Contrary to the general trend of Federal Rule 407, in Hawaii, the
Hawaii Rules of Evidence specifically allow the admissibility of
subsequent remedial measures to prove dangerous defect in product
liability cases. Rule 407 of the Hawaii Rules provides as
follows:
"When, after an event, measures are taken which, if taken
previously, would have made the event less likely to occur,
evidence of the subsequent measures is not admissible to
prove negligence or culpable conduct in connection with the
event. This rule does not require the exclusion of evidence
of subsequent measures when offered for another purpose,
such as proving dangerous defect in products liability
cases, ownership, control, or feasibility of precautionary
measures, if controverted, or impeachment." [emphasis
added]
The commentary to Hawaii Rule 407 provides additional insight as
to its meaning. The commentary states:
"The rule varies from Fed. R. Evid. 407 in the addition of
'dangerous defect in products liability cases' as one
permissible purpose for which remedial measures may be
admitted. This codifies the result in Ault v. International
Harvester Co., [13 Cal.3d 113, 118-21] 117 Cal. Rptr. 812,
815-16, 528 P.2d 1148, 1151-52 (1974), where the court held
that the rule barring evidence of subsequent repairs should
not apply in a products liability case. The Ault court
reasoned as follows:
"While [the traditional rule] may fulfill this anti-deterrent function [of encouraging, or at least not
discouraging, the making of repairs by defendants] in the
typical negligence action, the provision plays no comparable
role in the products liability field...
"The contemporary corporate mass producer of goods, the
normal products liability defendant, manufactures tens of
thousands of units of goods; it is manifestly unrealistic to
suggest that such a producer will forego making improvements
in its product, and risk unnumerable additional lawsuits and
the attendant adverse effect upon its public image simply
because evidence of adoption of such improvement may be
admitted in an action founded on strict liability for
recovery on an injury that preceded the improvement... In
short, the purpose of [the traditional rule] is not
applicable to a strict liability case and hence its
exclusionary rule should not be gratuitously extended to
that field.
"In Hawaii, under Stewart v. Budget Rent-a-Car Corp., 52 H.
71, 75, 470 P.2d 240, 243 (1970), a manufacturer, seller, or
lessor is strictly liable in products liability cases
provided there is proof of 'a defective product which is
dangerous to the user or consumer or to his property.'
Evidence of subsequent remedial measures is admissible under
this rule to prove such a defect."
The Hawaii Supreme court has specifically found that evidence of
subsequent remedial measures, is admissible when offered in a
product liability case in substantiation of the presence of a
dangerous defect in a product. American Broad. Cos. v. Kenai Air
of Hawaii, Inc., 67 Haw. 219, 229, 686 P.2d 1, 7-8 (1984).
Hence, Hawaii Rules of Evidence and Hawaii case law hold that
subsequent remedial measures are admissible to prove dangerous
defect in product liability cases under the Hawaii Rules of Civil
Procedure.
SUBSEQUENT PRODUCT CHANGES (FEDERAL RULES IN HAWAII)
Rule 407 of the Federal Rules of Evidence appears on its face to
exclude evidence of subsequent remedial measures in order to
prove a defect in a products design or a need for warning or
instruction. F.R.C.P. Rule 407. However, under the Federal
Rules, certain exceptions apply. The prohibition against
admitting evidence of subsequent remedial measures does not apply
to measures taken by non-defendants. See, Mehojah v. Drummond,
applies only to a defendant's remedial measures and does not
apply to subsequent remedial measures by non-defendants); Pau v.
Yosemite Park & Curry Co., 928 F.2d 880, 888 (9th Cir. 1991)
(explaining that the purpose of Rule 407 is to encourage
potential defendants to remedy hazardous conditions without fear
that their actions will be used as evidence against them, and
therefore, Rule 407 applies only to actions of actual
defendants); TLT- Babcock, Inc. v. Emerson Elec. Co., 33 F.3d
397, 400 (4th Cir. 1994) (holding that evidence of subsequent
remedial measures by non-defendants is admissible because such
admission will not inhibit non-defendants from taking remedial
measures).
Similarly, in the absence of an admission that specific changes
in a component would have been feasible prior to a plaintiff's
accident, evidence pertaining to subsequent changes in the
components made by the manufacturer is admissible for the limited
purposes of showing that it would have been feasible and
practicable to incorporate the changes before the accident.
