Tort Law In Defense of Bulger v CTA

of 6 May 2006 Volume 94 Number 5 Page 254 Tort Law In Defense of Bulger v CTA By Anthony Longo A defense lawyer's perspective on the Bulger court's finding that evidence of subsequent remedial measures is not admissible against a defendant. For a dozen years, Illinois trial courts, citing Pearl v CTA, 1 held that a defendant's post-accident internal investigative report was admissible as an admission of negligence. In 2003, the Illinois Appellate Court reversed course on this controversial issue in Bulger v CTA. 2 In Bulger, the appellate court took sides on an issue that has split state and federal courts throughout the nation 3 - whether the "subsequent remedial measure doctrine" barred the admission into evidence of a defendant's internal post-accident report, which contained investigatory opinions and conclusions about the subject accident for the purpose of maximizing future safety. 4 The first district ruled that such reports are inadmissible under the subsequent remedial doctrine, and in so doing joined other jurisdictions in siding with defendants. 5 In response to the Bulger court's position, commentators - including some in this journal 6 - have sought to minimize the impact of the case's clear holding. This article will offer a defense-lawyer's perspective on Bulger and similar cases from other jurisdictions. The subsequent remedial measure doctrine Remedial measures, whether a change, repair, or precaution, taken after an event generally may not be introduced into evidence as an admission of negligence of culpable conduct in connection with the event. 7 Evidence of postaccident remedial measures is not admissible to prove prior negligence. 8 Many reasons support this rule. First, a strong policy favors encouraging improvements to enhance public safety. 9 Second, evidence of subsequent remedial measures is not probative of prior negligence, as later carefulness may simply be an attempt to exercise the highest standard of care. 10 Third, a jury might view such conduct as an admission of negligence. 11

of 6 Like almost any rule of law, the subsequent remedial measure doctrine has exceptions. For example, such evidence is admissible to prove ownership 12 or control 13 of property when disputed by the defendant. Another exception is where a party seeks to prove the feasibility of precautionary measures when disputed by the defendant. 14 And of course, evidence of subsequent remedial measures can be used for impeachment purposes. 15 In Bulger, the appellate court faced an interesting fact pattern but nevertheless chose to protect the defendant from evidence of subsequent remedial measures instead of allowing it as a party admission. The Bulger case The facts. Bulger was hit by a Chicago bus while crossing the street at the intersection of Dearborn and Polk. 16 Following this accident, a CTA employee, Willy Lipsey, conducted an interview of the bus driver and authored a "Special Occurrence Report." 17 In that report, Lipsey memorialized that the bus driver violated CTA rules and standards of procedures during the accident and ordered the driver to retraining. 18 The trial court admitted this evidence, citing Pearl. 19 The jury brought back a verdict against the CTA, thus precipitating the appeal. 20 The CTA argued that the evidence was inadmissible as a subsequent remedial measure. 21 The first district appellate court agreed with the CTA and reversed the trial court, holding that to admit such evidence was an abuse of discretion. 22 The holding. The appellate court held that evidence of the defendant's post-accident, internal investigatory opinions and conclusions was inadmissible as a subsequent remedial measure. 23 In so holding, the Bulger court refused to follow Pearl, which allowed evidence of such internal investigative conclusions into evidence by labeling them as admissions. 24 Criticisms of Pearl. Bulger began its criticism of Pearl by explaining that it was inconsistent with the intervening Illinois Supreme Court case, Herzog v Lexington Township. 25 In Herzog, the high court recognized the risk that the trier of fact may view evidence of post-accident remedial measures as an admission of negligence and emphasized such as a compelling reason for excluding such evidence. 26 The Bulger court wrote that this language from Herzog left the Pearl holding of questionable validity. 27 If the Herzog court stressed the goal of protecting the defendant from the jury's interpretation of such evidence as an admission of negligence, then how could the Pearl case be correct, the court reasoned. Beyond that, the court wrote, the "holding" in Pearl was actually judicial dicta never deserving of binding deference. 28 At the crucial point in the Pearl decision, following the key discussion on admissibility, the court stated "we need not decide this appeal on that basis..." 29 Bulger points to this language as evidence that Pearl's discussion of admissibility was dicta, 30 which the Bulger court was free to disregard. The court instead formulated a new rule for Illinois trial courts: any defendant's internal postaccident report containing investigatory opinions or conclusions is inadmissible as a subsequent remedial measure if that report was prepared towards providing greater future safety. The Bulger court rounded out its opinion by applying Pearl to the facts at bar and determined that the evidence was nevertheless inadmissible. This is where the factual differences between the two cases become important. Pearl based its reasoning on the fact that the CTA had an internal mandatory policy of investigating and remedying every bus driver accident. 31 Because of this mandatory policy, the Pearl court reasoned that the purpose behind the

