Thibodeaux v. Wellmate, No. 2:2012cv01375 - Document 167 (E.D. La. 2016)
Court Description: ORDER AND REASONS granting in part and denying in part 126 Motion in Limine. Signed by Judge Susie Morgan on 5/22/2016. (bwn)
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Thibodeaux v. Wellmate Doc. 167 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A J OEL C. TH IBOD EAU X, Plain tiff CIVIL ACTION VERSU S N O. 12 -13 75 W ELLMATE, ET AL. D e fe n d an ts SECTION : “E” ( 5) ORD ER AN D REAS ON S Before the Court is Defendant’s m otion in lim ine regarding evidence of subsequent rem edial m easures. 1 For the reasons set forth below, the m otion is GRAN TED IN PART and D EN IED IN PART. BACKGROU N D Plaintiff J oel C. Thibodeaux (“Thibodeaux”) brings claim s against Defendant Pentair Water Treatm ent OH Com pany (“Pentair”) under the Louisiana Products Liability Act (“LPLA”). 2 Thibodeaux was injured after the bladder in a water pressure tank, m anufactured by Pentair, ruptured on a platform operated by Chevron USA Inc. (“Chevron”), Thibodeaux’s em ployer and the plaintiff-in-intervention. 3 Thibodeaux filed this suit on May 30 , 20 12, 4 and brings claim s against Pentair under the Louisiana Products Liability Act. 5 Chevron filed a com plaint in intervention on March 1, 20 13, and alleges it has paid indem nity and m edical benefits to or on behalf of Thibodeaux under the Longshore and Harbor Workers’ Com pensation Act as a result of his injuries. 6 1 R. Doc. 126. LA. R EV. STAT. §§ 9:280 0 .51– .60 . 3 R. Doc. 93-20 at 5; R. Doc. 10 1 at 10 ; R. Doc. 10 2-1 at 8 . 4 R. Doc. 1. 5 LA. R EV. STAT. §§ 9:280 0 .51– .60 . 6 R. Doc. 28 . 2 1 Dockets.Justia.com On March 24, 20 16, Pentair filed a m otion in lim ine regarding eviden ce of subsequent rem edial m easures. 7 Thibodeaux filed an opposition on March 31, 20 16. 8 LAW AN D AN ALYSIS Pentair seeks to exclude eviden ce of “subsequent rem edial m easures,” including (1) design changes to Wellm ate 12 tanks following the date of m anufacture of the subject tank, and (2) warning signs and procedures applied to water pressure tanks by Chevron after Thibodeaux’s accident. 9 Rule 40 7 of the Federal Rules of Evidence governs the adm issibility of evidence of subsequent rem edial m easures: When m easures are taken that would have m ade an earlier injury or harm less likely to occur, evidence of the subsequent m easures is not adm issible to prove: • • • • negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction. But the court m ay adm it this evidence for another purpose, such as im peachm ent or—if disputed—proving ownership, control, or the feasibility of precautionary m easures. 10 The goal underlying Rule 40 7 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 determ ined according to what the defendant knew 7 R. Doc. 126. R. Doc. 133. 9 R. Doc. 126-2 at 3. 10 F ED . R. E VID . 40 7. 11 F ED . R. E VID . 40 7 advisory com m ittee’s note to 1972 proposed rule. See also Adam s v. Chevron USA, Inc., 383 F. App’x 447, 452 (5th Cir. 20 10 ). 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 Wellm ate 12 Tanks Pentair argues that “evidence of Pentair’s design changes to the bladder an d drain fitting on Wellm ate tanks after the date of m anufacture [is] not adm issible under Rule 40 7.”13 Pentair contends that adm itting such eviden ce “would be unfairly prejudicial to Pentair by incorrectly suggesting that the post-m anufacture m odifications dem onstrate that the origin al design was defective”14 and that “[t]his prejudicial effect . . . dem an ds that evidence of post-m anufacture design changes be excluded under Rule 40 7.”15 J oel Voytek, a Pentair product m anager, 16 testified in his deposition that Pentair m ade a design change to Wellm ate products that began to take effect in March 20 0 9 and was com pletely integrated with the product line by the end of 20 10 . 17 Thibodeaux’s accident occurred on J uly 5, 20 11. 18 The Fifth Circuit has m ade clear that Rule 40 7 does not apply to eviden ce of changes, even rem edial m easures, m ade before the accident giving rise to the litigation. “By definition, the rule excludes only post-accident rem edial m easures.”19 “The adm ission of evidence of changes m ade m erely to im prove a product, as distinguished from rem edial m easures that m ake an ‘injury or harm less likely to occur,’ is not barred by the rule.”20 The advisory com m ittee notes underscore that Rule 40 7 applies only to evidence of post- 12 Adam s, 383 F. App’x at 452 (internal quotation m arks om itted). R. Doc. 126-2 at 4– 5. 