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July 19, 2008
Blood On The Tracks: Fifth Circuit Makes Seemingly Erroneous Subsequent Remedial Measure Ruling In Railroad Accident Appeal
The recent opinion of the Fifth Circuit in Baker v. Canadian National/Illinois Central R.R., 2008 WL 2747464 (5th Cir. 2008), contains what seems to me to be an incorrect application of Federal Rule of Evidence 407, which deals with the (in)admissibility of evidence of subsequent remedial measures.
In Baker, Illinois Central hired a contractor to remove vegetation, dirt, and other obstructions from the railroad's right of way at a public railroad crossing, and Charles Baker worked for the contractor as a dump truck driver. While performing this excavation work in his dump truck, Baker was struck by one of Illinois Central's trains, causing him to be injured. Baker thereafter sued Illinois Central and alleged that it was negligent for failing to provide flagmen or other protections and for not installing lights or gates at the crossing. Instead, at the time, Illinois Central merely had stop signs and crossbucks at the site of the accident. This would soon change, however, with Illinois Central installing lights and gates two years after Baker's accident. The trial court, however, precluded Baker from presenting the evidence of these subsequent remedial measures, and the jury eventually entered a verdict in Illinois Central's favor.
Baker appealed, claiming, inter alia, that the trial court erred by precluding him from presenting the evidence of Illinois Central's subsequent remedial measures, and the Fifth Circuit noted that the issue was governed by Federal Rule of Evidence 407, which states that:
"When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. 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."
Thus, if Baker were merely using the evidence concerning the installation of lights and gates to prove that Illinois Central was negligent, the evidence would have been inadmissible under the Rule. And the twin reasons for that Rule are that: (1) someone making something safer doesn't mean that it was unsafe before, and (2) we don't want to discourage people or companies from making instrumentalities safer after an accident.
However, the Rule cannot be used as a shield and a sword, meaning that a defendant can't prevent the introduction of evidence that it enacted a subsequent remedial measure while at the same time presenting testimony that such a measure was not feasible. Instead, when a party controverts feasibility, the opposing party can present evidence of a subsequent remedial measure both as substantive evidence of feasibility and as impeachment evidence, i.e., evidence that the jury has a reason to distrust the testimony who controverted feasibility.
And indeed, this was Baker's argument for the admissibility of the evidence. He noted that Illinois Central called the locomotive engineer on the train that struck Baker's truck and that he testified that "gates are probably not as safe as just a stop sign and crossbuck" and that any crossing design expert who believed otherwise "could come ride that train with me and they will see I'm right." This seems like a compelling argument to me, but the Fifth Circuit was not convinced. Why?
Well, it cited to its previous opinion in Muzyka v. Remington Arms, 774 F.2d 1309 (5th Cir. 1985), in which it found that a plaintiff suing a rifle manufacturer for the injuries she sustained when a magazine-fed bolt-action rifle discharged while her stepfather was attempting to unload it was allowed to present evidence of subsequent remedial measures after several of the defendant's expert witnesses testified that the rifle was the safest in the world. The Fifth Circuit then concluded: "We decline to analogize the analysis of Remington's numerous experts to the lone opinion of Illinois Central's locomotive engineer, a lay witness." Instead, it found that "when the decision to admit or exclude evidence of a design change is a close call, a district court's decision to exclude the evidence is within its discretion."
To me, this argument seems akin to calling someone "a little pregnant." Sure, having several witnesses call a rifle the safest in the world controverts feasibility more than one lay witness saying that stop signs and crossbucks were safer than gates. But that's not the issue. As long as the locomotive engineer's testimony could be construed as controverting feasibility, Baker should have been able to introduce the light and gate testimony. So, what does prior Fifth Circuit precedent tell us about whether the trial court's decision to exclude the evidence was a "close call?"
Well, in Reese v. Mercury Marine Div. of Brunswick Corp., 793 F.2d 1416 (5th Cir. 1986), the defendant had one witness, who was not identified as an expert witness, testify that direct manufacturer warnings to consumers concerning a kill switch on an outboard motor were not likely to be successful. The trial court found that the testimony meant that the defendant controverted feasibility, meaning that the plaintiff could present evidence that the defendant subsequently included direct manufacturer warnings in its operations manual. The Fifth Circuit affirmed, holding that "[w]hether something is feasible relates not only to physical possibility, cost and convenience, but also to ultimate utility and success in intended performance....[The defendant]'s suggestion during trial that only the retailer could properly instruct the ultimate consumer regarding kill switch use clearly controverts the utility and likelihood of success of direct manufacturer warnings."
It seems clear to me that the locomotive engineer's testimony controverted the utility and likelihood of success of installing gates at the crossing, meaning that Illinois Central controverted feasibility and that Baker should have been able to present evidence of subsequent remedial measures. What do readers think?
July 19, 2008 | Permalink
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It seems to me there's a difference between making a comparative judgement about the merits of two options and contesting the feasability of one of those options. The locomotive engineer testified only that the gates were likely not as effective as the stop sign, not that the stop sign would not be effective. In Reese, the witness testified that only the retailer could properly instruct the ultimate consumer, i.e. the manufacturer can not properly instruct the ultimate consumer. It's not clear to me that making a statement about the relative merits of two options, admitting (at least implicitly) that both are feasible, contstitutes contesting the feasibility of the comparatively less effective option.
Posted by: Mike | Jul 21, 2008 7:56:06 AM
I agree with you on the specific fact pattern in Reese. But what about the fact pattern in Muzyka? There, defense witnesses said that the rifle was the safest in the world, allowing for evidence of a subsequent remedial measure. In other words, the court held that defense witnesses claimed that other pistol designs were less safe and thus not feasible. So, looking at Baker, the defense witness said that gates were less safe. According to Muzyka, this was tantamount to him saying that gates were not feasible, which should have allowed for evidence that gates were in fact installed.
Now, I suppose that you could argue that the defense witnesses in Muzyka contested the safety, and thus the feasibility, of alternatives to a greater extent than the defense witness in Baker. But that sort of gets back to my "a little pregnant" comment. Furthermore, if we're talking about the relevance/probative value of the subsequent remedial measures in Muzyka and Baker, I would say that the evidence was more probative in Baker because the defense witness said that the specific subsequent remedial measure enacted -- the gates -- were less safe whereas the defense witnesses in Muzyka made a more open ended statement.
Posted by: Colin Miller | Jul 21, 2008 4:05:14 PM