United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. Nye, U.S. District Court Judge
are numerous motions before the Court. On November 30, 2017,
Defendant Bendpak, Inc. (“Bendpak”) filed its
First Motion in Limine Precluding Evidence of Subsequent
Remedial Measures. Dkt. 29. On December 8, 2017, Plaintiff
Corey Cusack filed a Motion to Amend/Correct Complaint. Dkt.
32. On December 14, 2017, Cusack filed a Motion for Partial
Summary Judgment. Dkt. 37. The Court then set the Motions for
oral argument on March 15, 2017.
oral argument was set, but before it took place, Cusack filed
a supplement to his response regarding Bendpak's Motion
in Limine (Dkt. 49) and the affidavit of Joel Beck in support
of his Motion to Amend/Correct Complaint (Dkt. 50). Bendpak
then filed a Motion to Strike Beck's affidavit. Dkt 52.
This caused Joel Beck to file a new affidavit (Dkt. 53)
correcting errors in his prior affidavit. Bendpak indicated
at oral argument that this would most likely remedy its
concerns. After oral argument, the Court took the
Motions under advisement and now issues the following
matter involves a car lift accessory part that fell and
injured Cusack. In February, 2011, Corey's Auto Works,
LLC, an automobile service and mechanical shop, owned and
operated by Corey Cusack, purchased a BendPak Car Lift System
and two RJ-7 Rolling Jacks.
about June 27, 2014, while Cusack was working at his garage,
he realized that one of the Rolling Jacks on the BendPak Car
Lift was out of proper position and went over to correct the
problem. It is unclear how, but one of the Rolling Jacks fell
off the Car Lift System and landed on Cusack's foot,
crushing it. Cusack claims that the accessory part, a RJ-7
Rolling Jack, was defective. Cusack asserts he sustained
various injuries and damages as a result. Cusack alleges that
Bendpak knew the Rolling Jacks posed a risk of serious harm
or injury but did nothing about it.
Motion in Limine
November 30, 2017, Bendpak filed its Motion in Limine seeking
to preclude evidence of remedial measures. Federal Rule of
Evidence 407 precludes evidence of subsequent remedial
repairs and Federal Rule of Evidence 403 precludes evidence
that's probative value is substantially outweighed by its
prejudicial and confusing effect. Bendpak added a secondary
safety bracket to the Rolling Jack after Cusack purchased the
jack but before the accident. The first issue is whether the
addition of the secondary safety bracket is a subsequent
remedial repair. The second issue is whether the probative
value of evidence of the secondary safety bracket is
substantially outweighed by any prejudicial and confusing
in limine are well-established devices that streamline trials
and settle evidentiary disputes in advance, so that trials
are not interrupted mid-course for the consideration of
lengthy and complex evidentiary issues.” Miller v.
Lemhi Cty., No. 4:15-CV-00156-DCN, 2018 WL 1144970, at
*1 (D. Idaho Mar. 2, 2018) (citing United States v.
Tokash, 282 F.3d 962, 968 (7th Cir. 2002)). “The
term ‘in limine' means ‘at the outset.' A
motion in limine is a procedural mechanism to limit in
advance testimony or evidence in a particular area.”
United States v. Heller, 551 F.3d 1108, 1111 (9th
Cir. 2009) (quoting Black's Law Dictionary 803 (8th ed.
“[a]n in limine order precluding the admission of
evidence or testimony is an evidentiary ruling, ”
United States v. Komisaruk, 885 F.2d 490, 493 (9th
Cir. 1989) (citation omitted), “a district court has
discretion in ruling on a motion in limine, ”
United States v. Ravel, 930 F.2d 721, 726 (9th Cir.
1991). Further, in limine rulings are preliminary and,
therefore, “are not binding on the trial judge [who]
may always change his mind during the course of a
trial.” Ohler v. United States, 529 U.S. 753,
758 n.3 (2000).
case, Cusack purchased the Bendpak Car Lift and the Rolling
Jacks in 2011. In 2012, Bendpak added a secondary safety
bracket to new Rolling Jacks. In 2014, Cusack sustained his
injuries. Bendpak now seeks to exclude evidence of it adding
this additional safety bracket in 2012 to all newly
manufactured Rolling Jacks.
Motion, Bendpak alleges that it added this secondary bracket
as an innovative upgrade to further improve the safety and
stability of the product but- importantly-it did not add it
because the RJ-7 was dangerous or flawed. Bendpak avows
that the original design (which Cusack purchased) was safe.
Bendpak did not send out a recall or any advisory guidelines
regarding prior Rolling Jacks after adding the secondary
safety bracket to new Rolling Jacks.
believes that the addition of this secondary safety bracket
is evidence of known deficiencies in the RJ-7 Jacks and that
Bendpak should have provided the additional bracket to
customers who had purchased earlier models, or at the very
least, Bendpak should have alerted customers who had earlier
models about potential dangers in the product after it became
aware of them.
Rules of Evidence 407 states:
When measures are taken that would have made an earlier
injury or harm less likely to occur, evidence of the
subsequent measures is not admissible to prove:
.a defect in a product or its design; or
.a need for a warning or instruction.
But the court may admit this evidence for another purpose,
such as impeachment or-if disputed-proving ownership, control
or the feasibility of precautionary measures.
Cusack points out, the purpose of this rule is to prevent the
introduction of remedial measures taken after injuries occur,
not prior to them. Here, Bendpak introduced the safety
bracket in 2012-almost two years before Cusack's 2014
injury. It appears that Rule 407 does not apply under these
readily admits that the Ninth Circuit has never ruled on the
particular timing issue present in this case, but argues that
other circuits have precluded post-manufacturer, pre-accident
remedial measures under Rule 407 and that this Court should
follow suit. Taking a “policy consideration”
standpoint, Bendpak urges the Court to exclude this evidence
because allowing it could disincentivize businesses from
making general improvements to their products for fear of
future repercussions and/or litigation.
raises a valid concern; however, without any relevant or
binding authority, the Court cannot look past the plain
language of the Rule. Rule 407 provides that a party cannot
introduce evidence of remedial measures that would have made
an earlier injury or harm less likely to occur.
argument, Bendpak argued that the secondary safety bracket
was in fact a subsequent remedial measure to an earlier
injury-just not the injury in this case. Because Bendpak
added the bracket after a prior incident and litigation, it
maintains the bracket is “subsequent to an earlier
injury” and the Court ...