Ault IADC Article-July 2011

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Finding Fault With Ault Why The Exclusion Of Subsequent Design Change Evidence In ProductLiability Cases Makes Sense, Even In California

By Craig A. Livingston andJohn C. Hentschel

HE FOLLOWING is an all toocommon occurrence in products

liability cases alleging a design defect: aplaintiff alleges he or she was injured dueto a design defect in a product; themanufacturer of the product, at somepoint after the accident, alters the verydesign feature plaintiff alleges was thecause of the accident; plaintiff seeks tointroduce evidence of this subsequentdesign change at trial, realizing thepowerful impact such evidence can havewith many jurors.

Is such evidence admissible?Unfortunately, the answer may dependonly on where the case is venued andwhich evidence rules apply. Federal Ruleof Evidence 407 and most states excludeevidence of subsequent remedialmeasures in strict products liabilitycases. California, Colorado and severalother states, on the other hand, allow thisevidence to be admitted. How is it that

these jurisdictions admit such evidencewhen the Federal Rules, the greatmajority of state courts, and strong publicpolicy grounds exclude it? The fault liesin large part with influential Ault case, ahopelessly outdated California SupremeCourt opinion putting it in the clearminority of jurisdictions. 1

For the practitioner, this articleaddresses the legal and policy theories

1 See Ault v. International Harvester Co., 13Cal.3d 113 (Cal. 1974).

IADC member Craig A. Livingston is ashareholder of

Livingston Law Firm,P.C., in Walnut Creek,California, where asignificant portion of his practice involvesrepresenting national

and international manufacturers indefense of product liability claims. Craigis a Sustaining Member of the Product

Liability Advisory Council and a member of the Defense Research Institute,Product Liability Committee. He hasbeen repeatedly selected as a NorthernCalifornia Super Lawyer for his work

in the area of product liability defense.

John C. Hentschel isof counsel at

Livingston Law Firm,P.C. His practiceincludes product liability defense for awide variety of manufacturing clients,

as well as toxic tort, environmentalexposure and commercial litigation.

John is a member of the Defense Research Institute, Toxic Tort & Environmental Law Committee.

cited in support of the Ault decision,demonstrates why they are flawed andwhy the rule set forth in the Federal Rules

of Evidence is more sound and morepracticalcarefully balancing the needsof both plaintiff and defendantand

T


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Page 286 DEFENSE COUNSEL JOURNAL July 2011

provides guidance for addressing thisissue when it arises in competing

jurisdictions.

I. The Ault Decision

In Ault , the plaintiff was injured in a1964 crash involving his InternationalScout vehicle (an early SUV) whichwas caused by a broken gear box healleged was defective by virtue of theweak aluminum material used in its

fabrication. Evidence was introduced attrial, over defendants objection, thatScout gear boxes were changed fromaluminum to a much stronger malleableiron in 1967. At the time, Californiasnewly operative Evidence Code section1151, which codified the common lawsubsequent remedial measureexclusion, provided:

When, after the occurrence of an event, remedial orprecautionary measures aretaken, which, if takenpreviously would have tendedto make the event less likely tooccur, evidence of suchsubsequent measures isinadmissible to provenegligence or culpable conductin connection with the event. 2

The jury returned a verdict in favor

of the plaintiff and the defendantappealed.

The California Supreme Court in Ault was left to decide the meaning of section 1151 in the context of a product

2 CAL . EVID . CODE 1151 (enacted Stats 1965ch 299 2, operative January 1, 1967).

liability case alleging a design defect. Inmaking its decision, the Ault courtidentified a dual rationale for findingsection 1151 inapplicable in strict liabilitycases, thereby paving the way for theadmission of subsequent design changeevidence: (1) unlike negligence actions,product liability actions do not involveculpable conduct, and section 1151 wastherefore inapplicable by its ownlanguage, and (2) the public policyarguments for the exclusionary rule (to

encourage remedial conduct) wereinapplicable in the product liabilitycontext because no reasonablemanufacturer of mass-produced productswould refrain from making a designchange and thereby risk a multitude of future suits. 3

Evidence Code section 1151excludes subsequent remedial measures

to prove negligence or culpable conductin connection with the event giving riseto a lawsuit, which Ault declined toextend to strict liability actions on theassumption that negligence or culpabilit y are not necessary that cause of action.

