Kelly v. Crown Equipment Co.

• Decision Date: 25 August 1992
• Docket Number: No. 91-1908,91-1908
• Citation: 970 F.2d 1273
• Parties: , 36 Fed. R. Evid. Serv. 192, Prod.Liab.Rep. (CCH) P 13,252 Joseph KELLY and Cynthia Kelly, Appellants, v. CROWN EQUIPMENT COMPANY, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 1273

970 F.2d 1273

61 USLW 2144, 36 Fed. R. Evid. Serv. 192,

Prod.Liab.Rep. (CCH) P 13,252

Joseph KELLY and Cynthia Kelly, Appellants, v. CROWN EQUIPMENT COMPANY, Appellee.

No. 91-1908.

United States Court of Appeals Third Circuit.

Argued May 20, 1992.

Decided July 29, 1992.

Rehearing and Rehearing In Banc

Denied Aug. 25, 1992.

Walter J. Timby, Jr. (argued), Timby, Brown & Timby, Philadelphia, Pa., for appellants.

Morton F. Daller (argued), Eileen M. Johnson, Rawle & Henderson, Philadelphia, Pa., for appellee.

Before: HUTCHINSON, COWEN and SEITZ, Circuit Judges.

OPINION OF THE COURT

SEITZ, Circuit Judge

Joseph Kelly and his wife Cynthia Kelly ("plaintiffs") appeal the order of the district court denying their motion for a new trial in a products liability action under Pennsylvania law against Crown Equipment Company ("defendant"). Defendant removed the case to federal court as authorized by 28 U.S.C. § 1441, invoking the court's diversity jurisdiction pursuant to 28 U.S.C. § 1332. This court has jurisdiction under 28 U.S.C. § 1291.

I. FACTUAL BACKGROUND

Joseph Kelly was injured in the course of his employment when he dismounted from a stock picker forklift. The forklift was constructed so that the operator could stand on a platform which could be lowered closer to the ground for a safe exit. Rather than lowering the platform and stepping off, however, Kelly jumped off the equipment from a height of one and one/half or two feet above the ground. The O-ring on his safety belt caught on a ring attached to a pole at the rear of the platform. He was jerked back onto the platform and injured his back.

Plaintiffs sued defendant, the manufacturer of the forklift, under a strict liability theory. They alleged that the forklift was defectively designed within the provisions of Section 402A of the Restatement (Second) of Torts (1965). A jury returned a verdict for the defendant finding, in answer to a special interrogatory, that the forklift was not defective. Accordingly, the district court entered judgment for the defendant. Subsequently, the court denied plaintiffs' motion for a new trial.

II. DISCUSSION

On appeal, plaintiffs allege that the district court erred in denying their motion for a new trial. This court reviews the district court's ruling for abuse of discretion. Honeywell v. American Standards Testing Bureau, 851 F.2d 652, 655 (3d Cir.1988), cert. denied, 488 U.S. 1010, 109 S.Ct. 795, 102 L.Ed.2d 787 (1989). To the extent the denial was based upon a legal precept, our review is plenary. Id.

A. Application of Federal Evidentiary Rule 407

Plaintiffs sought to introduce evidence at trial that the defendant altered the design of its forklifts after the manufacture of the forklift here involved, but before the accident. Their proffer showed that defendant removed the ring on the pole and added a mechanism that lowered the pole into the platform when the operator entered or exited the platform. The district court excluded this post-manufacture, pre-accident evidence under Rules 407 and 403 of the Federal Rules of Evidence. Thus, this appeal.

Federal Rule of Evidence 407 provides:

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

(emphasis added). This court has consistently held that Rule 407 applies to strict liability suits even though the language in the rule refers to inadmissibility to prove negligent or culpable conduct. Josephs v. Harris Corp., 677 F.2d 985 (3d Cir.1982); Knight v. Otis Elevator Co., 596 F.2d 84 (3d Cir.1979). ¹ We have also held that Rule 407 applies to exclude evidence of pre-accident remedial measures where the manufacturer is sued under a failure to warn theory. Petree v. Victor Fluid Power, Inc., 831 F.2d 1191 (3d Cir.1987) ("Petree I ").

Plaintiffs first assert that Rule 407 is inapplicable to strict liability design defect cases. They say that this argument is available to them notwithstanding our previous rulings because in Josephs and Knight plaintiffs asserted both design defect and failure to warn theories. In addition, they point out that the rule announced in Petree I was in the context of liability predicated only on a failure to warn. They rely on this court's explanation in that case that:

where the manufacturer's liability is predicated on a theory of failure to warn of danger from improper use of a product by the customer, the negligence concept of foreseeability has insinuated itself into the strict liability cause of action.... Consequently the policies supporting Rule 407 counsel exclusion of proof of subsequent remedial measures when offered in strict liability cases as an admission that the product was effective at the time of sale.

