SALLY JONES - Plaintiff v PUSHKIN MANUFACTURING - Defendant |
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CASE
NO. 24-C-02-12345 |
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PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION IN LIMINE REGARDING SUBSEQUENT REMEDIAL MEASURES
I. Introduction
Plaintiffs contend that
a mechanical system Defendant built at Pushkin Manufacturing was
defective because it did not have a valve upstream of the strainer
that released a hot chemical slurry that killed Sandy Jones. Defendant’s
motion in limine seeks to exclude evidence that Pushkin Manufacturing
installed an upstream valve after the decedent’s death that
Plaintiff contends would have saved Sandy Jones’ life.1
II. Legal Argument
A. Subsequent Repairs May Be Admitted
When Those Repairs Have Been Performed by
Someone
Other Than the Defendant.
Defendant’s motion willfully ignores
Maryland case law that is directly on point. In Blaw-Know
Construction Equipment Co. v. Morris, 88 Md. App. 655 (1991),
the court addressed the very question of whether a subsequent
remedial measure on the part of someone other than the defendant
was admissible. The court stated that the rule on subsequent remedial
measures requires “exclusion of evidence of remedial measures
taken by the defendant.” Id. at 681. (citations
omitted). The court concluded that this “is so because when
‘a person other than the defendant has taken remedial measures,
and the evidence is not offered as an admission of the actor’s
culpability [here Genstar], the policy reason for exclusion [encouraging
the defendant to do repairs] is inapplicable.’” Id.
(bracketed language in the original, citing L.McLain,
Maryland Evidence (1987) Section 407.1.) Fourth circuit law is
also in accord. See TLT-Babcock, Inc. v. Emerson Electric
Co, 33 F.3d 397 (1994) (“Rule 407 is based on the policy
of encouraging potential defendants to remedy hazardous conditions
without fear that their actions will be used against them.")
A nondefendant, however, will not be inhibited from taking remedial
measures if such actions are allowed into evidence against a defendant.
The courts of appeals, therefore, have held that evidence of subsequent
repairs may be admitted when those repairs have been performed
by someone other than the defendant. [Citations to Moore’s
Federal Practice four federal circuits omitted.] We agree with
the logic and conclusion of our sister circuits.”)
III. Conclusion
Maryland law is clear that subsequent
remedial measures may be admitted against post accident safety
precautions taken by someone other than the defendant and to demonstrate
the appropriate standard of care. Accordingly, Defendant’s
motion in limine should be denied.
[1] Defendant gratuitously
choose to argue its case and mislead this Court in a footnote
on pp. 1-2 of its motion, stating that “at the time of it’s
(sic) recommendation, MOSH was under the mistaken impression that
the slurry had accumulated only between an existing value and
the strainer location; rather than slurry that was exiting directly
from the tank, past the existing value – which was never
properly shut off - to the strainer location.” Yet, interesting,
Defendant has no expert who will support this proposition. In
contrast, Plaintiff has two experts who will offer a different
opinion. Within six days of the accident, four Pushkin engineers
concurred that “design defect” caused Sandy Jones’
death.
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