Brenda D. HARDY, Plaintiff-Appellant, v. CHEMETRON CORPORATION, Defendant-Appellee

GARZA, Circuit Judge,

dissenting:

I concur in Parts I-VI of the majority opinion. I am convinced, however, that it was reversible error for the district court to exclude evidence of defendant’s subsequent remedial measures when it was offered for the purpose of impeachment. From Part VII of the majority opinion, therefore, I dissent.

My analysis of Rule 407 under the circumstances presented in this case requires a somewhat more detailed rendition of the facts than is presented by the majority. Of particular importance to a complete understanding of this case are: 1) an appreciation of the way that the machine which injured Mrs. Hardy worked, and 2) an examination of the testimony of defendant’s expert, Mr. Jeffrey Bookwalter, whose statements repeatedly opened the door to impeachment by evidence of defendant’s subsequent design changes.

I.

Mrs. Hardy’s employer, Mid-South Packers, is in the business of packaging meat products. The paper cutter that injured the plaintiff in this case is a component of a larger bacon slicing and packaging operation at Mid-South. It works basically as follows: Large slabs of bacon are sliced up into thin strips by a circular rotating slicing knife. The strips fall onto a sheet of wax paper that moves approximately ten feet “upstream” on a conveyor belt. The belt, the bacon strips, and the wax paper pass beneath a second blade, a circular rotating paper-cutting knife, which is regulated to cut at intervals, leaving the desired number of bacon strips on an appropriately sized sheet of wax paper.

When the machine is in operation, the paper-cutting knife is enclosed in a safety cage. By raising this cage, the operator of the machine trips a limit switch, thereby disengaging the clutch that connects the knife to an electric motor. The circular knife blade, thus, is supposed to stop spinning when the safety cage is in the raised position. A redundancy feature also allows the operator to shut down the motor that drives the knife by setting a switch, located approximately six feet upstream from the paper-cutting knife, to the “off” position.

At the time of this accident, the logic of the electrical circuitry system would allow the motor to continue running even though the operator had raised the safety cage; raising the cage merely served to disengage the clutch that connected the motor to the circular knife blade. On October 15, 1983, plaintiff was cleaning debris from around the paper-cutting knife when the machine “cycled” and cut off the ends of the index and middle fingers on her right hand. According to uncontroverted trial testimony, the safety cage was raised and *1013the on/off switch was in the “off” position when the accident occurred.

An engineering expert for the plaintiff testified that the accident might not have occurred if the paper cutter had been wired such that raising the safety cage would shut down the motor instead of merely disengaging the clutch. Chemetron’s engineering expert asserted that the accident might have been caused by a short circuit resulting from excessive moisture around the terminal or from degraded wire insulation. In other words, Chemetron claimed that improper maintenance by Mid-South was an intervening cause of the accident. In addition, the same expert witness testified that re-wiring would not have prevented the accident since, in the event of a short circuit, the electrical impulse would have continued to the motor just as it had travelled to the clutch. Defense counsel elicited testimony to this same effect on cross examination of Mr. Mike Stevens, a Mid-South mechanic.

Plaintiffs counsel attempted to introduce evidence that Chemetron rewired the paper cutter shortly after the accident so that raising the safety cage would turn off the motor as well as disengage the clutch. Chemetron’s senior engineer, Mr. Steven Newell, wrote a letter in connection with this redesign indicating that the rewiring would “prevent accidental actuation of the paper knife and possible injury.” The district court ruled the evidence of the rewiring inadmissible as a subsequent remedial measure under Federal Rule of Evidence 407. The court also refused to allow any reference to Mr. Newell’s letter because it was written in connection with the subsequent remedial measure.

II.

Rule 407 precludes introduction of subsequent remedial measures “to prove negligence or culpable conduct” on the part of the defendant in connection with an accident. The rule does not apply, however, when the measures are offered “for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.” Fed.R.Evid. 407. [emphasis added]. Chemetron never denied the feasibility of rewiring the safety cage limit switch so that it would shut down the motor in addition to disengaging the clutch. There appear in the record, however, at least three instances in which the letter written by Chemetron’s senior engineer, Mr. Newell, contradicted the trial testimony of defendant’s expert, Mr. Jeffrey Bookwalter.