14 Id. 15 Id. at 5. 16 See R. Doc. 10 2-5 at 3. 17 R. Doc. 126-5 at 2. 18 See, e.g., R. Doc. 114 at 6 (listing as an uncontested m aterial fact that “J oel Thibodeaux was injured . . . on J uly 5, 20 11); R. Doc. 10 2-3 at 8; R. Doc. 126-2 at 3. 19 Brazos River Auth. V. GE Ionics, Inc., 469 F.3d 416, 429– 30 (5th Cir. 20 0 6). 20 Id. at 428 . 13 3 accident rem edial m easures: “Evidence of m easures taken by the defendant prior to the ‘event’ causing ‘injury or harm ’ do not fall within the exclusionary scope of Rule 40 7 even if they occurred after the m anufacture or design of the product.”21 Accordingly, evidence of Pentair’s design changes to Wellm ate tanks before Thibodeaux’s accident is not inadm issible under Rule 40 7, and Pentair’s m otion in lim ine with respect to evidence of Wellm ate’s design changes is den ied. II. Warning Signs and Procedures Em ployed by Chevron after Thibodeaux’s Accident Pentair argues that evidence of warning signs and procedures with respect to water pressure tanks that were im plem ented by Chevron after the accident is neither relevant nor adm issible. Pentair contends that such evidence “creates a danger of confusing the jury regarding the role of Pentair as a product m anufacturer[] and the jury’s evaluation of the actual content, placem ent, and adequacy of the warnings that were provided by Pentair at the tim e the tank w as m anufactured.”22 Pentair also argues that evidence of Chevron’s post-accident warnings and procedures would im perm issibly invite the jury “to com pare 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 warn ings Pentair allegedly applied to the water tank were adequate, then Chevron would have been less likely to take the steps needed to im prove the warnings on every water tank on all of its platform s across the Gulf of Mexico.”24 21 F ED . R. E VID. 40 7 advisory com m ittee’s note to 1997 am endm ents. R. Doc. 126-2 at 6. 23 Id. at 7. 24 R. Doc. 133 at 7– 8. 22 4 “[N]either the text of rule 40 7 nor the policy underlying it excludes evidence of subsequent repairs m ade by som eone other than the defendant.”25 “Any evidence not excluded by Rule 40 7, of course, m ust still be relevant and its probative value m ust, under Rule 40 3, outweigh an y dangers associated with its adm ission.”26 Eviden ce of the warnings and procedures im plem ented by Chevron after the accident is not relevant to whether Pentair’s warnings were adequate “at the tim e the product left its m anufacturer’s control.”27 Further, feasibility is not at issue in this case. The Fifth Circuit “ha[s] held in several product liability cases . . . that eviden ce of subsequent changes by third parties is properly excludable because of its tenden cy to ‘confuse the jury by diverting its attention from whether the product was defective at the relevant tim e [i.e., the tim e of m anufacture] to what was done later.’”28 The Court finds that evidence of the warning system and procedures Chevron im plem ented after Thibodeaux’s accident risks confusing the jury and that its lim ited probative value is substantially outweighed by dangers of prejudice, confusing the issues, and m isleading or confusing the jury. 29 Pentair’s m otion in lim ine regarding evidence of Chevron’s postaccident im plem entation of warnings and procedures with respect to water pressure tanks is granted. CON CLU SION For the foregoing reasons; 25 Grenada Steel Indus., Inc. v. Alabam a Oxy gen 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. R EV. STAT. § 9:28 0 0 .57. 28 Middleton v. Harris Press & Shear, a Subsidiary of Am . Hoist & Derrick Co., 796 F.2d 747, 752 (5th Cir. 1986) (quotin g Grenada Steel, 695 F.2d at 8 88 , 8 89). 29 F ED . R. E VID . 40 3. 26 5 IT IS ORD ERED that Pentair’s m otion in lim ine is GRAN TED IN PART and D EN IED IN PART as set forth above. N e w Orle a n s , Lo u is ian a, th is 2 2 n d d ay o f May, 2 0 16 . ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 6
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