When Can You Talk About Remedial Measures?
What’s the best kind of document that to find in an opposing party’s production? Reasonable minds can differ, but it’s hard to beat any document showing that the bad guys knew what they did was wrong. People adopt all sorts of positions in litigation, but in internal correspondence, it’s not uncommon to find genuinely candid statements, things like “I don’t think that this is safe,” or “we may be liable if we do this.” Sleazy defense counsel may try to suppress these documents or funnel them onto a dubious privilege log, but like every other bad document, they have a habit of surfacing anyway.
But even absent a true admission of guilt, you can often rely upon the next best thing. Evidence that the bad guys stopped doing the bad thing once they were caught. Again, while lawyers may make any number of insane statements in litigation (e.g., “Benzene is good for the ecosystem and is safe to dump in the river”) a jury may doubt the sincerity of such statements if the company immediately stopped dumping once called out by the local news.
But as compelling as this evidence can be, the Federal Rules of Evidence impose some limits on when you can use it. These are embodied in Rule 407, which states:
Rule 407. Subsequent Remedial Measures
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
· negligence;
· culpable conduct;
· a defect in a product or its design; or
· a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.
Note that this rule does not prohibit all evidence of altered behavior. As the text makes clear, this rule applies only in cases involving an “injury or harm,” that the subsequent measures would specifically address. But in those cases, the rule prohibits admitting evidence of the change to prove that the original behavior was negligent, defective, or otherwise improper.
Why exclude this evidence? The original advisory committee placed great weight on “a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety” that would encourage “subsequent repairs, installation of safety devices, changes in company rules, and discharge of employees” where doing so made conditions safer than they were before. [1] The basic theory was that if evidence of correcting safety problems was broadly admissible in court, people would be afraid to make corrections, lest they be sued. And as a society, we benefit from those corrections.
Like a lot of pop-psychology that finds its way into the law, it’s not altogether clear that this holds up to scrutiny. Even if safety improvements made it more likely that a defendant would lose lawsuits, any meaningful safety improvement would also reduce the number of future injuries (and thereby the number of future lawsuits) that the defendant would need to deal with. As such, even a heartless cash-maximizing defendant might rationally elect to make safety improvements, even without this evidentiary rule. And that’s without considering (1) most businesses do not carefully consider the rules of evidence when designing their products; (2) businesses are run by human beings, most of whom seek to avoid hurting people regardless of evidentiary rules; and (3) the social value of allowing plaintiffs to recover against defendants who violate their rights, which is harmed when material evidence is prohibited.
But whether well-supported or not, the rule exists. So, you might reasonably ask, what kind of situations does it apply to? And when and how can you get around it?
The rule is most clearly applicable in cases involving negligence, where a plaintiff is injured because of the failure of a defendant to take adequate precautions to prevent that injury, whether by designing a safer product, providing better warnings, or implementing a safer set of procedures. There Rule 407 most clearly precludes evidence that the defendant took better precautions after the injury, as a means of proving that the previous precautions were insufficient. [2]
What about strict liability cases, where “negligence or culpable conduct” need not be proven? The Circuits were split on this issue until 1997. But the 1997 Amendment to Rule 407 added “design defect” as a fact that could not be proven by a subsequent remedial measure. The change resolved the split, and as of today, in Federal Courts, the rule applies in strict liability cases as well. [3] But note that some state courts, interpreting their versions of Rule 407 still permit subsequent remedial measures to be introduced as evidence of defect in strict liability actions. [4]
