Sunday, June 21, 2009
Federal Rule of Evidence 407 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.
In other words, if a plaintiff is going to sue a company such as Harley-Davidson for making a defective product that caused her to suffer injuries, her sole method of proof cannot be that the company recalled the product after her accident as is made clear by the recent opinion of the United States District Court for the Southern District of Mississippi in Rutledge v. Harley-Davidson Motor Co., 2009 WL 1635762 (S.D. Miss. 2009).
In Rutledge, on December 13, 2006, Donna Rutledge purchased a new model XL883L motorcycle designed and manufactured by Harley-Davidson. On December 29, 2006, Rutledge was unable to steer the motorcycle through a curve in the road, crashed, and sustained serious injuries. Thereafter,
[a]pproximately one month after the accident, on January 22, 2007, [Harley-Davidson] mailed the first of two recall notices stating that it had "decided that a defect relating to motor vehicle safety exists on certain 2007 XL model motorcycles" built during a specific six month period in 2006. The list of affected models included the XL883L, and the notice stated, “Our records indicate that you purchased one of the model motorcycles listed above that may have the condition involved in this recall.” More specifically, the notice indicated that certain motorcycles had a voltage regulator which, due to its size and location and under certain circumstances, could come into contact with the front fender, impeding the operator's ability to steer the vehicle.
Rutledge thereafter sued Harley-Davidson for negligence, breach of warranty, and strict products liability, and the company moved for summary judgment. Now, what Rutledge should have done was obtained documents from Harley-Davidson indicating how they determined that the XL883L was defective. Such evidence would have been perfectly admissible and undoubtedly sufficient to create a triable issue of fact and avoid summary judgment. But Rutledge didn't do this.
Instead, Rutledge relied
exclusively on the recall notices and her own description of the accident to prove [Harley-Davidson] breached its duties. She argue[d] that through the recall notices, "Harley-Davidson admits that these motorcycles were 'built with voltage regulator part number 74546-07 which, as a result of a greater body thickness than used in previous model years, may contact the front fender under certain conditions.'"
And the problem with this reliance was that Harley-Davidson "issued the recall notices after [Rutledge]'s accident, and they would have made injury less likely (assuming the alleged defect actually caused the injury)," meaning that fell squarely under Federal Rule of Evidence 407 and were inadmissible. Thus, although the court indicated that it couldn't "help but feel empathy for Ms. Rutledge" because "[s]he clearly suffered a significant injury," it had to grant Harley-Davidson's motion.