Petree I, 831 F.2d at 1198 (emphasis added). They contend that, unlike warning cases, concepts of negligence play no part whatsoever in the determination of a manufacturer's liability for a product that was defective at the time it was sold. Thus, we must consider whether the policies and goals of Rule 407 would be advanced by applying the exclusionary rule to design defects as well as failure to warn cases.

Rule 407 is based upon two grounds. First, "Rule 407 rejects the suggested inference that fault is admitted when remedial measures are taken subsequent to an injury." Petree I, 831 F.2d at 1198. This is because "[s]uch conduct is equally consistent with injury through accident or contributory negligence." Id. Secondly, Rule 407 is supported by public policy which encourages manufacturers to make improvements for greater safety.

Exclusion of subsequent remedial evidence, regardless of the theory of the case, advances the policy behind Rule 407 of promoting safety. As one court commented:

The rule ... represents a common sense recognition that people are loath to take actions which increase the risk of losing a lawsuit.... Since the policy underlying Rule 407 not to discourage persons from taking remedial measures is relevant to defendants sued under either [negligence or strict liability], we do not see the significance of the distinction. A potential defendant must be equally concerned regardless of the theoretical rubric under which this highly prejudicial and extremely damaging evidence is admitted.

Cann, 658 F.2d at 60; see also Werner, 628 F.2d at 857 ("From a defendant's point of view it is the fact that the evidence may be used against him [and not the theory of liability] which will inhibit subsequent repairs or improvements."). The reasons for refusing to differentiate between negligence actions and strict liability claims apply with equal force to the more subtle differences between failure to warn and design defect theories.

In our previous cases applying Rule 407 to strict liability actions, we have not distinguished between the failure to warn and the design defect theories of recovery. ² Josephs, 677 F.2d at 991; Knight, 596 F.2d at 91-92. We believe that these cases may be read to apply Rule 407 to products liability actions generally regardless of the specific theory advanced. ³ Therefore, plaintiffs' argument that Rule 407 is inapplicable to claims alleging only a design defect is negated by our previous decisions.

Plaintiffs next assert that Rule 407 by its own terms does not govern the admission of evidence of post-manufacture, pre-accident remedial measures relying on the "after an event" language in the rule. In Petree I this court considered whether Rule 407 applied to the manufacturer's pre-accident conduct. There the defendant began attaching warning labels to its product after some products had been sold without labels, but before plaintiff's accident. This court ruled that the Rule 407 policy of encouraging people to take steps to make their products safer was "equally as supportive of exclusion of evidence of safety measures taken before someone is injured by a newly manufactured product, even if those measures are taken in response to experience with an older product of the same or similar design." Petree I, 831 F.2d at 1198 (emphasis added).

In reaching its conclusion that the Rule can properly be applied to pre-accident conduct, this court approached the matter in terms of effectuating social policy. It apparently did not confront the language of the Rule which specifically limits its application to measures taken "after an event ... which, if taken previously, would have made the event less likely to occur...." Fed.R.Evid. 407 (emphasis added). Cf. Huffman v. Caterpillar Tractor Co., 908 F.2d 1470, 1481-82 (10th Cir.1990). Nevertheless, since Petree I rules directly on this issue we, as a panel, are not free to entertain plaintiffs' argument based upon the language of the rule. IOP Chapter 9.1 [In Banc Consideration] (1990).

Plaintiffs next argue that construing Rule 407 to exclude evidence of post-manufacture, pre-accident design changes in a diversity action ⁴ arguably places the Federal Rules of Evidence in conflict with Pennsylvania law. In Matsko v. Harley Davidson Motor Co., 325 Pa.Super. 452, 473 A.2d 155 (1984), the court held that the Pennsylvania subsequent repair rule, see Baron v. Reading Iron Co., 202 Pa. 274, 51 A. 979 (1902), did not apply in products liability actions. Plaintiffs' argument that state law governs where the Federal Rules of Evidence are inapplicable is obviously foreclosed since we have held that Rule 407 applies in the design defect context. Plaintiffs' reliance on Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917 (10th Cir.), cert. denied, 469 U.S. 853, 105 S.Ct. 176, 83 L.Ed.2d 110 (1984), suggests, however, their...