4 The Court reasoned that in strict liabilityproduct cases plaintiffs are not obligatedto show any breach of duty of care, bu t only that the product was defective. 5 What the Court did, in essence, was toignore the standard definition of culpableconduct, which is, [b]lameable;censurable; involving the breach of alegal duty or the commission of a fault. it implies that the act or conduc t spoken of is reprehensible or wrong 6

3 Ault , 13 Cal.3d at 118-120.4 Id. at 117.5 Greenman v. Yuba Power Products, Inc., 59Cal.2d 57, 62-63 (Cal. 1963).6 BLACK S LAW DICT . (4 th rev. ed 1968.)


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Finding Fault With Ault Page 287

The dissent in Ault recognized that evenin strict liability cases a defendant mustbreach a legal duty not to put a defectiv e product into the stream of commerce. 7 However , defendant InternationalHarvester Company conceded that amanufacturer in a strict liability action isnot blameworthy in a legal sense andinstead argue d that strict liability implieda moral duty. 8

The Ault Court then made a similarlynarrow application of the California

legislatures intent, concluding that if theLegislature had intended to include strictliability actions within section 1151, thenit would have used a phrase witho ut theconnotation of "affirmative fault."

9 Aspart of its analysis, Ault correctlyconcluded that the legislature w as attempting to codify well-settled law. 10

Ault reasoned that the public policies justifying the evidentiary exclusion innegligence cases are not valid in strictliability cases because a mass producerwould continue making improvements toproducts even where evidence of suchimprovements might later be used againstit. The distinction was not based on anytort theory, but on the fact the product ismass-produced.

However, Ault did not apply the policy

behind the common law rule; instead, the Ault court assumed that the Californialegislature considered strict productsliability actions when it codified section1151, and it wholly rejected the publicpolicy which was the very basis of therule.

7 Ault , 13 Cal.3d at 124.8 Id. at 118.9 Id. at 118.10 Id. at 119 (citing Law Review Com.comment to Cal. Evid. Code 1151).

This mass-producer argument is notoriginal to Ault . To support its theory thata mass-producer has sufficient incentiveto continue improving its productsregardless of the existence of theexclusionary rule, the Ault Court includeda footnote quoting at length from a 1972Duke Law Review Article which callednewly operative section 1151 anobsolete evidentiary rule and waswholly contrary to public policy in theproducts liability arena. 11

By concluding that the legislativeintent behind section 1151 did not applyto strict liability actions, the Ault Courtassumed that the conduct of a mass-producer is guided by the legal distinctionbetween negligence and strict liabilityclaims, even though both claims aretypically asserted in a single productliability action. In reality, it makes nodifference what legal theory is advancedto find a product manufacturer liable. Asthe Fourth Circuit Court of Appeals statedin Werner v. Upjohn Co. , the deterrent of taking remedial measures is the same,

Both this

article, and the courts opinion, contradictthe very policies underlying the commonlaw exclusionary rule and legislativeintent in codifying the common law rule;namely, the exclusion of subsequentdesign changes would serve as anincentive to manufacturers for thecontinued improvement of consumergoods by shielding manufacturers from

potential liability based on evidence of the mere existence of a productimprovement.

11 Note, Products Liability and Evidence of Subsequent Repairs , 1972 D UKE L.J. 837, 845-852 (1972).


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namely, the fear that the evidence may beused against defendant. 12

The negligence/strict liabilitydistinction is hypertechnical, becausethe lawsuit is against the manufacturer under either theory, not against themanufacturer in a negligence case andagainst the product in a strict liabilitycase. In the first instance, the question iswhether the manufacturer was reasonablein designing the product as used by theplaintiff. In the second, it is whether the

design of the product as used by theplaintiff was unreasonably dangerous. Ineither circumstance, the answer dependson whether or not the product is deemeddangerous. And in either circumstance,there is a desire to avoid future liabilityand a rule that makes section 1151inapplicable in product liability casesdiscourages the development of safety

enhancements; it is nave to think otherwise.The Ault Court either failed to realize

or refused to address the concern that themass producer argument appliesequally to negligence and strict liabilitytheories. It failed to explain why amanufacturer would be more inclined tomake safety changes to the product whensued under strict liability than it wouldwhen the theory is based on negligence.In fact, the Ault majority seemed to saythat none of the public policies behind therule excluding evidence of subsequentremedial measures a pply to productsliability litigation at all. 13

