Timothy Diehl; Rose Diehl v. Blaw-Knox, a/k/a, d/b/a, t/a Blaw-Knox, a division of Ingersoll Rand Corporation

1
PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
__________
Case No: 02-3151
__________
TIMOTHY DIEHL; ROSE DIEHL,
Appellants
v.
BLAW-KNOX, a/k/a, d/b/a, t/a Blaw-Knox,
a division of Ingersoll Rand Corporation;
INGERSOLL-RAND CORPORATION;
INGERSOLL-RAND
COMPANY, Construction and Mining;
COOPER
INDUSTRIES, INC.; FUNK
MANUFACTURING COMPANY,
a/k/a, d/b/a, t/a Funk Manufacturing;
DEERE & CO,
a/k/a, d/b/a, t/a John Deere Corporation
On Appeal From The United States
District Court
For The Middle District of Pennsylvania
(Civ. A. No. 01-CV-00770)
District Judge: The Honorable James F.
McClure, Jr.
__________
Argued January 9, 2004
__________
Before: BARRY, SMITH, Circuit
Judges, and POLLAK,* District Judge.
(Opinion Filed: March 12, 2004)
David J. Selingo [Argued]
311 Market Street
Kingston, PA 18074
Counsel for Appellants
James W. Gicking [Argued]
Marshall, Dennehey, Warner,
Coleman & Goggin
1845 Walnut Street
16th Floor
Philadelphia, PA 19103
Counsel for Appellee
____________
OPINION
____________
SMITH, Circuit Judge
This products liability case, arising
under the law of Pennsylvania, presents a
question of admissibility under Federal
Rule of Evidence 407 of remedial
measures offered by a plaintiff to establish
that a product is defective. Timothy Diehl
was severely injured when his legs became
* The Honorable Louis H. Pollak,
Senior District Judge for the United
States District Court for the Eastern
District of Pennsylvania, sitting by
designation.

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trapped under the rear wheels of a machine
manufactured by Blaw-Knox. Mr. Diehl
and his wife sued Blaw-Knox,1 alleging
that the machine was defective because (1)
its rear wheels were not enclosed, (2) it
lacked a back-up alarm on the rear of the
machine, and (3) it lacked proper warning
signs. The Diehls sought to introduce
evidence that, shortly after the accident,
the owner of the machine partially
enclosed the rear wheels, installed a back-
up alarm on the rear of the machine, and
placed warning signs on the rear of the
machine. These measures were taken in
order to prevent similar accidents in the
future. The District Court excluded
evidence of these remedial measures under
Rule 407. After trial, a jury returned a
verdict for Blaw-Knox, and judgment was
entered against the Diehls. We hold that
Rule 407 does not bar evidence of
remedial measures taken by a non-party,
and that the evidence offered in this case
was relevant and would not tend to
confuse or mislead the jury. Because we
conclude that the exclusion of this
evidence was not harmless error, we will
reverse the judgment of the District Court
and remand for a new trial.
I.
On May 24, 1999, Timothy Diehl
was severely injured while working as a
laborer on a road crew for IA
Construction, Inc. (“IA”). On the day of
the accident, the road crew was using a
machine called a “road widener” to extend
the shoulder of a road. Manufactured by
Blaw-Knox in 1970, the road widener is
used to deposit and spread material to one
side of the roadway. The road widener is
usually followed by laborers who must
perform a number of tasks, including
removing excess material that is
inadvertently left on the paved portion of
the roadway; removing stones that become
lodged in the material; leveling off the
material that has been spread; and
straightening the outer edge of the
deposited material. The laborers are then
followed by a roller to press the material.
On the day of the accident, Mr.
Diehl was working as one of the laborers
behind the road widener. The road
widener had come to a stop, and then
began to move in reverse. Mr. Diehl, who
was working within “a couple of feet” of
the road widener, was not aware that the
machine was reversing toward him. One
of the exposed wheels struck Mr. Diehl’s
right ankle, trapping and crushing his
lower leg.
The Diehls’ theory of the case was
that the road widener was defective in
design for three reasons: (1) it lacked a
bumper or any other enclosure of the rear
wheels; (2) the back-up alarm was
inaudible, particularly because it was
1 Ingersoll-Rand Corp., Ingersoll-
Rand Co., Cooper Industries, Inc., Funk
Manufacturing Co., and Deere & Co. did
not participate in this appeal. Claims
against these defendants were dismissed
prior to trial.