of 6 subsequent remedial measure doctrine was lost on the CTA, which required no judicial encouragement to undertake subsequent remedial measures. 32 In Bulger, however, the evidence showed that the CTA no longer had such a mandatory policy. Instead, post-accident investigations were discretionary. 33 Moreover, Bulger noted that evidence in the record demonstrated that the purpose for the discretionary investigations was to maximize future safety. 34 The Pearl court "brushed aside" any consideration of judicial encouragement of humanitarian efforts. 35 The scope of Bulger. The Bulger court did not limit its holding to bus, transportation, or any other one class of cases or defendants. Nothing about defendant CTA's status as a transportation company makes it more deserving of protection under the doctrine than any other defendant. Defense attorneys should make this clear when arguing their case. Whatever the case - premises liability, transportation, or medical malpractice - it can be argued that Bulger protects all defendants from their own post-accident internal report containing investigatory opinions and conclusions addressing the accident for the purposes of maximizing future safety. Other jurisdictions Other jurisdictions have reached the same conclusion the Bulger court did. 36 The following explanation of why postaccident investigatory reports are inadmissible appears in the Massachusetts case Martel v Massachusetts Bay Trans Authority: [W]e think that good public policy also requires the exclusion of the results of defendant's investigation into the causes of an accident involving its bus. Although not itself a "repair" of a dangerous condition, the investigation is the prerequisite to any remedial safety measure. Without discovering the cause of the accident, the defendant can scarcely hope to prevent its recurrence. The investigation is inextricably bound up with the subsequent remedial measures to which it may lead, and questions of inadmissibility of evidence as to each should be analyzed in conjunction and answered consistently. *** The investigation cannot sensibly be treated differently. To do so would discourage potential defendants from conducting such investigations, and so preclude safety improvements, and frustrate the salutary public policy underlying the rule. 37 Bulger and Rule 703 Under Federal Rule of Evidence 703, adopted by the Illinois Supreme Court, an expert may testify about inadmissible evidence, so long as it is the type that an expert reasonably relies upon. 38 Under a broad reading of Rule 703, a plaintiff's expert arguably could be used to avoid the inadmissibility protections of the subsequent remedial measures doctrine by merely testifying that he relied upon the substantively inadmissible internal report. Admittedly, such internal reports are reliable evidence that many experts would naturally rely upon. While no Illinois Appellate Court case appears to address a collision between the subsequent remedial measure doctrine and Rule 703, Illinois cases have recognized the danger in an overly broad application of Rule 703. In City of Chicago v Anthony, the Illinois Supreme Court stated as follows: The reason for the substantive inadmissibility of the facts or data upon which an expert relies must be considered by the circuit court. If another rule of law applicable to the case excludes the information sought to be relied upon by the expert, the information may not be permitted to come before the jury under the guise of a basis for the opinion of the expert. 39