Worse yet, Aults mass-producerargument essentially assumes the

12 Werner v. Upjohn Co., 628 F.2d 848, 856-857 (4th Cir. 1980).13 Ault, 13 Cal.3d at 120.

existence of a product defect, as it ignoresthe common situation where amanufacturer decides to improve a non-defective product (whether they aretermed product enhancements, productimprovements, or safetyenhancements). In the real world,manufacturers make changes to theirproducts all the time, and the impetus forchange often has nothing whatever to dowith the notion that the existing product isin some way defective. Such reasons

can include: (1) a desire to enhance thesafety of the product; (2) cost savings; (3)ease of use; (4) production efficiencies;(5) advances in manufacturingcapabilities; (6) uniformity of productlines; (7) market condition changes due tocustomer demand; (8) market conditionchanges due to legislation; and (9) marketcondition changes due to design changes

by competitors. Certainly, there are manyother reasons as well.Be that as it may, the same design

change that can be argued as a productenhancement by the manufacturer can bealternatively labeled a subsequent safetydesign change by the plaintiff. From apractical standpoint, in a product liabilitytrial it matters little what non-safetyreasons a manufacturer may proffer insupport of a design change, the plaintiff will almost certainly argueand oftenwith great successthat the designchange was prompted by safety concerns.A where theres smoke, theres firementality can easily carry the day for lesssophisticated jurors, particularly intodays post-Enron environment wheremany people believe corporate America

cares only about increased profits. Andtherein lies the rub; manufacturers knowthat subsequent design change evidence


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can be very damaging and the decision tomove forward with such changes can be,and has been, a consideration in light of pending or anticipated suits. For the Ault court to assume otherwise failed toacknowledge the reality of manufacturingdecisions in todays litigious societywhere some of the nations largest juryverdicts have come in product liabilitycases.

But even in those cases whereproduct enhancements have been made,

evidence of subsequent changes iscompletely irrelevant when there is nofactual basis to suggest the subsequentdesign change was made because themanufacturer believed the product was insome way defective and the change wasrequired to reduce or eliminate adangerous design flaw. Indeed, theevidence becomes even less relevant

where there is direct evidence of reasonsfor the subsequent design effort that havenothing to do with an existing defect(though plaintiffs counsel will surelyargue such evidence is not credible). Inmost cases, the reality is that theexistence of a design defect is not theplain or most probable inference fromevidence of a subsequent design change.Yet, when such evidence is admitted,many jurors are un able to avoid makingsuch an assumption. 14

14 Given todays anti-business climate, skilledplaintiffs counsel are often preaching to theconverted with arguments about why themanufacturers stated reasons for designchanges do not include improved productsafety. Even if true, the manufacturer is oftenforced to listen to closing arguments in whichthe reasons for the design change were surelymotivated by a desire to improve safetyespecially if there was also evidence admitted

Most troubling is the fact that Ault effectively changed California substantivelaw: it changed the determination of thepoint in time for assessing liability for adefective product from the date of manufacture or distribution to the time of trial, which in many cases might be yearslater. Any product knowledge acquiredor design changes made (with or withoutthe benefit of newly acquired knowledge)after the date of manufacture isorshould beirrelevant. However, Ault

holds a defendant to product knowledgeobtained or a design made outside therelevant time to the time of trial byallowing evidence of subsequent remedialmeasures to prove that a product defectexisted. This creates a substantiallikelihood that a jurys attention will bediverted from the relevant time periodand may result in jury confusion. This

was precisely the point raised by the FifthCircuit Court of Appeals when itdetermined that the rule in that circuitwould be to exclude evidence of subsequent design changes in strictliability case s under Federal Rule of Evidence 407. 15

II. The Response to Ault

Ault is now clearly in the minority of jurisdictions. Indeed, in Schelbauer v.

about prior similar accidentsand that thefailure to admit it is further support for theprofits over safety theme frequentlyemployed by plaintiffs counsel at trial. Notan enviable position to be in, to be sure, butone which is not at all uncommon.15 Grenada Steel Industries, Inc. v. AlabamaOxygen Co., Inc., 695 F.2d 883, 888 (5th Cir.1983).