Boeing Airplane Co. v. Brown, 291 F.2d 310 (9th Cir. 1961).
It should also be noted that the rule against admission of
subsequent remedial measures does not apply to claims for breach
of warranty. See, Bandstra v. International Harvester Co., 367
N.W.2d 282 (Iowa 1985); R.W. Murray Co. v. Shatterproof Glass
Corp., 758 F.2d 266 (8th Cir. 1985); Seaside Resorts, Inc. v.
Club Car, Inc., 308 S.C. 47, 416 S.E.2d 655, (S.C.App. 1992)
[applying N.C. law].
In the case of Pau v. Yosemite Park and Curry Co., supra, 928
F.2d at 887-88, the Ninth Circuit explained that Federal Rule of
Evidence 407 applies only to an actual defendant's subsequent
remedial measures. In that case because the National Park Service
was not a defendant, the addition of a sign by the National Park
Service at an intersection under the control of a defendant was
admissible under rule 407. Id. at 887. Accord, Mehojah v.
Drummond, supra, and TLT-Babcock, Inv. V. Emerson Electric Co.,
supra.
In the absence of an admission that specific changes in a
component would have been feasible prior to a plaintiff's
accident, evidence pertaining to subsequent changes in the
components made by the manufacturer is admissible for the limited
purposes of showing that it would have been feasible and
practicable to incorporate the changes before the accident.
Boeing Airplane Co. v. Brown, 291 F.2d 310 (9th Cir. 1961).
The Federal Rules and the Federal Courts have specifically
addressed the issue of whether or not subsequent remedial
measures are admissible in Federal cases when tried to a jury on
a diversity claim involving State causes of action. This has
lead to a split of authority. In many such cases, the Federal
Courts have the opportunity to extend comity to the laws of the
State in which they are seated and to provide that the State
evidentiary rule controls. In others, they have applied the
Federal rule as a matter of "procedure" rather than "substance".
As stated in Section 407.5, Subsequent Remedial Measures - part
of the commentary to Federal Rule 407 found in Moore's Federal
Rules Pamphlet 2004 (Part 2), Federal Rules of Evidence by James
W. Moore and G. Richard Poehner [Matthew Bender 2004]:
"The public policy support for the exclusion of evidence of
subsequent remedial measures may lead to the applicability
of state, rather than federal, evidentiary rules respecting
matters as to which state law provides the rule of decision.
Thus, if state law controls the determination of a products
liability suit founded on principles of strict liability and
provides that evidence of subsequent remedial measures is
admissible on the issue of liability, the state evidentiary
rule is applicable, rather than Rule 407's exclusionary
rule. See, e.g., Moe v. Avions Marcel Dassault-Breguet
Aviation, 727 F.2d 917, 932 (10th Cir. 1984) ('the purpose
of Rule 407 is not to seek the truth or to expedite trial
proceedings; rather, in our view, it is one designed to
promote state policy in a substantive law area.'); Garcia v.
Fleetwood Enters, Inc., 200 F.Supp.2d 1302, 1305 (D.N.M.
2002) (New Mexico law concerning admissibility of evidence
of subsequent remedial measures governs in products
liability suit)."
The 10th Circuit Court of Appeals in Moe v. Avions Marcel
Dassault-Breguet Aviation, 727 F.2d 917 (10th Cir. 1984) found
that when a conflict arises between a State rule and a Federal
Rule governing subsequent remedial measures,
the State rule controls. The Court based its decision upon a
finding that the underlying cause of action, with its attendant
elements and requirements of proof, is governed by State law.
"It is our view that when state courts have interpreted Rule
407 or its equivalent state counterpart, the question
whether subsequent remedial measures are excluded from
evidence is a matter of state policy. See, Rexrode v.