of 6 If Rule 703 were allowed to trump the doctrine, any plaintiff wishing to admit evidence of subsequent remedial measures could simply procure an expert who would rely on that evidence. That could not have been intended by the Anthony court or by the other panels enforcing the general doctrine. In a 1988 University of Illinois Law Review piece, the author hypothetically explained as follows: Normally, under rule 407, a plaintiff who fell on a defective sidewalk could not, to prove the defendant was negligent, offer evidence that the defendant later repaired the walkway. However, a literal reading of rule 703 would seem to allow an expert to conclude and testify that, because the defendant later repaired the walkway, the defendant was previously negligent in maintaining the walkway...however, the expert's finding that the material is reliable cannot possibly satisfy the policy concern that originally made the subsequent remedial measure inadmissible. This is because, in adopting rule 403, the drafters clearly chose to exclude this type of Conclusion evidence despite its reliability. 40 Like it or not, Bulger represents the Illinois position in a legal debate that divided courts nationwide. Defense attorneys should cite the case vigorously in protecting their client's post-accident internal reports containing investigatory opinions or conclusions toward maximizing future safety. Anthony Longo <ajl@cs-g.com> is an associate at Cassiday Schade LLP in Chicago. 1. 177 Ill App 3d 499, 532 NE2d 439 (1st D 1988). 2. 345 Ill App 3d 103, 801 NE2d 1127 (1st D 2003). 3. See Bulger. Also see Edward J. Imwinkelried and James R. McCall, Minnesota v Philip Morris, Inc: An Important Legal Ethics Message Which Neglects the Public Interest in Product Safety Research, 87 Ky L J 1127, 1154 fn 205 (noting the split). 4. Bulger at 110, 801 NE2d at 1133. For good treatment of the subsequent remedial measure doctrine in general, see Kennith L. Gosch, Admissibility of Change or Repair After Injury as Evidence of Negligence, 15 SD L Rev 287 (1970), and Susan Bates Ward, Admissibility of Subsequent Remedial Measures, 32 Okla L Rev 371 (1979). 5. For other jurisdictions agreeing with Bulger, see Martel v Massachusetts Bay Trans Authority, 403 Mass 1, 525 NE2d 662 (1988) and Alimenta (USA) Inc v Stauffer, 598 F Supp 934 (ND Ga 1984). 6. See Jeffrey J. Kroll and J. Ryan Potts, Revisiting Bulger v CTA: The Case for Admitting Transportation Company Investigation Results, 92 Ill Bar J 210 (April 2004). 7. Cleary & Graham's Handbook of Illinois Evidence 407.1 (7th ed 1999). 8. Id, see also Schaffner v Chicago & North Western Trans Co, 129 Ill 2d 1, 541 NE2d 643 (1989). 9. Cleary & Graham at 407.1 (cited in note 7). 10. Id. 11. The concern of conveying an admission of negligence to the jury is well established in Illinois. See Hodges v Percival, 132 Ill 53, 56-57, 23 NE 423 (1890).

of 6 12. See Kellems v Schiele, 297 Ill App 388, 17 NE2d 604 (4th D 1938). 13. See Larson v Commonwealth Edison Co, 33 Ill 2d 316, 211 NE2d 247 (1965). 14. Sutkowski v Universal Marion Corp, 5 Ill App 3d 313, 281 NE2d 749 (3d D 1972). 15. See City of Taylorville v Stafford, 196 Ill 288, 63 NE 624 (1902). 16. Bulger at 106, 801 NE2d at 1130. 17. Id at 107, 801 NE2d at 1131. 18. Id. 19. Id at 110, 801 NE2d at 1133. 20. Id. 21. Id. 22. Id at 122, 801 NE2d at 1143. 23. Id at 117, 801 NE2d at 1139 ("the CTA's investigative opinions, conclusions, and follow-up actions are inadmissible as post-accident remedial measures"). 24. See Pearl at 504, 532 NE2d at 442. 25. 167 Ill 2d 288, 657 NE2d 926 (1995); Bulger at 111, 801 NE2d at 1133. 26. Herzog at 300, 657 NE2d at 932; Bulger at 111, 801 NE2d at 1133. 27. Id at 114, 801 NE2d at 1136. 28. Id at 113, 801 NE2d at 1137. 29. Pearl at 503-04, 532 NE2d at 442. 30. Bulger at 115, 801 NE2d 1137. Judicial dicta are remarks or opinions deliberately passed upon by a court, though not essential to the disposition of the case. Cates v Cates, 156 Ill 2d 76, 80, 619 NE2d 715, 717 (1993). 31. Pearl at 503, 532 NE2d at 442. 32. Id. 33. If Pearl has any precedential force, it rests in the proposition that the subsequent remedial measure doctrine is lost on defendants with mandatory investigation policies. Indeed, there is analogous Illinois case law to support this reasoning. Nevertheless, this last vestige of Pearl should also be disregarded. Should this reasoning persevere, in this context, you will just see more instances of what happened with the CTA...companies changing from mandatory investigation policies (which should be judicially encouraged) to discretionary investigation policies to take themselves out of the Pearl grasp. 34. Bulger at 116, 801 NE2d at 1138.

of 6 35. Id. 36. See, for example, Complaint of Consolidation Coal Co, 123 F3d 126, 136 (3d Cir 1997). 37. Martel at 4-5, 525 NE2d at 664. 38. Wilson v Clark, 84 Ill 2d 186, 193, 417 NE2d 1322 (1981). 39. 136 Ill 2d 169, 186, 554 NE2d 1381, 1389 (1990). 40. Note, Robert H. Rhode, The Scope of the Reasonable Reliance Requirement of Federal Rule of Evidence 703, 1988 U Ill L Rev 1069, 1081-82 (1988). Member Comments Illinois State Bar Association The Association for Illinois Lawyers