With the first MDL trial around the corner, DePuy wants to keep the recall out of evidence. Why? Because it is pretty much game, set, match for the idea that the ASR metal-on-metal replacement was awful.
DePuy’s Legal ArgumentDePuy’s argument is twofold. First, its voluntary recall (I know it was voluntary because they have told us that 1000 times) should not be admitted because it is a subsequent remedial measure. Second, the probative value of the fact that there was a recall in 2010 is greatly outweighed by its potential for prejudice.
Federal Rule of Evidence 407 excludes subsequent remedial measures when it provides that when 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 product or design defect, or a need for a warning doctors and/or patients. Why? Because you don’t want someone to not take a safety precaution because they are worried about having it shoved back in their face.
There are some situations where the defendant cannot hide behind subsequent remedial measures. If the evidence of subsequent remedial measures is to show ownership or feasibility of precautionary measures, it can be admissible. But that is not what we have here in these suits.
So DePuy wants to jump in this safe harbor. The federal judge overseeing the case agreed to let them avail themselves to this doctrine. I don’t like the ruling because I think the recall tells the jury so much about these cases… but I do understand the bigger picture wisdom, too.