By: William A. Dreier
September 2005

When is a post-accident repair not a post-accident repair? This question was answered definitively for the federal courts in the Third Circuit recently in Sell v. Ingersoll-Rand Co., 136 Fed. Appx. 545, 2005 WL 1526455 (3d Cir. 2005). The plaintiff was severely injured in 2001 when struck by a falling 500-pound steel pipe while working on a drilling rig. Following the accident, plaintiff’s employer, who was not a defendant, installed a metal bracket which plaintiff’s expert testified could have prevented the accident. The jury awarded plaintiff $2.6 million for his concussion, broken collar bone, ruptured spleen and fractures of four vertebrae, left femur and both ankles.

Federal Evidence Rule 407 generally precludes the admission of evidence of a subsequent remedial measure. The Rule reads:

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.

In Diehl v. Blaw-Knox, 360 F.3d 426 (3d Cir. 2004), the Court had determined that Fed. Evid. R. 407 is inapplicable when the remedial conduct was that of a third party. This ruling comported with decisions from six other Circuits. In Sell, however, defendant urged that the ruling in Diehl was wrong and should be reconsidered and overruled by the full Court. Defendant unsuccessfully sought a rehearing en banc on this issue.

The policy underlying the evidence rule is that a manufacturer of a product should not hesitate to implement a design change to prevent future accidents from a fear that such a change would be used as legal evidence of its need prior to the accident. The law is aimed at preventing such a chilling effect on post-accident remedial measures. The federal appeals courts that have considered this issue have now uniformly determined that the purpose of the exclusionary rule, which by its terms is silent as to whether it applies only to a defendant manufacturer, or should include third parties, would not be furthered by such expansion.

The parallel New Jersey Evidence Rule, N.J.R.E. 407, uses slightly different language:

Evidence of remedial measures taken after an event is not admissible to prove that the event was caused by negligence or culpable conduct. However, evidence of such subsequent remedial conduct may be admitted as to other issues.

We expect that the New Jersey rule would be interpreted the same as its federal counterpart.

An additional question involving N.J.R.E. 407 is pending before the New Jersey Supreme Court in Steinberg v. Liberty Science Center, Inc., (A-4-05, certification granted 6/9/05). There, plaintiff sought to present evidence of a post-accident design change that defendant now contends compromised product utility. Plaintiff, however, contends that the adoption of the change did not compromise the use of the product. Both the Federal and New Jersey Evidence Rule 407 permit the admission of subsequent remedial measures offered for “other issues” (New Jersey Rule) or for “another purpose such as . . . feasibility.” (Federal Rule). This issue should be resolved by the New Jersey Supreme Court in the upcoming term.

These rules elevate sound social policy over relevance by encouraging parties to effect remedial measures after an accident. The rules do not bar evidence of remediation after the product’s manufacture, however, or even after its sale, but only after the accident itself.

While remedial measures certainly should be undertaken to prevent future accidents, the characterization of such measures can be decisive in subsequent litigation. Where remedial measures are warranted after a particular accident or other event, and an emergency situation does not exist, a manufacturer should consult legal counsel before implementing such measures to plan the best way to do so.