THE FOLLOWING is an all too common occurrence in products liability cases alleging a design defect: a plaintiff alleges he or she was injured due to a design defect in a product; the manufacturer of the product, at some point after the accident, alters the very design feature plaintiff alleges was the cause of the accident; plaintiff seeks to introduce evidence of this subsequent design change at trial, realizing the powerful impact such evidence can have with many jurors.
Is such evidence admissible? Unfortunately, the answer may depend only on where the case is venued and which evidence rules apply. Federal Rule of Evidence 407 and most states exclude evidence of "subsequent remedial measures" in strict products liability cases. California, Colorado and several other states, on the other hand, allow this evidence to be admitted. How is it that these jurisdictions admit such evidence when the Federal Rules, the great majority of state courts, and strong public policy grounds exclude it? The fault lies in large part with influential Ault case, a hopelessly outdated California Supreme Court opinion putting it in the clear minority of jurisdictions. (1)
For the practitioner, this article addresses the legal and policy theories cited in support of the Ault decision, demonstrates why they are flawed and why the rule set forth in the Federal Rules of Evidence is more sound and more practical--carefully balancing the needs of both plaintiff and defendant--and provides guidance for addressing this issue when it arises in competing jurisdictions.
I. The Ault Decision
In Ault, the plaintiff was injured in a 1964 crash involving his International "Scout" vehicle (an early SUV) which was caused by a broken gear box he alleged was defective by virtue of the weak aluminum material used in its fabrication. Evidence was introduced at trial, over defendant's objection, that "Scout" gear boxes were changed from aluminum to a much stronger malleable iron in 1967. At the time, California's newly operative Evidence Code section 1151, which codified the common law "subsequent remedial measure" exclusion, provided:
When, after the occurrence of
an event, remedial or
precautionary measures are
taken, which, if taken
previously would have tended
to make the event less likely to
occur, evidence of such
subsequent measures is
inadmissible to prove
negligence or culpable conduct
in connection with the event. (2)
The jury returned a verdict in favor of the plaintiff and the defendant appealed.
The California Supreme Court in Ault was left to decide the meaning of section 1151 in the context of a product liability case alleging a design defect. In making its decision, the Ault court identified a dual rationale for finding section 1151 inapplicable in strict liability cases, thereby paving the way for the admission of subsequent design change evidence: (1) unlike negligence actions, product liability actions do not involve "culpable conduct," and section 1151 was therefore inapplicable by its own language, and (2) the public policy arguments for the exclusionary rule (to encourage remedial conduct) were inapplicable in the product liability context because no reasonable manufacturer of mass-produced products would refrain from making a design change and thereby risk a multitude of future suits)
Evidence Code section 1151 excludes subsequent remedial measures "to prove negligence or culpable conduct in connection with the event" giving rise to a lawsuit, which Ault declined to extend to strict liability actions on the assumption that negligence or culpability are not necessary that cause of action. (4) The Court reasoned that in strict liability product cases plaintiffs are not obligated to show any breach of duty of care, but only that the product was defective. (5) What the Court did, in essence, was to ignore the standard definition of culpable conduct, which is, "[b]lameable; censurable; involving the breach of a legal duty or the commission of a fault. …