The Aluminum Gear Box

P v. D Equipment Manufacturing Company for personal injuries sustained by P when the vehicle in which she was driving left the road and plunged into a canyon. P's complaint alleged that the aluminum gear box had failed. The claim was based on a theory of strict liability and breach of warranty. At trial, P offered evidence that aluminum was inappropriate for the gear box and that after the accident D changed from aluminum to malleable iron in producing the gear box. On D's objection, what ruling and why?

Whether FRE 407 excludes evidence of subsequent remedial repairs in strict product liability cases was not clearly answered by the language of the rule as originally formulated. Congress amended Rule 407 in 1997 to attempt to make it clear that the exclusionary effect of Rule 407 would not depend on whether liability was premised on negligence or strict liability. As you consider the application of this rule to various fact situations and the policy behind the rule, does the stated policy of Rule 407 apply with equal force to all cases in which the rule language can be invoked? Compare Robbins v. Farmers Union Grain Terminal Association, 552 F.2d 788 (8^th Cir. 1977) with Werner v. Upjohn Co., 628 F. 2d 848 (4^th Cir. 1980) to see how two federal circuits came to opposite conclusions on the applicability of the policy of Federal Rule 407 to claims of strict liability.

These cases also raise issues of the scope of the exception to Rule 407 for showing the feasibility of precautionary measures. Another interesting case raising the issue of feasibility of precautionary measures is Anderson v. Malloy, 700 F.2d 1208 (8th Cir. 1983). Plaintiff was attacked in her motel room. She sued defendant motel owners for negligently failing to provide safe lodging. Plaintiff claimed on appeal that the trial court erroneously excluded evidence that, after the attack, defendants installed safety chains and peepholes in the doors of the rooms.

The Eighth Circuit found that defendants had affirmatively controverted feasibility of the safety devices by testifying that such devices only provided a false sense of security. The court noted that "[w]hether something is feasible relates not only to actual possibility of operation and to its cost and convenience, but also to its ultimate utility and success." The court held that defendants' testimony that the safety chains and peepholes provided a false sense of security implied not only that the devices would fail to provide security, but also that they would create a lesser level of security if installed. Plaintiff was entitled to rebut these inferences by showing that the devices were feasible. Further, plaintiff could impeach defendants' credibility by introducing evidence that the safety measures taken after the attack were those that defendants testified could not be used successfully.

The issue of whether and when evidence of subsequent remedial measures will deter people from taking safety measures usually produces much heat and little light. Neither side in this debate can offer data on whether the exclusionary rule affects the primary conduct of the mass producer of goods or only serves as a shield against potential liability. With the evidence supporting the policy in such a wee state, why not simply apply general principles of relevancy? In most cases, this will result in admission of evidence of subsequent remedial measures. But see Bizzle v. Mckesson Corp., 961 F.2d 719 (8th Cir. 1992), upholding admissibility of evidence of recall of a walking cane in a strict products liability, negligence, and breach of warranty case pursuant to the Eighth Circuit's approach to such issues, but affirming exclusion of the evidence in the particular case under Rule 403.