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Butler Manufacturing Co.,16 theCalifornia Supreme Court reaffirmed its

Ault holding as applying to post-accidentwarnings and recalls. In so doing,however, the Court could make referenceto only a few federal circuit courts(namely the Seventh Circuit, EighthCircuit, and Tenth Circuit) that were thenfollowing the Ault rationale as applied toFederal Rule of Evidence 407. Similarly,the Court could only mention severalothe r state courts that followed the same

rule. 17 Currently, a few western statesthat have traditionally taken their

jurisprudentia l lead from Californiafollow Ault .18 Both Hawaii andConnecticut have codified Ault inexplicitly allowing such evidence. 19 Thus, it is clear that the legal landscapeon the issue of subsequent remedialmeasures has changed considerably since

the Ault decision in 1974 and theSchelbauer decision in 1984. Mostsignificantly, Federal Rule of Evidence407 was amended in 1997 to specificallyinclude product liability actions under theexclusionary rule of that statute. 20

16 Schelbauer v. Butler Manufacturing Co., 35Cal.3d 442 (Cal. 1984).

Now,

17 Schelbauer, 35 Cal.3d at 451-452.18 See, e.g., Caterpillar Tractor Co. v. Beck 624 P.2d 790, 794 (Alaska 1981); Jeep Corp.v. Murray, 101 Nev. 640, 708 P.2d 297, 302(Nev. 1985); Forma Scientific, Inc. v. Biosera,Inc. 960 P.2d 108, 115 (Colo. 1998).19 HAWAII RULE OF EVIDENCE 407 (see American Broad. Cos. v. Kenai Air of Hawaii,Inc., 67 Haw. 219, 686 P.2d 1 (Haw. 1984));CONN . RULE OF EVID . Sec. 4-7(b).20 FED . R. EVID . 407 currently reads: When,after an injury or harm allegedly caused by anevent, measures are taken that, if takenpreviously, would have made the injury orharm less likely to occur, evidence of the

of course, all federal courts apply theexclusionary rule to strict liability casesby virtue of Rule 407, as do thosenumerous states which have adoptedwholesale the Federal Rules of Evidence.

Moreover, several state courts, whenfaced with making the policydetermination as between Federal Rule of Evidence 407 and Ault , have almostuniformly opted to follow the federal leadand reject Ault as poorly reasoned. Forexample, in Hyjek v. Anthony

Industries, 21

The product at issue in Hyjek was aK2 snowboard.

the Washington SupremeCourt followed Werner, and interpretedits own exclusionary rule, which wasidentical to the pre-1997 federal rule, asapplicable in products liability cases,finding both the evidence of subsequentdesign change irrelevant as a matter of law and that the policy rationales for therule apply equally to products liability

cases.22 At that time, K2 did not

pre-drill holes for the boards bindings,allowing the consumer to affix anybinding on the market by simply screwingthem into the board. 23

subsequent measures is not admissible toprove negligence, culpable conduct, a defectin a product, a defect in the products design,or a need for a warning or instruction. Thisrule does not require the exclusion of evidenceof subsequent measures when offered foranother purpose, such as proving ownership,control, or feasibility of precautionarymeasures, if controverted, or impeachment.(emphasis added).

