Diehl v. Blaw Knox , 360 F.3d 426 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
3-12-2004
Diehl v. Blaw Knox
Precedential or Non-Precedential: Precedential
Docket No. 02-3151P
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PRECEDENTIAL Before: BARRY, SMITH, Circuit
Judges, and POLLAK,* District Judge.
UNITED STATES COURT OF
APPEALS (Opinion Filed: March 12, 2004)
FOR THE THIRD CIRCUIT
__________ David J. Selingo [Argued]
311 Market Street
Case No: 02-3151 Kingston, PA 18074
__________ Counsel for Appellants
TIMOTHY DIEHL; ROSE DIEHL, James W. Gicking [Argued]
Marshall, Dennehey, Warner,
Appellants Coleman & Goggin
1845 Walnut Street
v. 16th Floor
Philadelphia, PA 19103
BLAW-KNOX, a/k/a, d/b/a, t/a Blaw-Knox,
a division of Ingersoll Rand Corporation;
INGERSOLL-RAND CORPORATION; Counsel for Appellee
INGERSOLL-RAND
COMPANY, Construction and Mining; ____________
COOPER
INDUSTRIES, INC.; FUNK OPINION
MANUFACTURING COMPANY, ____________
a/k/a, d/b/a, t/a Funk Manufacturing;
DEERE & CO, SMITH, Circuit Judge
a/k/a, d/b/a, t/a John Deere Corporation
This products liability case, arising
On Appeal From The United States under the law of Pennsylvania, presents a
District Court question of admissibility under Federal
For The Middle District of Pennsylvania Rule of Evidence 407 of remedial
(Civ. A. No. 01-CV-00770) measures offered by a plaintiff to establish
that a product is defective. Timothy Diehl
District Judge: The Honorable James F. was severely injured when his legs became
McClure, Jr.
__________
* The Honorable Louis H. Pollak,
Argued January 9, 2004 Senior District Judge for the United
__________ States District Court for the Eastern
District of Pennsylvania, sitting by
designation.
1
trapped under the rear wheels of a machine I.
manufactured by Blaw-Knox. Mr. Diehl
On May 24, 1999, Timothy Diehl
and his wife sued Blaw-Knox, 1 alleging
was severely injured while working as a
that the machine was defective because (1)
laborer on a road crew for IA
its rear wheels were not enclosed, (2) it
Construction, Inc. (“IA”). On the day of
lacked a back-up alarm on the rear of the
the accident, the road crew was using a
machine, and (3) it lacked proper warning
machine called a “road widener” to extend
signs. The Diehls sought to introduce
the shoulder of a road. Manufactured by
evidence that, shortly after the accident,
Blaw-Knox in 1970, the road widener is
the owner of the machine partially
used to deposit and spread material to one
enclosed the rear wheels, installed a back-
side of the roadway. The road widener is
up alarm on the rear of the machine, and
usually followed by laborers who must
placed warning signs on the rear of the
perform a number of tasks, including
machine. These measures were taken in
removing excess material that is
order to prevent similar accidents in the
inadvertently left on the paved portion of
future. The District Court excluded
the roadway; removing stones that become
evidence of these remedial measures under
lodged in the material; leveling off the
Rule 407. After trial, a jury returned a
material that has been spread; and
verdict for Blaw-Knox, and judgment was
straightening the outer edge of the
entered against the Diehls. We hold that
deposited material. The laborers are then
Rule 407 does not bar evidence of
followed by a roller to press the material.
remedial measures taken by a non-party,
and that the evidence offered in this case On the day of the accident, Mr.
was relevant and would not tend to Diehl was working as one of the laborers
confuse or mislead the jury. Because we behind the road widener. The road
conclude that the exclusion of this widener had come to a stop, and then
evidence was not harmless error, we will began to move in reverse. Mr. Diehl, who
reverse the judgment of the District Court was working within “a couple of feet” of
and remand for a new trial. the road widener, was not aware that the
machine was reversing toward him. One
of the exposed wheels struck M r. Diehl’s
right ankle, trapping and crushing his
lower leg.
