Thibodeaux v. Wellmate

Filing 167

ORDER AND REASONS granting in part and denying in part 126 Motion in Limine. Signed by Judge Susie Morgan on 5/22/2016. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOEL C. THIBODEAUX,
Plaintiff

CIVIL ACTION

VERSUS

NO. 12-1375

WELLMATE, ET AL.
Defendants

SECTION: “E” (5)
ORDER AND REASONS

Before the Court is Defendant’s motion in limine regarding evidence of subsequent
remedial measures. 1 For the reasons set forth below, the motion is GRANTED IN PART
and DENIED IN PART.
BACKGROUND
Plaintiff Joel C. Thibodeaux (“Thibodeaux”) brings claims against Defendant
Pentair Water Treatment OH Company (“Pentair”) under the Louisiana Products Liability
Act (“LPLA”). 2 Thibodeaux was injured after the bladder in a water pressure tank,
manufactured by Pentair, ruptured on a platform operated by Chevron USA Inc.
(“Chevron”), Thibodeaux’s employer and the plaintiff-in-intervention. 3
Thibodeaux filed this suit on May 30, 2012, 4 and brings claims against Pentair
under the Louisiana Products Liability Act. 5 Chevron filed a complaint in intervention on
March 1, 2013, and alleges it has paid indemnity and medical benefits to or on behalf of
Thibodeaux under the Longshore and Harbor Workers’ Compensation Act as a result of
his injuries. 6

R. Doc. 126.
LA. REV. STAT. §§ 9:2800.51–.60.
3 R. Doc. 93-20 at 5; R. Doc. 101 at 10; R. Doc. 102-1 at 8.
4 R. Doc. 1.
5 LA. REV. STAT. §§ 9:2800.51–.60.
6 R. Doc. 28.
1

2

1

On March 24, 2016, Pentair filed a motion in limine regarding evidence of
subsequent remedial measures. 7 Thibodeaux filed an opposition on March 31, 2016. 8
LAW AND ANALYSIS
Pentair seeks to exclude evidence of “subsequent remedial measures,” including
(1) design changes to Wellmate 12 tanks following the date of manufacture of the subject
tank, and (2) warning signs and procedures applied to water pressure tanks by Chevron
after Thibodeaux’s accident. 9
Rule 407 of the Federal Rules of Evidence governs the admissibility of evidence of
subsequent remedial measures:
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:
•

negligence;

•

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. 10
The goal underlying Rule 407 is to “encourag[e] people to take, or at least not [to
discourage] them from taking, steps in furtherance of added safety.” 11 “The rule also seeks
to ensure that negligence is properly determined according to what the defendant knew

R. Doc. 126.
R. Doc. 133.
9 R. Doc. 126-2 at 3.
10 FED. R. EVID. 407.
11 FED. R. EVID. 407 advisory committee’s note to 1972 proposed rule. See also Adams v. Chevron USA, Inc.,
383 F. App’x 447, 452 (5th Cir. 2010).
7

8

2

or should have known prior to the accident, not what the defendant knew as a result of
the accident.” 12
I.

Pentair’s Design Changes to Wellmate 12 Tanks
Pentair argues that “evidence of Pentair’s design changes to the bladder and drain

fitting on Wellmate tanks after the date of manufacture [is] not admissible under Rule
407.” 13 Pentair contends that admitting such evidence “would be unfairly prejudicial to
Pentair by incorrectly suggesting that the post-manufacture modifications demonstrate
that the original design was defective” 14 and that “[t]his prejudicial effect . . . demands
that evidence of post-manufacture design changes be excluded under Rule 407.” 15
Joel Voytek, a Pentair product manager, 16 testified in his deposition that Pentair
made a design change to Wellmate products that began to take effect in March 2009 and
was completely integrated with the product line by the end of 2010. 17 Thibodeaux’s
accident occurred on July 5, 2011. 18
The Fifth Circuit has made clear that Rule 407 does not apply to evidence of
changes, even remedial measures, made before the accident giving rise to the litigation.
“By definition, the rule excludes only post-accident remedial measures.” 19 “The admission
of evidence of changes made merely to improve a product, as distinguished from remedial
measures that make an ‘injury or harm less likely to occur,’ is not barred by the rule.” 20
The advisory committee notes underscore that Rule 407 applies only to evidence of postAdams, 383 F. App’x at 452 (internal quotation marks omitted).
R. Doc. 126-2 at 4–5.
14 Id.
15 Id. at 5.
16 See R. Doc. 102-5 at 3.
17 R. Doc. 126-5 at 2.
18 See, e.g., R. Doc. 114 at 6 (listing as an uncontested material fact that “Joel Thibodeaux was injured . . . on
July 5, 2011); R. Doc. 102-3 at 8; R. Doc. 126-2 at 3.
19 Brazos River Auth. V. GE Ionics, Inc., 469 F.3d 416, 429–30 (5th Cir. 2006).
20 Id. at 428.
12
13

