FODER v. PORT AUTHORITY TRANS HUDSON CORPORATION
OPINION. Signed by Judge Madeline Cox Arleo on 5/5/2017. (ld, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 14-3935
PORT AUTHORITY TRANS HUDSON
ARLEO, UNITED STATES DISTRICT JUDGE
This matter is before the Court on Plaintiff Steven Foder’s Motion for a New Trial under
Fed. R. Civ. P. 59(a). Dkt. No. 71. Foder brought this personal injury suit against Defendant Port
Authority Trans Hudson Corp. (“PATH”) under the Federal Employers’ Liability Act (“FELA”),
14 U.S.C. §§ 51, et seq., seeking to hold PATH liable for injuries he suffered at the Journal Square
train station. The jury returned a verdict in favor of PATH. Foder moves for a new trial on the
ground that the Court should have allowed him to introduce evidence of a subsequent remedial
measure. Because the Court finds that it correctly excluded such evidence from the trial, Foder’s
motion is DENIED.
In July 2011, Steven Foder, a PATH locomotive engineer, suffered an injury at the Journal
Square train station in Jersey City, New Jersey. While attempting to climb onto a railcar from
track (i.e., ground) level, he slipped and injured his ankle. He sued PATH under the FELA,
claiming that PATH failed to provide a reasonably safe workplace. 1
To establish a FELA claim, a plaintiff must prove that (1) the defendant is a railroad engaged in
Foder claimed that his workplace was unsafe because, among other things, PATH used an
unsafe climbing apparatus for engineers to board the railcar. The apparatus requires engineers at
track level to use a step and handrail system to lift themselves up to the main level of the railcar.
At the main level, engineers have to place their foot onto a piece of the railcar called the anticlimber. See DiGiulio Cert. Ex. A (photograph of anti-climber), Dkt. No. 71-1. The surface of
the anti-climber is mostly diamond plate steel, a non-slip material, but the outer ring of the step is
a smooth steel band a few inches wide. See id. Foder’s theory of negligence was that PATH
should have placed a strip of anti-slip tape on that outer ring.
Before trial, PATH filed a motion in limine to exclude evidence of subsequent remedial
measures. Dkt. No. 45. PATH admitted that it placed anti-slip tape on the railcar after Foder fell,
but argued that such evidence was inadmissible under Fed. R. Evid. 407, which prohibits
admission of such evidence to prove negligence but allows it for impeachment in proper
circumstances. Citing Petree v. Victor Fluid Power, Inc., 887 F.2d 34 (3d Cir. 1989), the Court
noted that Foder could introduce the subsequent remedial measure, but only for impeachment
purposes and if PATH “open[ed] the door” to the issue first. DiGiulio Cert. Ex. B, Oral Arg. Tr.
From November 14 to 18, 2016, the Court presided over the jury trial. Three witness
examinations are most relevant here. First, Foder tried to introduce evidence of the anti-slip tape
during the direct testimony of Dennis Velez, a PATH car inspector. On direct examination from
Foder’s counsel, Velez testified as follows about his inspection of the railcar after the accident:
interstate commerce; (2) the plaintiff was an employee of the defendant and was acting in the
course of his employment; (3) the defendant or one of its employees or agents was negligent; and
(4) the plaintiff suffered an injury that resulted in whole or in part from such negligence. See
Maher v. Delaware & Hudson Ry. Co., 215 F. App’x 169, 171 (3d Cir. 2007) (citing 45 U.S.C. §
Q. On the day that you inspected that train, what did you find?
A. I found everything operating as designed.
Q. Okay. Did you find any defects at all?
Q. Did you find any hazards at all?
Q. Did you find any unsafe conditions at all?
Q. And so as far as you were concerned at the time, the anti-climber
was totally safe.
Trial Tr. vol 2, 140-41. Foder then moved to introduce the anti-slip tape. The Court denied the
request because evidence of the anti-slip tape would not impeach Velez’s testimony that the railcar
was safe at the time, and because the question did not properly open the door to the evidence. Id.
Foder also asked about the anti-slip tape during his redirect examination of Kenneth
Wallace, PATH’s Chief Maintenance Supervisor of Inspections. Wallace testified that the railcar
was compliant with federal regulations and that the regulations do not require anti-slip tape. Id.
194. Foder’s counsel then asked:
Q. When you are attempting to make the cars safe for your
employees . . . [d]on’t you have an obligation when you do that to
make sure that what you do is safe?