In expanding upon the hypothesis that a short circuit may have caused the accident, defense counsel asked Mr. Bookwalter about the “possibility that a short circuit would have occurred that would have bypassed these two on-off switches to the clutch, what would be the effect of a short circuit bypassing the breaker system to a motor?” To this query, Mr. Bookwalter replied, “Well, if you got a short circuit that was past the breaker that was leading to a motor, it would let the motor continue to run, or cause the motor to continue to run.” In other words, Mr. Bookwalter’s opinion was that rewiring the safety-cage limit switch to shut down the motor would not necessarily have prevented accidental actuation of the paper knife. This testimony directly contradicts the statement of Mr. Newell, the Chemetron senior engineer, to the effect that the rewiring was done to prevent such accidental cycling of the knife.

The second instance in which trial testimony was susceptible to impeachment by the existence of subsequent design changes also occurred during the direct examination of Mr. Bookwalter. In response to a question from defense counsel, Mr. Bookwalter asserted that “the machine was put into operation again the same day, and there was no particular problem associated with it.” Defense counsel elicited this same evidence, on other occasions during the trial, from Mr. Bookwalter as well as from other witnesses. The inference here is that the machine has performed, trouble-free, from the day of the accident onward without subsequent design changes. That Cheme-tron did in fact rewire the safety mechanisms is contrary to the impression left by such evidence.

*1014Allowing evidence of the rewiring under these circumstances does not violate Rule 407. The purpose of introducing this evidence would not be “to prove negligence or culpable conduct;” rather, its purpose would be to impeach testimony to the effect that the machine was placed back in operation unchanged. Rule 407 is not an impenetrable shield behind which a defendant may hide evidence of subsequent design changes with impunity. If counsel wishes to keep evidence of defendant’s subsequent remedial measures away from the jury, it must avoid opening the door to impeachment through suggestions or inferences that no such remedial measures ever were taken. That is precisely the implication, disregarded by both the trial court and the majority, of the very existence of an impeachment exception to Rule 407.1

Finally, Mr. Bookwalter testified that rewiring the switch so that the motor shut down each time the operator raised the safety cage would “increase the wear and tear” on the motor. Such an arrangement, according to Mr. Bookwalter, would be less practical than the one originally designed into the machine.

Practicality is different from feasibility; I do not imply that the two concepts are interchangeable. Once again, however, Rule 407 should not protect from impeachment a defendant who suggests at trial that a practical manufacturer would not employ precisely the design which the defendant eventually utilized. Counsel may avoid the damaging impact of evidence of subsequent remedial measures only by keeping the door to impeachment firmly closed.

We have previously held that the trial court may permit evidence of design change for purposes of impeachment. Muzyka v. Remington Arms Co., Inc., 774 F.2d 1309 (5th Cir.1985). In the Remington Arms case, a Remington Model 700 rifle misfired while it was being unloaded. The bolt-action design of the rifle required that it be placed in the safety-off position before unloading. Plaintiffs stepfather was removing a round from the rifle’s chamber when it fired. The bullet ricocheted and struck the plaintiff.

Defendant Remington subsequently redesigned the rifle in such a way that the weapon could be unloaded with the safety in the “on” position. During the course of the trial, defense counsel repeatedly elicited testimony that the Remington Model 700 was the most popular, the best, the strongest, and the safest rifle ever manufactured. Significantly, the design that was subsequently adopted by Remington — evidence of which was excluded at trial — was disparaged by defense witnesses (just as Mr. Bookwalter decried the design subsequently adopted by Chemetron). We held that “evidence of the design-change should have been permitted for purposes of impeach*1015ment.” Remington Arms, 774 F.2d at 1313.2

I find stronger support for admission of such impeachment evidence here than was the case in Remington Arms. Judge Gee dissented in that case because the jury had found that the unloading of the rifle was done in a negligent manner and was thus the sole cause of plaintiff’s injury. For this reason, it seemed to Judge Gee unlikely that evidence of Remington’s design change would have influenced the jury in any significant way. Id. at 1314. In the case at bar, however, there was no jury finding of negligence on the part of Mrs. Hardy. The actual cause of the malfunction that injured her was never determined.

Our review, of course, does not end with a determination that the district court committed error in an evidentiary ruling. We will reverse the ruling only if it affected a substantial right of the adverse party. Fed.R.Evid. 103(a); 28 U.S.C. § 2111 (1949); Whitehurst v. Right, 592 F.2d 834, 840 (5th Cir.1979). The answer to the question whether exclusion of the impeachment evidence in this case was harmless error is not one that is entirely free of doubt. Our standard of review, however, is not one of indubitability. “It is not for us to decide that the effect of what was excluded might not have altered the jury’s views.... [I]f there was a reasonable likelihood that a substantial right was affected, we should not find the error harmless.” Johnson v. William C. Ellis & Sons Iron Works, 609 F.2d 820, 823 (5th Cir.1980). I find such a reasonable likelihood here.