The Diehls’ theory of the case was
1
Ingersoll-Rand Corp., Ingersoll- that the road widener was defective in
Rand Co., Cooper Industries, Inc., Funk design for three reasons: (1) it lacked a
Manufacturing Co., and Deere & Co. did bumper or any other enclosure of the rear
not participate in this appeal. Claims wheels; (2) the back-up alarm was
against these defendants were dismissed inaudible, particularly because it was
prior to trial.
2
placed on the front of the machine; and (3) 1999 would confuse the jury, whose focus
it lacked proper warnings. The Diehls was temporally limited to whether the
sought to introduce testimony by an IA product was safe in 1970.
mechanic that, shortly after the accident,
The jury returned a verdict for
the mechanic modified the road widener
Blaw-Knox using a verdict form given by
by (1) installing a rear bumper/guard that
the District Court. The jury answered
enclosed the rear tires; (2) relocating the
“No” to question 1, “Was the [road
back-up alarm to the rear of the machine;
widener] defective in design when
and (3) placing warning signs on the rear
manufactured and sold by the defendant
of the machine (the “IA redesign”).
Blaw-Knox?” Finding no defect, the jury
According to the mechanic’s testimony,
did not consider the remaining issues in
the IA redesign was done in response to
the case.
the accident and for the purpose of
p r e v e n t in g s i m i la r a c c i d e n t s . The Diehls filed a timely appeal,
Significantly, IA is not a party to this challenging numerous pre-trial and trial
lawsuit. rulings by the District Court, including the
court’s decision to exclude evidence of the
Blaw-Knox filed a motion in limine
IA redesign. We have jurisdiction under
prior to trial to prohibit the Diehls from
28 U.S.C. § 1291.2 We exercise plenary
introducing evidence of the IA redesign.
review over the D istrict Co urt’s
The Diehls filed their own motion in
interpretation of the rules of evidence;
limine seeking an order allowing them to
however, assuming that the evidence could
introduce evidence of the IA redesign at
be admissible in some circumstances, we
trial. The District Court granted Blaw-
review the District Court’s decision to
Knox’s motion and denied the Diehls’
exclude that evidence for abuse of
motion, ruling that the IA redesign was a
discretion. Ansell v. Green Acres
subsequent remedial measure inadmissible
Contracting Co., 347 F.3d 515, 519 (3d
under Fed. R. Evid. 407.
Cir. 2003); Stecyk v. Bell Helicopter
At trial, the Diehls asked the Textron, Inc., 295 F.3d 408, 412 (3d Cir.
District Court to reconsider its exclusion 2002).
of the IA redesign, arguing that Rule 407
II.
does not apply to subsequent remedial
measures taken by a non-party. The The primary issue in this case is
District Court again refused to admit the whether Fed. R. Evid. 407 excludes
IA redesign, ruling that “Rule 407 by its evidence of subsequent remedial measures
terms is not limited to remedial measures
taken by the defendant.” Alternatively,
the District Court excluded the evidence 2
The District Court had diversity
under Fed. R. Evid. 403, finding that
jurisdiction under 28 U.S.C. §
evidence of remedial measures taken in
1332(a)(1).
3
taken by a non-party such as IA. Rule 407 improving the safety of their products if
provides: such changes can be introduced as
evidence that their previous designs were
When, after an injury
defective. Stecyk, 295 F.3d at 415.
