Rioux v. Daniel Intern Corp.
582 F. Supp. 620 (D. Me. 1984)


The Defendant, Daniel International Corporation, filed on January 12, 1984, a motion in limine seeking a pretrial ruling pursuant to Fed. R. Evid. 407 as to the admissibility in the course of Plaintiff's case in chief, or in rebuttal, of evidence relevant to showing any change of method used by the Defendant, Daniel International Corporation, to secure vertical concrete pipe risers after the occurrence of the accident in question in this case....

Daniel has moved "[t]hat pursuant to F.R. Evid. 407 Plaintiff and/or Third-Party Defendant be prohibited from offering evidence related to any methods used by the Defendant to secure vertical pipe risers after the death of Paul Rioux." The Plaintiff and Third-Party Defendant oppose this motion on the basis of two principal contentions: (1) that questions concerning the admissibility of such evidence should be governed by the provision of the Maine Rule of Evidence (Me. R. Evid. 407) and not by the provisions of the Federal Rule, and (2) that even if the Maine Rule does not apply, the evidence in question will be relevant to issues as to which it is properly admissible under the provisions of the second sentence of the Federal Rule.

The factual context of these contentions is that this is a wrongful death action arising out of the death of Paul A. Rioux on a construction site in Rumford, Maine on September 10, 1979. The decedent was an employee of Commercial Concrete Corporation. Defendant Daniel was the general contractor on the project. The decedent was killed when he was struck on the head by a falling section of concrete-filled steel pipe. The pipe was part of a vertical concrete piping system being used to pour concrete on the upper levels of a structure which Daniel was erecting. The Plaintiff contends that Daniel had the duty and responsibility of properly erecting and maintaining the vertical piping and that the piping fell because it was inadequately supported. It is represented that prior to the occurrence of this accident, Daniel supported the vertical concrete pipe risers with the use of rope attachments to the structure of the building. After the accident, it is asserted, Daniel changed its method of securing these vertical risers by performing this function with welded U-bolts. The Plaintiff intends to introduce into evidence these subsequent "remedial" changes in the method of placing and securing the vertical risers. Plaintiff contends that such evidence is relevant to show negligence or other culpable conduct on the part of Daniel in connection with the collapse of the riser here causing injury.

In deciding the issues raised here, the Court must conduct two inquiries. First, it must determine whether the Maine or the Federal Rule of Evidence applies in this case. If the Maine Rule applies, it is clear that the evidence is admissible for the broader purpose asserted by Plaintiff and Commercial. Should the Court, however, determine that the Maine Rule does not apply, then it must consider whether the evidence is admissible under the second sentence of Fed. R. Evid. 407, which permits the utilization of evidence of subsequent measures where it is relevant to genuine factual issues other than those of the negligence or culpable conduct of a party in connection with the establishment of liability for an event. These inquiries will be addressed in the order just stated.


This action was initiated in this Court by a Complaint filed herein on January 21, 1980. The jurisdiction of this Court is based upon diversity of citizenship between the Plaintiff and the Defendants. The Plaintiff and Commercial argue that Rule 407 of the Maine Rules of Evidence applies to all counts of the Complaint in this diversity-based action. That rule allows subsequent remedial measures to be admitted into evidence for the purpose of proving negligence or culpability. Rule 407 of the Federal Rules of Evidence specifically precludes admission of evidence of subsequent remedial measures for the purpose of proving negligence or culpability; it does allow, however, the evidence to be presented for other purposes such as proving feasibility or control. The Maine Rule 407 allows evidence of subsequent remedial measures to be admitted for purposes of showing negligence, or other liability creating culpable conduct, on the basis of a deliberate policy decision. Plaintiff and Commercial argue that the Maine Rule 407 must be applied because this is a diversity action in which state substantive law applies, and that state law for such purpose includes the provisions of Maine Rule 407 with its distinctly substantive, policy-based, connotations....

Since the adoption of the Federal Rules of Evidence, distinguished commentators have taken the position that even in diversity cases the federal law of evidence applies in actions tried in federal court. Thus, Professors Wright, Miller and Cooper state:

Of all the procedural and quasi procedural rules that are applied in the federal courts, the Federal Rules of Evidence are least affected by the Erie doctrine. The governing principle is easily stated. If a [Federal] rule of evidence covers a disputed point of evidence, the Rule is to be followed, even in diversity cases, and state law is pertinent only if and to the extent the Rule makes it so.

C. Wright, A. Miller & E. Cooper, 19 Federal Practice and Procedure, 4512 at 190 (1982) (emphasis added). See also 10 Moore's Federal Practice, 57 (1982).

In the keystone case of Hanna v. Plumer, 380 U.S. 460 (1965), the United States Supreme Court upheld the application of Rule 4(d)(1) of the Federal Rules of Civil Procedure in federal trial proceedings despite the argument that Massachusetts law under Erie should control the adequacy of service of process in a diversity case. Although the application of the Federal Rule would be "outcome determinative," the Court noted that Rule 4(d)(1) had been recommended by the Advisory Committee to the Federal Rules and promulgated by the Supreme Court, subject to the review of Congress. In this situation, the Advisory Committee, the Supreme Court, and Congress had made an initial determination that the rule in question was procedural and, therefore, within the proper province of Congress and the courts to promulgate. Thus, according to the Court in that case:

When a situation is covered by one of the Federal Rules, the question facing the court is a far cry from the typical, relatively unguided Erie choice: the court has been instructed to apply the Federal Rule, and can refuse to do so only if the Advisory Committee, this Court and Congress erred in their prima facie judgment that the Rule in question transgresses neither the terms of the Enabling Act nor constitutional restrictions.