The impeachment exception to Rule 407 is not surplusage; it was drafted for a reason. If, as the majority holds today, the case at bar does not fall within the exception, it is difficult to imagine one that would. I do not believe that Rule 407 permits a defendant who has effected subsequent design changes to make statements which repeatedly imply that no subsequent remedial measures were taken, or that no practical manufacturer would consider taking such measures, or that such changes would, in any event, simply not work. In three different ways, and on at least three different occasions during trial, Chemetron’s expert laid these inferences before the jury and then hid within the shelter of Rule 407, notwithstanding the existence of credible impeachment evidence that the trial judge prevented the plaintiff from presenting.3

In light of these errors, it is clear to me that Mrs. Hardy did not receive a fair trial. That is most unfortunate. What is more unfortunate still is that a majority of this Court has failed to remedy such a wrong. I would hold that the jury was entitled to hear the evidence that would cast doubt upon Chemetron’s assertions that rewiring would not have prevented the accident, that *1016rewiring was not practical, and that the machine was placed back into trouble-free operation without subsequent changes. On the basis of the trial court’s exclusion of the impeachment evidence, therefore, I would vacate the verdict and judgment in favor of Chemetron Corporation and remand the cause for a new trial.

. Rule 407 serves the important social policy of encouraging manufacturers and employers to take steps that result in added safety. The majority is properly concerned about the risk that the impeachment exception, if used improvidently, would “swallow up” the general rule excluding evidence of subsequent remedial measures. That concern, however, is simply misplaced in this case.

First, the defendant was at all times in control of the risk that evidence of the subsequent design changes might be admitted. Chemetron could have kept the door to impeachment firmly closed. Instead, it repeatedly elicited impeachable statements from its witnesses and then utilized the preclusive effect of Rule 407 to leave the plaintiff without the ability to rebut the damaging inferences thereby presented to the jury.

Second, the prejudice to the plaintiff of allowing defendant’s impeachable statements to go unassailed before the jury outweighs any possibility that the exception might have a corrosive effect in future cases not now before us.

Finally, the admission of the type of evidence in question here does not create a foregone conclusion that plaintiffs will always prevail. The impeaching statements about the subsequent design will be evaluated and weighed by the jury along with all the other evidence in the case, including any reasons put forth by the defendant for the redesign. In addition, the evidence will be accompanied by a limiting instruction cautioning the jury to consider the evidence only as it bears upon the credibility of the witness or witnesses being impeached.

In any event, proper attention to the task of "keeping our eyes on the ball” would induce us to focus on Mrs. Hardy’s cause of action. And her case simply does not warrant the majority’s concern about damaging the integrity of Rule 407.

. The majority’s attempt to distinguish Remington Arms entirely misses the import of that case. The majority states that Chemetron’s experts did not speak in superlatives when they described their paper cutter and, therefore, Remington Arms is wholly "inapposite” to the case at bar. The distinction is an artificial one. I would resist limiting the reasoning in Remington Arms to those situations where the opportunity for impeachment arises only when the defendant uses superlatives to describe his product. It is unwise, in my estimation, to restrict the use of subsequent design measures for impeachment purposes only as against defendants whose witnesses recite the words, "the best,” or "the safest.” These words possess no talismanic qualities.

In Remington Arms, the defendant opened the door to impeachment by using certain words to describe his product. Those words happened to be superlatives. They were not the same words that Mr. Bookwalter used to describe Cheme-tron's product in the instant case. But whether or not the experts in both cases used the same words to open the door to impeachment should not be the controlling consideration. The true import of the Remington Arms case is that it establishes the admissibility in this circuit of evidence of subsequent remedial measures when the defendant opens the door to use of that evidence for impeachment purposes. The majority’s view artificially narrows the holding in Remington Arms and threatens to eviscerate it of its true meaning.

. Had the defendant elicited impeachable statements only once, or even twice, then the majority’s characterization of this decision as a "close call" might carry some force. But the defendant here opened the door to impeachment three times. The cumulative effect of excluding the evidence in question on all of these occasions was error that affected a substantial right of the plaintiff.