This appeal challenges rulings of the district court on the admissibility of certain evidence. Plaintiffs-appellants Jack Oberst and Wayne Schroeder were injured in a single vehicle accident on April 16, 1975 involving a Transtar 4070A truck manufactured in 1973 by defendant International Harvester. Plaintiffs claimed that their injuries were caused by design defects in the cab of the truck, and the restraints in the sleeping compartment in the cab of the truck.

Schroeder was driving at the time of the accident. Oberst at that time occupied the sleeping compartment, but the force of the accident caused his ejection from the sleeping compartment into the seat area (and partially out a window). It was Oberst's claim that the defective design of the restraints in the sleeping compartment was responsible for his ejection from that compartment and his consequent injuries. The jury rendered a verdict for defendant. The evidentiary rulings complained of are concerned only with the bunk restraints. Because these rulings had no effect upon Schroeder's claims against International Harvester, the district court's judgment against Schroeder is accordingly affirmed.

The bunk restraint on the truck consisted of two vertical straps, placed about 36 inches apart at the front of the sleeping compartment, which were permanently attached to the floor and roof of the cab of the truck. Upon objections made by the defendant, the district court barred introduction of evidence regarding the types of restraining devices commercially available when defendant manufactured the Transtar 4070A, the kind of bunk restraint tested in a film seen in 1971 by engineering employees of the defendant, and post-accident change by the defendant of the type of bunk restraint installed in defendant's trucks.

Although plaintiffs were not permitted to show the types of restraints commercially available at the time of manufacture of the truck (referred to as availability) there was proof that other types of restraints, such as woven mesh, were feasible (referred to by the parties and the court as feasibility).

The bases for the exclusions of testimony and exhibits are not explicitly stated. The district court repeatedly indicated that commercial availability of alternative bunk restraints was identical to the feasibility of alternatives; because the court viewed feasibility as not being controverted, it considered the evidence of commercial availability to be of no probative value. The court appeared to treat the post-accident design changes as inadmissible under Federal Rule of Evidence 407.

The testimony of Robert E. McAfee as plaintiffs' witness put into evidence much about feasibility of alternative designs for bunk restraints. McAfee, as chief engineer of the heavy-duty bodies for International Harvester, was responsible for deciding what bunk restraint to place in the Transtar 4070A. He testified that the purpose of the bunk restraint was to "keep the man in the bunk from being ejected during deacceleration . . . such as a panic-stop situation ...." McAfee claimed that one alternative restraint, the mesh type, was more effective in preventing ejection of a person from the sleeping compartment in accidents like the one involved in this case, but that such restraints would prove unnecessarily confining in other accidents, such as those involving fire or the truck going into a body of water, where speed of departure from the cab of the truck was important. McAfee further testified that he considered various methods of restraint straps,1 all of which he considered at that time to have been feasible to install. He indicated that the mesh restraint system would have required a redesign of the roof structure of the 4070A in order to be used in 1973 by International Harvester. McAfee also testified as to the feasibility of using active rather than passive restraints in the sleeping compartment but indicated that that alternative had been rejected because such systems would have been unacceptable to the drivers and thus would not have been used had they been installed. McAfee testified further that International Harvester purchased restraining belts and belt hardware from a seatbelt manufacturer. He said that commercial availability of a bunk restraint system would be a consideration in his determination of what kind of bunk restraint system to utilize.

The plaintiffs, defendant, and district court all agreed, out of the presence of the jury, that there was no dispute about the feasibility of alternative methods of bunk restraints. Plaintiffs claimed that this agreement concerned only what was theoretically able to be utilized as a restraint and that it had the right to show what restraints were actually manufactured and installed as of 1973. The plaintiffs sought a stipulation from the defendant that other identifiable types of restraints were commercially available in 1973, but the court said that such a stipulation would be prejudicial and have no probative value.

