Subsequent Remedial Measures Motion in Limine

– Plaintiff


– Defendant

CASE NO. 24-C-02-12345

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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