A. We try our very best to do everything as safe as we can, yes.
Q. So you understand that you have an obligation to make it as safe
as you can.
A. I understand that I have an obligation to meet the Code of Federal
Regulations. That is my job. The car has to be compliant with the
Code of Federal Regulations. If we choose to change something or,
you know, make something that we feel is going to be safer, that’s
fine to do, as long as it doesn’t violate the C.F.R. The C.F.R. is what
has to be done.
Q. Are you saying that having non-slip material on the anti-climber
would not make it safer for people climbing?
A. It wouldn’t hurt. Would it help? I doubt it. I don’t know.
Id. 199-200, 203. After this exchange, however, Foder did not ask the Court to introduce evidence
of the subsequent remedial measure. See id. 203-04.
The issue arose again during the testimony of George Widas, Foder’s liability expert. On
direct, Widas opined that PATH should have placed anti-slip tape on the anti-climber in order to
increase slip resistance. Trial Tr. vol 3, 508-09, 515. During PATH’s cross examination of Widas,
he testified that he did not measure the slip resistance of the diamond plate, the hand rails, or any
other friction surfaces on the train. Id. 524-26. Widas also stated that he did not measure the
forces on the climb system because he “didn’t have to,” stating instead that “the laws of physics
and our vector analysis will tell us what we need to know without measuring anything.” Id. 525.
When PATH asked again whether he measured the slip resistance “anywhere on this PATH train,”
Foder requested to be heard at sidebar. Id. 529-30. There, Foder’s attorney stated that Widas
“couldn’t measure [the smooth strip of the anti-climber] because there was slip tape on there [when
Widas inspected it], and if he keeps asking that question, that’s going to be the answer, he’s going
to open the door.” Id. 530. The Court cautioned PATH’s counsel that it would permit Widas to
explain as much if he continued that line of questioning, so he withdrew the question. Id.
During summation, PATH mentioned that Widas “never actually took any slip-resistance
measurements of the grab bar or the anti-climber . . . .” Trial Tr. vol 5, 725. Foder objected and,
after a sidebar discussion, the Court instructed the jury “to ignore counsel’s statement that . . . Mr.
Widas failed to measure the slip resistance of the anti-climber.” Id. 725-28.
After the no-cause verdict, Foder filed this motion for a new trial.
Federal Rule of Civil Procedure 59 permits a court to order a new trial “for any reason for
which a new trial has heretofore been granted in an action at law in federal court.” Fed. R. Civ. P.
59(a)(1)(A). Whether to grant a new trial is a decision that is within the sole discretion of the
district court. United States v. Skelton, 893 F.2d 40, 44 (3d Cir. 1990). The court’s inquiry is
twofold: “It must first determine whether an error was made in the course of the trial, and then
must determine ‘whether that error was so prejudicial that refusal to grant a new trial would be
‘inconsistent with substantial justice.’” Meals v. Port Auth. Trans-Hudson, No. 12-2628, 2014
WL 2619843, at *1 (D.N.J. June 12, 2014) (internal citation omitted), aff’d, 622 F. App’x 121 (3d
Foder argues that there were two errors that warrant a new trial. First, he argues that the
Court should have allowed him to ask Velez and Wallace about the subsequent application of antislip tape. Second, he argues that PATH counsel’s acted improperly during his questioning of
Widas and during closing statements. The Court addresses each in turn.
A. Velez and Wallace Testimony
The Court turns first to Velez and Wallace’s testimony. Foder claims that he should have
been allowed to impeach Velez and Wallace with evidence of the anti-slip tape.
The admissibility of subsequent remedial measures is governed by Rule 407. It prohibits
admission of subsequent remedial measures to prove negligence or culpable conduct. Fed. R.
Evid. 407. The rule “rests on the strong public policy of encouraging manufacturers to make
improvements for greater safety.” Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 415 (3d
Cir. 2002) (internal citation and quotes omitted). But subsequent measures are allowed for other
purposes, “such as impeachment or—if disputed—proving ownership, control, or the feasibility of
precautionary measures.” Fed. R. Evid. 407.