or harm allegedly caused by
an event, measures are taken This policy is not implicated where
that, if taken previously, the evidence concerns remedial measures
would have made the injury taken by an individual or entity that is not
or harm less likely to occur, a party to the lawsuit. The admission of
evidence of the subsequent remedial measures by a non-party
measures is not admissible necessarily will not expose that non-party
t o p r o v e n e g l i g e n c e, to liability, and therefore will not
culpable conduct, a defect in discourage the non-party from taking the
a product, a defect in a remedial measures in the first place. It is
product’s design, or a need noteworthy that each of the circuits to
for a warning or instruction. address this issue has concluded that Rule
This rule does not require 407 does not apply to subsequent remedial
the exclusion of evidence of measures taken by a non-party. E.g.,
subsequent measures when Mehojah v. Drummond, 56 F.3d 1213,
offered for another purpose, 1215 (10th Cir. 1995); TLT-Babcock, Inc.
such as proving ownership, v. Emerson Elec. Co., 33 F.3d 397, 400
control, or feasibility of (4th Cir. 1994); Raymond v. Raymond
precautionary measures, if Corp., 938 F.2d 1518, 1523-24 (1st Cir.
controverted, or 1991); Pau v. Yosemite Park & Curry Co.,
impeachment. 928 F.2d 880, 888 (9th Cir. 1991); O’Dell
v. Hercules, Inc., 904 F.2d 1194, 1204 (8th
Cir. 1990); Dixon v. Int’l Harvester Co.,
“Rule 407 rests on the strong public policy 754 F.2d 573, 583 (5th Cir. 1985); Lolie v.
of encouraging manufacturers to ‘make Ohio Brass Co., 502 F.2d 741, 744 (7th
improvements for greater safety.’” Stecyk, Cir. 1974) (per curiam). See generally 2
295 F.3d at 415 (quoting Kelly v. Crown Weinstein’s Federal Evidence § 407.05[2]
Equip. Co., 970 F.2d 1273, 1276 (3d Cir. (Joseph M. McLaughlin ed., 2d ed. 2003).
1992); see also Fed. R. Evid. 407 advisory
The able District Judge declined to
committee’s note (“The other, and more
follow these authorities, observing that the
impressive, ground for exclusion rests on
text of Rule 407 makes no exception for
a social policy of encouraging people to
subsequent remedial measures taken by a
take, or at least not discouraging them
non-party. This is true enough, but the
from taking, steps in furtherance of added
Advisory Committee’s notes to Rule 407
safety.”). The Rule recognizes that
state that the rule “in corp orate s
manufacturers will be discouraged from
conventional doctrine which excludes
4
evidence of subsequent remedial measures “[a]lthough relevant, evidence may be
as proof of an admission of fault.” See excluded if its probative value is
also Rimkus v. N.W. Colo. Ski Corp., 706 substantially outweighed by the danger of
F.2d 1060, 1064 (10th Cir. 1983) (stating unfair prejudice, confusion of the issues,
that Rule 407 “codified the generally or misleading the jury.” A district court’s
accepted common law rule”). Prior to the explicit balancing analysis under Rule 403
enactment of Rule 407, conventional should only be disturbed if it is irrational
doctrine in this circuit was that the rule or arbitrary. Ansell, 347 F.3d at 525.
excluding evidence of repairs made after
The court reasoned that the IA
an accident was not applicable to repairs
redesign would create a danger of unfair
made by a non-party. See Steele v.
prejudice, confusion of the issues, and
Wiedemann Mach. Co., 280 F.2d 380, 382
misleading of the jury, because “[t]he
(3d Cir . 196 0). T he Advisory
issue of a defect—as to whether or not
Committee’s reference to “an admission of
there’s a defect, requires a focus of the
fault” reinforces this limitation: it hardly
jury on the time of the manufacture of this
makes sense to speak of a party’s fault
machine in 1970, more than 30 years ago.”
being “admitted” by someone other than
Under Pennsylvania law, a product is
the party. Furthermore, the Advisory
defective if it “‘left the supplier’s control
Committee was well aware of the courts’
lacking any element necessary to make it
consistent interpretation of the rule. The
safe for its intended use.” Lewis v. Coffing
notes to the 1997 amendment of Rule
Hoist Div., Duff-Norton Co., 528 A.2d
407—making the rule applicable to
590, 593 (Pa. 1987) (quoting Azzarello v.
