                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-12-2004

Diehl v. Blaw Knox
Precedential or Non-Precedential: Precedential

Docket No. 02-3151P




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"Diehl v. Blaw Knox" (2004). 2004 Decisions. Paper 890.
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                     PRECEDENTIAL                   Before: BARRY, SMITH, Circuit
                                                  Judges, and POLLAK,* District Judge.
    UNITED STATES COURT OF
            APPEALS                                  (Opinion Filed: March 12, 2004)
     FOR THE THIRD CIRCUIT
           __________                            David J. Selingo [Argued]
                                                 311 Market Street
           Case No: 02-3151                      Kingston, PA 18074
             __________                          Counsel for Appellants

    TIMOTHY DIEHL; ROSE DIEHL,                   James W. Gicking [Argued]
                                                 Marshall, Dennehey, Warner,
                       Appellants                 Coleman & Goggin
                                                 1845 Walnut Street
                     v.                          16th Floor
                                                 Philadelphia, PA 19103
BLAW-KNOX, a/k/a, d/b/a, t/a Blaw-Knox,
 a division of Ingersoll Rand Corporation;
 INGERSOLL-RAND CORPORATION;                     Counsel for Appellee
            INGERSOLL-RAND
  COMPANY, Construction and Mining;                            ____________
                   COOPER
        INDUSTRIES, INC.; FUNK                                   OPINION
    MANUFACTURING COMPANY,                                     ____________
   a/k/a, d/b/a, t/a Funk Manufacturing;
                DEERE & CO,                      SMITH, Circuit Judge
  a/k/a, d/b/a, t/a John Deere Corporation
                                                         This products liability case, arising
  On Appeal From The United States               under the law of Pennsylvania, presents a
             District Court                      question of admissibility under Federal
For The Middle District of Pennsylvania          Rule of Evidence 407 of remedial
      (Civ. A. No. 01-CV-00770)                  measures offered by a plaintiff to establish
                                                 that a product is defective. Timothy Diehl
District Judge: The Honorable James F.           was severely injured when his legs became
              McClure, Jr.
              __________
                                                        * The Honorable Louis H. Pollak,
        Argued January 9, 2004                   Senior District Judge for the United
             __________                          States District Court for the Eastern
                                                 District of Pennsylvania, sitting by
                                                 designation.

                                             1
trapped under the rear wheels of a machine                            I.
manufactured by Blaw-Knox. Mr. Diehl
                                                         On May 24, 1999, Timothy Diehl
and his wife sued Blaw-Knox, 1 alleging
                                                  was severely injured while working as a
that the machine was defective because (1)
                                                  laborer on a road crew for IA
its rear wheels were not enclosed, (2) it
                                                  Construction, Inc. (“IA”). On the day of
lacked a back-up alarm on the rear of the
                                                  the accident, the road crew was using a
machine, and (3) it lacked proper warning
                                                  machine called a “road widener” to extend
signs. The Diehls sought to introduce
                                                  the shoulder of a road. Manufactured by
evidence that, shortly after the accident,
                                                  Blaw-Knox in 1970, the road widener is
the owner of the machine partially
                                                  used to deposit and spread material to one
enclosed the rear wheels, installed a back-
                                                  side of the roadway. The road widener is
up alarm on the rear of the machine, and
                                                  usually followed by laborers who must
placed warning signs on the rear of the
                                                  perform a number of tasks, including
machine. These measures were taken in
                                                  removing excess material that is
order to prevent similar accidents in the
                                                  inadvertently left on the paved portion of
future.    The District Court excluded
                                                  the roadway; removing stones that become
evidence of these remedial measures under
                                                  lodged in the material; leveling off the
Rule 407. After trial, a jury returned a
                                                  material that has been spread; and
verdict for Blaw-Knox, and judgment was
                                                  straightening the outer edge of the
entered against the Diehls. We hold that
                                                  deposited material. The laborers are then
Rule 407 does not bar evidence of
                                                  followed by a roller to press the material.
remedial measures taken by a non-party,
and that the evidence offered in this case               On the day of the accident, Mr.
was relevant and would not tend to                Diehl was working as one of the laborers
confuse or mislead the jury. Because we           behind the road widener. The road
conclude that the exclusion of this               widener had come to a stop, and then
evidence was not harmless error, we will          began to move in reverse. Mr. Diehl, who
reverse the judgment of the District Court        was working within “a couple of feet” of
and remand for a new trial.                       the road widener, was not aware that the
                                                  machine was reversing toward him. One
                                                  of the exposed wheels struck M r. Diehl’s
                                                  right ankle, trapping and crushing his
                                                  lower leg.
                                                         The Diehls’ theory of the case was
       1
          Ingersoll-Rand Corp., Ingersoll-        that the road widener was defective in
Rand Co., Cooper Industries, Inc., Funk           design for three reasons: (1) it lacked a
Manufacturing Co., and Deere & Co. did            bumper or any other enclosure of the rear
not participate in this appeal. Claims            wheels; (2) the back-up alarm was
against these defendants were dismissed           inaudible, particularly because it was
prior to trial.