Impeachment based on subsequent remedial measures is proper “when the defendant opens
up the issue.” Kenny v. Se. Pa. Transp. Auth., 581 F.2d 351, 356 (3d Cir. 1978). The Third Circuit
has recognized that “Rule 407’s impeachment exception must not be used as subterfuge to prove
negligence or culpability of the defendant.” Petree, 887 F.2d at 39. “Under Rule 407, together
with the Rule 403 unfair prejudice/probative value weighing, the trial court retains broad power to
insure that remedial measures evidence is not improperly admitted under the guise of the
impeachment exception.” Stecyk, 295 F.3d at 416 (footnote omitted). “[A] court must interpret
the impeachment exception to Rule 407 circumspectly because any evidence of subsequent
remedial measures might be thought to contradict and so in a sense impeach [a party’s] testimony
. . . .’” Complaint of Consolidation Coal Co., 123 F.3d 126, 136 (3d Cir. 1997) (quoting Flaminio
v. Honda Motor Co., 733 F.2d 463, 468 (7th Cir. 1984)).
Evidence of post-accident application of the anti-slip tape was not admissible during Velez
or Wallace’s testimony. This is so because Foder’s counsel, not PATH, “open[ed] up the issue.”
Kenny, 581 F.2d at 356. He did so by asking questions that required Velez and Wallace to discuss
whether the railcar was safe enough, and then he attempted to impeach their answers with evidence
of the anti-slip tape. See Trial Tr. vol 2, 141 (“And so as far as you were concerned at the time,
the anti-climber was totally safe.”), 203 (“Are you saying that having non-slip material on the anti-
climber would not make it safer for people climbing?”). These lines of questioning were not in
response to statements that PATH elicited from Velez or Wallace. Nor did Velez or Wallace
volunteer these statements without prompting from Foder’s counsel. The questions were Foder’s
counsel’s attempt to manufacture an impeachable statement in order to admit a remedial measure
through the backdoor. The Court was within its discretion to exclude such testimony. See
Reynolds v. Univ. of Pennsylvania, 483 F. App’x 726, 733 (3d Cir. 2012) (excluding similar
testimony because plaintiff’s counsel tried to elicit impeachable statement during his examination,
and noting that “[defendant] did not open the issue, so [plaintiff] should not have been allowed to
create an impeachment opportunity and then impeach [the witness] using the subsequent remedial
Foder’s motion does not address this critical issue. Instead, he seems to assume that an
issue can be properly “opened” whenever a witness testifies about a safe condition at the behest of
plaintiff’s counsel. See, e.g., Br. at 15 (“Mr. Wallace opened the door to the admission of the
subsequent application of the non-slip safety grip tape . . . .”). That is incorrect. Indeed, were
impeachment evidence permitted in these circumstances, it would enable plaintiffs to circumvent
Rule 407’s requirements in virtually every case—a result the Third Circuit has expressly rejected.
Stecyk, 295 F.3d at 415-16 (3d Cir. 2002) (“While the text of Rule 407 permits admission of
subsequent remedial measures for impeachment, we have cautioned against permitting the
exception to ‘swallow’ the rule.”) (internal citation omitted).
Moreover, even if PATH did open the issue, the evidence of the subsequent measure would
still be inadmissible because it would not “contradict the witness’s testimony directly.”
Consolidation Coal, 123 F.3d at 136. The questions posed to Wallace and Velez rested on the
same improper inference: The fact that PATH added tape after the accident means that the anti-
climbers were unsafe at the time of the accident. That inference is both factually inaccurate and
in conflict with the policy behind the rule. The addition of an arguably better feature is not
admissible to show that the original design was inadequate. See Kelly v. Crown Equip. Co., 970
F.2d 1273, 1278 (3d Cir. 1992) (citing Public Service Co. v. Bath Iron Works Corp., 773 F.2d 783
(7th Cir. 1985)). 2
Foder disagrees, claiming that this case is similar Kenny and Petree. But both cases are
both distinguishable. In Kenny, the plaintiff was attacked in a dark railroad station, and the district
court allowed one of defendant’s employees to testify that he replaced some blown lights in that
part of station after the attack. 581 F.2d at 355-56. The Third Circuit affirmed, noting that “the
evidence did not show that a protective device of a nature not previously utilized was subsequently
installed, but rather established the need for replacement of that which had previously been
employed.” Id. at 356. And in Petree, a plaintiff was injured when he was struck by a projectile
from a hydraulic press. 887 F.2d at 41. The district court excluded evidence that the employer
placed a sticker on the machine after the accident warning of projectile hazards. Id. at 41. The
Third Circuit reversed, finding that the sticker directly impeached the employer’s expert’s
testimony that the machine was designed in a way that made it impossible to launch a projectile,
and therefore no warning was necessary. Petree, 887 F.2d at 41. Foder’s case is different. It did
not involve a repair of a device that was already in use or testimony that it was impossible to slip
from the anti-climber before the anti-slip tape was added. The Court will not grant a new trial on
Wallace’s testimony suffers from an additional waiver issue. Foder claims that Wallace opened
the door based on the above-described testimony he gave at the end of his cross-examination. But
Foder’s counsel did not ask Wallace about the remedial measure after that exchange, as he did for
the other witnesses. Cf. Trial Tr. vol 2, 141, 143, 144, 173. Foder cannot now argue that the Court
should have let Wallace discuss the anti-slip tape when he never asked Wallace about it in the first
B. PATH Counsel’s Statements During Summation
Foder also contends that a new trial is warranted because of allegedly improper comments
made by PATH’s counsel. Foder points to two comments in particular: PATH counsel’s questions
to Widas about why he did not measure the anti-climber’s slip resistance, and his reference to that
testimony at summation. The Court again disagrees.
