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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 3rd U.S. Circuit 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 3rd Circuit Judge Maryanne Trump Barry and visiting Senior U.S. District Judge Louis H. 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 1st, 4th, 5th, 7th, 9th and 10th — has likewise concluded that Rule 407 does not apply to subsequent remedial measures taken by a non-party, Smith noted. According to the suit, Timothy Diehl was severely injured on May 24, 1999, when his legs became trapped under the rear wheels of a road widener machine manufactured by Blaw-Knox. Diehl sued the machine’s manufacturer, Blaw-Knox, a division of Ingersoll Rand Corp., alleging that the machine was defective because its rear wheels were not enclosed, it lacked a backup alarm on the rear of the machine, and it lacked proper warning signs. At the time of the accident, Diehl was working as a laborer on a road crew for IA Construction Inc. The road crew was using the road widener to extend the shoulder of a road. The road widener, manufactured by Blaw-Knox in 1970, was used to deposit and spread material to one side of the road. The machine is usually followed by laborers who remove excess material left on the paved portion of the road and level off the material that has been spread. The laborers are then followed by a roller to press the material. On the day of the accident, Diehl testified, he was working behind the road widener when it stopped and then began to move in reverse. Diehl said that he was not aware that the machine was reversing and that he was struck by an exposed wheel that trapped and crushed his lower leg. At trial, Diehl’s lawyer, David J. Selingo of Kingston, Pa., sought to introduce testimony by an IA mechanic that, shortly after the accident, the mechanic modified the road widener by installing a rear bumper guard that enclosed the rear tires, relocating the backup alarm to the rear of the machine, and placing warning signs on the rear of the machine. But Blaw-Knox’s lawyer, James W. Gicking of Marshall, Dennehey, Warner, Coleman & Goggin, moved to exclude any mention of IA’s redesign of the machine, arguing that such subsequent remedial measures were barred by Rule 407. Senior U.S. District Judge James F. McClure Jr. of the Middle District of Pennsylvania sided with the defense and barred the evidence, saying, “Rule 407 by its terms is not limited to remedial measures taken by the defendant.” McClure said the evidence would also be inadmissible under Rule 403 because remedial measures taken in 1999 would confuse the jury and distract it from its proper focus on whether the machine was safe in 1970 when it was manufactured. Now the 3rd Circuit has ruled that McClure erred in refusing to admit the evidence and that his ruling cannot be deemed harmless error since it might have changed the trial’s outcome. Although McClure was correct in noting that Rule 407 is not limited to barring evidence of a defendant’s remedial measures, Smith found, the Advisory Committee’s notes to Rule 407 state that the rule “incorporates conventional doctrine which excludes evidence of subsequent remedial measures as proof of an admission of fault.” Prior to the enactment of Rule 407, Smith said, “conventional doctrine in this circuit was that the rule excluding evidence of repairs made after an accident was not applicable to repairs made by a non-party.” The Advisory Committee’s notes also refer to “an admission of fault” — a fact that Smith said “reinforces this limitation.” “It hardly makes sense to speak of a party’s fault being ‘admitted’ by someone other than the party,” Smith wrote. Smith found that the Advisory Committee was also “well aware” of court decisions that interpreted the rule and that notes to the 1997 amendment of the rule cite with approval the 1st Circuit’s opinion in Raymond v. Raymond Corp., which held that “there is no rationale for excluding third-party subsequent repairs under the rule.” McClure’s error cannot be deemed harmless, Smith found, because “admission of the IA redesign could have affected the jury’s decision on the issue of defect.” Smith found that the sole issue decided by the jury was the road widener’s defectiveness and that the only evidence on that issue was testimony from experts for both sides. The defense expert, Smith noted, testified that the alternative design proposed by Diehl’s expert was not any safer than Blaw-Knox’s 1970 design of the road widener. As a result, Smith concluded that the mechanic’s testimony might have swayed the jury to side with the plaintiff. “Evidence that the owner of the road widener had, in fact, redesigned the machine in the manner suggested by plaintiffs and for the very purpose of making the road widener safer (indeed, to prevent the very accident that is the subject of the lawsuit), tends to rebut [the defense expert's] testimony,” Smith wrote. “Moreover, it does so with greater effectiveness than the theoretical testimony of Diehl’s expert,” Smith wrote. Smith said Blaw-Knox had also attempted to discredit the plaintiff’s expert on the basis of his lack of experience with road wideners. For that reason, too, Smith said, the mechanic’s testimony might have been persuasive. “Evidence of the redesign performed by IA Construction, which is arguably more familiar with the equipment than either of the experts, may have substantially buttressed [the plaintiff's expert's testimony],” Smith wrote.

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