This court, applying Illinois law regarding proof in a products liability action, indicated that the plaintiffs must prove, inter alia, that "(1) the product as designed is incapable of preventing the injury complained of; (2) there existed an alternative design which would have prevented the injury; and (3) in terms of cost, practicality and technological possibility, the alternative design was feasible." Lolie v. Ohio Brass Co., 502 F.2d 741, 744 (7th Cir.1974). Feasibility includes "the elements of economy, effectiveness and practicality," and may be shown "by the opinions of experts or by the existence . . . on other products or in the design thereof ...." Sutkowski v. Universal Marion Corp., 5 Ill.App.3d 313, 319, 281 N.E.2d 749, 753 (1972). Whether commercial availability is viewed as an element of feasibility or as a separate issue, it is clear that proof of commercial availability of an alternative design is evidence of a material fact involved in a products liability action.

Because the evidence of design alternatives available in 1973 was relevant and there existed no valid policy reason for excluding it,2 the evidence should have been admitted. The jury, however, was permitted to hear testimony that defendant's employees were familiar with alternative designs in 1973, found some of the alternatives to have advantages over the restraint actually installed, and chose to use the vertical bunk restraints after weighing the advantages and disadvantages of the different systems of restraints. This evidence creates such a strong implication that the design alternatives were commercially available, that the evidence offered may have been cumulative3 and, in any event, that its exclusion was not reversible error.4

It is a long-established rule that proof of repairs subsequent to an accident is not admissible to prove negligence in a tort action. Such evidence may, however, be introduced, for other purposes. Federal Rule of Evidence 407 provides:

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.

Appellants contend that Rule 407 is inapplicable to actions asserting strict liability. They contend that the first sentence of the Rule applies only to actions involving negligence or culpable conduct, which obviously do not include strict liability actions, and that the second sentence of the Rule merely creates an exception to the first sentence. On their theory, evidence of subsequent repair would be admissible for any purpose in a strict liability action. The weight of authority in Illinois rejects this theory.5 The exclusion of the post-accident change in bunk restraint design is not reversible error.

Rule 407 allows evidence of the post-accident change in design to show feasibility of an alternative design only if feasibility was controverted. Here it was not. We see no way in which the exclusion affected the substantial right of Oberst.

The evidentiary exclusions, if error, constitute harmless error as to Oberst's claims. These rulings did not affect the claims of Schroeder. Accordingly, the Clerk of this Court is directed to enter judgment affirming the judgment of the district court.

SWYGERT, Circuit Judge, concurring and dissenting, in part.

I agree with the majority that the disputed evidentiary rulings had no effect upon Schroeder's claims. Therefore, I concur in the affirmance of the judgment against him. With respect to Oberst, however, I respectfully dissent.

For convenience and clarity, the evidentiary issues presented may be classified as pre-accident and post-accident. My primary dispute is with the majority's treatment of the post-accident evidence1 which consists of proof of the fact that in 1976 International Harvester began installing a different bunk restraint system in its model 4070A trucks. The new, mesh-type system was one which International Harvester knew to be commercially available before the accident. The majority discusses the admissibility of this evidence under both Fed.R.Evid. 407 and Illinois law and determines that it was inadmissible under both. Ante at 865-866 & n. 5. I disagree with these determinations.2Admissibility Under Rule 407

As the majority notes, Oberst "contend(s) that Rule 407 is inapplicable to actions asserting strict liability." Ante at 866. The validity of this contention will be discussed below. Even apart from it, the proffered evidence was admissible under Rule 407, which permits the admission of evidence of subsequent remedial measures to prove the "feasibility of precautionary measures, if controverted . . . ." Fed.R.Evid. 407. "(F)easibility includes 'the elements of economy, effectiveness and practicality . . . .' " Ante at 865 (citation omitted). For it to be uncontroverted within the meaning of Rule 407, the defendant's concession must be unequivocal. 2 Weinstein's Evidence P 407(01). The majority concludes that feasibility was not controverted. The record refutes this conclusion.