Plaintiff wasinjured when his binding came loose andsued the defendant, the parent company

21 Hyjek v. Anthony Industries,133 Wn.2d414, 944 P.2d 1036 (Wash. 1997).22 Hyjek, 133 Wn.2d at 415.23 Id. at 416.


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of K2, alleging that the board wasdefectively designed in that it did nothave inserts molded in to the board to holdthe bindings in place. 24 Plaintiff soughtto introduce at trial evidence that in theyear following his accident, K2 designeda new system which included through-core inserts, which then allowed thebindings to be screwed onto the boardmore securely with fine threaded screws.K2, by a motion in limine , successfullyprevented this evidence from being

proffered at tri al and the jury rendered adefense verdict. 25

The Hyjek court analyzed the state of the law at that point, including anassessment of Ault. It found that a solidmajority of federal judicial circuitsexcluded such evidence prior to theamendment of Federal Rule of Evidence407, and based upon this majority and the

amendment of its federal counterpart,declined to reverse the trial courtsdecision.

26 Hyjek declined to follow Ault, basing its decision in part on the policyanalysis in Werner : the notion that amanufacturer may be deterred fromtaking remedial measures if suchmeasures were later admissible appliedequally to strict liability as wells asnegligence cases. 27 Hyjek also notedWerner s explanation of the fallacy that

Ault s theory assumes the product isdefective and ignored a situation where amanufacturer improves a non-defectiveproduct. 28

24 Id.

Finally, Hyjek focused on theirrelevance of evidence of a productchange after the incident; noting that to

25 Id. at 416-417.26 Id. at 421.27 Id. at 422-423.28 Id. at 423-424.

hold otherwise would change substantiveproduct liability law in Washington. If the time of product distribution ormanufacture is the point selected by theLegislature for determining liability instrict liability cases, then the substantivelaw makes any product knowledgeacquired a fter the point of distributionirrelevant. 29

The Pennsylvania Supreme Court, in Duchess v. Langston Corp ., when facedwith lower appellate court authority

which followed Ault , also chose tooverrule prior authority and insteadfollow the course set forth by FederalRule of Evidence 407.

30 In Duchess , theplaintiff was injured at his workplacewhen cleaning a machine that fabricatedcardboard boxes. 31 He contended that themachine should have been equipped withan interlock device which would have

prevented the injury.32

The defendantconceded that such a device was feasibleat the time of manufacture but wasimpractical for a variety of reasons,despite admitting in answers tointerrogatories that such an interlock device was incorporated into machinesmanufactured approximately one yearafter the accident. 33

29 Id. at 426-427.

Plaintiff then arguedthat the defendant had opened the door tothe introduction of this subsequentremedial measure. The trial courtdisagreed, drawing a distinction betweenfeasibility and practicality, and refused to

30 Duchess v. Langston Corp. , 564 Pa. 529,769 A.2d 1131 (Pa. 2001).31 Duchess, 564 Pa. at 531.32 Id. at 532.33 Id. at 534.


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admit the evidence. 34 The jury found forthe defendant on the specific claimwhether the lack of an interlock devicewas a design defect. 35 The intermediateappellate court granted a new trial,finding that the refusal to introduceevidence of the subsequent design changewas reversible error, relying on priorPennsylvania authority that had followedthe Ault rule that evidence of subsequentremedial repair was admissible inproducts liability actions. 36

34 Id. at 535. This distinction is often at the

heart of the manufacturers response to claimsthat the subsequent design change was madeto reduce or eliminate a defect in the earlierversion of the product. As is frequently thecase, the manufacturer is unable to argue thatthe subsequent design change was nottechnologically feasible at some earlier date,as the existence of specific manufacturingprocesses and materials often belie such aclaim. Rather, the manufacturer typicallyargues that there were other non-safetyreasons at play, or that even if safety was aconsideration, the change was notimplemented because the earlier design wasdefective but instead to simply enhance thesafety of the product as a whole. A similarargument if often made in response to feasiblealternative designs offered by plaintiff experts.Here, the alternative design is not attacked onunfeasibility but instead as undesirable forany number of reasons.

On appeal to

the Pennsylvania Supreme Court, thedefendant in Duchess raised the issueidentified in Hyjek that to allow suchevidence to be admitted in a design defectcase in essence changes the substantivelaw of strict products liability regardingwhen the alleged defectiveness of a

35 Id. 36 Duchess , 564 Pa. at 535-536, citing Matskov. Harley Davidson Motor Co. 325 Pa. Supr.452, 473 A.2d 155 (Pa. 1984).

product is assessed and gives undueweight to what is essentially irrelevantevidence. 37

The Duchess court noted thatPennsylvanias rule was, like that of Washington, identical to the pre-1997federal rule and that it was for the courtsto determine how this rule was to beapplied in strict products liabilityactions.