3

accident remedial measures: “Evidence of measures taken by the defendant prior to the
‘event’ causing ‘injury or harm’ do not fall within the exclusionary scope of Rule 407 even
if they occurred after the manufacture or design of the product.” 21
Accordingly, evidence of Pentair’s design changes to Wellmate tanks before
Thibodeaux’s accident is not inadmissible under Rule 407, and Pentair’s motion in limine
with respect to evidence of Wellmate’s design changes is denied.
II.

Warning Signs and Procedures Employed by Chevron after Thibodeaux’s
Accident
Pentair argues that evidence of warning signs and procedures with respect to water

pressure tanks that were implemented by Chevron after the accident is neither relevant
nor admissible. Pentair contends that such evidence “creates a danger of confusing the
jury regarding the role of Pentair as a product manufacturer[] and the jury’s evaluation of
the actual content, placement, and adequacy of the warnings that were provided by
Pentair at the time the tank was manufactured.” 22 Pentair also argues that evidence of
Chevron’s post-accident warnings and procedures would impermissibly invite the jury “to
compare and contrast the contents of [Chevron’s] procedure to the written product
literature provided by Pentair.” 23
Thibodeaux argues that evidence of Chevron’s post-accident warnings and policies
is relevant to the inadequacy of Pentair’s warning system because, “[i]f the warnings
Pentair allegedly applied to the water tank were adequate, then Chevron would have been
less likely to take the steps needed to improve the warnings on every water tank on all of
its platforms across the Gulf of Mexico.” 24
FED. R. EVID. 407 advisory committee’s note to 1997 amendments.
R. Doc. 126-2 at 6.
23 Id. at 7.
24 R. Doc. 133 at 7–8.
21

22

4

“[N]either the text of rule 407 nor the policy underlying it excludes evidence of
subsequent repairs made by someone other than the defendant.” 25 “Any evidence not
excluded by Rule 407, of course, must still be relevant and its probative value must, under
Rule 403, outweigh any dangers associated with its admission.” 26
Evidence of the warnings and procedures implemented by Chevron after the
accident is not relevant to whether Pentair’s warnings were adequate “at the time the
product left its manufacturer’s control.” 27 Further, feasibility is not at issue in this case.
The Fifth Circuit “ha[s] held in several product liability cases . . . that evidence of
subsequent changes by third parties is properly excludable because of its tendency to
‘confuse the jury by diverting its attention from whether the product was defective at the
relevant time [i.e., the time of manufacture] to what was done later.’” 28 The Court finds
that evidence of the warning system and procedures Chevron implemented after
Thibodeaux’s accident risks confusing the jury and that its limited probative value is
substantially outweighed by dangers of prejudice, confusing the issues, and misleading or
confusing the jury. 29 Pentair’s motion in limine regarding evidence of Chevron’s postaccident implementation of warnings and procedures with respect to water pressure
tanks is granted.
CONCLUSION
For the foregoing reasons;

Grenada Steel Indus., Inc. v. Alabama Oxygen Co., 695 F.2d 883, 889 (5th Cir. 1983).
Dixon v. Int’l Harvester Co., 754 F.2d 573, 584 (5th Cir. 1985).
27 LA. REV. STAT. § 9:2800.57.
28 Middleton v. Harris Press & Shear, a Subsidiary of Am. Hoist & Derrick Co., 796 F.2d 747, 752 (5th Cir.
1986) (quoting Grenada Steel, 695 F.2d at 888, 889).
29 FED. R. EVID. 403.
25

26

5

IT IS ORDERED that Pentair’s motion in limine is GRANTED IN PART and
DENIED IN PART as set forth above.
New Orleans, Louisiana, this 22nd day of May, 2016.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

6