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Michalesko v. Office Max

December 22, 2006


The opinion of the court was delivered by: Judge Jones



Pending before the Court is a Motion in Limine to Preclude Evidence of Subsequent Remedial Measures at Trial ("Motion"), filed by Defendant Werner Enterprises, Inc. ("Defendant" or "Werner"), on November 17, 2006. (Rec. Doc. 106). For the reasons that follow, the Motion will be granted.


The factual background and procedural history of this case is well known to the parties. The following brief recitation of that history is sufficient for the purpose of reviewing the pending Motion.

This case arises from an accident that allegedly occurred on December 4, 2002, at the Office Max, Inc. Distribution Facility ("Office Max facility") located in Hazleton, Pennsylvania. (Rec. Docs. 106, ¶ 1; 110, ¶ 1; 112, ¶ 1). At the above date and place, Plaintiff James Michalesko ("Plaintiff" or "Michalesko"), an employee of APS Group, LLC ("APS"), was loading a trailer when he allegedly slipped and fell on ice located on the floor of the trailer. (Rec. Docs. 106, ¶ 2; 110, ¶ 2; 112, ¶ 2). In the Complaint, Plaintiff alleged that Defendants Werner and Office Max knew or should have known of the icy condition on the trailer floor and failed to take measures to correct the icy condition. (Rec. Docs. 106, ¶ 3; 110, ¶ 3; 112, ¶ 3).

Werner has correctly anticipated that Plaintiff seeks to introduce the testimony of Brentan Lavelle ("Lavelle"), the current on-site manager for Werner at the Office Max facility. (Rec. Docs. 106, ¶ 4; 110, ¶ 4; 112, ¶ 4). Lavelle began working for Werner in 2004. (Rec. Docs. 106, ¶ 5; 110, ¶ 5; 112, ¶ 5). Lavelle had no knowledge of the protocol in existence at the Office Max facility in December 2002. (Rec. Docs. 106, ¶ 6; 110, ¶ 6; 112, ¶ 6). At deposition, Lavelle testified that Werner's current policy requires the doors to trailers in the Office Max facility yard to remain closed while parked in the yard. (Rec. Docs. 106, ¶ 7; 110, ¶ 7; 112, ¶ 7). Lavelle instituted this policy in conjunction with Office Max in or around 2004, well after December 4, 2002. (Rec. Docs. 106, ¶ 8; 110, ¶ 8; 112, ¶ 8).

On November 17, 2006, Werner filed the instant Motion, which has been fully briefed by the parties, and is, therefore, ripe for disposition.


Werner moves this Court to enter an Order precluding Plaintiff from introducing evidence of any subsequent remedial measures that Werner implemented following Plaintiff's fall. (Rec. Doc. 106). Werner is specifically concerned that Plaintiff will seek to introduce evidence about Werner's current policy, which requires the closing of doors to trailers parked in the yard of the Office Max facility and was instituted by Lavelle. (Rec. Doc. 106 at 1-2).

Werner argues that such evidence is barred for several reasons. First, Werner argues that such evidence is inadmissible under Rule 407 of the Federal Rules of Evidence because it generally prohibits the admission of subsequent remedial measures and none of its exceptions apply here. (Rec. Doc. 107 at 2-4). Second, Werner argues that such evidence is irrelevant under Rule 401. (Rec. Doc. 107 at 4-5). Finally, Werner argues that even if such evidence were deemed relevant under Rule 401, it is still inadmissible under Rule 403 because its "'probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.'" (Rec. Doc. 107 at 5-6 (quoting FED. R. EV. 403)).

Plaintiff counters each of Werner's arguments. First, Plaintiff argues that evidence about Werner's current policy is admissible under Rule 407 because it is being offered for a purpose other than proving negligence or culpable conduct. (Rec. Doc. 111-1 at 2). Specifically, Plaintiff argues that Werner's current policy is admissible to show the feasibility of such measures and/or that Werner controlled the trailers in the yard of the Office Max facility.*fn1 (Rec. Doc. 111-1 at 2). Second, Plaintiff argues that evidence of Werner's current policy is relevant under Rule 401 because Werner has denied having a duty to keep such trailer doors closed. (Rec. Doc. 111-1 at 2). Finally, Plaintiff argues that any prejudice that Defendants may suffer by the admission of such evidence can be countered by instructing the jury as to the limited purpose(s) for which it can consider the evidence. (Rec. Doc. 111-1 at 2-3).

As the parties indicated, Rule 407 is integral to our disposition of this matter. Rule 407 provides:

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the 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, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another ...

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