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Tuer v. McDonald11/7/1997
negligent not to have taken the precaution sooner." 2 Weinstein's Federal Evidence, supra, § 407.04 . The Court of Special Appeals noted that two seemingly divergent approaches have been taken in construing the feasibility exception. Tuer v. McDonald, supra, 112 Md. App. at 129, 684 A.2d at 482. Some courts have construed the word narrowly, disallowing evidence of subsequent remedial measures under the feasibility exception unless the defendant has essentially contended that the measures were not physically, technologically, or economically possible under the circumstances then pertaining. Other courts have swept into the concept of feasibility a somewhat broader spectrum of motives and explanations for not having adopted the remedial measure earlier, the effect of which is to circumscribe the exclusionary provision.
Courts in the first camp have concluded that feasibility is not controverted -- and thus subsequent remedial evidence is not admissible under the Rule -- when a defendant contends that the design or practice complained of was chosen because of its perceived comparative advantage over the alternative design or practice ( Flaminio v. Honda Motor Co., Ltd., 733 F.2d 463, 468 (7th Cir. 1984); Gauthier v. AMF, Inc., 788 F.2d 634, 638 (9th Cir. 1986); Hardy v. Chemetron Corp., 870 F.2d 1007, 1011 (5th Cir. 1989); Bush v. Michelin Tire Corp., 963 F. Supp. 1436 (W.D. Ky. 1996); Hallmark v. Allied Products Corp., 132 Ariz. 434, 646 P.2d 319 (Ariz. App. 1982); or when the defendant merely asserts that the instructions or warnings given with a product were acceptable or adequate and does not suggest that additional or different instructions or warnings could not have been given ( Mills v. Beech Aircraft Corp., Inc., 886 F.2d 758 (5th Cir. 1989); Werner v. Upjohn Co., Inc., 628 F.2d 848 (4th Cir. 1980); Fish v. Georgia-Pacific Corp., 779 F.2d 836 (2d Cir. 1985); Wetherill v. University of Chicago , 565 F. Supp. 1553 (N.D. Ill. 1983); In re Joint E. Dist. & So. Dist. Asbestos Lit., 995 F.2d 343 (2d Cir. 1993)); or when the defendant urges that the alternative would not have been effective to prevent the kind of accident that occurred ( Brookshire Bros., Inc. v. Lewis, 911 S.W.2d 791 (Tex. App. 1995); Wick v. Clark County, 86 Wash. App. 376, 936 P.2d 1201 (Wash. App. 1997)).
Courts announcing a more expansive view have concluded that "feasible" means more than that which is merely possible, but includes that which is capable of being utilized successfully. In Anderson v. Malloy, 700 F.2d 1208 (8th Cir. 1983), for example, a motel guest who was raped in her room and who sued the motel for failure to provide safe lodging, offered evidence that, after the event, the motel installed peepholes in the doors to the rooms. The appellate court held that the evidence was admissible in light of the defendant's testimony that it had considered installing peepholes earlier but decided not to do so because (1) there were already windows next to the solid door allowing a guest to look out, and (2) based on the advice of the local police chief, peepholes would give a false sense of security. Although the motel, for obvious reasons, never suggested that the installation of peepholes was not possible, the court, over a strident dissent, concluded that, by inferring that the installation of peepholes would create a lesser level of security, the defendant had "controverted the feasibility of the installation of these devices." Id. at 1214. See also Kenny v. Southeastern Pennsylvania Transp., 581 F.2d 351, 356 (3d Cir. 1978) ("when the defendant opens up the issue by claiming that all reasonable care was being exercised at the time, then the plaintiff may attack that contention by showing later repairs which are incons
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