Ponds et al v. Force Corporation

Filing 65

ORDER AND REASONS re 43 Objections filed by Maryl K Wright, Reginald A Ponds - IT IS ORDERED that plaintiff's objection regarding the accident re-enactment video is DISMISSED AS MOOT. IT IS FURTHER ORDERED that plaintiff's objection regarding the Root Cause Investigation Report is GRANTED as set forth herein. Signed by Judge Lance M Africk.(bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
REGINALD A. PONDS ET AL.

CIVIL ACTION

VERSUS

No. 16-1935

FORCE CORPORATION

SECTION I
ORDER AND REASONS

Before the Court are two exhibit objections 1 filed by plaintiff Reginald Ponds
and intervenor SGS Petroleum Service Corporation (“SGS”). 2 The Court rules on the
objections as set forth herein.
I.
The first exhibit objected to by plaintiff was an accident re-enactment video
produced by plaintiff’s employer, SGS. Plaintiff argued at the pretrial conference that
the video constituted a subsequent remedial measure and that it was inadmissible
under Rule 407 of the Federal Rules of Evidence. He now indicates that he withdraws
that objection. Plaintiff instead acknowledges that the video is admissible provided
a proper foundation is laid by the defendant, i.e., the re-enactment is “substantially
similar” to the accident that occurred on August 23, 2015. See R. Doc. No. 43, at 1
(citing Wallace v. Gen. Motors Corp., No. 94-2627, 1997 WL 269498, at *1 (E.D. La.

R. Doc. No. 43.
The Court allowed SGS to join plaintiff’s objection to the “Root Cause Investigation
Report,” addressed in the second part of this opinion, during a January 6, 2017
telephone conference.

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May 19, 1997) (Duval, J.) (“Video re-enactments must be substantially similar in
order to be relevant.”)).
In light of his changed position, plaintiff’s Rule 407 objection to the video is
dismissed as moot. If there is an objection at trial based on the failure to establish a
foundation which would support the video’s introduction, the Court will decide the
admissibility of the video at that time.
II.
Plaintiff and SGS also object to Force Corporation (“Force”) introducing at trial
a portion of the “Root Cause Investigation Report” that was created by SGS two days
after the accident. The report contains a summary of the accident, describes what
SGS believed to be the cause of the accident, and lists a number of “Corrective Action
Items” which were to be implemented by SGS as a result of the accident. Each action
item was given a due date for completion and was assigned an “actionee” tasked with
implementing the action item. During a telephone conference with the Court on
January 6, 2017, all parties agreed that the “Corrective Action Items” were actually
implemented by SGS after the accident.
Plaintiff and SGS acknowledge that the report itself is not barred by Rule 407,
see R. Doc. No. 43, at 2 (admitting that “post-accident investigations and tests do not
fall within the exclusion of Rule 407”), and so they seek to exclude “only those sections
of the report . . . that itemize the Corrective Actions taken by SGS Petroleum postaccident,” id. at 2. Although plaintiff and SGS technically advance only an exhibit
objection, it is reasonable to assume that they also object to the introduction of any

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evidence that the remedial measures were actually implemented by SGS following
the accident.
Rule 407 provides that “[w]hen 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.” Fed. R. Evid. 407. The Advisory
Committee Notes explain that the primary justification for Rule 407 is the “social
policy of encouraging people to take, or at least not discouraging them from taking,
steps in furtherance of added safety.” Fed. R. Evid. 407, Advisory Committee Note
(1972); see also Adams v. Chevron USA, Inc., 383 F. App’x 447, 452 (5th Cir. 2010).
“The rule also seeks to ensure that negligence is properly determined according to
what the defendant knew or should have known prior to the accident, not what the
defendant knew as a result of the accident.” Adams, 383 Fed. App’x. at 452 (internal
quotation marks omitted).
Although on its face Rule 407 does not distinguish between parties and nonparties, federal courts are in agreement that Rule 407 is not implicated where the
evidence concerns remedial measures taken by an individual or entity that is not a
party to the lawsuit. See Dixon v. Int’l Harvester Co., 754 F.2d 573, 583 (5th Cir.
1985) (“Since these repairs were made by a non-defendant, Rule 407 does not bar the
evidence.”); Thornton v. Diamond Offshore Drilling, Inc., No. 07-1839, 2008 WL

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2315845, at *7 (E.D. La. May 19, 2008) (Vance, J.) (“Courts recognize that evidence
of a subsequent remedial measure is admissible when the post-accident change is
taken by a third party.”). Because SGS recently filed a complaint of intervention and
is now a party to this lawsuit, SGS has standing to object pursuant to Rule 407.
As an initial matter, plaintiff and SGS are correct that the majority of the “Root
Cause Investigation Report” is not barred by Rule 407. The Fifth Circuit has held
that “an investigation and report taken in response to an accident cannot be a
measure that is excluded from evidence under the rule.” Brazos River Auth. v. GE
Ionics, Inc., 469 F.3d 416, 430 (5th Cir. 2006). The reason is that, “by themselves,
post-accident investigations would not make the event less likely to occur; only the
actual implemented changes make it so.” Id. (citation omitted).
But when—as is the situation here—a post-accident report contains a list of
recommended remedial measures which are later actually implemented, the case law
supports excluding not only the fact that the remedial measures were implemented,
but also the list of recommended remedial measures suggested in the post-accident
report. See id. at 431 (refusing to decide “whether reports of post-event investigations
are always admissible if the actually-implemented remedial measures are redacted,”
but implying that such reports should never be admitted absent a redaction). As
Judge Zainey wrote recently in Walker v. Pioneer Prod. Servs., Inc., No. 15-0645, 2016
WL 3459881, at *1 (E.D. La. June 24, 2016), “investigative reports that recommend
remedial measures, like the one in the instant case, implicate the policies of Rule 407
[and any] such evidence should be excluded.” But see Robinson v. Diamond Offshore

