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The Pennsylvania Supreme Court has dropped a bomb on products liability law, ruling that evidence of subsequent repairs to show a design defect generally has no place in a strict liability claim. “We hold that the general proscription against the admission of evidence of subsequent remedial measures embodied in Pennsylvania Rule of Evidence 407 and its common law antecedent extends to preclude use of a subsequent design change as substantive evidence of a product defect in a strict products liability case,” Justice Thomas Saylor wrote for the majority. The decision in Duchess v. Langston is the first time the court has ruled on the so-called subsequent repair rule. Reversing an intermediate appellate court’s reasoning on the subject, and effectively rejecting the predominant case law, the justices unanimously agreed on this main point. They also agreed there is an exception to this rubric — the evidence may be admissible when it shows the feasibility of implementing the repair. The majority utilized the exception, finding that the defense expert’s testimony brought feasibility into play, and affirmed the intermediate appellate court’s order for a new trial for the plaintiffs. The majority said the trial court should have determined whether the probative value of the evidence outweighed its prejudicial impact on the jury. Attorney for defendant Langston Corp., Joseph J. Bosick of Pietragallo Bosick & Gordon in Pittsburgh, said Friday the decision was also significant for streamlining state and federal law. “The opinion by the supreme court makes the Pennsylvania rule of evidence and the federal rule of evidence consistent insofar as they now both exclude evidence of subsequent remedial measures when offered to prove a defect in a strict products liability case,” Bosick said. “This has the laudatory effect of preventing forum shopping.” James H. Beck filed an amicus brief on behalf of the Products Liability Advisory Counsel. He said the opinion will certainly change the climate in this area of the law. “The court appears to be moving away from the ideological differences between negligence and strict liability and moving toward a more balanced public policy analysis,” he said. The attorney for plaintiffs Donald and Catherine Duchess, Michael Collis of Brennan Robins & Daley in Pittsburgh, did not return a call for comment. LOST FINGERS Donald Duchess sued Langston Corp. for products liability after he lost his little finger, ring finger and part of his middle finger on one of his hands while he was cleaning dry ink from the printer section of a Langston Saturn III Flexo-Folder Gluer machine. The machine turned corrugated board into corrugated boxes. Before cleaning the machine, Duchess pressed a button that was supposed to stop it from running but the wiper roller of the machine continued to run after the button was pressed. Duchess said he did not see the roller running, and his hand got caught in it, causing the injury. A jury decided the absence of an interlock device on the guard or ink shield of the machine — which would automatically stop the machine when it was in a certain condition — was not a design defect as Duchess had asserted. The state Superior Court said evidence that Langston did install an interlock device on the ink shield of the Saturn III in 1991, about three years after the accident, should have been allowed into evidence. The intermediate appellate court reversed and awarded a new trial for the Duchesses. One judge, Superior Court Judge Joseph A. Del Sole dissented, finding evidence surrounding the subsequent addition of the interlock device was not admissible because defectiveness is determined at the time of distribution. Langston appealed, arguing the subsequent design change evidence was prejudicial as it could appear to a jury as an admission that the product was defective. The Duchesses claimed evidence that such repairs were available at the time of manufacture, effectively making the product safer, is extremely relevant to the core issues in a products liability case. ‘AULT’ Pennsylvania Rule of Evidence 407 provides that evidence of subsequent design changes are not admissible for the sole purpose of proving a defect in the product. But the rule’s federal counterpart also bars the admission of evidence of subsequent repairs to establish a defect in a product or its design. The Pennsylvania rule is purposely silent on the question of whether evidence of a subsequent design change can be admitted in a products liability case as a subsequent repair, leaving the issue up to the courts. In its decision on the Duchess case, the appellate court followed a California Supreme Court case from 1974 considered a landmark in the field, Ault v. International Harvester Co. The California court refused to extend its state law to prohibit evidence of subsequent design changes in strict liability claims. Inherent to the Ault decision was a distinction between negligence and strict liability claims, whereas negligence invokes conduct and strict liability concerns the condition of the product. However, Saylor said a body of criticism has developed against the Ault decision, something he said the intermediate appellate court did not acknowledge. For instance, there is a criticism that the Ault position overemphasizes the relevance of subsequent design changes to strict liability claims. The theory goes that because the design change occurs after the product has left the manufacturer’s hands, it is not entirely relevant. It also acknowledges that manufacturers make many design changes that have nothing to do with repairs. The critics have also said Ault is troubling because it focuses on mass production, while the general rule of admissibility includes all types of manufacturers, big and small. Lastly, Ault has been criticized for its estimations of the extent to which mass producers will stop making repairs if an evidentiary rule is implemented. “In this regard, it has been stated that Ault inappropriately premises its conclusions concerning manufacturer conduct upon the assumption that the product at issue is in fact derivative, overlooking the situation where the product is not defective but could have been, and may later be, improved,” Saylor said. The Pennsylvania Supreme Court majority decided not to follow Ault, siding with the