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placed on the front of the machine; and (3)
it lacked proper warnings. The Diehls
sought to introduce testimony by an IA
mechanic that, shortly after the accident,
the mechanic modified the road widener
by (1) installing a rear bumper/guard that
enclosed the rear tires; (2) relocating the
back-up alarm to the rear of the machine;
and (3) placing warning signs on the rear
of the machine (the “IA redesign”).
According to the mechanic’s testimony,
the IA redesign was done in response to
the accident and for the purpose of
p r e v e n t in g s i m i la r a c c i d e n t s .
Significantly, IA is not a party to this
lawsuit.
Blaw-Knox filed a motion in limine
prior to trial to prohibit the Diehls from
introducing evidence of the IA redesign.
The Diehls filed their own motion in
limine seeking an order allowing them to
introduce evidence of the IA redesign at
trial. The District Court granted Blaw-
Knox’s motion and denied the Diehls’
motion, ruling that the IA redesign was a
subsequent remedial measure inadmissible
under Fed. R. Evid. 407.
At trial, the Diehls asked the
District Court to reconsider its exclusion
of the IA redesign, arguing that Rule 407
does not apply to subsequent remedial
measures taken by a non-party. The
District Court again refused to admit the
IA redesign, ruling that “Rule 407 by its
terms is not limited to remedial measures
taken by the defendant.” Alternatively,
the District Court excluded the evidence
under Fed. R. Evid. 403, finding that
evidence of remedial measures taken in
1999 would confuse the jury, whose focus
was temporally limited to whether the
product was safe in 1970.
The jury returned a verdict for
Blaw-Knox using a verdict form given by
the District Court. The jury answered
“No” to question 1, “Was the [road
widener] defective in design when
manufactured and sold by the defendant
Blaw-Knox?” Finding no defect, the jury
did not consider the remaining issues in
the case.
The Diehls filed a timely appeal,
challenging numerous pre-trial and trial
rulings by the District Court, including the
court’s decision to exclude evidence of the
IA redesign. We have jurisdiction under
28 U.S.C. § 1291.2 We exercise plenary
review over the D istrict Court’s
interpretation of the rules of evidence;
however, assuming that the evidence could
be admissible in some circumstances, we
review the District Court’s decision to
exclude that evidence for abuse of
discretion. Ansell v. Green Acres
Contracting Co., 347 F.3d 515, 519 (3d
Cir. 2003); Stecyk v. Bell Helicopter
Textron, Inc., 295 F.3d 408, 412 (3d Cir.
2002).
II.
The primary issue in this case is
whether Fed. R. Evid. 407 excludes
evidence of subsequent remedial measures
2 The District Court had diversity
jurisdiction under 28 U.S.C. §
1332(a)(1).

