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Will a "Tweak" In Design Result in a "Pop" at Trial?

Date: 3/19/12

A product quality engineer barges into your office with your in house product liability litigation counsel hot on her heels. “Hey, you know that issue with the widget which presents itself sometimes and has caused us some problems? So, I was standing on my toilet hanging a picture of Thomas Edison when I fell, hit my head, and dreamed of the flux capacitor. It will absolutely cure the widget of that issue. I have tested it with the widget, and it works like a charm.”

You look to see the doom and gloom of your in-house counsel. “Rule 407 of the Federal Rules of Evidence…blah…blah…blah…liability…defect…control...feasibility.” This guy is such a Debby Downer, you think. You refocus and hear him say, “Bottom line, this will be used against us in the cases against us regarding this widget.”

What’s the answer, what’s the risk, what’s the exposure, what are the repercussions? This brief article will provide a “real world scenario” to address this issue with a broad brush. To translate what the in house counsel is conveying into terms understood by non-Latin scholars is that there are some unique issues facing a manufacturer who makes modifications, changes or tweaks to a product that is already in the stream of commerce. 

The Rule referenced above states, in pertinent part:

When, after an injury or harm allegedly caused by an event, measures [ie changes] 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…a defect in a product’s design, or a need for a warning or instruction…

Now, if only the rule stopped here. Clean, easy to understand, and certainly encouraging to product manufacturers to constantly search for new designs to make products safer and more practical. But alas, the rule also includes the following language which is where the water gets muddy:

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.

If ever one doubts that lawyers write the law, one need only look at the construction of this rule. What the heck does this mean? First, the rule protects and encourages product manufacturers to constantly push the envelope for new designs to better the product, by forbidding these advances from being used against the manufacturer in a product liability case. Then, the rule says, but, these new designs changes can be used for “other purposes,” such as to show another design separate from that in the subject widget was feasible at the time the widget left the hands of the manufacturer.

So, returning to the hypothetical scenario with the engineer and attorney in your office. Obviously, there are a multitude of factors that go into the design of any product and these factors are also present when a design change is considered. However, let’s concentrate on the issue of future liability. Let’s say this conversation happens on a Monday morning in March. Let’s further say, the engineer sends you a follow up email outlining why she thinks it would remedy the issues with said widget the next day on Tuesday. While upper management considers the change, unbeknownst to you, six months later, one of your customer’s purchases a widget, manufactured just a week before, and while using the widget experiences the condition that the engineer was attempting to remedy and suffers an injury. Thereafter, the design change is approved, and the running change is made on the line, and the new modified widget is in the market within two weeks of the decision.

Meanwhile, your injured customer files suit against your company alleging a defect in your widget caused him injury. Discovery ensues, and the email authored by your product quality engineer is produced showing the design change was suggested six months before the customer’s injury. 

The customer’s attorney holds this out to be the “smoking gun” piece of evidence as proof of liability against your Company’s widget design. You have some experience in the law and phone your trial counsel and say “Hey, I know this plaintiff attorney thinks he’s got us, but isn’t there some rule in evidence, that precludes them from using this against us? Something like remedial subsequent measures or something like that?”

“You are thinking of the exclusionary rule, also called rule regarding subsequent remedial measures. On the one hand, they cannot use the email to show defect. However, and this is the not so good part, it can be used to show feasibility.” 

“Ok, so what does that mean?”

“Well, the email can be used to prove the new design was feasible at the time of the manufacture of the subject widget involved in this suit. In other words, the design change could have been made to the widget that they say caused the customer’s injury.”

 “So, the plaintiff attorney will use it to prove we could have made the change before we made of the customer’s widget…and infer this change would have prevented the injury.” 


“Aren’t we splitting hairs here? What good is the rule if allows the evidence to come in for another purpose, when the jury will use it as evidence of a defect? Once the jury hears about this change and when it was first suggested, we are toast.”

“Well, we will request the Court to issue a limiting instruction to specify the email is not to be considered as evidence of a defect.”

“What the heck will that do? Unring the bell? What are the odds a jury of non engineers and non lawyers will understand how to even consider such an instruction

“Depends on the jury.”

And there in lies one of the issues with design innovation. While product manufactures do and should continue to advance new designs to better their products, such innovations carry some risk. As seen above, timing is everything. Taking the hypothetical above and changing the dates will change the application of the rule. For example, if the design change was suggested and made after the customer’s injury, then Rule 407 would likely exclude the evidence of the change. 

Also, keep in mind that the rule referenced and addressed is a Federal Rule of Evidence and applicable only in federal courts. If a product manufacturer is sued in a state court (much more likely by the way), there are certain states that do not exclude subsequent remedial measures in product liability cases (Alaska, California, Colorado, Connecticut, Georgia, Hawaii, Iowa, Massachusetts, Missouri, Nevada, Ohio, Rhode Island, South Carolina, Wisconsin and Wyoming). 

While threat of litigation should never dissuade innovation in the design of products, even if in the market, product manufacturers should be aware these changes can carry some liability risk.


Article By:
Patrick Strubel, Partner
Huie, Fernambucq & Stewart, LLP

Jacob Crawford, Attorney
Huie, Fernambucq & Stewart, LLP

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