products liability actions— cite with
Black Bros. Co., 391 A.2d 1020, 1027
approval the First Circuit’s opinion in
(Pa. 1978) (emphasis added)); accord
Raymond v. Raymond Corp. The court in
Duchess v. Langston Corp., 769 A.2d
Raymond expressly ruled that “there is no
1131, 1142 ( Pa . 2001) (“[O]u r
rationale for excluding third party
jurisprudence requires that products are to
subsequent repairs under the Rule.” 938
be evaluated at the time of distribution
F.2d at 1524.
when examining a claim of product
Because Rule 407 does not apply to defect.”). “Since the employment of a
evidence of subsequent remedial measures subsequent remedial measure by definition
taken by a non-party, it was error for the occurs in a different time frame, the
District Court to exclude evidence of the evidence is said to be of diminished
IA redesign under that rule. relevance.” Duchess, 769 A.2d at 1140.
Still, the implementation of remedial
III.
measures to improve the safety of a
The District Court alternatively product is consistent with an inference that
excluded evidence of the IA redesign the older product of a similar design was
under Fed. R. Evid. 403, which states that defective. Petree v. Victor Fluid Power,
5
Inc. (“Petree I”), 831 F.2d 1191, 1198 (3d As a general matter, we appreciate
Cir. 1987); see also Duchess, 769 A.2d at the potential that subsequent design
1142 (stating that, under Pennsylvania law, changes represent for distracting juries
post-sale design changes are “not directly from the issue at hand—whether the
relevant, but, at best, can provide an product was defective when it left the
inference concerning the product’s earlier manufacturer’s hands. Kelly, 970 F.2d at
condition” which “would generally satisfy 1277-78 (“[Rule 407] operates on the
the standard of relevancy.”). 3 presumption that undue prejudice is likely
in certain situations, expressing a distrust
of a jury’s ability to draw the proper
3 inferences from the evidence.” (internal
We are concerned that the
citation omitted)), quoted in Stecyk, 295
District Court erroneously discounted the
F.3d at 415. As the Fifth Circuit put it in
relevance of the IA redesign. Citing
Duchess, 769 A.2d at 1145, the District
Court stated in a related pre-trial ruling:
“As the Supreme Court of Pennsylvania District Court placed too much reliance
recently stated, ‘design improvements on Pennsylvania Rule 407, and decisions
made after the sale of the product are not of the Pennsylvania courts applying that
relevant to the issue presented in a rule. Certainly, Pennsylvania products
products liability case, which is whether liability law is critical in determining
the product was safe when sold.” The whether particular evidence is relevant.
passage quoted by the District Court, Fed. R. Evid. 401 (defining relevance by
however, appears to have been taken out reference to facts “of consequence to the
of context. The quote is actually from an determination of the action”). However,
earlier Pennsylvania Superior Court case, Federal Rule 407’s assessment of the
Connelly v. Roper Corp., 590 A.2d 11, dangers of unfair prejudice and
13 (Pa. Super. 1991). Duchess in fact confusion of the issues are procedural
departed from Connelly: “Connelly . . . matters that govern in a federal court
relied upon a conclusion that design notwithstanding a state policy to the
changes are irrelevant in a products contrary. Kelly, 970 F.2d at 1277-78.
liability case, whereas our holding Regardless, we observe that
embodies a different assessment of Pennsylvania Rule 407 is expressly
relevance and consideration of pertinent limited to remedial measures taken by
public policy.” Duchess, 769 A.2d at parties to the case: “evidence of the
1145. As discussed above, Duchess subsequent measures is not admissible to
explicitly acknowledged that subsequent prove that the party who took the
design changes are capable of an measures . . . produced, sold, designed,
inference of defect. or manufactured a product with a defect
or a need for a warning or instruction.”
We are also concerned that the (Emphasis added).