                                              2
placed on the front of the machine; and (3)               1999 would confuse the jury, whose focus
it lacked proper warnings. The Diehls                     was temporally limited to whether the
sought to introduce testimony by an IA                    product was safe in 1970.
mechanic that, shortly after the accident,
                                                                 The jury returned a verdict for
the mechanic modified the road widener
                                                          Blaw-Knox using a verdict form given by
by (1) installing a rear bumper/guard that
                                                          the District Court. The jury answered
enclosed the rear tires; (2) relocating the
                                                          “No” to question 1, “Was the [road
back-up alarm to the rear of the machine;
                                                          widener] defective     in design when
and (3) placing warning signs on the rear
                                                          manufactured and sold by the defendant
of the machine (the “IA redesign”).
                                                          Blaw-Knox?” Finding no defect, the jury
According to the mechanic’s testimony,
                                                          did not consider the remaining issues in
the IA redesign was done in response to
                                                          the case.
the accident and for the purpose of
p r e v e n t in g s i m i la r a c c i d e n t s .              The Diehls filed a timely appeal,
Significantly, IA is not a party to this                  challenging numerous pre-trial and trial
lawsuit.                                                  rulings by the District Court, including the
                                                          court’s decision to exclude evidence of the
       Blaw-Knox filed a motion in limine
                                                          IA redesign. We have jurisdiction under
prior to trial to prohibit the Diehls from
                                                          28 U.S.C. § 1291.2 We exercise plenary
introducing evidence of the IA redesign.
                                                          review over the D istrict Co urt’s
The Diehls filed their own motion in
                                                          interpretation of the rules of evidence;
limine seeking an order allowing them to
                                                          however, assuming that the evidence could
introduce evidence of the IA redesign at
                                                          be admissible in some circumstances, we
trial. The District Court granted Blaw-
                                                          review the District Court’s decision to
Knox’s motion and denied the Diehls’
                                                          exclude that evidence for abuse of
motion, ruling that the IA redesign was a
                                                          discretion.     Ansell v. Green Acres
subsequent remedial measure inadmissible
                                                          Contracting Co., 347 F.3d 515, 519 (3d
under Fed. R. Evid. 407.
                                                          Cir. 2003); Stecyk v. Bell Helicopter
        At trial, the Diehls asked the                    Textron, Inc., 295 F.3d 408, 412 (3d Cir.
District Court to reconsider its exclusion                2002).
of the IA redesign, arguing that Rule 407
                                                                              II.
does not apply to subsequent remedial
measures taken by a non-party. The                              The primary issue in this case is
District Court again refused to admit the                 whether Fed. R. Evid. 407 excludes
IA redesign, ruling that “Rule 407 by its                 evidence of subsequent remedial measures
terms is not limited to remedial measures
taken by the defendant.” Alternatively,
the District Court excluded the evidence                         2
                                                                    The District Court had diversity
under Fed. R. Evid. 403, finding that
                                                          jurisdiction under 28 U.S.C. §
evidence of remedial measures taken in
                                                          1332(a)(1).

