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Tuesday, April 20, 2010

The Ultimate Driving Machine?: Third Circuit Seemingly Errs In Subsequent Remedial Measure Dicta In Action Against BMW

Federal Rule of Evidence 407 provides 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.

It is well established that this Rule only precludes the admission of evidence of subsequent remedial measures taken by parties, not evidence of subsequent remedial measures taken by non-parties; consequently, I can't understand the Third Circuit's contrary conclusion (in dicta) in Jacobson ex rel. Jacobson v. BMW of North America, LLC, 2010 WL 1499809 (3rd Cir. 2010).

In Jacobson

On May 4, 1999, Robert Jacobson drove [his] BMW 325i to do errands with his two sons, Ryan and Christopher. Ryan, age 12, was seated in the front passenger seat, and Christopher, age 9, was seated in the rear passenger seat. Robert Jacobson stopped at Sam's Bar, in Dormont, Pennsylvania, to buy a six-pack of beer for a family cookout....He claims that, when he parked the car, he placed the shift lever into the “Park” position, turned the engine off, set the parking brake, and removed the keys from the ignition, before exiting the vehicle and entering the bar.....

The parking lot of the bar is on a slope. While his father was inside the store, Ryan began playing with the gear shift lever....While playing, Ryan disengaged the gear shift lever from the "Park" position, shifting it into either "Reverse" or "Neutral," and the car began to drift backwards down the slope. Ryan tried to move the gear shift back into the "Park" position, but was unable to do so.

Ryan and Christopher became scared, and Christopher climbed into the front seat and exited through the driver's side window unhurt. Ryan exited through the passenger side window, but fell to the ground and was struck by the right front part of the car. He sustained multiple fractures, contusions, and lacerations, as well as injuries to his brain and left eye. 

Jacobson thereafter filed suit on behalf of  Ryan against BMW, alleging that BMW was strictly liable for Ryan's injuries because the design of the car was defective. Specifically,

He asserted that BMW should have equipped the vehicle with either a Brake Shift Interlock (“BSI”), a device which would have prevented the car from shifting out of “Park” unless the brake pedal was depressed, or a Park Lock System (“PLS”), a device which would have prevented the gear shift from moving out of “Park” unless the key was in the ignition and had been turned out of the “Lock” position (collectively "Lock Systems").

Before trial,

BMW filed a motion in limine seeking to exclude evidence of other car manufacturer recalls (by Nissan in 1987 and Jeep in 1994) in order to retrofit their vehicles with Lock Systems. While Jacobson had adduced this evidence to show that it would have been feasible for BMW to have included a Lock System in its vehicles at the time the 325i was manufactured, BMW asserted that it would not contest feasibility at trial. The parties agreed to a stipulation that the Lock Systems were “technologically and economically feasible” at the relevant time, and the District Court therefore excluded the evidence of other recalls.

After the jury returned a verdict in favor of BMW, Jacobson appealed, claiming, inter alia, that evidence of these other recalls should have been admissible to prove that the BMW was unsafe without a Lock System. The Third Circuit disagreed, finding that

Notwithstanding the fact that this evidence may have been admissible under Federal Rule of Evidence 407, which allows for evidence of subsequent remedial measures to be admitted in certain instances, it was not necessary to admit this evidence here, since BMW had stipulated to feasibility. It was also not unreasonable to exclude it. Although Jacobson now argues that this evidence would also have shown that the BMW was unsafe without a Lock System, he did not advance this argument in the District Court, and we will not consider it for the first time on appeal.

I agree with most of the court's conclusion but not its conclusion that the evidence may have been inadmissible under Federal Rule of Evidence 407. As the Third Circuit has previously stated, Rule 407 only applies to subsequent remedial measures taken by parties, not subsequent remedial measures taken by no-parties. See, e.g., Diehl v. Blaw-Knox, 360 F.3d 426, 430 (3rd Cir. 2004). Of course, this conclusion was merely dicta and there easily could have been other grounds for excluding the evidence, but the Third Circuit's conclusion still seems plainly wrong.

-CM

 

http://lawprofessors.typepad.com/evidenceprof/2010/04/407--jacobson-ex-rel-jacobson-v-bmw-of-north-america-llcslip-copy-2010-wl-1499809ca3-pa2010.html

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