Friday, July 29, 2011
Say Cheese: Tenth Circuit Finds Subsequent Remedial Measure Evidence Properly Excluded For Irrelevance
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.
But while a party can use evidence of subsequent remedial measures to impeach witnesses, it can only do so if such evidence is relevant, which was a problem for the defendant in Leprino Foods Co. v. Factory Mut. Ins. Co., 2011 WL 3134625 (10th Cir. 2011).In Leprino, Leprino Foods Company, a Denver-based mozzarella manufacturer, customarily stored its products in third-party warehouses.
In one of these warehouses, flavoring compounds derived from nearby-stored fruit products contaminated a large quantity of cheese. Leprino's "all-risk" insurance policy with Factory Mutual Insurance Company excluded contamination unless it was caused by "other physical damage." When Factory Mutual refused coverage on the basis of the contamination exclusion, Leprino brought suit. A jury determined the contamination was caused by other physical damage and therefore covered by the insurance policy.
Factory Mutual thereafter appealed, claiming, inter alia, that the district court erred by precluding it from impeaching witnesses for Leprino through evidence of a subsequent remedial measure. According to Factory Mutual, these witnesses "claimed that the storage of cheese with high-aroma items like fruit products was 'no problem.'" Thereafter, Factory Mutual sought to impeach these witnesses through evidence that, after the contamination in 2001, Leprino revised its cold-storage guidelines. These
guidelines show Leprino's cold-storage guidelines originally did not mention odors. A 2001 revision added a requirement that Leprino's products be stored "in an environment free of odors."...A second revision in June 2002 rephrased this requirement to "a rodent free, odor free, warehouse, way [sic] from glass products or other chemicals, materials, or agents that could taint the products." the products."
In addressing this argument, the Tenth Circuit acknowledged that evidence of subsequent remedial measures can be used to impeach witnesses, but it found that the subject evidence was irrelevant. Why? According to the court,
Leprino's witnesses did not characterize undamaged fruit products as "high-aroma" items that would be prohibited by the new guidelines. Rather, they testified the only problem with storing mozzarella near fruit products is a greater risk in the instance of "a major spill or something like that where the material was out of the packaging," but "with proper maintenance and proper guidelines, there's not a problem."...During a major spill or any other situation in which proper maintenance was not followed, the revised guidelines would reduce the risk of damage to Leprino's products. Tellingly, the revised guidelines, if implemented, would have reduced Leprino's loss in the Gress warehouse if the damaged goods were the sole source of the contamination, as Leprino claims. As a result, the new guidelines are not inconsistent with the testimony presented.