                                                      3
taken by a non-party such as IA. Rule 407         improving the safety of their products if
provides:                                         such changes can be introduced as
                                                  evidence that their previous designs were
              When, after an injury
                                                  defective. Stecyk, 295 F.3d at 415.
       or harm allegedly caused by
       an event, measures are taken                      This policy is not implicated where
       that, if taken previously,                 the evidence concerns remedial measures
       would have made the injury                 taken by an individual or entity that is not
       or harm less likely to occur,              a party to the lawsuit. The admission of
       evidence of the subsequent                 remedial measures by a non-party
       measures is not admissible                 necessarily will not expose that non-party
       t o p r o v e n e g l i g e n c e,         to liability, and therefore will not
       culpable conduct, a defect in              discourage the non-party from taking the
       a product, a defect in a                   remedial measures in the first place. It is
       product’s design, or a need                noteworthy that each of the circuits to
       for a warning or instruction.              address this issue has concluded that Rule
       This rule does not require                 407 does not apply to subsequent remedial
       the exclusion of evidence of               measures taken by a non-party. E.g.,
       subsequent measures when                   Mehojah v. Drummond, 56 F.3d 1213,
       offered for another purpose,               1215 (10th Cir. 1995); TLT-Babcock, Inc.
       such as proving ownership,                 v. Emerson Elec. Co., 33 F.3d 397, 400
       control, or feasibility of                 (4th Cir. 1994); Raymond v. Raymond
       precautionary measures, if                 Corp., 938 F.2d 1518, 1523-24 (1st Cir.
       controverted,                 or           1991); Pau v. Yosemite Park & Curry Co.,
       impeachment.                               928 F.2d 880, 888 (9th Cir. 1991); O’Dell
                                                  v. Hercules, Inc., 904 F.2d 1194, 1204 (8th
                                                  Cir. 1990); Dixon v. Int’l Harvester Co.,
“Rule 407 rests on the strong public policy       754 F.2d 573, 583 (5th Cir. 1985); Lolie v.
of encouraging manufacturers to ‘make             Ohio Brass Co., 502 F.2d 741, 744 (7th
improvements for greater safety.’” Stecyk,        Cir. 1974) (per curiam). See generally 2
295 F.3d at 415 (quoting Kelly v. Crown           Weinstein’s Federal Evidence § 407.05[2]
Equip. Co., 970 F.2d 1273, 1276 (3d Cir.          (Joseph M. McLaughlin ed., 2d ed. 2003).
1992); see also Fed. R. Evid. 407 advisory
                                                         The able District Judge declined to
committee’s note (“The other, and more
                                                  follow these authorities, observing that the
impressive, ground for exclusion rests on
                                                  text of Rule 407 makes no exception for
a social policy of encouraging people to
                                                  subsequent remedial measures taken by a
take, or at least not discouraging them
                                                  non-party. This is true enough, but the
from taking, steps in furtherance of added
                                                  Advisory Committee’s notes to Rule 407
safety.”).   The Rule recognizes that
                                                  state that the rule “in corp orate s
manufacturers will be discouraged from
                                                  conventional doctrine which excludes

                                              4
evidence of subsequent remedial measures           “[a]lthough relevant, evidence may be
as proof of an admission of fault.” See            excluded if its probative value is
also Rimkus v. N.W. Colo. Ski Corp., 706           substantially outweighed by the danger of
F.2d 1060, 1064 (10th Cir. 1983) (stating          unfair prejudice, confusion of the issues,
that Rule 407 “codified the generally              or misleading the jury.” A district court’s
accepted common law rule”). Prior to the           explicit balancing analysis under Rule 403
enactment of Rule 407, conventional                should only be disturbed if it is irrational
doctrine in this circuit was that the rule         or arbitrary. Ansell, 347 F.3d at 525.
excluding evidence of repairs made after
                                                           The court reasoned that the IA
an accident was not applicable to repairs
                                                   redesign would create a danger of unfair
made by a non-party. See Steele v.
                                                   prejudice, confusion of the issues, and
Wiedemann Mach. Co., 280 F.2d 380, 382
                                                   misleading of the jury, because “[t]he
(3d Cir . 196 0).          T he Advisory
                                                   issue of a defect—as to whether or not
Committee’s reference to “an admission of
                                                   there’s a defect, requires a focus of the
fault” reinforces this limitation: it hardly
                                                   jury on the time of the manufacture of this
makes sense to speak of a party’s fault
                                                   machine in 1970, more than 30 years ago.”
being “admitted” by someone other than
                                                   Under Pennsylvania law, a product is
the party. Furthermore, the Advisory
                                                   defective if it “‘left the supplier’s control
Committee was well aware of the courts’
                                                   lacking any element necessary to make it
consistent interpretation of the rule. The
                                                   safe for its intended use.” Lewis v. Coffing
notes to the 1997 amendment of Rule
                                                   Hoist Div., Duff-Norton Co., 528 A.2d
407—making the rule applicable to
                                                   590, 593 (Pa. 1987) (quoting Azzarello v.
products liability actions— cite with
                                                   Black Bros. Co., 391 A.2d 1020, 1027
approval the First Circuit’s opinion in
                                                   (Pa. 1978) (emphasis added)); accord
Raymond v. Raymond Corp. The court in
                                                   Duchess v. Langston Corp., 769 A.2d
Raymond expressly ruled that “there is no
                                                   1131, 1142 ( Pa . 2001) (“[O]u r
rationale for excluding third party
                                                   jurisprudence requires that products are to
subsequent repairs under the Rule.” 938
                                                   be evaluated at the time of distribution
F.2d at 1524.
                                                   when examining a claim of product
       Because Rule 407 does not apply to          defect.”). “Since the employment of a
evidence of subsequent remedial measures           subsequent remedial measure by definition
taken by a non-party, it was error for the         occurs in a different time frame, the
District Court to exclude evidence of the          evidence is said to be of diminished
IA redesign under that rule.                       relevance.” Duchess, 769 A.2d at 1140.
                                                   Still, the implementation of remedial
                    III.
                                                   measures to improve the safety of a
      The District Court alternatively             product is consistent with an inference that
excluded evidence of the IA redesign               the older product of a similar design was
under Fed. R. Evid. 403, which states that         defective. Petree v. Victor Fluid Power,