In determining a motion for new trial based on improper conduct by opposing counsel, the
“test is whether the improper assertions have made it ‘reasonably probable’ that the verdict was
influenced by prejudicial statements.” Fineman v. Armstrong World Indus., Inc., 980 F.2d 171,
207 (3d Cir. 1992) (internal citation omitted). “[T]he amount of alleged improprieties matters for
determining whether it is reasonably probable that counsel’s arguments are prejudicial.” See
Vandenbraak v. Alfieri, 209 F. App’x 185, 189 (3d Cir. 2006) (“Often . . . a combination of
improper remarks [is] required to persuade us of prejudicial impact.”) (citing Fineman, 980 F.2d
The comments Foder points to were not improper. At trial, Foder claimed that Widas could
not measure the smooth edge of the anti-climber because PATH placed grip tape there. But Widas
also testified that he did not measure the slip resistance of any part of the train, including areas like
the handrails where there was no grip tape. And he justified that with the assertion that his analysis
relied on principles, not measurements. As such, the fact that PATH’s counsel raised this point
during Widas’s cross-examination and at summation does not put the grip tape at issue; it goes to
the reliability of an engineering expert who admits that he uses no numbers and does not measure
anything at all.
But assuming that the cross-examination and summation did cross the line, that is not
enough to warrant a new trial. When Foder’s counsel objected during Widas’s cross-examination,
he explained at side bar that, “if he keeps asking that question, . . . he’s going to open the door.”
Trial Tr. vol 3, 530. In response, PATH’s counsel withdrew the pending question before Widas
answered and moved to a different line of questioning. Id. On redirect, Foder did not ask to
introduce evidence of the anti-slip tape. As such, there is little chance if any that the questioning
prejudiced the jury.
The remark at summation also does not warrant a new trial. In civil trials, “‘improper
comments during closing arguments rarely rise to the level of reversible error.” Dunn v. HOVIC,
1 F.3d 1371, 1377 (3d Cir. 1993) (en banc) (quoting Littlefield v. McGuffey, 954 F.2d 1337, 1346
(7th Cir. 1992)). The Court is not convinced that the remark could have prejudiced the jury,
namely because it was a single sentence out of an entire summation, and the Court promptly
instructed the jury to disregard it. Anastasio v. Schering Corp., 838 F.2d 701, 706 (3d Cir. 1988)
(denying new trial where counsel made “three isolated comments in the context of an otherwise
proper summation and with the benefit of the court’s instructions.”). 3
For the reasons set forth herein, the motion for a new trial is DENIED. An appropriate
Order accompanies this Opinion.
Date: May 5, 2017
/s Madeline Cox Arleo______
Hon. Madeline Cox Arleo
United States District Judge
Foder cites three cases in support, but they are unpersuasive. See Blanche Rd. Corp. v. Bensalem
Twp., 57 F.3d 253, 264 (3d Cir. 1995) (noting that “the record is replete with examples of counsel
misconduct”); Draper v. Airco, Inc., 580 F.2d 91, 96 (3d Cir. 1978) (describing three categories
of errors that warranted a new trial); Ayoub v. Spencer, 550 F.2d 164, 170 (3d Cir. 1977) (finding
statements at closing prejudicial in part because jury was not “instructed at least to disregard
counsel’s reference . . . .”).
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