What about contract cases? Imagine that you’re in a contract dispute with a company, arguing over the meaning of one of their form contracts. Can you introduce evidence that the company has subsequently altered the form to make their litigation position explicit? The Fifth and Eighth Circuits say yes – essentially holding that Rule 407’s “injury or harm” language means that it only applies in tort cases. [5] In contrast, the Third, Seventh, and Tenth Circuits have gone the other way, holding that Rule 407 applies to the “remediation” of both defective products and defective contracts. [6]
Another point of contention concerns whether a subsequent remedial measure was adopted in response to the injury or harm. Some courts read Rule 407 literally, to exclude evidence of subsequent remedial measures regardless of why the measures were implemented. For example, in Chlopek v. Fed. Ins. Co., the Seventh Circuit dismissed the notion that Rule 407 cares much for motive:
[Plaintiffs] seek to sidestep Federal Rule of Evidence 407 by insisting that the change was not a subsequent “remedial” measure because, according to the affidavit of a Breg executive, the change was not prompted by safety concerns. But Breg's motive for making the change is irrelevant. All the rule requires is that the measure “would have made the injury or harm less likely to occur.” Regardless of Breg's stated reason for the change, the plaintiffs undoubtedly wanted the jury to conclude that Breg added the warning because the product was unsafe without it. [7]
In contrast in Brazos River Auth. v. GE Ionics, Inc., the Fifth Circuit refused to apply Rule 407 to exclude a document describing why a product was changed, on the grounds that “this description of product failures cannot be considered a post-accident investigation, because there was no accident (producing “harm or injury”) to investigate … rather, this merely shows a concern to improve a poorly-performing product, not to remedy a safety hazard.” [8] The Ninth Circuit in In re Aircrash in Bali, Indonesia, reached a similar conclusion. [9]
And in In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Prod. Liab. Litig., a district court addressing the divided authority was even more explicit, writing:
The better interpretation of Rule 407 is that there must be some sort of causal connection or nexus between the injury-causing event and the subsequent measure. Under the literal interpretation of the rule, there is no logical limit to the Rule's application; a measure taken ten years after the injury-causing event could be considered a subsequent remedial measure because it is actually subsequent and may have reduced the likelihood that the harm would have occurred had the measure been in place earlier. This is nonsensical. [10]
Finally, it’s worth keeping in mind the final provision of the rule, which permits a court to “admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.” To the extent that a subsequent change is arguably evidence of something other than “negligence, culpable conduct, defect in a product or its design, or a need for a warning or instruction,” that alternative relevance can take the matter outside of Rule 407 entirely. And if there is one universal rule of evidence, it is that it’s better to have the good documents in front of a jury with a limiting instruction than not at all.
[1] Advisory Committee Note, Fed. R. Evid. 407 (1972 Proposed Rules).
[2] See e.g., Kenny v. Se. Pennsylvania Transp. Auth., 581 F.2d 351, 356 (3d Cir. 1978) (“As a general rule, evidence of remedial measures taken after the event is not admissible to prove culpable conduct.”).
[3] Advisory Committee Note, Fed. R. Evid. 407 (1997 Amendments).
[4] See e.g., Forma Sci., Inc. v. BioSera, Inc., 960 P.2d 108, 118 (Colo. 1998) (“For the reasons discussed above, we affirm on different grounds the judgment of the court of appeals and hold that CRE 407 does not apply to strict liability claims premised on a design defect theory.”).
[5] See Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 428 (5th Cir. 2006); R.W. Murray, Co. v. Shatterproof Glass Corp., 758 F.2d 266, 274 (8th Cir. 1985).
[6] See Pastor v. State Farm Mut. Auto. Ins. Co., 487 F.3d 1042, 1045 (7th Cir. 2007) (“[T]o use at a trial a revision in a contract to argue the meaning of the original version would violate Rule 407 of the Federal Rules of Evidence.”); see also Reynolds v. Univ. of Pa., 483 F. App'x 726, 733 (3d Cir. 2012); Hickman v. Gem Ins. Co., 299 F.3d 1208, 1214 (10th Cir. 2002).
[7] 499 F.3d 692, 700 (7th Cir. 2007).
[8] 469 F.3d 416, 432 (5th Cir. 2006).
[9] 871 F.2d 812, 816 (9th Cir. 1989) (“Since the Thomas Report, a comprehensive report many months in the making, was dated only one day after the Bali crash, it is patently clear it was not a response to the crash. We find no basis for treating the Thomas Report as a subsequent remedial measure.”).
[10] 518 F. Supp. 3d 1028, 1036 (S.D. Ohio 2021).
