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Phillips v. Troy Industries, Inc.

United States District Court, N.D. Mississippi, Oxford Division

March 23, 2015

LANCE PHILLIPS and SHAILYN PHILLIPS, Plaintiffs,
v.
TROY INDUSTRIES, INC., and XYZ CORPORATIONS 1-5, Defendants.

ORDER ON MOTIONS

SHARION AYCOCK, District Judge.

Defendant Troy Industries, Inc., has filed three motions in limine seeking a ruling on the admissibility of certain evidence prior to trial. After reviewing the motions, responses, rules, and authorities, the Court finds as follows:

1. Defendant's First Motion in Limine [77]

Defendant seeks to prohibit Plaintiffs or their attorneys, witnesses or experts from mentioning or offering any evidence relating to a restraining order filed against Gary Morin in 1992 or 1993. Plaintiffs failed to respond to this motion.

The Court finds that the motion is well-taken and shall be GRANTED, not only because Plaintiff failed to object to its exclusion, but also because the probative value of this evidence is substantially outweighed by the danger of unfair prejudice. FED. R. EVID. 403.

2. Defendant's Second Motion in Limine [79]

Troy next seeks to exclude any evidence of any subsequent remedial measures undertaken by that defendant after the alleged incident. Troy admits that upon notification of Lance Phillips' injuries, it changed its instructions and warning labels that accompany its products at the point of sale. In particular, Troy changed its packaging, which stated, "Warning, observe safe firearm handling practices at all times. Make sure the firearm is unloaded and safety is engaged before starting installation, " to the following:

Warning, observe safe firearm handling practices and wear safety goggles at all times. Make sure that the firearm is unloaded and the safety is engaged before starting installation.

Troy contends that pursuant to Federal Rule of Evidence 407, this evidence is not admissible. Federal Rule of Evidence 407 provides that

[w]hen measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: negligence; culpable conduct; a defect in a product or its design; or a need for a warning of instruction.

However, that Rule also provides some exceptions under which the evidence of a subsequent remedial measure would be admissible, namely, impeachment, "or - if disputed - proving ownership, control, or the feasibility of precautionary measures." FED. R. EVID. 407. Plaintiffs contend that two exceptions apply in this instance, impeachment and proving the feasibility of the precautionary measures. Defendant argues that the feasibility of the further warnings is not disputed, and therefore, evidence that Troy later provided additional warnings is not relevant.

Plaintiff cites the deposition testimony given by Lisa Blanchard, Gary Morin, Dave Hughes, and Charles Yow to show a dispute as to the feasibility of providing the further warnings and the impeachment value of the subsequent remedial measure. A review of the cited portions reveals no dispute as to the feasibility of providing the subsequent warnings. Indeed, Plaintiffs' own summary suggests that the cited testimony shows that the witnesses believed the original warnings to be enough and that no other warnings were needed, not that further warnings were not feasible. See Mills v. Beech Arircraft Corp., 886 F.2d 758, 764 (5th Cir. 1989) (affirming trial court's exclusion of a modified instruction manual as an inadmissible subsequent remedial measure where defendants did not contest the feasibility of a better installation instruction, but rather maintained that the instructions in the original manual were acceptable). Accordingly, introduction of the subsequent remedial measure for purposes of showing feasibility is not appropriate.

The impeachment value of the subsequent remedial measures is not readily apparent prior to trial. If Plaintiffs wish to use the subsequent remedial measures for impeachment purposes during the trial, Plaintiffs are directed that a request under Rule 407 may be made outside the presence of the jury. ...


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