federal rule that excludes evidence of subsequent repairs in claims asserting a product defect. “As to relevance, following the restatement approach, our jurisprudence requires that products are to be evaluated at the time of distribution when examining a claim of product defect,” Saylor wrote. “Thus, evidence of a defendant’s later conduct is not directly relevant, but, at best, can provide an inference concerning the product’s earlier condition.” However, he said, in situations where such an inference is possible and permissible, it may be considered relevant evidence. Saylor said the court also rejected Ault‘s focus on mass production, since it excludes smaller manufacturers. More importantly, Saylor said, the majority could not make the same distinction between negligence and strict liability claims as the Ault court “in terms of their effect on the implementation of remedial measures and/or design improvements in the marketplace.” “We are, of course, no better equipped than the Ault court to predict the precise conditions in which such changes will occur, given that they may be based upon a diverse and perhaps complex range of information, business concerns and economic factors,” Saylor said. EXCEPTION The door wasn’t completely closed on the Duchesses, however. Saylor acknowledged there is an exception to the general rule. “As noted, Rule 407′s general prohibition is expressly inoperable in relation to remedial measures evidence offered `for impeachment or to prove other controverted matters, such as ownership, control, or feasibility of precautionary measures,’” Saylor said. The Duchesses argued Langston’s expert brought the feasibility of the Saturn III’s interlock device into play, and therefore paved the way for the admission of evidence that it had incorporated such a device. Langston countered that it only conceded that an interlock device was technologically possible, and it was free to argue that the device was impractical without implicating the exception. Saylor said Langston conceded to feasibility very narrowly. “It’s expert emphasized the need for an operator to visually inspect the anilox and wiper rolls while running, which would be precluded by the introduction of an interlock at the print shield location,” he said. That argument — that the operator could not visually inspect the machine with the implementation of the interlock device — raised a “substantial” feasibility question, Saylor said. “To this end, Langston’s presentation of evidence concerning the restricted access to the print shield location during normal operations, the ready availability and ease of application of safety precautions, and the training and experience of operators was both relevant and consistent with maintenance of the evidentiary exclusion,” Saylor said. Langston went a little further, however, Saylor said, and argued the machine would not work properly without visual observation. “In such circumstances, we find that the exceptions in Rule 407 (and its common law counterpart) were implicated, both to permit the Duchesses to establish the feasibility of the alternate design and to impeach Langston’s essential assertion that it could not practically be done,” he said. “The trial court, then, should have determined whether the probative value of the evidence (in terms of feasibility and impeachment) exceeded its prejudicial impact, and whether some lesser restorative measure would have sufficed.” Because the trial court did not make that determination, the Superior Court’s decision to grant a new trial was correct. LANGSTON’S EXPERT Dissenting Justices Stephen Zappala and Sandra Schultz Newman both said, in separate opinions, that they agreed evidence of a subsequent design change is generally not admissible in a products liability case. However, neither of them believed Langston’s expert’s testimony put the issue of feasibility into question. More dramatically, Zappala said the decision could cause chaos in the trial courts. Primarily, he said, “the citations to cases from other jurisdictions, given as examples of when the rule controls and when the exception, offer little guidance, especially in light of the result in the present case.” In addition, he criticized the majority for taking excerpts from Langston’s expert’s testimony out of context. “The majority in effect has allowed the plaintiff to set a trap which the defendant has no hope of avoiding;” Zappala said, “either the plaintiffs’ assertions regarding feasibility must be left unchallenged, or they may be addressed, in which case it will be held that the defendant “raised a substantial feasibility question under the general definition of the term.” Newman did not agree with the majority’s interpretation of the expert’s testimony on the “downsides” of the interlock device, which the majority said allowed for introduction of the design change evidence. “I do not believe that this testimony contests the mechanical or technological feasibility of the interlock device and the trial court did not commit an abuse of discretion in excluding evidence of the subsequent design changes as irrelevant to the issue at trial,” Newman said. “Instead, the testimony of Langston’s expert was in fair response to the repeated statements of the expert for Duchess that there was no reason for the interlock to be absent from the design of the Saturn III.” REACTION Attorney Bosick said the decision will have a positive effect on manufacturing in Pennsylvania. “I was pleased that the supreme court recognized the importance of advancing social policy objectives,” he said. “The opinion supports the goal of having manufacturers continue to improve and innovate the products they sell to businesses and consumers without the fear that the improvements might be used against them at a later date.” Beck said it the decision will benefit manufacturers in the courtroom as well. “As long as defendants don’t claim a subsequent repair measure would make the machine impossible to operate, they will be able to keep this stuff out,” Beck said. “Most courts have been letting it in, at least here in Philly.” The decision, which he said denotes a conceptual shift on the high court’s bench, “portends even more change,” Beck said. “I don’t even know how much longer classic strict liability will continue after this opinion,” he said.

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