6
Grenada Steel Industries, Inc. v. Alabama measures taken by a non-party. Although
Oxygen Co.: the court in that case recognized that Rule
407 is inapplicable to non-party remedial
A p r i o ri j u dgments
measures, the evidence nevertheless
concerning why
implicated Rule 403 concerns:
manufacturers do or do not
alter their products, made by [W]e think the district
such dubious experts as court’s exclusion of this
judges, lawyers, and law e v i d e n ce w a s p r o p e r
professors, suffer from because it lacked sufficient
excessive reliance on logical probative value and injected
deduction and surm ise the dangers of confusion
without the benefit of and misleading the jury. . .
evidence of ind ustry . Alternative designs may
p r a c t ic e o r e c on o m ic indicate that the product was
factors. It seems to us, with unreasonably dangerous, but
no greater expertise than only if they were available
like-trained lawyers and at the time of manufacture.
judges, that changes in We fail to see how an
design or in manufacturing alterna tive design,
process might be made after developed by another person
an accident for a number of years after the product in
different reasons: simply to question was manufactured,
avoid another injury, as a is relevant to whether the
sort of admission of error, product was reasonably safe
because a better way has at the time it was made.
been discovered, or to
implement an idea or plan
c o n c e iv e d befo re th e Grenada Steel, 695 F.2d at 889 (internal
accident. citations omitted).
The instant case, however, presents
none of the risks discussed in Grenada
695 F.2d 883, 887-88 (5th Cir. 1983); cf.
Steel, or in other cases analyzing the
Duchess, 769 A.2d at 1140 (citing
potential for confusion in products liability
G re n ada Steel and stating that
cases. For one, the state of the art is not an
“manufacturers may modify product
issue in this case, i.e., it is undisputed that
design for many reasons other than to
the measures taken by IA— merely
remedy a defect”). Grenada Steel is
welding a bumper onto the rear of the road
particularly instructive because that case
widener—were available to Blaw-Knox at
also involved subsequen t remedial
the time of the manufacture. Accordingly,
7
there is no temporal distinction for the jury Because the evidence is probative of
to overlook between a feature reasonably whether the road widener lacked a feature
necessary to make the road widener safe in reasonably necessary to make the machine
1999, and a feature reasonably necessary safe for its intended use, and because its
to make the road widener safe in 1970. relevance was not outweighed by other
See generally Espeaignnette v. Gene dangers, we find that the District Court
Tierney Co., Inc., 43 F.3d 1, 7 (1st Cir. abused its discretion by excluding
1994) (holding that evidence of subsequent evidence of the IA redesign.
remedial measures taken by a non-party
IV.
was not misleading or unfairly prejudicial
on the issue of defect where evidence Finally, we are unable to conclude
would not have introduced design choices that the District Court’s error was
not known or feasible at the time of harmless. A District Court’s evidentiary
manufacture). rulings can be affirmed if, notwithstanding
the error, we conclude that it is “highly
Furthermore, we find no dispute in
probable” that the error did not prejudice
the record that the IA redesign was done in
the appe llant’s su bstantive righ ts.
direct response to Mr. Diehl’s accident and
McQueeney v. Wilmington Trust Co., 779
for the sole purpose of preventing such
F.2d 916, 927-28 (3d Cir. 1985). Several
accidents. The IA mechanic that
aspects of the record in this case convince
performed the redesign testified in
us that admission of the IA redesign could
deposition that the redesign was done to
have affected the jury’s decision on the
prevent the accident that befell Mr. Diehl.
issue of defect.
Because the purpose of the redesign was
not contested, there was no danger that the First and foremost, the sole issue
jury would discount other plausible decided by the jury was the road widener’s
reasons for the redesign. defectiveness, and evidence of the IA
redesign creates a permissible inference
Despite the deference accorded to a
that the machine was defective. As it was,
trial court’s Rule 403 balancing, we find
the evidence presented on defect came
no support in the record for the District
down to the Diehls’ expert, Dr. Ketchman,
Court’s concerns that the IA redesign
versus Blaw-Knox’s expert, Dr. Barnett.
would confuse or mislead the jury. 4
Dr. Barnett testified at length that the
Diehls’ proposed alternative design was
4
Although we cannot discern any
potential for confusion on the record F.2d 34, 41 (3d Cir. 1989) (allowing
before us, we also note that a limiting subsequent remedial measures evidence
instruction was neither suggested by the where tendency towards unfair prejudice
parties nor considered by the court. See could be alleviated by a limiting
Petree v. Victor Fluid Power, Inc., 887 instruction).
