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Upholding a $2.6 million verdict in a products liability case, the 3rd U.S. Circuit Court of Appeals has affirmed its holding that Federal Rule of Evidence 407 allows plaintiffs who sue only the manufacturer to introduce evidence of “subsequent remedial measures” taken by the product’s owner. Ordinarily, evidence of post-accident remedial measures is barred under Rule 407 in order to prevent juries from viewing such measures as admissions of liability. But the 3rd Circuit ruled that no such risk exists where the remedial measures are taken by a nonparty, and that Rule 407 therefore does not apply in such cases. The decision in Sell v. Ingersoll-Rand Co. is a victory for attorney Erik K. Vogel of Wapner Newman Wigrizer & Brecher who argued that Sean Sell suffered severe injuries because the defective design of a drilling rig caused a 500-pound steel pipe to fall on his head. In the July 2001 accident, a falling 25-foot pipe struck Sell first on the head, causing a concussion, then broke his collarbone and lacerated his spleen. It also fractured four vertebrae, his left femur and both ankles. At trial, Vogel called an expert witness who testified that Ingersoll-Rand should have included a metal bracket in the design of the rig that could have prevented the accident. Vogel also presented evidence that the alternative design proposed by the expert had been instituted soon after the accident by Sell’s employer, which was not a party to the lawsuit. On appeal, Ingersoll-Rand argued that the trial judge, U.S. District Judge Berle M. Schiller, should have excluded such evidence of subsequent remedial measures under Rule 407. But a unanimous three-judge panel found that the question has already been decided by the 3rd Circuit in its 2004 decision in Diehl v. Blaw-Knox — an opinion handed down just one month after the verdict in Sell’s case — in which the court held that Rule 407 “does not bar evidence of remedial measures taken by a nonparty.” In Diehl, the 3rd Circuit ordered a new trial in a suit brought by a construction worker whose leg was crushed by a road widener, finding that the trial judge had erred by excluding 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. Writing for a unanimous three-judge panel in Diehl, 3rd Circuit Judge D. Brooks Smith found that although the text of Rule 407 makes no exception for subsequent remedial measures taken by a nonparty, courts have consistently recognized that it should apply only to preclude measures taken by defendants. The purpose of the rule, Smith said, 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 nonparty will not expose that nonparty to liability, it “will not discourage the nonparty 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 nonparty, Smith noted. In Sell’s case, the 3rd Circuit applied Diehl and found that Schiller’s evidentiary rulings were correct. Lawyers for Ingersoll-Rand filed a motion for rehearing before the full 3rd Circuit, arguing that Diehl was incorrectly decided and should be overruled. But in an order handed down last week, a 14-judge panel of the 3rd Circuit rejected the petition without comment. In their petition, attorneys John E. McKeever, O. Daniel Ansa and Laura A. Biancke of DLA Piper Rudnick Gray Cary argued that the holding in Diehl was premised on a misunderstanding of the purpose of Rule 407. “The language of the rule makes no distinction between subsequent remedial measures made by a nonparty to the lawsuit and those made by a party,” the DLA Piper lawyers argued. And from a policy standpoint, they argued, there is no reason to treat remedial measures differently if made by a nonparty. “Rule 407 is not meant to encourage product change just for the sake of change. Rather, its purpose is to maximize product safety by encouraging manufacturers to follow the course of action that makes the products as safe as they can be,” the defense team wrote. Properly applied, the defense team argued, Rule 407 should bar evidence of any remedial measure — even those made by an employer who is not a party to the suit. “In industrial accidents like the one at issue, employer modifications may be especially suspect since there is usually a workers’ compensation lien on an employee-plaintiff’s recovery, giving the employer an interest in the outcome of the litigation,” the defense team wrote. The Diehl court erred, they argued, in holding that “it hardly makes sense to speak of a party’s fault being ‘admitted’ by someone other than the party.” That logic, the defense team argued, ignored the plain language of Rule 407 and “stands on its head the rationale that this evidence should not be treated as an admission of fault.” The true rationale of Rule 407, they argued, is that post-accident remedial measures must be barred from evidence because “juries tend to give undue emphasis to such evidence.” Refusing to apply the rule when the remedial measures are taken by a nonparty makes no sense, they argued, because “there is no reason to believe that juries give undue emphasis to a party’s remedial measures, but not to a non-party’s remedial measures.” On July 25, the 3rd Circuit rejected the petition for rehearing, noting that none of the judges on the original three-judge panel had voted to rehear the case and that it had failed to garner the votes of a majority of the court’s active judges.

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