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taken by a non-party such as IA. Rule 407
provides:
When, after an injury
or harm allegedly caused by
an event, measures are taken
that, if taken previously,
would have made the injury
or harm less likely to occur,
evidence of the subsequent
measures is not admissible
t o p r o v e n e g l i g e n c e,
culpable conduct, a defect in
a product, a defect in a
product’s design, or a need
for a warning or instruction.
This rule does not require
the exclusion of evidence of
subsequent measures when
offered for another purpose,
such as proving ownership,
control, or feasibility of
precautionary measures, if
c o n t r o v e r t e d , o r
impeachment.
“Rule 407 rests on the strong public policy
of encouraging manufacturers to ‘make
improvements for greater safety.’” Stecyk,
295 F.3d at 415 (quoting Kelly v. Crown
Equip. Co., 970 F.2d 1273, 1276 (3d Cir.
1992); see also Fed. R. Evid. 407 advisory
committee’s note (“The other, and more
impressive, ground for exclusion rests on
a social policy of encouraging people to
take, or at least not discouraging them
from taking, steps in furtherance of added
safety.”). The Rule recognizes that
manufacturers will be discouraged from
improving the safety of their products if
such changes can be introduced as
evidence that their previous designs were
defective. Stecyk, 295 F.3d at 415.
This policy is not implicated where
the evidence concerns remedial measures
taken by an individual or entity that is not
a party to the lawsuit. The admission of
remedial measures by a non-party
necessarily will not expose that non-party
to liability, and therefore will not
discourage the non-party from taking the
remedial measures in the first place. It is
noteworthy that each of the circuits to
address this issue has concluded that Rule
407 does not apply to subsequent remedial
measures taken by a non-party. E.g.,
Mehojah v. Drummond, 56 F.3d 1213,
1215 (10th Cir. 1995); TLT-Babcock, Inc.
v. Emerson Elec. Co., 33 F.3d 397, 400
(4th Cir. 1994); Raymond v. Raymond
Corp., 938 F.2d 1518, 1523-24 (1st Cir.
1991); Pau v. Yosemite Park & Curry Co.,
928 F.2d 880, 888 (9th Cir. 1991); O’Dell
v. Hercules, Inc., 904 F.2d 1194, 1204 (8th
Cir. 1990); Dixon v. Int’l Harvester Co.,
754 F.2d 573, 583 (5th Cir. 1985); Lolie v.
Ohio Brass Co., 502 F.2d 741, 744 (7th
Cir. 1974) (per curiam). See generally 2
Weinstein’s Federal Evidence § 407.05[2]
(Joseph M. McLaughlin ed., 2d ed. 2003).
The able District Judge declined to
follow these authorities, observing that the
text of Rule 407 makes no exception for
subsequent remedial measures taken by a
non-party. This is true enough, but the
Advisory Committee’s notes to Rule 407
state that the rule “in corp orates
conventional doctrine which excludes

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evidence of subsequent remedial measures
as proof of an admission of fault.” See
also Rimkus v. N.W. Colo. Ski Corp., 706
F.2d 1060, 1064 (10th Cir. 1983) (stating
that Rule 407 “codified the generally
accepted common law rule”). Prior to the
enactment of Rule 407, conventional
doctrine in this circuit was that the rule
excluding evidence of repairs made after
an accident was not applicable to repairs
made by a non-party. See Steele v.
Wiedemann Mach. Co., 280 F.2d 380, 382
(3d Cir . 196 0). T he Advisory
Committee’s reference to “an admission of
fault” reinforces this limitation: it hardly
makes sense to speak of a party’s fault
being “admitted” by someone other than
the party. Furthermore, the Advisory
Committee was well aware of the courts’
consistent interpretation of the rule. The
notes to the 1997 amendment of Rule
407—making the rule applicable to
products liability actions— cite with
approval the First Circuit’s opinion in
Raymond v. Raymond Corp. The court in
Raymond expressly ruled that “there is no
rationale for excluding third party
subsequent repairs under the Rule.” 938
F.2d at 1524.
Because Rule 407 does not apply to
evidence of subsequent remedial measures
taken by a non-party, it was error for the
District Court to exclude evidence of the
IA redesign under that rule.
III.
The District Court alternatively
excluded evidence of the IA redesign
under Fed. R. Evid. 403, which states that
“[a]lthough relevant, evidence may be
excluded if its probative value is
substantially outweighed by the danger of
unfair prejudice, confusion of the issues,
or misleading the jury.” A district court’s
explicit balancing analysis under Rule 403
should only be disturbed if it is irrational
or arbitrary. Ansell, 347 F.3d at 525.
The court reasoned that the IA
redesign would create a danger of unfair
prejudice, confusion of the issues, and
misleading of the jury, because “[t]he
issue of a defect—as to whether or not
there’s a defect, requires a focus of the
jury on the time of the manufacture of this
machine in 1970, more than 30 years ago.”
Under Pennsylvania law, a product is
defective if it “‘left the supplier’s control
lacking any element necessary to make it
safe for its intended use.” Lewis v. Coffing
Hoist Div., Duff-Norton Co., 528 A.2d
590, 593 (Pa. 1987) (quoting Azzarello v.
Black Bros. Co., 391 A.2d 1020, 1027
(Pa. 1978) (emphasis added)); accord
Duchess v. Langston Corp., 769 A.2d
1131, 1142 (Pa. 2001) (“[O]u r
jurisprudence requires that products are to
be evaluated at the time of distribution
when examining a claim of product
defect.”). “Since the employment of a
subsequent remedial measure by definition
occurs in a different time frame, the
evidence is said to be of diminished
relevance.” Duchess, 769 A.2d at 1140.
Still, the implementation of remedial
measures to improve the safety of a
product is consistent with an inference that
the older product of a similar design was
defective. Petree v. Victor Fluid Power,

