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Couch v. Astec Industries6/19/2002
erly allowed Plaintiff's expert witness to refer to government standards in expressing his opinion on the adequacy of the guarding, lack of pull cords, and product safety program. Griffin v. Guadalupe Med. Ctr., Inc., 1997-NMCA-012, 14, 123 N.M. 60, 933 P.2d 859 (explaining that the determinations of relevancy and materiality rest largely within the discretion of the trial court).
Defendant broadly asserts "there was no proof that OSHA was used as an industry standard in 1988, the year that [Employer's] conveyor belt was designed and manufactured." Defendant's assertion, however, includes no citation to authority or reference to how this particular argument was preserved below, and it does not specify the regulation or testimony to which it refers. See Pinnell v. Bd. of County Comm'rs, 1999-NMCA-074, 11, 127 N.M. 452, 982 P.2d 503 (declining to consider argument where party failed to cite to any portion of the record supporting its allegation); Woolwine v. Furr's, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct. App. 1987) (explaining that " o preserve an issue for review on appeal, it must appear that appellant fairly invoked a ruling of the trial court on the same grounds argued in the appellate court"). Nevertheless, even if this argument had been properly preserved, we would affirm because Gallagher testified that the OSHA standards for guards on which he relied were in effect at the time of the plant's manufacture.
Finally, Defendant argues that the trial court improperly allowed Gallagher to testify regarding Defendant's non-compliance with standards of the Mine Safety & Health Administration (MSHA). We disagree. The record indicates the trial court ruled that Plaintiff's expert could not refer to MSHA because those regulations relate to mining equipment.
Subsequent Remedial Measures
Defendant argues the trial court erred in admitting evidence regarding post-accident remedial efforts by Employer. Defendant specifically objects to the admission of evidence that on the day following the accident, Employer added additional guards to eliminate the gaps between the guard and the conveyor belt frame and to completely enclose the tail pulley. The trial court permitted introduction of two photographs showing a portion of the new guard, as well as information that Employer was the source of the new guards. This issue relates to Rule 11-407 NMRA 2002:
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control or feasibility of precautionary measures, if controverted, or impeachment.
We are not persuaded by Defendant's argument because the prohibition against admitting evidence of subsequent remedial measures does not apply to measures taken by non-defendants. Employer was not a party in this case and Rule 11-407, therefore, is not applicable. See Mehojah v. Drummond, 56 F.3d 1213, 1215 (10th Cir. 1995) (holding that Rule 407 applies only to a defendant's remedial measures and does not apply to subsequent remedial measures by non-defendants); Pau v. Yosemite Park & Curry Co., 928 F.2d 880, 888 (9th Cir. 1991) (explaining that the purpose of Rule 407 is to encourage potential defendants to remedy hazardous conditions without fear that their actions will be used as evidence against them, and therefore, Rule 407 applies only to actions of actual defendants); TLT-Babcock, Inc. v. Emerson Elec. Co., 33 F.3d 397,
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