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Mgmt. Co., No. 04-1899, 2006 WL 197010, at *3 (E.D. La. Jan. 26, 2006) (Barbier, J.)
(holding that “investigative reports that recommend measures are not themselves
remedial measures and are not excluded by Fed. R. Evid. 407”).
“In considering whether the [post-accident reports] are inadmissible under
Rule 407,” Judge Vance has explained that “the Court must evaluate the extent to
which these documents contain evidence of actual remedial measures that [were
taken] in response to the accident.” See Thornton, 2008 WL 2315845, at *4. While
courts generally recognize that “test results” and “investigative findings” are beyond
the exclusionary reach of Rule 407, id., “[c]ourts that have admitted internal
investigative reports and tests have emphasized that such reports did not include
evidence of recommendations or whether the party had acted on such
recommendations,” id. at *5. Excluding the sections of post-accident reports that
recommend remedial measures—irrespective of whether those remedial measures
are actually implemented—is consistent with the policy goals of Rule 407. As Judge
Vance explained in Thornton:
Although recommendations are not remedial measures that have been
implemented, they are of the same character in that they reflect a party’s postaccident considerations and thinking about policy changes and safety
improvements. Such recommendations go beyond the initial steps toward
ascertaining whether any remedial measures are called for, as they relate to a
course of future conduct. They do not speak directly to the cause of an accident,
which is the recognized basis for admitting investigative findings and test
results.
Id. (internal quotation and citation omitted).

Where the remedial measures

recommended in a post-accident report are actually implemented, the case is that
much stronger for excluding the recommendations.
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The Court finds that all of the “Corrective Action Items” listed in the postaccident report fall within the exclusionary scope of Rule 407. The seven corrective
action items listed in the report are:
1.

Immediately restrict riding a railcar on the rack side of the train while
spotting the caustic rack.

2.

Perform hazard assessment on all other racks inside the Oxy facility to
determine if we should ride rail cars while entering to determine best
practices.

3.

Retrain employees to always face the direction of travel while train is in
motion.

4.

Paint white lines on tracks 18 & 19 to help switch crew spot correctly
from opposite side of the rack.

5.

Update procedures & train switch crews regarding procedure changes
discussed.

6.

Share lessons learned with our Oxy switch crew as well as our company
wide.

7.

Research restricted ride zone signage to place at specified racks.

R. Doc. No. 43-1, at 2.
Force acknowledges that five of the items on the list are inadmissible
subsequent remedial measures, but argues that item numbers 1 and 3 should be
admitted to prove the culpability of SGS. See R. Doc. No. 52, at 1 (“Plaintiff contends
that these items fall within the category of inadmissible subsequent remedial
measures under Rule 407; however, Force should be able to reference items numbers
1 and 3 of the list . . . .”). Force asserts that item numbers 1 and 3 are not “subsequent
remedial measures” because both of those items were listed in Occidental Chemical
Corporation’s (“Oxy”) safety procedures prior to the accident. Although SGS was
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allegedly obligated to comply not only with its own safety procedures but also with
Oxy’s safety procedures as part of its contract with OXY, Force argues that SGS did
not incorporate item numbers 1 and 3 into the SGS safety procedures until after
plaintiff’s accident. On that basis, Force seeks to carve out the items from Rule 407’s
reach.
Rule 407 is clear that when measures are implemented after an accident that
are intended to make an earlier injury or harm less likely to occur in the future, those
measures are inadmissible to prove fault. Whether SGS knew of or should have
already incorporated item numbers 1 and 3 into SGS’s safety procedures is not
relevant to the analysis. Regardless of the reason, SGS had not implemented the
procedures before the accident; it did implement them after the accident. If SGS’s
adoption of item numbers 1 and 3 into their safety procedures were to be admitted
against SGS at trial, SGS would be less likely to adopt such post-accident measures
in the future. That is precisely the result that Rule 407 seeks to avoid.
Accordingly, Force may not introduce either the fact of the remedial measures
or the report’s recommendation that remedial measures be taken in an attempt to
prove SGS’s culpability at trial. 3 The “Corrective Action Items” list must be redacted
from the “Root Cause Investigation Report.”

3Nothing

in this order precludes defendant from arguing that certain safety measures
were included in the Oxy safety procedures prior to the accident, but were not
included in the SGS safety procedures prior to the accident. Defendant can also argue
that SGS was at all times obligated to comply with Oxy’s safety procedures. What
defendant cannot do is introduce evidence that SGS changed its safety procedures
subsequent to the accident in order to prove that SGS was responsible for the
accident. In order to ensure that this line is not crossed at trial, counsel should
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III.
For the foregoing reasons,
IT IS ORDERED that plaintiff’s objection regarding the accident reenactment video is DISMISSED AS MOOT.
IT IS FURTHER ORDERED that plaintiff’s objection regarding the “Root
Cause Investigation Report” is GRANTED as set forth herein.

New Orleans, Louisiana, January 6, 2017.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

approach the bench and obtain Court permission before mentioning the two safety
measures that were omitted from the SGS safety procedures.
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