American Laundry Press Co., supra. The purpose of Rule 407
is not to seek the truth or to expedite trial proceedings;
rather, in our view, it is one designed to promote state
policy in a substantive law area. See, comments of
Professor Schwartz, Vol. 2, Weinstein's Evidence, Rule 407,
407-1, 2 (1982). For example, the State of Maine has
adopted a rule of evidence which repudiates the rule of
exclusion with regard to subsequent remedial repairs. This
creates a conflict between Rule 407 and the Maine rule. We
hold that when such conflicts arise, because Rule 407 is
based primarily on policy considerations rather than
relevancy or truth seeking, the state rule controls because
(a) there is no federal products liability law, (b) the
elements and proof of a products liability action are
governed by the law of the state where the injury occurred
and these may, and do, for policy reasons, vary from state
to state, and (c) an announced state rule in variance with
Rule 407 is so closely tied to the substantive law to which
it relates (product liability) that it must be applied in a
diversity action in order to effect uniformity and to
prevent form shopping. Rexrode v. American Laundry Press
Co., supra. We are not unmindful of the rule laid down in
Hanna v. Plummer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8
(1965), that where the federal and state rules both govern
the issue in dispute and are in direct conflict, the federal
rule applies in a diversity based case if the federal rule
is arguably procedural in nature. However, we observe that
while the sufficiency of the evidence is tested against the
federal standard in a diversity case, Hidalgo Properties,
Inc. v. Wachovia Mortgage Co., 617 F.2d 196, 198 (10th Cir.
1980), the underlying cause of action, with its attendant
elements and requirement of proof in a diversity case, is
governed by state law. Safeway Stores v. Fannan, 308 F.2d
94, 97 (9th Cir. 1962). The ground for exclusion of
remedial measures under Rule 407 rests on the social policy
of encouraging people to take steps in furtherance of
safety. The decision is necessarily a state policy matter.
Product liability is not a federal cause of action but,
rather, a state cause of action with varying degrees of
proof and exclusion from state to state. If a state has not
announced controlling rules, such as New Mexico, (Herndon,
supra) the federal district court, sitting as a state court
in a product liability diversity case, must determine
whether Rule 407 applies. Where the state law is expressed
in product liability cases, these expressions control the
application of Rule 407. Erie R. Co. v. Tompkins, 304 U.S.
64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). If the law of the
state supplies the rule of decision, there is no
justification for reliance on Rule 407. We recognize that,
by its terms, Rule 407, when read in conjunction with Rules
401 and 402, does appear to apply in these cases. However,
such a result is an unwarranted incursion into the Erie
doctrine. Louisell and Mueller, Federal Evidence, Vol. 2, §
166, p. 258. The crux of this conclusion is well stated, as
follows: The constitutional meaning of the Erie doctrine
seems to be this: The enumerated powers set forth for the
Congress in Article II and for the Judiciary in Article III
are by implication limited powers, and the notion of limited
federal authority is reinforced by the Tenth Amendment.
Therefore, the federal judiciary may not 'find' or 'create'
general law to resolve controversies merely because they are
litigated in federal court. One difficulty in advancing
such an argument against the application of Rule 407 lies in
the fact that the constitutional boundaries of congressional
power, where there are competing state rules, have not been
clearly defined .... Although Erie itself holds that there
is no federal general common law of torts, nothing in the
case suggests Congress could not pass a statute governing
the rights of the parties on the very facts of Erie ....
Despite the problems noted... there may well be valid
constitutional reasons why Rule 407 cannot be applied in
cases where state law supplies the rule of decision. Even
if Congress could constitutionally enact statutes to govern
the rights of parties in a given instance, it does not
necessarily follow that the Congress, in codifying the law
of evidence, may constitutionally enact a narrow statute
governing a single substantive issue in a lawsuit which is
otherwise to be resolved by reference to state law.... It
is unlikely that the Congress intended, in enacting Rule 407
along with the other rules, to make any incursion whatsoever
in the Erie doctrine. [Footnotes omitted]. Louisell and
Mueller, Federal Evidence, Vol. 2, § 166, pp. 261-264." 727
F.2d at 932-933
The Court in Garcia v. Fleetwood Enterprises, Inc., 200 F.Supp.2d
1302 (D.N.M., 2002) also found that the admissibility of
subsequent remedial measures is a matter of State, not Federal,
law in diversity actions. As the Court stated:
"[T]he admissibility of subsequent remedial measures is a
matter of state, not federal, law. See Moe v. Avions Marcel
Dassault-Breguet Aviation, 727 F.2d 917 (1984). As the Moe
court noted, '[t]he purpose of Rule 407 is not to seek the
truth or to expedite trial proceedings; rather, in our view,
it is one designed to promote state policy in a substantive
law area.' Id. at 932. Thus, [W]hen state courts have
interpreted Rule 407 or its equivalent state counterpart,
the question of whether subsequent remedial measures are
excluded from evidence is a matter of state policy...." 200
F.Supp.2d at 1303.
In our view, this is the preferred result. However, it is noted
that some Federal court decisions have gone the other way
(exclusion).
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