                                               5
Inc. (“Petree I”), 831 F.2d 1191, 1198 (3d                As a general matter, we appreciate
Cir. 1987); see also Duchess, 769 A.2d at         the potential that subsequent design
1142 (stating that, under Pennsylvania law,       changes represent for distracting juries
post-sale design changes are “not directly        from the issue at hand—whether the
relevant, but, at best, can provide an            product was defective when it left the
inference concerning the product’s earlier        manufacturer’s hands. Kelly, 970 F.2d at
condition” which “would generally satisfy         1277-78 (“[Rule 407] operates on the
the standard of relevancy.”). 3                   presumption that undue prejudice is likely
                                                  in certain situations, expressing a distrust
                                                  of a jury’s ability to draw the proper
       3                                          inferences from the evidence.” (internal
          We are concerned that the
                                                  citation omitted)), quoted in Stecyk, 295
District Court erroneously discounted the
                                                  F.3d at 415. As the Fifth Circuit put it in
relevance of the IA redesign. Citing
Duchess, 769 A.2d at 1145, the District
Court stated in a related pre-trial ruling:
“As the Supreme Court of Pennsylvania             District Court placed too much reliance
recently stated, ‘design improvements             on Pennsylvania Rule 407, and decisions
made after the sale of the product are not        of the Pennsylvania courts applying that
relevant to the issue presented in a              rule. Certainly, Pennsylvania products
products liability case, which is whether         liability law is critical in determining
the product was safe when sold.” The              whether particular evidence is relevant.
passage quoted by the District Court,             Fed. R. Evid. 401 (defining relevance by
however, appears to have been taken out           reference to facts “of consequence to the
of context. The quote is actually from an         determination of the action”). However,
earlier Pennsylvania Superior Court case,         Federal Rule 407’s assessment of the
Connelly v. Roper Corp., 590 A.2d 11,             dangers of unfair prejudice and
13 (Pa. Super. 1991). Duchess in fact             confusion of the issues are procedural
departed from Connelly: “Connelly . . .           matters that govern in a federal court
relied upon a conclusion that design              notwithstanding a state policy to the
changes are irrelevant in a products              contrary. Kelly, 970 F.2d at 1277-78.
liability case, whereas our holding               Regardless, we observe that
embodies a different assessment of                Pennsylvania Rule 407 is expressly
relevance and consideration of pertinent          limited to remedial measures taken by
public policy.” Duchess, 769 A.2d at              parties to the case: “evidence of the
1145. As discussed above, Duchess                 subsequent measures is not admissible to
explicitly acknowledged that subsequent           prove that the party who took the
design changes are capable of an                  measures . . . produced, sold, designed,
inference of defect.                              or manufactured a product with a defect
                                                  or a need for a warning or instruction.”
       We are also concerned that the             (Emphasis added).

