Thakore v. Universal Mach. Co. of Pottstown, Inc.

• Decision Date: 25 September 2009
• Docket Number: No. 05 C 5262.,05 C 5262.
• Citation: 670 F.Supp.2d 705
• Parties: Rita THAKORE, Plaintiff, v. UNIVERSAL MACHINE CO. OF POTTSTOWN, INC., Defendant.
• Court: U.S. District Court — Northern District of Illinois

670 F.Supp.2d 705

Rita THAKORE, Plaintiff, v. UNIVERSAL MACHINE CO. OF POTTSTOWN, INC., Defendant.

No. 05 C 5262.

United States District Court, N.D. Illinois, Eastern Division.

September 25, 2009.

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David E. Rapoport, Joshua Lawrence Weisberg, Paul David Richter, Rapoport Law Offices, P.C., Chicago, II, Steven Michael Sandler, Michael Best & Friedrich LLP, Milwaukee, WI, for Plaintiff.

James Kenneth Borcia, John M. O'Driscoll, Tressler, Soderstrom, Maloney & Priess, Chicago, II, for Defendant.

MEMORANDUM OPINION ON MOTIONS IN LIMINE

JEFFREY COLE, United States Magistrate Judge.

The Plaintiff was injured in March 2004 when a press manufactured by the Defendant came down on her hand, while she was cleaning it. The Plaintiff contends that the machine was improperly designed and manufactured and the Defendant is strictly liable in tort for having caused the Plaintiffs injury. The Defendant contends the injuries were caused by the Plaintiffs own negligence and the flawed procedures of her employer, CIBA Vision. The case is here for ruling on the parties' pre-trial motions pursuant to Judge Gettleman's referral, 28 U.S.C. § 636(b)(1)(A) and to finalize the jury instructions about which the parties have significant disagreements.

A. Plaintiffs Motions

Motion 1 [# 150]—To Bar Any Reference to Two Employee Warnings Issued by CIBA Vision to Rita Thakore Three Years After the Date of the Accident.

Motion 2 [# 151]—To Bar Any Reference to Rita Thakore's History of Thyroid Cancer.

Motion 3 [# 152]—To Bar Any Reference to Collateral Source Benefits Received by Rita Thakore, Including But Not Limited to Her Workers' Compensation Claim.

The Defendant has not responded to motions 1, 2 and 3. Hence, they are granted. MCI WorldCom Network Services, Inc. v. Atlas Excavating, Inc., 2006 WL 3542332 at *3 (N.D.Ill.2006) (Moran, J.) ("The general rule in the Seventh Circuit is that a party's failure to respond to an opposing party's argument implies concession."). In addition, the evidence is irrelevant under Rule 401, Federal Rules of Evidence, and thus inadmissible. See Rule 402.

Motion 4 [# 153]—To Bar Any Reference to Subsequent Remedial Measures Taken by CIBA Vision Corporation at its Des Plaines, Illinois Plant.

The motion seeks to prohibit the defense from introducing any evidence, argument or reference to what the motion calls "subsequent remedial measures taken by CIBA Vision Corporation following the occurrence in which [the plaintiff] was injured on March 1, 2004, including implementation of a Lock Out/Tag Out policy, introduction of the platen cleaning tool, and the use of a blocking arrangement in the machinery by CIBA Vision."¹ This evidence is claimed to be relevant to the defendant's theory that the plaintiff was negligent, and that CIBA Vision was also negligent "for not implementing these measures before the plaintiff was injured." (Memorandum at 3). The motion is based on Rules 407 and 403, Federal Rules of Evidence.

1.

Rule 407 prohibits the introduction of evidence that, following an injury, steps were taken that would have made the injury or harm less likely to have occurred. The prohibition, however, extends only to evidence of remedial measures taken by the defendant after the plaintiff was injured and offered to prove the defendant was at fault—that is, that it was negligent or responsible for a defect in a product or in its design or an inadequate warning or instruction. The Rule expressly allows evidence of subsequent measures, even by a defendant when offered for another relevant purpose such as to prove ownership, control, or feasibility of precautionary measures, if controverted, or for impeachment.²

The twofold purpose of the Rule is made clear in the Advisory Committee Notes to Rule 407. The first objective is to avoid unfairly prejudicing the defendant. It was thought that jurors would too readily construe subsequent remediation by the defendant as an admission of a prior defective design or condition. Such evidence also distracts the jury from the relevant time frame for its inquiry, i.e., whether the product was defective at the time of manufacture and sale. See Raymond v. Raymond Corp., 938 F.2d 1518, 1522-1523 (1st Cir.1991). Indeed, the plaintiffs motion, itself, in arguing for exclusion of evidence of the operating procedures, which were apparently designed to ensure greater safety, stresses that "the issue for the jury is whether Universal should be liable for the plaintiffs injuries based on its conduct at and before the time it manufactured the heat seal press that fell on her hand. If the machine was unreasonably dangerous when it left Universal's control, Universal should be held liable regardless of whether additional safeguards could have been taken by a user of the machine." (Motion at 4).³

For the plaintiff, it is quite beside the point that under Rule 407 the subsequent remediation was undertaken by a non-party to the suit, since CIBA was a "potential" third-party defendant and thus falls within Rule 407's exclusion of post-hoc remediation by a defendant. Mehojah v. Drummond, 56 F.3d 1213, 1215 (10th Cir. 1995) is one of a number of cases that has rejected this sort of argument.

