Subsequent Remedial Measures: New Opinion from Ohio

Sean Wajert’s MassTort Defense Blog (c/o Torts Prof Blog) has an interesting post on a new opinion by the Iowa Supreme Court on whether you can admit subsequent remedial measures in cases that sound both in negligence and strict liability.

The Iowa court found that Plaintiff’s design defect and failure-to-warn claims involving the jack pin used on a boat trailer sound in negligence, rather than strict liability. Interpreting an Iowa law that, like Maryland’s law, is substantially similar to Federal Rule 407, the court held that Rule 5.407’s carve-out for strict liability in tort and breach of warranty claims does not apply to designed defect claims, but is intended only for product liability claims alleging a manufacturing defect.

Mr. Wajert supports the court’s holding in his blog post:

Plaintiffs, and misguided academics, often assert that manufacturers will choose to make improvements to a product even if those improvements are admissible because the producer would otherwise risk litigation and negative publicity. But there is a substantial body of criticism of that notion, which overstates the relevance of subsequent remedial measures, appears to have an over-focus on mass product producers (when the rule applies to everyone), and invites confusion of the jury, both by diverting its attention from whether the product was defective at the relevant time to what was done later, and by facilitating, in the minds of jurors, an inappropriate equation between subsequent design modification and an admission of a prior defective design.

There is a lot to love about this quote. I like how Mr. Wajert uses “misguided” to change academics but not plaintiffs. Academics are given a gentle pass for their foolishness. Can product liability lawyers be misguided too?

Flaws in Subsequent Remedial Measures Rule

I disagree that the real foundation for jurors’ attention will be diverted in the wrong direction. If that was the sole motivation for the rule most courts have regarding subsequent remedial measures, we would not have the rule.

If someone changes the design of a product after an accident, we all know why, in most cases, they fix the design: because there was a better way to do it. This is not an “inappropriate equation.” It is common sense. But the heart and soul of the subsequent remedial measures rule is not that jurors will be confused, but that you don’t want companies to delay changing a design to protect people because it will be shoved down their throats in a lawsuit.

The irony is that personal injury lawyers often argue, like Mr. Wajert says, that corporations usually will change the design even if such a change were admissible because they want to avoid future litigation risk and negative publicity. But there is actually a more compelling reason corporations might ignore the implications of it being used against them in a lawsuit: it is the right thing to do. This is exactly why Bayer issued a recall for Yaz when they realized Yaz caused blood clots, strokes, DVT, heart attacks, and gallbladder injuries. What? That never happened? Okay. Poor example. But I think a lot of manufacturers in product liability cases recall or redesign a product and would do so regardless of the legal implications because they believe the safety of their customers is more important than some adverse verdict at trial which may well be insured.

There is another reason the subsequent remedial measures rule does not have its intended effect. Some manufacturers go the opposite way of the good company that puts their customers first; they won’t change the product because it is making the change could be admitted into evidence at trial or might limit the defenses the manufacturer can make, most notably the defense that an alternative design is not feasible.

Anyway, this opinion has some implications for product liability lawyers filing defective design lawsuits. If the subsequent remedial measure is the driving force in your case, there may be wisdom in dropping the negligence count and just proceeding on strict liability if you think your state will follow the path the Iowa Supreme Court took in this case.

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