Handling Difficult Issues in Products Liability Actions: Subsequent Remedial Measures, Similar Accidents, Recalls, and Foreign Defendants[dagger]

FDCC Quarterly, Fall 2004 by Nahrstadt, Bradley C

I.

INTRODUCTION

Products liability actions are not easy cases to prepare, nor are they easy cases to try. More often than not, such cases involve complex industrial or consumer products, monumental amounts of documents, intricate theories of liability and defense, and horrific injuries. Defense counsel must navigate a variety of complex issues, presenting a coherent and cohesive theory of defense to the jury. Obviously, the defense attorney who successfully prevents "extraneous" issues from reaching the jury will be far ahead of the game. The purpose of this article is to apprise defense counsel of three potentially fatal areas of pretrial discovery and trial testimony in products liability actions - evidence of subsequent remedial measures, evidence of other accidents, and evidence of product recalls - and to provide suggestions regarding alternate ways to deal with such evidence. The final section of this article will discuss some interesting issues that often arise when defense counsel represents a foreign product manufacturer or distributor.

II.

SUBSEQUENT REMEDIAL MEASURES

Manufacturers almost always are interested in making their products better, faster, more efficient, and safer. The demands of the marketplace require that product manufacturers change and adapt with the times to avoid the repetitive production of stagnant products which preserve the status quo. As corporate America has embraced the motto, "change is good," defense attorneys increasingly have faced the challenge of keeping evidence of subsequent remedial measures from the plaintiff's attorney or from the jury. Subsequent remedial measures generally are defined as evidence of measures taken after an event which, if taken previously, would have made the event less likely to occur.

One objection to discovery seeking evidence of subsequent remedial measures made to a product often posits that providing such evidence would require the defendant to divulge trade secrets. Federal Rule of Civil Procedure 26(c)(7) protects against discovery of "a trade secret or other confidential research, development, or commercial information." Some courts have expressed reluctance to order disclosure of trade secrets without a clear showing of an immediate need for such information by the opposing side.1 If an argument can be made that the information sought by the plaintiff regarding subsequent remedial measures is a trade secret, such an objection should be lodged by the defendant's attorney.

Another objection often germane to requests for information about subsequent remedial measures is that the discovery sought is burdensome or expensive. Federal Rule of Civil Procedure 26(c) provides that parties may seek a protective order from discovery which will result in "annoyance, embarrassment, oppression, or undue burden or expense." In analyzing whether a discovery request is unduly burdensome, a court usually will consider the following factors: (1) the amount of research and time required and the cost thereby incurred; (2) the necessity of the information sought; (3) whether the benefit gained by the requesting party outweighs the burden placed on the responding parties; and (4) whether the information sought has been sufficiently disclosed in response to other discovery requests.2

In addition to the objections outlined above, defense counsel may wish to object that the discovery sought by the plaintiff regarding post-accident design modifications is irrelevant because: (1) it involves products substantially dissimilar to the one at issue; (2) conditions surrounding the use or testing of the modified products are substantially different from conditions surrounding the use or testing of the product involved in the suit; or (3) the information sought about modifications made to the product concern events too remote in time to the accident at issue for the information to be relevant.3 Use of an expert's affidavit provides a viable means to present these arguments to the court. Defense counsel should note that a few courts have been receptive to the argument that discovery regarding changes made to later models of the injury-causing product is irrelevant.4

Given the paucity of cases holding that discovery regarding subsequent remedial measures should not be allowed, and the lower standard of relevance governing discoverable information, defense counsel should hold no confidence about successfully thwarting the plaintiff's efforts to obtain such information. However, even assuming discoverability, Federal Rule of Evidence 407 strictly limits the introduction of such evidence at trial. Federal Rule of Evidence 407 provides as follows:

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.