BROWN v. BMW OF NORTH AMERICA, LLC et al

Filing 196

ENTRY - This matter is before the Court on Defendant BMW of North America, LLC's ("BMW") Motion in Limine Number 2, [Filing No. 141 at 21-24], which the Court took under advisement at the final pretrial conference, [Filing No. 195 at 7]. This products liability matter involves allegations that BMW distributed a defectively designed Mini Cooper, which resulted in enhanced injuries to Plaintiff Marsha Brown when her Mini Cooper rolled over. BMW's Motion seeks to exclude evidence of post-sale design changes to the Mini Cooper. The Court has considered the parties' filings, [Filing No. 141 at 21-24; Filing No. 193 at 2-4], and heard argument during the final pretrial conference. The Court GRANTS B MW's Motion in Limine Number 2 to the extent set forth in this Order. As Ms. Brown observes, Rule 407 expressly permits the admission of subsequent remedial measures if feasibility is disputed. Moreover, as Rule 407 suggests, such evidence is likely to be substantially more probative under Rule 403 if BMW disputes feasibility. At the final pretrial conference, counsel for BMW acknowledged that, at the time Ms. Brown's Mini Cooper was sold, at least one other manufacturer utilized the safety equipment that Ms. Brown contends should have been included in the Mini Cooper. Thus, it appears that BMW is not disputing feasibility at this time. However, "[u]nder the caselaw the feasibility inquiry encompasses a whole slew o f interrelated components, including not only the question of the possibility of correction as such but also more nuanced considerations such as the 'economy, practicality and effectiveness' of such corrections." Dewick v. Maytag Co rp., 324 F. Supp. 2d 894, 903 (N.D. Ill. 2004). Therefore, should BMW place feasibility, including economic feasibility, in issue at any time, whether by argument, question, or testimony -- either solicited or unsolicited -- Ms. Brown's counsel may ask the Court for relief from this Order. (See Order). Signed by Judge Jane Magnus-Stinson on 9/22/2017. (APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MARSHA RUDDELL BROWN,
Plaintiff,
vs.
BMW OF NORTH AMERICA, LLC,
Defendant.

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No. 1:14-cv-00931-JMS-DML

ENTRY
This matter is before the Court on Defendant BMW of North America, LLC’s (“BMW”)
Motion in Limine Number 2, [Filing No. 141 at 21-24], which the Court took under advisement at
the final pretrial conference, [Filing No. 195 at 7]. This products liability matter involves
allegations that BMW distributed a defectively designed Mini Cooper, which resulted in enhanced
injuries to Plaintiff Marsha Brown when her Mini Cooper rolled over. BMW’s Motion seeks to
exclude evidence of post-sale design changes to the Mini Cooper. The Court has considered the
parties’ filings, [Filing No. 141 at 21-24; Filing No. 193 at 2-4], and heard argument during the
final pretrial conference. The Court GRANTS BMW’s Motion in Limine Number 2 to the extent
set forth below.
In its Motion, BMW argues that the Court should exclude any evidence of post-sale design
changes to the Mini Cooper because any such changes are irrelevant under the Indiana Product
Liability Act (“IPLA”), Ind. Code § 34-20-4-1. BMW also argues that post-accident changes
would constitute impermissible evidence of subsequent remedial measures under Federal Rule of
Evidence 407.

In response, Ms. Brown argues that Rule 407 only excludes evidence of remedial measures
which postdate her injuries, not the date of manufacture or sale. Ms. Brown also argues that
subsequent remedial measure are always admissible to prove feasibility. Ms. Brown does not
directly address BMW’s argument that such evidence would be irrelevant under the IPLA.
The IPLA defines whether a product is in a “defective condition” by looking to its condition
“at the time it is conveyed by the seller to another party.” Ind. Code § 34-20-4-1. Rule 407, in
turn, generally excludes evidence of “changes made after the occurrence that produced the
damages giving rise to the action,” Fed. R. Evid. 407 advisory committee’s note (1997
Amendments); Traylor v. Husqvarna Motor, 988 F.2d 729 (7th Cir. 1993). Therefore, while
remedial actions occurring post-sale but pre-accident fall outside the scope of Rule 407, only
changes made prior to the initial sale of a product are substantially relevant to liability under IPLA.
Cf. Fed. R. Evid. 403. Rule 407 does not exclude evidence of subsequent remedial measures to
demonstrate the “feasibility of precautionary measures,” if the issue of feasibility is disputed. Fed.
R. Evid. 407. For feasibility to be disputed, the defendant must affirmatively place feasibility at
issue. E.g., Wanke v. Lyn’s Transp. Co., 836 F. Supp. 587, 595 (N.D. Ind. 1993) (noting that Rule
407 would permit evidence on feasibility once the defendant placed it at issue); Fed. R. Evid. 407
advisory committee’s note (noting, under original proposed rule, that Rule 407 contemplates
“automatic exclusion unless a genuine issue be present”).
The IPLA requires Ms. Brown to prove that the Mini Cooper was defective at the time of
its initial sale. Any post-sale improvements to the Mini Cooper are not substantially probative of
whether the Mini Cooper was defective at the time of sale. The Court therefore GRANTS BMW’s
Motion in Limine Number 2. [Filing No. 141 at 21-24.] Except as explained below, Ms. Brown

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may not introduce any evidence of changes made to the Mini Cooper after its initial sale in April
2007.
As Ms. Brown observes, Rule 407 expressly permits the admission of subsequent remedial
measures if feasibility is disputed. Moreover, as Rule 407 suggests, such evidence is likely to be
substantially more probative under Rule 403 if BMW disputes feasibility. At the final pretrial
conference, counsel for BMW acknowledged that, at the time Ms. Brown’s Mini Cooper was sold,
at least one other manufacturer utilized the safety equipment that Ms. Brown contends should have
been included in the Mini Cooper. Thus, it appears that BMW is not disputing feasibility at this
time. However, “[u]nder the caselaw the feasibility inquiry encompasses a whole slew of
interrelated components, including not only the question of the possibility of correction as such
but also more nuanced considerations such as the ‘economy, practicality and effectiveness’ of such
corrections.” Dewick v. Maytag Corp., 324 F. Supp. 2d 894, 903 (N.D. Ill. 2004). Therefore,
should BMW place feasibility, including economic feasibility, in issue at any time, whether by
argument, question, or testimony—either solicited or unsolicited—Ms. Brown’s counsel may ask
the Court for relief from this Order.

Date: 9/22/2017

Distribution via ECF only to all counsel of record.

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