                                              6
Grenada Steel Industries, Inc. v. Alabama        measures taken by a non-party. Although
Oxygen Co.:                                      the court in that case recognized that Rule
                                                 407 is inapplicable to non-party remedial
       A        p r i o ri j u dgments
                                                 measures, the evidence nevertheless
       concerning                why
                                                 implicated Rule 403 concerns:
       manufacturers do or do not
       alter their products, made by                    [W]e think the district
       such dubious experts as                          court’s exclusion of this
       judges, lawyers, and law                         e v i d e n ce w a s p r o p e r
       professors, suffer from                          because it lacked sufficient
       excessive reliance on logical                    probative value and injected
       deduction and surm ise                           the dangers of confusion
       without the benefit of                           and misleading the jury. . .
       evidence of ind ustry                            . Alternative designs may
       p r a c t ic e o r e c on o m ic                 indicate that the product was
       factors. It seems to us, with                    unreasonably dangerous, but
       no greater expertise than                        only if they were available
       like-trained lawyers and                         at the time of manufacture.
       judges, that changes in                          We fail to see how an
       design or in manufacturing                       alterna tive design,
       process might be made after                      developed by another person
       an accident for a number of                      years after the product in
       different reasons: simply to                     question was manufactured,
       avoid another injury, as a                       is relevant to whether the
       sort of admission of error,                      product was reasonably safe
       because a better way has                         at the time it was made.
       been discovered, or to
       implement an idea or plan
       c o n c e iv e d befo re th e             Grenada Steel, 695 F.2d at 889 (internal
       accident.                                 citations omitted).
                                                         The instant case, however, presents
                                                 none of the risks discussed in Grenada
695 F.2d 883, 887-88 (5th Cir. 1983); cf.
                                                 Steel, or in other cases analyzing the
Duchess, 769 A.2d at 1140 (citing
                                                 potential for confusion in products liability
G re n ada Steel and stating that
                                                 cases. For one, the state of the art is not an
“manufacturers may modify product
                                                 issue in this case, i.e., it is undisputed that
design for many reasons other than to
                                                 the measures taken by IA— merely
remedy a defect”). Grenada Steel is
                                                 welding a bumper onto the rear of the road
particularly instructive because that case
                                                 widener—were available to Blaw-Knox at
also involved subsequen t remedial
                                                 the time of the manufacture. Accordingly,

                                             7
there is no temporal distinction for the jury       Because the evidence is probative of
to overlook between a feature reasonably            whether the road widener lacked a feature
necessary to make the road widener safe in          reasonably necessary to make the machine
1999, and a feature reasonably necessary            safe for its intended use, and because its
to make the road widener safe in 1970.              relevance was not outweighed by other
See generally Espeaignnette v. Gene                 dangers, we find that the District Court
Tierney Co., Inc., 43 F.3d 1, 7 (1st Cir.           abused its discretion by excluding
1994) (holding that evidence of subsequent          evidence of the IA redesign.
remedial measures taken by a non-party
                                                                       IV.
was not misleading or unfairly prejudicial
on the issue of defect where evidence                       Finally, we are unable to conclude
would not have introduced design choices            that the District Court’s error was
not known or feasible at the time of                harmless. A District Court’s evidentiary
manufacture).                                       rulings can be affirmed if, notwithstanding
                                                    the error, we conclude that it is “highly
        Furthermore, we find no dispute in
                                                    probable” that the error did not prejudice
the record that the IA redesign was done in
                                                    the appe llant’s su bstantive righ ts.
direct response to Mr. Diehl’s accident and
                                                    McQueeney v. Wilmington Trust Co., 779
for the sole purpose of preventing such
                                                    F.2d 916, 927-28 (3d Cir. 1985). Several
accidents.      The IA mechanic that
                                                    aspects of the record in this case convince
performed the redesign testified in
                                                    us that admission of the IA redesign could
deposition that the redesign was done to
                                                    have affected the jury’s decision on the
prevent the accident that befell Mr. Diehl.
                                                    issue of defect.
Because the purpose of the redesign was
not contested, there was no danger that the                 First and foremost, the sole issue
jury would discount other plausible                 decided by the jury was the road widener’s
reasons for the redesign.                           defectiveness, and evidence of the IA
                                                    redesign creates a permissible inference
        Despite the deference accorded to a
                                                    that the machine was defective. As it was,
trial court’s Rule 403 balancing, we find
                                                    the evidence presented on defect came
no support in the record for the District
                                                    down to the Diehls’ expert, Dr. Ketchman,
Court’s concerns that the IA redesign
                                                    versus Blaw-Knox’s expert, Dr. Barnett.
would confuse or mislead the jury. 4
                                                    Dr. Barnett testified at length that the
                                                    Diehls’ proposed alternative design was

       4
          Although we cannot discern any
potential for confusion on the record               F.2d 34, 41 (3d Cir. 1989) (allowing
before us, we also note that a limiting             subsequent remedial measures evidence
instruction was neither suggested by the            where tendency towards unfair prejudice
parties nor considered by the court. See            could be alleviated by a limiting
Petree v. Victor Fluid Power, Inc., 887             instruction).

