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OWNER’S POST-INJURY REPAIRS ALLOWED PHILADELPHIA — In the trial of a products liability case where only the manufacturer has been sued, the plaintiff is not barred from introducing evidence of “subsequent remedial measures” taken by the owner since such efforts by a non-party to the suit do not implicate Federal Rule of Evidence 407, the Third Circuit U.S. Court of Appeals has ruled. In Diehl v. Blaw-Knox, a unanimous three-judge panel ordered a new trial in a suit brought by a construction worker whose leg was crushed by a road widener because the trial judge excluded evidence that shortly after the accident, the owner of the machine partially enclosed the rear wheels, installed a backup alarm and placed warning signs on the rear of the machine. Third Circuit Judge D. Brooks Smith found that although the text of Rule 407 makes no exception for subsequent remedial measures taken by a non-party, courts have recognized that it should apply only to preclude measures taken by defendants, since the purpose of the rule is to encourage manufacturers to make safety improvements without running the risk of admitting liability. “The rule recognizes that manufacturers will be discouraged from improving the safety of their products if such changes can be introduced as evidence that their previous designs were defective,” Smith wrote. “This policy is not implicated where the evidence concerns remedial measures taken by an individual or entity that is not a party to the lawsuit,” Smith wrote in an opinion joined by Third Circuit Judge Maryanne Trump Barry and visiting Senior U.S. District Judge Louis Pollak of the Eastern District of Pennsylvania. Smith found that since admission of remedial measures by a non-party will not expose that non-party to liability, it “will not discourage the non-party from taking the remedial measures in the first place.” Every federal circuit to address the issue — the First, Fourth, Fifth, Seventh, Ninth and Tenth — has likewise concluded that Rule 407 does not apply to subsequent remedial measures taken by a non-party, Smith noted. — The Legal Intelligencer PLAINTIFFS MAY RECOVER FOR IMPLANTS’ RISKS PHILADELPHIA — Plaintiffs who sue breast implant doctors for lack of informed consent may recover not only for damages from undisclosed risks, but also for damages flowing from all risks, the panel handling silicone implant litigation has said in a case of first impression. Allegheny County Common Pleas Judge R. Stanton Wettick Jr. wrote the decision in In re Silicone Breast Implant Litigation as chairman of Pennsylvania’s coordinating court for silicone implant litigation. The court agreed with the plaintiffs, who argued that once one has suffered an injury from an undisclosed risk of a medical procedure, he or she is entitled to recover for all of the injuries sustained in the procedure. The defendants argued for a more restrictive view of recovery. General principles of law supported the plaintiffs’ argument for wide-open recovery, Wettick reasoned. The theory of informed consent states that without proper consent from the patient, a surgical operation is a battery. Such a theory presumes that if informed consent is flawed because of an unwarned-of material risk, the surgery should not have taken place. Therefore, the plaintiffs argued, any harm is damage stemming from the battery. What is crucial is the jury’s conclusion that the undisclosed risk would be considered significant in deciding whether to have the operation; that is, whether the non-disclosure related to a “material fact.” — The Legal Intelligencer

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