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Cusack v. Bendpak, Inc.

United States District Court, D. Idaho

April 12, 2018

COREY CUSACK, individually, Plaintiff,
BENDPAK, INC., a foreign corporation, Defendant.


          David C. Nye, U.S. District Court Judge


         There 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.

         Once 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.[1] After oral argument, the Court took the Motions under advisement and now issues the following decision.

         II. BACKGROUND [2]

         This 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.[3]

         On or 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.


         A. Motion in Limine

         1. Background

         On 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 effect.

         2. Legal Standard

         “Motions 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. 2004)).

         Because “[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).

         3. Analysis

         In this 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.[4] 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.

         In its 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.[5] 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.

         Cusack 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.

         Federal 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:
.culpable conduct;
.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.

         As 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 circumstances.

         Bendpak 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.

         Bendpak 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.

         At oral 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 ...

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