                                                8
not any safer than Blaw-Knox’s 1970                 redesign would not have affected the
design of the road widener. Evidence that           jury’s conclusion that the 1970 design
the owner of the road widener had, in fact,         lacked a feature reasonably necessary to
redesigned the machine in the manner                make the machine safe for its intended
suggested by plaintiffs and for the very            use.5    Because we conclude that the
purpose of making the road widener safer
(indeed, to prevent the very accident that is
the subject of the lawsuit), tends to rebut                5
                                                              Because we find that the
Dr. Barnett’s testimony. Moreover, it does
                                                    exclusion of the IA redesign constitutes
so with greater effectiveness than the
                                                    reversible error, we will not address each
theoretical testimony of the Diehl’s expert.
                                                    and every issue raised by the Diehls on
Cf. Espeaignnette, 43 F.3d at 6-7
                                                    appeal. However, we will address two
(evidence of subsequent reme dial
                                                    matters that are likely to arise on remand.
measures by a non-party more effective to
                                                    First, we conclude that the Diehls’
prove feasibility than “hypothetical
                                                    request for an “enhanced injury,” or
assertions” of plaintiff’s expert). Finally,
                                                    “crashworthiness” instruction is
we observe that Blaw-Knox attempted to
                                                    meritless. Second, the District Court
discredit Dr. Ketchman in part based on
                                                    should reconsider its exclusion of
his lack of experience with road wideners.
                                                    evidence that Blaw-Knox itself had
E.g., App. at 685 (closing argument of
                                                    redesigned the road widener to fully
counsel for Blaw-Knox) (“How good of an
                                                    enclose the rear tires. The Diehls argue
expert are you?           Do you really
                                                    that the Blaw-Knox redesign should have
know—have you rode construction
                                                    been admitted to show feasibility, an
equipment, Dr. Ketchman?            No, he
                                                    exception to Rule 407. The Blaw-Knox
doesn’t.”). Evidence of the redesign
                                                    redesign, however, should not have been
performed by IA Construction, which is
                                                    characterized as a subsequent remedial
arguably more familiar with the equipment
                                                    measure in the first place (a
than either of the experts, may have
                                                    characterization the Diehls did not
substantially buttressed Dr. Ketchman’s
                                                    challenge). The Blaw-Knox redesign was
testimony. Cf. Borden, Inc. v. Florida
                                                    done in 1983, 13 years after manufacture
East Coast Ry. Co., 772 F.2d 750, 756
                                                    of the road widener and 16 years prior to
(11th Cir. 1985) (“[A] litigant is unduly
                                                    the accident. Amended in 1997, Rule
prejudiced when his opponent is successful
                                                    407, by its terms, applies to remedial
in preventing the admission of evidence on
                                                    measures taken “after an injury or harm
a particularly crucial issue in dispute, and
                                                    allegedly caused by an event.” Fed. R.
then points to the absence of such evidence
                                                    Evid. 407; see also Advisory
in closing argument.”).
                                                    Committee’s notes to the 1997
       We therefore cannot say that it is           amendment (“Evidence of measures
highly probable that evidence of the IA             taken by the defendant prior to the
                                                    ‘event’ causing ‘injury or harm’ do not

                                                9
exclusion of this evidence was not
harmless error, we will reverse the
judgment of the District Court and remand
for a new trial.




fall within the exclusionary scope of
Rule 407 even if they occurred after the
manufacture or design of the product.”).
The 1997 amendment abrogated
decisions of this Circuit to the contrary.
See Kelly, 970 F.2d at 1277; Petree I,
831 F.2d at 1198. Because the Blaw-
Knox redesign was done in 1983, 16
years prior to the accident, Rule 407 does
not apply. Evidence of the Blaw-Knox
redesign, of course, must still be
analyzed under Rules 401 and 403.