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Inc. (“Petree I”), 831 F.2d 1191, 1198 (3d
Cir. 1987); see also Duchess, 769 A.2d at
1142 (stating that, under Pennsylvania law,
post-sale design changes are “not directly
relevant, but, at best, can provide an
inference concerning the product’s earlier
condition” which “would generally satisfy
the standard of relevancy.”).3
As a general matter, we appreciate
the potential that subsequent design
changes represent for distracting juries
from the issue at hand—whether the
product was defective when it left the
manufacturer’s hands. Kelly, 970 F.2d at
1277-78 (“[Rule 407] operates on the
presumption that undue prejudice is likely
in certain situations, expressing a distrust
of a jury’s ability to draw the proper
inferences from the evidence.” (internal
citation omitted)), quoted in Stecyk, 295
F.3d at 415. As the Fifth Circuit put it in
3 We are concerned that the
District Court erroneously discounted the
relevance of the IA redesign. Citing
Duchess, 769 A.2d at 1145, the District
Court stated in a related pre-trial ruling:
“As the Supreme Court of Pennsylvania
recently stated, ‘design improvements
made after the sale of the product are not
relevant to the issue presented in a
products liability case, which is whether
the product was safe when sold.” The
passage quoted by the District Court,
however, appears to have been taken out
of context. The quote is actually from an
earlier Pennsylvania Superior Court case,
Connelly v. Roper Corp., 590 A.2d 11,
13 (Pa. Super. 1991). Duchess in fact
departed from Connelly: “Connelly . . .
relied upon a conclusion that design
changes are irrelevant in a products
liability case, whereas our holding
embodies a different assessment of
relevance and consideration of pertinent
public policy.” Duchess, 769 A.2d at
1145. As discussed above, Duchess
explicitly acknowledged that subsequent
design changes are capable of an
inference of defect.
We are also concerned that the
District Court placed too much reliance
on Pennsylvania Rule 407, and decisions
of the Pennsylvania courts applying that
rule. Certainly, Pennsylvania products
liability law is critical in determining
whether particular evidence is relevant.
Fed. R. Evid. 401 (defining relevance by
reference to facts “of consequence to the
determination of the action”). However,
Federal Rule 407’s assessment of the
dangers of unfair prejudice and
confusion of the issues are procedural
matters that govern in a federal court
notwithstanding a state policy to the
contrary. Kelly, 970 F.2d at 1277-78.
Regardless, we observe that
Pennsylvania Rule 407 is expressly
limited to remedial measures taken by
parties to the case: “evidence of the
subsequent measures is not admissible to
prove that the party who took the
measures . . . produced, sold, designed,
or manufactured a product with a defect
or a need for a warning or instruction.”
(Emphasis added).