Id. at 471. The Court found that Congress has the power to promulgate rules for application in federal courts:

For the constitutional provision for a federal court system (augmented by the Necessary and Proper Clause) carries with it congressional power to make rules governing the practice and pleading in those courts, which in turn includes a power to regulate matters which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either.

Id. at 472. In this case, to hold that a state rule of evidence supplants a federal evidentiary rule even if it were promulgated by the use of the same procedure as is utilized in the case of the Federal Rules of Civil Procedure would be, in essence, to hold that the Federal Rule exceeds the power of Congress to promulgate it because it cannot "rationally" be classified as procedural. It is significant to note that no federal rule of procedure or evidence has ever been struck down as exceeding Congress' constitutional power.(1)6

This Court is satisfied that the Hanna v. Plumer test applies to the Federal Rules of Evidence as well as to the Federal Rules of Civil Procedure. E.g., Gibbs v. State Farm Mutual Ins. Co., 544 F.2d 423, 428 n.2 (9th Cir. 1976). The actual circumstances of the promulgation of the Federal Rules of Evidence make it even more compelling that the same result be obtained by the application of the Hanna v. Plumer test to those Rules. After the Rules were drafted by the Advisory Committee, the Supreme Court reported the new Rules to Congress under the Rules Enabling Act, 28 U.S.C. 2072. Because the new Rules were controversial, Congress intervened, rewrote the Rules where Congress deemed such rewriting appropriate, and then enacted them as so rewritten directly. Congress placed no reliance on either the Rules Enabling Act or the Rules of Decision Act, 28 U.S.C. 1652. See Rules of Evidence, Pub. L. 93-595, 88 Stat. 1926 (1974). The effect of this enactment is clear:

Because the Rules of Evidence were enacted directly by Congress, their validity vis--vis state law and the principles of the Erie doctrine stands on even firmer ground than that of the Rules of Civil Procedure. They are not subject to the Rules of Decision Act or (unlike the Rules of Civil Procedure) to the Rules Enabling Act. Their validity is governed solely by the Constitution, but since all of the Evidence Rules can rationally be viewed as rules of procedure (the constitutional standard announced in Hanna v. Plumer), they all clearly are constitutional.

C. Wright, A. Miller & E. Cooper, supra, 4512 at 192-93 (footnotes omitted)....

It is to be noted that in enacting the Federal Rules of Evidence, Congress paid considerable deference to state evidentiary practice by explicitly incorporating state evidentiary practice where Congress thought that to be warranted. See, e.g., Fed. R. Evid. 302, 501 and 601. In addition, Congress did not alter such "substantive" state rules of evidence as the parol evidence rule, the collateral source rule, and the Statute of Frauds. See C. Wright, A. Miller & E. Cooper 4512 at 194-95. However, in Rule 407 Congress did enact a uniform rule governing the admission of evidence of subsequent remedial measures and that rule must be followed unless it can be shown to be unconstitutional because it cannot "rationally" be considered procedural under the Hanna test. Federal Rule 407, as enacted by Congress, is the identical rule drafted by the Advisory Committee and reported to Congress by the Supreme Court. Compare 56 F.R.D. 183, 225 (1973) with Pub. L. 93-595. Thus, this Court would have to hold in order to supplant that rule with the Maine Rule of opposite effect not only that Congress exceeded its constitutional power in promulgating the rule, but that it did so upon the considered recommendation of the Advisory Committee and of the Supreme Court. To date, all of the published judicial discussions of which this Court is aware on this issue have concluded that Rule 407 of the Federal Rules of Evidence should be applied to state claims tried by a federal court deriving its jurisdiction from the diversity of citizenship of the parties. See [Grenada Steel Industries, Inc. v. Alabama Oxygen Co., Inc., 695 F.2d 883 (5th Cir. 1983)]; Oberst v. International Harvester Co., 640 F.2d 863, 867-68 n.2 (7th Cir. 1980) (Swygert, J., concurring and dissenting in part) (dictum).

Accordingly, the Court is satisfied that Federal Rule 407 governs the admissibility of evidence of subsequent remedial measures in this diversity case and that the Court may not supplant that rule by applying the provisions of Maine Rule 407.

1. 6. The Hanna v. Plumer test for evaluating the Federal Rules of Civil Procedure under Erie was unanimously reaffirmed recently by the Supreme Court in Walker v. Armco Steel Corp., 446 U.S. 740 (1980). Indeed, in Walker the Court states that the Federal Rules of Civil Procedure are not to be construed narrowly to avoid conflict with state rules: "The Federal Rules should be given their plain meaning. If a direct collision with state law arises from that plain meaning, then the analysis developed in Hanna v. Plumer applies." 446 U.S. at 750, n.9. There could be no more direct conflict than in the case at bar. Federal Rule of Evidence 407 explicitly prohibits the introduction of evidence of subsequent remedial repairs to prove negligence or culpable conduct while Maine Rule of Evidence 407 explicitly permits the introduction of that evidence for that purpose.


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