis v. International Harvester Co., 521 N.E.2d 1282 (Ill. Ct. App. 1988) (holding that the general rule of inadmissibility of subsequent remedial measures applies in products liability as well as negligence actions, since to hold otherwise would reduce defendant’s incentive to adopt safety measures); Troja v. Black & Decker Mfg. Co., 488 A.2d 516 (Md. Ct. Super. App. 1985); Haysom v. Coleman Lantern Co., 573 P.2d 785 (Wash. 1978).

For those courts including evidence of subsequent remedial measures, inclusion is justified on several bases. First, inclusion is justified under the plain language of the rule. Rule 407 seeks to exclude evidence of subsequent remedial measures only when offered to prove “negligence or culpable conduct.” Because strict liability is unconcerned with the reasonableness of the defendant’s conduct, only the defective nature of the product, Rule 407 does not require exclusion. Second, as noted by the California Supreme Court in Ault, the public policy reasons justifying exclusion are not applicable to strict liability claims:

The contemporary corporate mass producer of goods, the normal products liability defendant, manufactures tens of thousands of units of goods; it is manifestly unrealistic to suggest that such a producer will forego making improvements in its product, and risk innumerable additional lawsuits and the attendant adverse effect upon its public image, simply because evidence of adoption of such improvement may be admitted in an action founded on strict liability for recovery on an injury that preceded the improvement. In the products liability area, the exclusionary rule of section 1151 does not affect the primary conduct of the mass producer of goods, but serves merely as a shield against potential liability. In short, the purpose of section 1151 is not applicable to a strict liability case and hence its exclusionary rule should not be gratuitously extended to that field.

Ault, 528 P.2d at 1151-52.

Articulating the opposite view, the 7th Circuit rejected Ault’s reasoning in Flaminio v. Honda Motor Company, Ltd.,

[W]e agree with the majority view that the rule does apply to strict liability cases. We are not persuaded by the purely semantic argument to the contrary that since “culpable conduct” is not the issue in such a case – the defendant is liable, at least prima facie, even if he is not blameworthy in the sense of being willful or negligent, provided that he caused the plaintiff’s injury – the rule is inapplicable by its own terms. Wisconsin law rejects this argument in holding that a defendant’s blameworthiness must, under the state’s comparative-negligence statute, be compared with the plaintiff’s blameworthiness in strict liability cases, even though the defendant was not blameworthy in a negligence sense. See Dippel v. Sciano, supra, 37 Wis. 2d at 461-62, 155 N.W.2d at 64-65 (dictum). A major purpose of Rule 407 is to promote safety by removing the disincentive to make repairs (or take other safety measures) after an accident that would exist if the accident victim could use those measures as evidence of the defendant’s liability. One might think it not only immoral but reckless for an injurer, having been alerted by the accident to the existence of danger, not to take steps to correct the danger. But accidents are low-probability events. The probability of another accident may be much smaller than the probability that the victim of the accident that has already occurred will sue the injurer and, if permitted, will make devastating use at trial of any measures that the injurer may have taken since the accident to reduce the danger.

733 F.2d 463, 468-69 (7th Cir. 1984).

Although not explicitly holding that IRE 407 does apply to strict liability actions brought under the IPLA, Indiana courts have not looked favorably upon the California interpretation. See Ragsdale v. K-Mart Corp., 468 N.E.2d 524 (Ind. App. 1984), superceded on other grounds by statute as recognized in Koshe v. Townsend Eng’g Co., 551 N.E.2d 437 (Ind. 1990); Ortho Pharm. Corp. v. Chapman, 388 N.E.2d 541, 560 (Ind. App. 1979) (disagreeing with Ault).

In Ortho, which was decided before the adoption of the IPLA, the plaintiff was injured by taking Ortho-Novum. She brought suit under theories of negligence, strict liability, and implied warranty. At trial, the plaintiff did not contend that there was any fault in the design or manufacture of Ortho-Novum, but rather that the lack of adequate warnings rendered it unreasonably dangerous. The case proceeded to trial and the jury found for the plaintiff. Ortho appealed, contending in part that the trial court erred in admitting certain FDA-mandated warnings and advertising materials dated after the incident. The trial court had admitted the warnings with a cautionary instruction that the warnings were to be considered for feasibility purposes only. Before reaching its conclusion with respect to the admissibility of the warnings, the court engaged in a lengthy discussion of failure-to-warn claims and whether strict liability or negligence principles should apply. Ultimately, the court concluded that there was no practical difference between strict liability and negligence for purposes of the jury’s decision. Addressing the question of admissibility, the Court of Appeals held that the warnings should not have been admitted:

As its second ground for the admissibility of this evidence, Chapman relies on Ault v. International Harvester Co. for the proposition that the exclusionary rule is inapplicable in strict liability cases. The reasoning of that case is, in essence, that the rule relates to proof of negligence, the reasonableness of the defendant’s conduct, whereas strict liability theory is concerned only with product defects regardless of negligence. In addition, it is reasoned that the policy underlying the rule loses force where “contemporary corporate mass producer[s]” are concerned, therefore the rule operates only as a shield to liability.