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Grenada Steel Industries, Inc. v. Alabama
Oxygen Co.:
A p r i o ri j u d g m e n t s
c o n c e r n i n g w h y
manufacturers do or do not
alter their products, made by
such dubious experts as
judges, lawyers, and law
professors, suffer from
excessive reliance on logical
deduction and surm ise
without the benefit of
e v i d e n c e o f i n d u s t r y
p r a c t ic e o r e c on o m ic
factors. It seems to us, with
no greater expertise than
like-trained lawyers and
judges, that changes in
design or in manufacturing
process might be made after
an accident for a number of
different reasons: simply to
avoid another injury, as a
sort of admission of error,
because a better way has
been discovered, or to
implement an idea or plan
c o n c e iv e d befo re th e
accident.
695 F.2d 883, 887-88 (5th Cir. 1983); cf.
Duchess, 769 A.2d at 1140 (citing
Gren ada Steel and stating that
“manufacturers may modify product
design for many reasons other than to
remedy a defect”). Grenada Steel is
particularly instructive because that case
also involved subsequent remedial
measures taken by a non-party. Although
the court in that case recognized that Rule
407 is inapplicable to non-party remedial
measures, the evidence nevertheless
implicated Rule 403 concerns:
[W]e think the district
court’s exclusion of this
e v i d e n ce w a s p r o p e r
because it lacked sufficient
probative value and injected
the dangers of confusion
and misleading the jury. . .
. Alternative designs may
indicate that the product was
unreasonably dangerous, but
only if they were available
at the time of manufacture.
We fail to see how an
a l t e r n a t i v e d e s i g n ,
developed by another person
years after the product in
question was manufactured,
is relevant to whether the
product was reasonably safe
at the time it was made.
Grenada Steel, 695 F.2d at 889 (internal
citations omitted).
The instant case, however, presents
none of the risks discussed in Grenada
Steel, or in other cases analyzing the
potential for confusion in products liability
cases. For one, the state of the art is not an
issue in this case, i.e., it is undisputed that
the measures taken by IA— merely
welding a bumper onto the rear of the road
widener—were available to Blaw-Knox at
the time of the manufacture. Accordingly,

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there is no temporal distinction for the jury
to overlook between a feature reasonably
necessary to make the road widener safe in
1999, and a feature reasonably necessary
to make the road widener safe in 1970.
See generally Espeaignnette v. Gene
Tierney Co., Inc., 43 F.3d 1, 7 (1st Cir.
1994) (holding that evidence of subsequent
remedial measures taken by a non-party
was not misleading or unfairly prejudicial
on the issue of defect where evidence
would not have introduced design choices
not known or feasible at the time of
manufacture).
Furthermore, we find no dispute in
the record that the IA redesign was done in
direct response to Mr. Diehl’s accident and
for the sole purpose of preventing such
accidents. The IA mechanic that
performed the redesign testified in
deposition that the redesign was done to
prevent the accident that befell Mr. Diehl.
Because the purpose of the redesign was
not contested, there was no danger that the
jury would discount other plausible
reasons for the redesign.
Despite the deference accorded to a
trial court’s Rule 403 balancing, we find
no support in the record for the District
Court’s concerns that the IA redesign
would confuse or mislead the jury.4
Because the evidence is probative of
whether the road widener lacked a feature
reasonably necessary to make the machine
safe for its intended use, and because its
relevance was not outweighed by other
dangers, we find that the District Court
abused its discretion by excluding
evidence of the IA redesign.
IV.
Finally, we are unable to conclude
that the District Court’s error was
harmless. A District Court’s evidentiary
rulings can be affirmed if, notwithstanding
the error, we conclude that it is “highly
probable” that the error did not prejudice
the appe llant’s substantive righ ts.
McQueeney v. Wilmington Trust Co., 779
F.2d 916, 927-28 (3d Cir. 1985). Several
aspects of the record in this case convince
us that admission of the IA redesign could
have affected the jury’s decision on the
issue of defect.
First and foremost, the sole issue
decided by the jury was the road widener’s
defectiveness, and evidence of the IA
redesign creates a permissible inference
that the machine was defective. As it was,
the evidence presented on defect came
down to the Diehls’ expert, Dr. Ketchman,
versus Blaw-Knox’s expert, Dr. Barnett.
Dr. Barnett testified at length that the
Diehls’ proposed alternative design was
4 Although we cannot discern any
potential for confusion on the record
before us, we also note that a limiting
instruction was neither suggested by the
parties nor considered by the court. See
Petree v. Victor Fluid Power, Inc., 887
F.2d 34, 41 (3d Cir. 1989) (allowing
subsequent remedial measures evidence
where tendency towards unfair prejudice
could be alleviated by a limiting
instruction).

