Harrison v. Sears, Roebuck & Co., 981 F.2d 25

U.S. Court of Appeals

1992

Chapter

8

Title

A Return to Relevance I:  Limits Based on Policy

Page

351

Topic

Subsequent Remedial Measures:  Impeachment

Quick Notes

o         Harrisons ring and fifth fingers were cut off after his hand slipped from the on-off switch and entered it an opening making contract with cutter blades.  The Pl - expert said (1) the design of the jointer makes it difficult for somebody get ones fingers into the opening unintentionally.  (2) The angle and location of the cuts on Harrisons fingers were inconsistent with x-rays.  Harrison tried to impeach the Df - expert because Hyde participated in designing the NEW jointer without an opening which allegedly injured Harrison. 

FRE 407

o         FRE 407 does not require the exclusion of evidence of subsequent measures when such evidence is being offered exclusively for impeachment purposes.

Court When admitted subsequent remedial evidence for impeachment purposes

o         Cases which have admitted subsequent remedial measure evidence for impeachment purposes tend to involve a greater nexus between the statement sought to be impeached and the remedial measure than the case at bar.

o         For example, in Anderson v. Malloy, subsequent remedial measure evidence was admitted to impeach statements that defendants had checked the area prior to the alleged accident and done everything possible to make it safe.

Courts Holding

o         Because Hyde's statement and qualifications could only have been indirectly impeached by the subsequent remedial measure evidence and because the nature of the evidence was highly prejudicial, the trial judge did not abuse his considerable discretion in excluding such evidence.

Book Name

Evidence: A Contemporary Approach.  Sydney Beckman, Susan Crump, Fred Galves.  ISBN:  978-0-314-19105-2.

Issue

o         Whether subsequent remedial measures can be used to impeach when the causal nexus is indirect?  No.

Procedure

Trial

o         Jury rendered verdict for the Df - denying the Pl relief from person injury.

Appellant

o         Affirmed

Facts

Discussion

Key Phrases

Rules

Pl - Harrison

Df - Sears, Roebuck & Co

Description

o         Jury rendered verdict for the Df - denying the Pl relief from person injury

Pl Allege

o         Harrisons ring and fifth fingers were cut off after his hand slipped from the on-off switch and entered it an opening making contract with cutter blades.

Df Contends

o         Expert said this could not happen for two reasons.

1.     The design of the jointer makes it difficult for somebody get ones fingers into the opening unintentionally.

2.     The angle and location of the cuts on Harrisons fingers were inconsistent with x-rays.

Trial Court

o         The Trial court objected to the Pl - cross-examining the expert with regard to a subsequent design change eliminating the opening.

Pl sought to have admitted the subsequent removal of the opening

o         Hyde testified on direct examination that, "there [was] no hazardous area left exposed next to the switch where you are going to unintentionally get your hand in there and contact the cutter head."

New Jointer without openings

o         After this claim arose, Hyde participated in designing the NEW jointer without an opening which allegedly injured Harrison.

Pl - You cannot trust this witness!!!

o         The admission use to undercut qualifications and the to impeach Hydes testimony are closely related.

FRE 407

o         FRE 407 does not require the exclusion of evidence of subsequent measures when such evidence is being offered exclusively for impeachment purposes.

o         Reversible error has been found when subsequent remedial evidence has been excluded when offered for impeachment purposes.

Not to be used as a subterfuge

o         Fed. R. Evid. 407's impeachment exception must not be used as a subterfuge to prove negligence or culpability

Court When admitted subsequent remedial evidence for impeachment purposes

o         Cases which have admitted subsequent remedial measure evidence for impeachment purposes tend to involve a greater nexus between the statement sought to be impeached and the remedial measure than the case at bar.

o         For example, in Anderson v. Malloy, subsequent remedial measure evidence was admitted to impeach statements that defendants had checked the area prior to the alleged accident and done everything possible to make it safe.

Courts Trial judges have discretionary authority under FRE 403.

Courts Holding

o         Because Hyde's statement and qualifications could only have been indirectly impeached by the subsequent remedial measure evidence and because the nature of the evidence was highly prejudicial, the trial judge did not abuse his considerable discretion in excluding such evidence.

o         For these reasons, the judgment of the district court is affirmed.

Rules

Class Notes