The first argument is beside the point. The defect attributable to the product in this case is not in the design or manufacture of the drug, but in the failure to adequately warn of the dangers in its use. Thus, inquiry must focus on the conduct of the defendant:

[W]here the duty to warn is under consideration, the standard of strict liability is essentially similar to the standard for establishing negligence. The rule imposing obligation on the manufacturer or seller to give suitable warning of a dangerous propensity of an article produced or sold, and the rule conditioning liability on the fact of knowledge or reason to acquire knowledge of a dangerous propensity, are the rules fixing the duties of care and are part of the law of negligence.

Ortho, 388 N.E.2d at 560 (internal citation omitted). The Ortho court addressed the California Supreme Court’s reasoning in Ault, ultimately concluding that even though evidence of subsequent warnings may be admissible under a strict reading of Rule 407, the evidence should have been excluded by operation of IRE 403:

Although such evidence may be admissible under the modern, more liberal test of relevance, the attendant danger that a jury would misconstrue and misapply it to the prejudice of the accused is so great as to require exclusion. A danger particularly relevant to the present case is that a jury, influenced by hindsight evidence, might apply an artificially high standard in determining the adequacy of warnings.

Id. at 561 (internal citation omitted). Thus, while Ortho did not expressly determine that evidence of subsequent remedial measures is inadmissible in a strict liability action, it did exclude evidence of subsequent remedial measures in a failure-to-warn claim, which it had treated identically to a strict liability action.

In Ragsdale, which was also decided before the enactment of the IPLA, the plaintiff was injured by the blades of a lawnmower while attempting to unclog the chute. The plaintiff proceeded to trial solely on the theory of strict liability, contending that its defective design and/or lack of warnings caused her injuries. Before trial, the defendant obtained an order to exclude evidence of governmental regulations in the lawnmower industry promulgated after the design and manufacture of the lawnmower, any model changes in the design of the lawnmower, and any technological developments. On appeal, the plaintiff contended that the information was admissible to show the feasibility of the precautions. The court disagreed:

The caution rule is employed in defective design cases to show the feasibility of taking certain precautions by showing such precautions were subsequently taken. It was developed as a part of an evidentiary exception which allows evidence of subsequent remedial action for purposes of rebuttal or impeachment. As such, the caution rule is applicable in a defective design case where the plaintiff must prove the product as designed necessarily creates the injury complained of, there is an alternative design which would eliminate the danger of injury, and that alternate design is feasible. However, before the rule may be invoked, feasibility must be contested.

Id. at 528. Thus, Ragsdale, while proceeding under a strict liability theory for defective design prior to the enactment of the IPLA, maintained the rule that in order for subsequent remedial measures to be admissible, one of the exceptions, such as feasibility being contested, must apply.

Additional support for the suggestion that Indiana would likely apply the exclusionary rule in a strict liability action can be found both in the language of the IPLA and in the application of comparative fault principles to strict liability claims. Under the IPLA, a product may be defective due to a manufacturing defect, design defect, or by containing inadequate warnings. Ind. Code § 34-20-2-1 et seq. However, design defect and failure-to-warn claims must be analyzed under general negligence principles. Id. § 34-20-2-2. Strict liability may be imposed only for alleged manufacturing defects. Id. Thus, even if a court found that subsequent remedial measures were not excluded by operation of IRE 407, the likelihood of such evidence implicating IRE 403 concerns when a claim presents multiple theories of recovery is high. In addition, Indiana applies comparative fault principles to claims arising under the IPLA, including strict liability claims of manufacturing defect. Id. §§ 7-1, 8-1. As such, the jury is tasked with comparing the fault of the defendant with the fault of others. Id. § 34-20-8-1. Therefore Indiana, like Wisconsin as noted in Flaminio, has arguably tacitly acknowledged that “culpable conduct” is at issue in IPLA cases.

Indiana courts have not addressed whether IRE 407 would operate to exclude evidence of subsequent remedial measures in a strict liability claim arising under the IPLA. Nonetheless, Indiana appears disinclined to adopt the approach articulated by some jurisdictions that such evidence is admissible.•

Andrew L. Palmison is an associate in the Fort Wayne firm of Rothberg Logan & Warsco and is a member of the Defense Trial Counsel of Indiana. The opinions expressed in this column are those of the author.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. This guy sounds like the classic molester/manipulator.

  2. 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.

  3. 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

  4. 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.

  5. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

ADVERTISEMENT