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not any safer than Blaw-Knox’s 1970
design of the road widener. Evidence that
the owner of the road widener had, in fact,
redesigned the machine in the manner
suggested by plaintiffs and for the very
purpose of making the road widener safer
(indeed, to prevent the very accident that is
the subject of the lawsuit), tends to rebut
Dr. Barnett’s testimony. Moreover, it does
so with greater effectiveness than the
theoretical testimony of the Diehl’s expert.
Cf. Espeaignnette, 43 F.3d at 6-7
(evidence of subsequent reme dial
measures by a non-party more effective to
prove feasibility than “hypothetical
assertions” of plaintiff’s expert). Finally,
we observe that Blaw-Knox attempted to
discredit Dr. Ketchman in part based on
his lack of experience with road wideners.
E.g., App. at 685 (closing argument of
counsel for Blaw-Knox) (“How good of an
expert are you? Do you really
know—have you rode construction
equipment, Dr. Ketchman? No, he
doesn’t.”). Evidence of the redesign
performed by IA Construction, which is
arguably more familiar with the equipment
than either of the experts, may have
substantially buttressed Dr. Ketchman’s
testimony. Cf. Borden, Inc. v. Florida
East Coast Ry. Co., 772 F.2d 750, 756
(11th Cir. 1985) (“[A] litigant is unduly
prejudiced when his opponent is successful
in preventing the admission of evidence on
a particularly crucial issue in dispute, and
then points to the absence of such evidence
in closing argument.”).
We therefore cannot say that it is
highly probable that evidence of the IA
redesign would not have affected the
jury’s conclusion that the 1970 design
lacked a feature reasonably necessary to
make the machine safe for its intended
use.5 Because we conclude that the
5 Because we find that the
exclusion of the IA redesign constitutes
reversible error, we will not address each
and every issue raised by the Diehls on
appeal. However, we will address two
matters that are likely to arise on remand.
First, we conclude that the Diehls’
request for an “enhanced injury,” or
“crashworthiness” instruction is
meritless. Second, the District Court
should reconsider its exclusion of
evidence that Blaw-Knox itself had
redesigned the road widener to fully
enclose the rear tires. The Diehls argue
that the Blaw-Knox redesign should have
been admitted to show feasibility, an
exception to Rule 407. The Blaw-Knox
redesign, however, should not have been
characterized as a subsequent remedial
measure in the first place (a
characterization the Diehls did not
challenge). The Blaw-Knox redesign was
done in 1983, 13 years after manufacture
of the road widener and 16 years prior to
the accident. Amended in 1997, Rule
407, by its terms, applies to remedial
measures taken “after an injury or harm
allegedly caused by an event.” Fed. R.
Evid. 407; see also Advisory
Committee’s notes to the 1997
amendment (“Evidence of measures
taken by the defendant prior to the
‘event’ causing ‘injury or harm’ do not

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exclusion of this evidence was not
harmless error, we will reverse the
judgment of the District Court and remand
for a new trial.
fall within the exclusionary scope of
Rule 407 even if they occurred after the
manufacture or design of the product.”).
The 1997 amendment abrogated
decisions of this Circuit to the contrary.
See Kelly, 970 F.2d at 1277; Petree I,
831 F.2d at 1198. Because the Blaw-
Knox redesign was done in 1983, 16
years prior to the accident, Rule 407 does
not apply. Evidence of the Blaw-Knox
redesign, of course, must still be
analyzed under Rules 401 and 403.

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