8
not any safer than Blaw-Knox’s 1970 redesign would not have affected the
design of the road widener. Evidence that jury’s conclusion that the 1970 design
the owner of the road widener had, in fact, lacked a feature reasonably necessary to
redesigned the machine in the manner make the machine safe for its intended
suggested by plaintiffs and for the very use.5 Because we conclude that the
purpose of making the road widener safer
(indeed, to prevent the very accident that is
the subject of the lawsuit), tends to rebut 5
Because we find that the
Dr. Barnett’s testimony. Moreover, it does
exclusion of the IA redesign constitutes
so with greater effectiveness than the
reversible error, we will not address each
theoretical testimony of the Diehl’s expert.
and every issue raised by the Diehls on
Cf. Espeaignnette, 43 F.3d at 6-7
appeal. However, we will address two
(evidence of subsequent reme dial
matters that are likely to arise on remand.
measures by a non-party more effective to
First, we conclude that the Diehls’
prove feasibility than “hypothetical
request for an “enhanced injury,” or
assertions” of plaintiff’s expert). Finally,
“crashworthiness” instruction is
we observe that Blaw-Knox attempted to
meritless. Second, the District Court
discredit Dr. Ketchman in part based on
should reconsider its exclusion of
his lack of experience with road wideners.
evidence that Blaw-Knox itself had
E.g., App. at 685 (closing argument of
redesigned the road widener to fully
counsel for Blaw-Knox) (“How good of an
enclose the rear tires. The Diehls argue
expert are you? Do you really
that the Blaw-Knox redesign should have
know—have you rode construction
been admitted to show feasibility, an
equipment, Dr. Ketchman? No, he
exception to Rule 407. The Blaw-Knox
doesn’t.”). Evidence of the redesign
redesign, however, should not have been
performed by IA Construction, which is
characterized as a subsequent remedial
arguably more familiar with the equipment
measure in the first place (a
than either of the experts, may have
characterization the Diehls did not
substantially buttressed Dr. Ketchman’s
challenge). The Blaw-Knox redesign was
testimony. Cf. Borden, Inc. v. Florida
done in 1983, 13 years after manufacture
East Coast Ry. Co., 772 F.2d 750, 756
of the road widener and 16 years prior to
(11th Cir. 1985) (“[A] litigant is unduly
the accident. Amended in 1997, Rule
prejudiced when his opponent is successful
407, by its terms, applies to remedial
in preventing the admission of evidence on
measures taken “after an injury or harm
a particularly crucial issue in dispute, and
allegedly caused by an event.” Fed. R.
then points to the absence of such evidence
Evid. 407; see also Advisory
in closing argument.”).
Committee’s notes to the 1997
We therefore cannot say that it is amendment (“Evidence of measures
highly probable that evidence of the IA taken by the defendant prior to the
‘event’ causing ‘injury or harm’ do not
9
exclusion of this evidence was not
harmless error, we will reverse the
judgment of the District Court and remand
for a new trial.
fall within the exclusionary scope of
Rule 407 even if they occurred after the
manufacture or design of the product.”).
The 1997 amendment abrogated
decisions of this Circuit to the contrary.
See Kelly, 970 F.2d at 1277; Petree I,
831 F.2d at 1198. Because the Blaw-
Knox redesign was done in 1983, 16
years prior to the accident, Rule 407 does
not apply. Evidence of the Blaw-Knox
redesign, of course, must still be
analyzed under Rules 401 and 403.