733 F.2d 463 (7th Cir. 1984)
In 1978 Forrest Flaminio purchased a Gold Wing motorcycle manufactured by the Honda Motor Company of Japan and distributed in the United States by its wholly owned subsidiary American Honda Motor Company.1 The motorcycles arrived from Japan partially assembled, with dealers completing final assembly.2 Three days after taking delivery, after consuming one or two drinks at dinner, Flaminio rode the motorcycle at night on a two-lane road.3 While passing a car traveling about 40 miles per hour at a speed between 50 and 70 miles per hour, he felt a vibration in the front end.4 Leaning backward on highway pegs installed by the dealer to inspect the front wheel, he lost control when the motorcycle began to wobble uncontrollably, left the road, and crashed, leaving him a paraplegic.5
Flaminio and his wife sued both Honda companies.6 They alleged that the wobble resulted from defective design that should have been corrected or that the defendants should have warned users of the motorcycle's propensity to wobble.7 The jury found Japanese Honda not liable on any theory.8 It found American Honda negligent and 30 percent responsible for the accident while attributing 70 percent responsibility to Flaminio's own negligence, resulting in judgment for the defendants.9
On appeal the plaintiffs challenged several trial rulings.10 They argued that the district court should have given a strict liability instruction on the failure-to-warn claim against Japanese Honda instead of the negligence instruction actually given.11 They also contested the exclusion of two blueprints showing that after the accident the manufacturer had made the front forks two millimeters thicker.12 Additional claims on appeal concerned the applicability of Federal Rule of Evidence 407 to strict liability claims and whether Wisconsin law on subsequent remedial measures should have been applied in this diversity case.13 The plaintiffs contended that the verdict was inconsistent because the wife's damages for loss of consortium exceeded the husband's damages for pain and suffering.14 They also argued that the district court improperly limited the trial to 33 hours with 18 hours allotted to the plaintiffs.15
Whether the district court erred by refusing to instruct the jury on strict liability for failure to warn rather than negligence?16
No. The difference if any between strict liability and negligence instructions is so small that the failure to give an explicit strict liability instruction is unlikely to be reversible error.19 The judge instructed the jury that the defendants should be found liable if they had failed to exercise due care to warn consumers of any danger in the use of the product that the consumer might not be aware of.20 Flaminio’s proposed instruction required a warning of any dangerous propensity which the defendants know or should know of.21 This instruction would not have put before the jury a concept of strict liability distinct from the negligence instruction the judge did give.22
The jury found American Honda liable but not Japanese Honda on the facts of the 1978 Gold Wing purchase, the wobble during the nighttime pass, and the resulting paraplegia.23 There is no reason to think the jury would have reached a different conclusion about Japanese Honda’s liability if Flaminio’s instruction had been given.24
The district court did not err by refusing to instruct the jury on strict liability for failure to warn rather than negligence.25
Whether the district court erred in excluding blueprints showing post-accident thickening of the motorcycle's front forks?26
Rule 407 of the Federal Rules of Evidence makes evidence of subsequent remedial measures not admissible to prove negligence or culpable conduct.27 The rule does not require exclusion when offered for another purpose such as proving feasibility of precautionary measures if controverted or impeachment.28
No. The defendants did not deny the feasibility of precautionary measures against wobble on the facts of the Gold Wing design tradeoff between wobble and weave.29 The defendants offered no testimony that they would never have thickened the struts, so the blueprints were not impeaching.30 The policy of Rule 407 applies equally to the strict liability claim arising from the 1978 purchase and crash because the accident may have been readily avoidable by a minor design change that was later made.31
The district court did not err in excluding blueprints showing post-accident thickening of the motorcycle's front forks.32
Whether Federal Rule of Evidence 407 applies to claims brought under a strict liability theory?33
Rule 407 applies to strict liability cases because a major purpose of the rule is to promote safety by removing the disincentive to make repairs after an accident.34 The analysis is not fundamentally affected by whether the basis of liability is negligence or product defectiveness since in either case the incentive to take remedial measures would be reduced if the evidence were admissible.35
Yes. The rule applies to strict liability cases on the facts of the post-accident strut thickening because the focus of strict liability on the dangerousness of the product does not justify refusing to apply Rule 407.36 In product cases the accident may have been readily avoidable by eliminating a defect or warning of inherent danger just as in negligence cases.37
Federal Rule of Evidence 407 applies to claims brought under a strict liability theory.38
Whether Wisconsin law rather than Federal Rule of Evidence 407 governs admissibility of subsequent remedial measures in this diversity case?39
The Federal Rules of Evidence apply in diversity cases because Congress intended them to apply in diversity as well as federal-question cases.40 Rule 407 is a procedural rule within Congress's power to enact for the federal courts even though it has substantive consequences by affecting incentives to take safety measures.41
No. Although Wisconsin law would admit the evidence in product liability cases under the facts of the mass-produced Gold Wing motorcycle, the Federal Rules of Evidence govern. This is because the rule's judgment about jury overreaction to subsequent remedial measures is a procedural judgment. It concerns accuracy in the adjudicative process that Congress may prescribe for diversity cases.42
Wisconsin law rather than Federal Rule of Evidence 407 does not govern admissibility of subsequent remedial measures in this diversity case.43
Whether the jury's award of higher damages to the wife for loss of consortium than to the husband for pain and suffering created an inconsistent verdict?44
A verdict is not internally inconsistent merely because damages for loss of consortium exceed damages for pain and suffering when the record supports the assessment of higher damages for the spouse's intangible losses.45
No. The record supports the assessment of higher damages for Mrs. Flaminio’s intangible losses than for her husband’s on the facts of the paraplegia resulting from the 1978 crash.46 Flaminio adjusted well and is able to go hunting while his wife had to quit her job and become his full-time personal attendant.47 A rational trier of fact could regard her lot as worse.48
The jury's award of higher damages to the wife for loss of consortium than to the husband for pain and suffering did not create an inconsistent verdict.49
Whether the district court erred by imposing a rigid 33-hour limit on the length of the trial?50
No. The 18 hours allotted to the plaintiffs were not an unreasonable period in relation to the complexity of the issues arising from the 1978 motorcycle purchase, the wobble, and the crash.53 The plaintiffs failed to indicate what evidence they would have put in or cross-examination they would have conducted if they had had more time.54 The main excluded topic was subsequent remedial measures that were barred for reasons other than time.55
The district court did not err by imposing a rigid 33-hour limit on the length of the trial in a manner warranting reversal.56