Virtually all of the evidence regarding feasibility was presented in the testimony of Robert E. McAfee, who was in charge of designing the 4070A. According to the majority, McAfee testified that the mesh-type system "would have required redesign of the roof structure of the 4070A in order to be used in 1973 by International Harvester." Ante at 865. Thus, McAfee's testimony is not unequivocal as to the economy element of feasibility. Regarding effectiveness, McAfee testified that the mesh system "was more effective in preventing ejection of a person from the sleeping compartment in accidents like the one involved in this case, but that such restraints would prove unnecessarily confining in other accidents . . . where speed of departure from the cab of the truck was important." Id. McAfee also testified that the alternative systems would have been less likely to be used than the two-belt system. Ante at 864-865. Consequently, McAfee's testimony may not fairly be characterized as unequivocal as to the effectiveness component of feasibility. In fact, McAfee was unequivocal only as to the fact that the mesh system was considered to be technically possible to install. The single concession was not sufficient to preclude admission of the proffered evidence.

Under Rule 407, evidence of subsequent remedial measures also may be used for impeachment. McAfee's testimony left the jury with the impression that International Harvester weighed many factors in deciding upon the two-belt system. Oberst sought to impeach this impression by showing that the decision not to install the mesh system in the 1973 Transtar 4070A was primarily an economic one. The excluded evidence described by the majority was one part of this impeachment evidence and, as such, should have been admitted.3 A similar form of impeachment was upheld in Kenny v. Southeastern Penn. Transportation Authority, 581 F.2d 351 (3d Cir. 1978), cert. denied, 439 U.S. 1073, 99 S. Ct. 845, 59 L. Ed. 2d 39 (1979). There, a woman who was raped while waiting in an elevated public transit station claimed that there was inadequate lighting. The court held that evidence that several bulbs were replaced and new lights installed soon after the rape was admissible to counter the inference derived from the defendants' evidence that, because the lights were checked daily, the lighting was adequate. See also Dollar v. Long Manufacturing, N.C., Inc., 561 F.2d 613 (5th Cir. 1977), cert. denied, 435 U.S. 996, 98 S. Ct. 1648, 56 L. Ed. 2d 85 (1978).

Moreover, as Oberst argues, Rule 407 may not even apply to strict liability actions. A literal interpretation of the rule supports this contention because, where strict liability is asserted, neither negligence nor culpable conduct need be shown. In such cases, liability depends upon the character of the product and not upon that of the defendant. Sutkowski v. Universal Marion Corporation, 5 Ill.App.3d 313, 281 N.E.2d 749, 753 (1972). Although many federal courts have assumed that Rule 407 does apply to strict liability actions,4 several have held or stated that it does not. See, e. g., Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir. 1978) (dictum); Robbins v. Farmer's Union Grain Terminal Assoc., 552 F.2d 788, 792 (8th Cir. 1977);5 Farner v. Paccar, Inc., 562 F.2d 518 (8th Cir. 1977) (dictum).

An examination of the background of the reasons for Rule 407 supports the conclusion that it is inapplicable to strict liability actions. Rule 407 is comparable to California Evidence Code § 1151. Advisory Committee Notes, Fed.R.Evid. 407. In the seminal case6 of Ault v. International Harvester Co., 13 Cal. 3d 113, 117 Cal. Rptr. 812, 528 P.2d 1148 (1974) (as modified after denial of rehearing), § 1151 was held not to apply to strict liability actions. International Harvester maintains that a comparison between § 1151 and Rule 407 is improper because the California rule does not contain the second sentence found in Rule 407. It argues that Ault held only that evidence of subsequent repairs is admissible to prove feasibility. A close reading of Ault belies this contention. Ault was based primarily upon two grounds. First, the court construed the phrase "culpable conduct" and concluded that it did not encompass strict liability. 117 Cal. Rptr. at 814-15, 528 P.2d at 1150-51. This is the same phrase employed by the federal rule and upon which Oberst's argument turns. The Ault court also considered the policy underlying the rule. It concluded that whatever tendency the rule had toward achieving its policy goal in other cases, it was not sufficiently effective to justify its application in strict liability actions. 117 Cal. Rptr. at 816-17, 528 P.2d at 1152-53.

