of evidence of subsequent measures when offered for another purpose, such as . . . feasibility of precautionary measures"). Thus, while evidence of subsequent remedial measures is inadmissible to prove negligence or culpability, the design of the Model 300 with its covered husking box, as well as other such models, is admissible to prove feasibility of a design with such a cover.
Defendant moves the court to preclude photographs of a cornpicker manufactured by New Idea. The New Idea cornpicker photographs were proffered as part of the expert testimony of William Burrill. Due to the death of Mr. Burrill, the motion is denied as moot.
Defendant further requests preclusion of photographs of plaintiff's injured hand taken prior to and in the course of reconstructive procedures, based upon plaintiffs' failure to disclose the photographs prior to February 1995 and their inflammatory nature. While graphic photographs of gruesome physical injuries may be inflammatory to a jury, defendant does not provide details which indicate that these photographs are in that category. Further, defendant fails to indicate in what way plaintiffs' delay in disclosing the photographs prejudices defendant, and the court does not see any undue prejudice, particularly in light of the availability of the physician's file, containing the photographs, for inspection by defendant.
D. Plaintiffs' Motion for Sanctions
Plaintiffs request that the court sanction defendant Deere & Company pursuant to Rule 11 for failure to disclose similar products manufactured by Deere, other accidents involving Deere cornpickers, and a design manual in response to plaintiffs' discovery requests. Sanctions for presenting to the court pleadings, motions, and other papers for an improper purpose may be imposed upon a party and/or a party's attorney. Fed. R. Civ. P. 11(b)-(c), 26(g) (certification required that discovery responses are complete and correct, to the best of signer's knowledge, information, and belief). Further, Rule 37 provides for sanctions where a party fails to comply with a discovery order.
Here defendant's attorney, by affidavit, stated that defendant in good faith chose not to disclose other cornpicker models, which were judged to be dissimilar to the Model 18 at issue. See affidavit of Wayne Slavens, a former mechanical engineer with Deere & Co., stating that the cornpicker models in question are "radically different products," and outlining the differences. Furthermore, the defendant's in-house attorney, Gregory R. Noe, by affidavit states that these models were considered dissimilar. Noe further states that the design manual was not deemed to contain damaging information, it was not purposefully withheld for that reason, and in fact the manual was published in 1962, at least three years after development of the Model 18 design. Finally, Noe states that defendant objected to plaintiffs' discovery request regarding accidents which occurred with other model cornpickers, because such cornpickers were dissimilar to the Model 18.
Based upon a careful consideration of the arguments, supporting affidavits and exhibits presented, the court finds that sanctions are unwarranted.
Accordingly, it hereby
1a. Defendant's motion to dismiss plaintiffs' failure to warn claim (docket no. 24) is DENIED;
1b. Defendant's motion to dismiss plaintiffs' manufacturing defect claim (docket no. 25) is GRANTED;
1c. Defendant's motion to dismiss plaintiffs' breach of warranty claim (docket no. 26) is GRANTED;
2. Plaintiffs' motion to preclude the videotape of the cornpicker (docket no. 16) is DENIED;
3. Plaintiffs' motion to preclude the testimony of John Geweye (docket no. 16) is DENIED;
4. Defendant's motion to preclude the expert testimony of William Burrill (docket no. 22) is DENIED as moot;
5. Defendant's motion to preclude other accident testimony (docket no. 27) is DENIED;
6. Defendant's motion to preclude admission of standards violations (docket no. 28) is DENIED;
7. Defendant's motion to preclude evidence of subsequent remedial measures (docket no. 45) is DENIED to the extent the evidence is offered to prove feasibility of alternate design;
8. Defendant's motion to preclude photographs (docket no. 45; plaintiffs' proposed exhibits 80-87 and 29-34) is DENIED;
9. Plaintiffs' motion for Rule 11 sanctions (docket no. 42) is DENIED;
10. Upon good cause shown, the scheduling order is amended to permit plaintiffs to identify and depose a new expert witness within 60 days of the date this order is filed. Plaintiffs are ordered to request a conference at that time to set a new trial schedule.
IT IS SO ORDERED.
David N. Hurd
United States Magistrate Judge
Dated: April 7, 1995
Utica, New York.