Finding fault with Ault - why the exclusion of subsequent design change evidence in product liability cases makes sense, even in California.

• Author: Livingston, Craig A.

THE FOLLOWING is an all too common occurrence in products liability cases alleging a design defect: a plaintiff alleges he or she was injured due to a design defect in a product; the manufacturer of the product, at some point after the accident, alters the very design feature plaintiff alleges was the cause of the accident; plaintiff seeks to introduce evidence of this subsequent design change at trial, realizing the powerful impact such evidence can have with many jurors.

Is such evidence admissible? Unfortunately, the answer may depend only on where the case is venued and which evidence rules apply. Federal Rule of Evidence 407 and most states exclude evidence of "subsequent remedial measures" in strict products liability cases. California, Colorado and several other states, on the other hand, allow this evidence to be admitted. How is it that these jurisdictions admit such evidence when the Federal Rules, the great majority of state courts, and strong public policy grounds exclude it? The fault lies in large part with influential Ault case, a hopelessly outdated California Supreme Court opinion putting it in the clear minority of jurisdictions. (1)

For the practitioner, this article addresses the legal and policy theories cited in support of the Ault decision, demonstrates why they are flawed and why the rule set forth in the Federal Rules of Evidence is more sound and more practical--carefully balancing the needs of both plaintiff and defendant--and provides guidance for addressing this issue when it arises in competing jurisdictions.

1. The Ault Decision

   In Ault, the plaintiff was injured in a 1964 crash involving his International "Scout" vehicle (an early SUV) which was caused by a broken gear box he alleged was defective by virtue of the weak aluminum material used in its fabrication. Evidence was introduced at trial, over defendant's objection, that "Scout" gear boxes were changed from aluminum to a much stronger malleable iron in 1967. At the time, California's newly operative Evidence Code section 1151, which codified the common law "subsequent remedial measure" exclusion, provided:

   When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event. (2) The jury returned a verdict in favor of the plaintiff and the defendant appealed.

   The California Supreme Court in Ault was left to decide the meaning of section 1151 in the context of a product liability case alleging a design defect. In making its decision, the Ault court identified a dual rationale for finding section 1151 inapplicable in strict liability cases, thereby paving the way for the admission of subsequent design change evidence: (1) unlike negligence actions, product liability actions do not involve "culpable conduct," and section 1151 was therefore inapplicable by its own language, and (2) the public policy arguments for the exclusionary rule (to encourage remedial conduct) were inapplicable in the product liability context because no reasonable manufacturer of mass-produced products would refrain from making a design change and thereby risk a multitude of future suits)

   Evidence Code section 1151 excludes subsequent remedial measures "to prove negligence or culpable conduct in connection with the event" giving rise to a lawsuit, which Ault declined to extend to strict liability actions on the assumption that negligence or culpability are not necessary that cause of action. (4) The Court reasoned that in strict liability product cases plaintiffs are not obligated to show any breach of duty of care, but only that the product was defective. (5) What the Court did, in essence, was to ignore the standard definition of culpable conduct, which is, "[b]lameable; censurable; involving the breach of a legal duty or the commission of a fault. ... it implies that the act or conduct spoken of is reprehensible or wrong..." (6) The dissent in Ault recognized that even in strict liability cases a defendant must breach a legal duty not to put a defective product into the stream of commerce. (7) However, defendant International Harvester Company conceded that a manufacturer in a strict liability action is not blameworthy in a legal sense and instead argued that strict liability implied a moral duty. (8)

   The Ault Court then made a similarly narrow application of the California legislature's intent, concluding that if the Legislature had intended to include strict liability actions within section 1151, then it would have used a phrase without the connotation of "affirmative fault." (9) As part of its analysis, Ault correctly concluded that the legislature was attempting to codify well-settled law. (10) However, Ault did not apply the policy behind the common law rule; instead, the Ault court assumed that the California legislature considered strict products liability actions when it codified section 1151, and it wholly rejected the public policy which was the very basis of the rule.

   Ault reasoned that the public policies justifying the evidentiary exclusion in negligence cases are not valid in strict liability cases because a mass producer would continue making improvements to products even where evidence of such improvements might later be used against it. The distinction was not based on any tort theory, but on the fact the product is mass-produced.

   This mass-producer argument is not original to Ault. To support its theory that a mass-producer has sufficient incentive to continue improving its products regardless of the existence of the exclusionary rule, the Ault Court included a footnote quoting at length from a 1972 Duke Law Review Article which called newly operative section 1151 an "obsolete evidentiary rule" and was wholly contrary to public policy in the products liability arena. (11) Both this article, and the court's opinion, contradict the very policies underlying the common law exclusionary rule and legislative intent in codifying the common law rule; namely, the exclusion of subsequent design changes would serve as an incentive to manufacturers for the continued improvement of consumer goods by shielding manufacturers from potential liability based on evidence of the mere existence of a product improvement.

   By concluding that the legislative intent behind section 1151 did not apply to strict liability actions, the Ault Court assumed that the conduct of a mass-producer is guided by the legal distinction between negligence and strict liability claims, even though both claims are typically asserted in a single product liability action. In reality, it makes no difference what legal theory is advanced to find a product manufacturer liable. As the Fourth Circuit Court of Appeals stated in Werner v. Upjohn Co., the deterrent of taking remedial measures is the same, namely, the fear that the evidence may be used against defendant. (12)

   The negligence/strict liability distinction is "hypertechnical," because the lawsuit is...