38 In fulfilling its duty, the Courtevaluated Ault and the criticism leveledagainst it on the issues of: (1) relevance

and juror confusion, (2) public policy,and (3) the artificial distinction betweennegligence and strict products liabilityactions. The Court held that since aproducts liability claim must be evaluatedat the time the product was distributed,the relevance of such evidence is limitedwhile the potential for juror confusion isgreat. 39 It further found that the policy

considerations militated in favor of applying the exclusionary rule to productsliability cases, flatly re ject[ing] Aultsmass producer logic. 40 Finally, theCourt stated that it was . . . unable tomeaningfully distinguish claims assertingnegligent design from those asserting adesign defect in terms of their effect onthe implementation of remedial measuresand/or desig n improvements in themarketplace. 41

This issue was addressed mostrecently by the Iowa Supreme Court in2009 in Scott v. Dutton-Lainson,

42

37 Duchess, 564 Pa. at 539.

whichlike Hyjek and Duchess held evidence of

38 Id. at 541.39 Id. at 548.40 Id. at 549.41 Id. 42 Scott v. Dutton-Lainson Co. 774 N.W.2d501 (Iowa 2009).


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subsequent remedial measuresinadmissible in design defect cases. TheScott case is unique, however, becauseIowa Rule of Evidence 5.407, incontradistinction to Federal Rule of Evidence 407, specifically states that theexclusion of evidence of subsequentremedial measures does not apply whenoffered in connection w ith a claim basedon strict liability. . . 43 Scott relied,however, on prior Iowa decisional lawwhich held that design defect cases are

best analyzed under negligenceprinciples, per Restatement of Torts(Third) 2(a), and evidence of subsequent remedial repairs in a designdefect case is not admissible to shownegligence or culpable conduct. 44

III. Considerations in Dealing with

Evidence of a Subsequent

Remedial Measure

For defense counsel in jurisdictionsfor which this is still an open question,the Werner/Hyjek/Duchess analysisprovides a powerful template on which tocraft an argument that the federal ruleshould be followed. In the alternative, forthose jurisdictions recognizing the ThirdRestatement, Scott provides soundauthority that the exclusionary rule shouldapply to design defect cases.

In those jurisdictions that still follow Ault , however, all is not lost. Defensecounsel still have strong arguments thatsubsequent design changes are notadmissible as a matter of course. In hisdissent in Schelbauer , Justice Richardsonwent out of his way to emphasize a point

43 Scott, 774 N.W.2d at 504.44 Id. at 506.

implicit in the majority opinion, thatsimply because the Ault rule may makethe exclusionary rule in section 1151inapplicable in strict liability cases, suchevidence is subject to the courtscomplete discretion to exclude evidenceif its probative value is substantiallyoutweighed by the probability that itsadmission will . . . (b) create substantialdanger of undue prejudice, of confusin g the issues, or of misleading the jury. 45 Justice Richardsons admonition in

Schelbauer was adopted by the court in Aguayo v. Crompton & Knowles Corp., 46 a product liability case involving a largegarnet machine used to make welting forfurniture padding. At issue in Aguayo was the admissibility of a subsequentdesign change to the machine which took the form of a protective fence designed tokeep workers a safe distance from its

moving parts. Plaintiff sought to admitthe evidence under Ault and defendantmoved to have it excluded. The trialcourt excluded the evidence on relevancegrounds and under section 352 due to theremoteness in time between themanufacture of the subject machine(1964) and the s ubsequent design change(1979 or 1980). 47

45 Schelbauer , 35 Cal.3d at 459, (Richardson,J. dissenting) (citing C AL . EVID . CODE 352).

The Second DistrictCourt of Appeal affirmed this evidentiaryruling, holding that the Ault decisiondoes not mandate the admission of evidence of subsequent accidents orsubsequent design changes, but permits introduction of such evidence subject to