The Ault court's policy analysis has been widely accepted by legislatures, courts, and commentators.7 In strict liability cases, an exclusionary rule is unlikely to achieve its ostensible objective, primarily because the exceptions to the rule make exclusion uncertain, if not unlikely. Ultimately, admissibility depends upon the effectiveness of the plaintiff's trial tactics in getting the defendant to "controvert" feasibility or opening itself to impeachment. Many defendants may be unaware of the rule. It is illogical to assume that such defendants will alter their behavior because of it. Of the defendants who are aware of the rule, most will be insured. Their insurers are likely to encourage or require them to mitigate losses by taking remedial measures, regardless of the existence of an exclusionary rule. Some remedial measures may be required by regulatory authorities. Potential defendants are not likely to violate regulatory mandates because of the lack of an exclusionary rule. See generally Ault; Note, 44 Cin.L.Rev. 637 (1975). With respect to the federal rule, in particular, because most products liability cases are litigated in state court, the only basis for federal jurisdiction being diversity, the coercive effect of an exclusionary rule is negligible. Consequently, safeguards other than Rule 407 should be used.8 Finally, even if Rule 407 does apply to strict liability actions, the factors weighing against its efficacy suggest a more generous application of the rule than either the trial court or the majority have given it in this case.

The majority asserts that "(t)he weight of authority in Illinois" rejects Oberst's interpretation of Rule 407. Ante at 866 (footnote omitted). It acknowledges, however, that "(o)ne Illinois case held that the traditional exclusion of post-accident repairs was inapplicable to strict liability actions. Burke v. Illinois Power Co., 57 Ill.App.3d 498, 514, 15 Ill. Dec. 670, 685, 373 N.E.2d 1354, 1369 (1978)." Ante at 866, n.5. The majority dismisses Burke as being unsupported by the cases upon which it relied, Sutkowski v. Universal Marion Corp., 5 Ill.App.3d 313, 281 N.E.2d 749 (1972), and Mahoney v. Roper-Wright Manufacturing Co., 490 F.2d 229 (7th Cir. 1973).

There are essentially three flaws in the majority's analysis of this issue. First, assuming arguendo that Burke is not supported by Sutkowski and Mahoney, surely the Illinois Appellate Court was free to join the trend against the exclusion of evidence of subsequent remedial measures in strict liability cases even if such a rule is contrary to prior Illinois case law. If it did so, we are required to defer to the Illinois court's interpretation of its own law. Second, Burke is amply supported by the two cases upon which it relied. In Sutkowski, the court reversed a judgment entered upon a jury verdict for the defendant, in part because the trial court excluded evidence of a post-accident modification. The plaintiff, who was crushed to death by a piece of strip mining equipment, alleged both strict liability and breach of warranty against the manufacturer. The trial court excluded the evidence because it was inadmissible to prove negligence. The appellate court held that the evidence was admissible to prove that an alternative design was feasible. 281 N.E.2d at 752. The court did not limit its holding, as the majority implies, to those cases in which feasibility is contested, and there was no indication in the case that feasibility was controverted. Sutkowski was so construed in Ault, 117 Cal. Rptr. at 816, 528 P.2d at 1152, and by this court in Mahoney, 490 F.2d at 232. In Mahoney, the trial court excluded evidence of subsequent design changes which, as in Sutkowski, apparently was offered as part of the plaintiff's case-in-chief. Finally, even if Sutkowski and Mahoney do not support Burke, recent Illinois cases clearly demonstrate Illinois adoption of the Ault position. In Smith v. Verson Allsteel Press Co., 74 Ill.App.3d 818, 30 Ill. Dec. 562, 393 N.E.2d 598 (1979), the plaintiff recovered from the manufacturer on a strict liability theory. On appeal, the defendant argued, inter alia, that the trial court erroneously admitted evidence of subsequent design changes. The appellate court rejected this argument, saying that the rule excluding such evidence was inapplicable to strict liability actions. 30 Ill. Dec. at 570, 393 N.E.2d at 606.9 See also Christopherson v. Hyster Co., 58 Ill.App.3d 791, 16 Ill. Dec. 83, 374 N.E.2d 858 (1978).

In conclusion, because the proffered evidence was admissible and its exclusion greatly prejudiced Oberst, I would reverse the judgment against him and remand for a new trial.