Personal Injury Law

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 the question of 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 modify academics but not plaintiffs. Academics are given a gentle pass for their foolishness. Can product liability lawyers be misguided too?

Full post as published by Maryland Injury Lawyer Blog on November 04, 2009 (boomark / email).