The argument for admissibility is said to be based on the "plain language" of Rule 407, which the plaintiff says makes no distinction between measures taken by parties and non-parties. That theory has been championed by Professor Saltzburg, who has criticized the cases that have uniformly concluded that the Rule only excludes evidence of subsequent remediation offered to prove fault when the measures were taken by the defendant. Perhaps recognizing that it sometimes is "`pernicious oversimplification to say that because the words of a statute are plain, its meaning is also plain,'" F.B.I, v. Abramson, 456 U.S. 615, 625, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982), eight federal Courts of Appeals have concluded that the policy underlying Rule 407 is not implicated where the evidence concerns remedial measures taken by an individual or entity that is not a party to the lawsuit and that Rule 407 is not a bar to admissibility of evidence of subsequent repairs by non-parties like CIBA Vision. See Millennium Partners L.P. v. Colmar Storage, LLC, 494 F.3d 1293, 1303 (11th Cir.2007); Diehl v. Blaw-Knox, 360 F.3d 426 (3rd Cir.2004); Mehojah v. Drummond, 56 F.3d 1213, 1215 (10th Cir.1995); TLT-Babcock, Inc. v. Emerson Elec. Co., 33 F.3d 397, 400 (4th Cir. 1994); Raymond v. Raymond Corp., 938 F.2d 1518, 1523-24 (1st Cir.1991); Pau v. Yosemite Park & Curry Co., 928 F.2d 880, 888 (9th Cir.1991); O'Dell v. Hercules, Inc., 904 F.2d 1194, 1204 (8th Cir.1990); Dixon v. International Harvester, 754 F.2d 573 (5th Cir.1985); Grenada Steel Industries, Inc. v. Alabama Oxygen Co., Inc., 695 F.2d 883 (5th Cir.1983); Lolie v. Ohio Brass Co., 502 F.2d 741, 744 (7th Cir.1974) (The social policy behind Rule 407 "clearly has no applicability when the evidence is offered against a party, such as this defendant, which did not make the changes.").

The plaintiff, however, seems to contend that I am at liberty to ignore these cases, including those of the Seventh Circuit, and that I am required to abide by what it deems the plain language of Rule 407. As it pertains to cases from other jurisdictions, the argument is theoretically right, but ignores the realities of decision-making. As it applies to the Seventh Circuit, the argument is mistaken. See United States v. Watson, 87 F.3d 927, 930 n. 2 (7th Cir.1996); Lindh v. Murphy, 96 F.3d 856, 873 (7th Cir.1996) (en banc); Gacy v. Welborn, 994 F.2d 305, 311 (7th Cir.1993) (Easterbrook, J.). See also Frankfurter, John Marshall and the Judicial Function, In Government Under Law, 31 (1968) ("Self-willed judges are the least defensible offenders against government under law...."). Perhaps the Seventh Circuit and its sister circuits have all misread Congress's intent, as the plaintiff contends. That has certainly happened more than once in our history. See e.g., McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). But ours is a hierarchical judiciary, and judges of inferior courts are bound to follow the decisions of their superiors. See Lindh v. Murphy, 96 F.3d 856, 873 (7th Cir.1996) (en banc); Gacy v. Welborn, 994 F.2d 305, 311 (1993); Bingham v. New Berlin School Dist., 550 F.3d 601, 605 (7th Cir.2008); United States v. Watson, 87 F.3d 927, 930 n. 2 (7th Cir.1996).

But because Rule 407 does not bar evidence of CIBA Vision's changes to its policies does not mean that the evidence is automatically admissible. Like all evidence, it must still be relevant, Rule 401, and must pass muster under Rule 403. Tome v. United States, 513 U.S. 150, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995) recognized that the Federal Rules of Evidence's treatment of relevancy is liberal, and the Seventh Circuit has stressed that the relevancy requirement is a "minimal" one. United States v. Murzyn, 631 F.2d 525, 529 (7th Cir.1980). Thus, the question is not whether there is great probative weight, but whether there is any. United States v. Marks, 816 F.2d 1207, 1211 (7th Cir.1987). United States v. Pollard, 790 F.2d 1309, 1312 (7th Cir.1986) put it this way:

[T]he definition of relevancy adopted in Rule 401 is an expansive one, and for evidence to be relevant under this definition, it `need not conclusively prove the ultimate fact in issue, but only have `any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence' New Jersey v. T.L.O., 469 U.S. 325 [105 S.Ct. 733, 83 L.Ed.2d 720 (1985)], Even if the proposition for which it is offered still seems improbable after the evidence is considered, the proffered evidence is not necessarily irrelevant. McCormick at 543. As Dean McCormick has aptly phrased it, to be relevant evidence need only...