46 Aguayo v. Crompton & Knowles Corp., 183Cal.App.3d 1032 (Cal. Ct. App. 1986).47 Aguayo, 183 Cal.App.3d at 1037-1038.


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the rules of admission applicable togenerally. 48

Moreover, a key authority relied onby the Ault Court has also been limited sothat the reasoning would no longer giveany support to the Ault decision.Sutkowski v. Universal MarionCorporation ,

49 an Illinois appellate courtdecision, was given broad meaning by the

Ault Court . More recent Illinois appellatecourt cases, however, have clarified thatSutkowski actually stands for the more

limited proposition that subsequentdesign changes can be admissible inproduct liability cases for the limited

purpose of establishing that sa fer designalternative [sic.] were feasible. 50

The feasibility exception is oneexplicitly built in to many of theexclusionary rules, including FederalRule of Evidence 407. The Iowa

Supreme Court in Scott held that eventhough it was excluding evidence of asubsequent design, [p]laintiffs have theopportunity to introduce evidence of subsequent remedial measures of thedefendant disputes the feasibility of the asuggested alternative design.

51

48 Id. at 1040 (emphasis added).

However, the feasibility exception isnot an open sesame to plaintiffs toadmit evidence through the back doorwhen the front door has been closed, andthere must be a genuine issue incontroversy before this evidence is

49 Sutkowski v. Universal Marion Corp. , 5Ill.App.3d 313 (Ill. App. 1972).50 Davis v. International Harvester Co., 167Ill.App.3d 814, 822-823 (Ill. App. 1988)(emphasis added).51 Scott, 774 N.W.2d at 507.

admitted. 52 In New York, for example,subsequent remedial measures areadmissible to show the feasibility of adesign change, but given the abstruse,subjective judgment involved in thebalancing of risks and benefits necessaryto determine whether the product as madeand sold was reasonably safe . . . , and thesubstantial risk that such evidence may beover-emphasized by the jury, will not beadmitted even for that purpose if themanufacturer concedes feasibility. 53

When faced with a subsequent designchange that may be admissible, defensecounsel should avoid taking a positionthat such a design change is neverfeasible, thereby taking the issue off thetable and rendering the profferedevidence irrelevant and superfluous. Forexample, in California, the standard juryinstruction on design defects, per the

seminal case of Barker v. Lull Engineering Co.,

54 provides that onefactor for the jury to consider, and onwhich the defendant has the burden of proof, is [t]he feasibility of an alternativesafer design at the time of manufacture. 55

52 Forma Scientific , 960 P.2d at 122 [Vollack,C.J., dissenting].

Depending on the natureof the design change and the time of change in relation to the accident, aproduct liability defendant may be betterserved by not raising the issue of feasibility of an alternative design,focusing instead on the other Barker

53 Cover v. Cohen, 61 N.Y.2d 261, 461 N.E.2d864 (N.Y. 1984). As noted above, this isessentially what the defendant in Duchess didby not taking a position on the issue.54 Barker v. Lull Engineering Co., 20 Cal.3d413 (Cal. 1978).55 Id. See also CACI 1204 [January 2011].


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factors. If the feasibility factor is notbeing contested, plaintiffs will be hardpressed to demonstrate any probativevalue of evidence of a subsequentremedial measure.

IV. Conclusion

The reasoned analysis in more recentcases and the practical experienceobtained in the thirty-six years since the

Ault decision was rendered both

demonstrate how outdated the reasoningin Ault is and explain why Ault is nowclearly in the small minority of

jurisdictions allowing the introduction of subsequent design changes in strictliability actions. Its continued viability,however, results in forum shopping byplaintiffs, confusion of law and de facto changes in substantive law. Even though

it is contrary to the policies justifying theexclusionary rule, Ault is still the rule inCalifornia and several other jurisdictions.While defense counsel may seek limitinginstructions, juries cannot ignoresubsequent design change evidence inrendering their verdicts. It is thereforeimperative for defense counsel to marshalany or all of the arguments discussedabove in an effort to distinguish Ault andobtain a ruling excluding such evidence.

Documents

Ault IADC Article-July 2011