To Remediate, or Not To Remediate: That is the question


          It is not unusual in negligence or strict product liability actions for a defendant, or potential defendant to consider or make changes to a condition that allegedly caused injury to another following the accident. If someone fell down stairs, the landowner may install a handrail. If a product injures someone who comes into contact with a rotating part, the manufacturer may design a guard to prevent future contact. Correcting potentially dangerous conditions is to be lauded. However, consideration must be given to how such changes may affect the defendant’s liability in a lawsuit brought as a result of the initial injury.

          Changes made to products or conditions after an injury are referred to as “subsequent remedial measures”. The greatest danger presented by subsequent remedial measures is that a plaintiff may seek to introduce at trial the fact that the defendant made changes following the accident, arguing that it is a tacit agreement with the claim that the condition was defective. This can be a compelling argument to a jury, and the danger it presents is that a jury may be swayed by such evidence regardless of the accuracy of the assumption. The fact that a product can be made safer does not, necessarily, mean it was not reasonably safe before. Likewise, the fact that an accident occurred is not, by itself, proof that a product was defective or a condition was unreasonably dangerous, but evidence of subsequent remedial measures may easily be misinterpreted as suggesting that the defendant agrees that it was. This impression can be monumentally difficult to overcome, so the best course is not to allow it to grow.

Federal Rule of Evidence and Maine Rule of Evidence 407 provides that evidence of subsequent remedial measures may not be introduced to prove culpable conduct. Federal Rule 407 states:

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the 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, a defect in a product’s design, or a need for a warning or instruction. 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.

Fed. R. Evid. 407. Maine Rule of Evidence is essentially the same.

          The policy reason for this rule may seem obvious. It is intended to encourage people to make changes that will make conditions safer and not penalize them for doing so by making such changes evidence against them in a lawsuit. In theory, if a landowner thinks he is more likely to be held liable in a lawsuit if he puts a new handrail in after someone falls down his stairs, he is less likely to add the handrail. A manufacturer would be less likely to add the guard to the machine if it thinks this will become evidence of liability in a lawsuit. This rule, then, provides them with cover for doing the “right” thing, and making the condition that caused an accident safer, and less likely to injure future parties encountering it.

          It is important to note, however, that Rule 407 excludes evidence of subsequent remedial measures only for purposes of proving “negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction.” Fed. R. Evid. 407. The evidence may be admitted for any other purpose, including “proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.” Id. Therefore, if a plaintiff can show that the evidence will be admitted for purposes other than proving a product defect, negligence, culpable conduct or a need for a warning, the evidence may well come in. The list of other purposes cited in the rule is not exhaustive, so any other purpose may be cited to admit such evidence.

          One of the most often cited reasons for admission of subsequent remedial measures is “feasibility”. The evidence is admitted in an effort to proved that it is feasible to render the condition safer. It is possible to put up the handrail or to add an effective guard. If feasibility is an issue, remedial measures may become admissible.

          Similarly, evidence of subsequent remedial measures is often introduced as impeachment evidence. This exception is dangerous and must be aggressively opposed, as it can be so broadly interpreted that it would nullify the rule excluding subsequent remedial measures. A plaintiff could simply argue, for example, that where a defendant has claimed that a product was not defective but has taken subsequent remedial measures, introduction of those measures impeaches the claim that the product was safe and not defective. If that were the rule, defendants would be left in a position of having to forego a defense in order to avoid introduction of evidence of subsequent remedial measures. See David P. Leonard, The New Wigmore: Selected Rules of Limited Admissiblity § 2.8.4 at 259.

Courts and commentators alike have cautioned against such a result:

Professor Wright voices a strong concern that the ‘exception’ has the capacity to engulf the ‘rule.’ As an illustrative example, Wright explains that ‘it is doubtful that the plaintiff, at common law, could have called the defendant to the stand, asked him if he thought he had been negligent, and impeached him with evidence of subsequent repairs if he answered ‘no.’’ 23 Wright & Graham, Federal Practice and Procedure § 5289, at 145 (1980) (footnote omitted). Similarly, Professor Moore warns that ‘the trial judge should guard against the improper admission of evidence of subsequent remedial measures to prove prior negligence under the guise of impeachment.’ 10 Moore, Moore‘s Federal Practice § 407.04, at IV-159 (2d ed. 1988). Judge Weinstein also admonishes that ‘[c]are should be taken that needless inquiry and concern over credibility does not result in unnecessarily undercutting the policy objective of the basic exclusionary rule.’ 2 Weinstein & Berger, Weinstein’s Evidence ¶ 407[05], at 407–33 (1988).

Petree v. Victor Fluid Power, Inc., 887 F.2d 34, 39 (3d Cir. 1989).

Therefore, some courts have limited application of the impeachment exception to instances in which it is necessary to prevent the jury from being misled. See Minter v. Prime Equip. Co., 451 F.3d 1196, 1213 (10th Cir. 2006).

In cases where the defendant claims that the product did not belong to it or was not under its control, the plaintiff will be permitted to present evidence of subsequent remedial measures taken by the defendant to show otherwise. Fed. R. Evid. 407. Just as with the feasibility exception, the issue of ownership or control must be contested. Id. The evidence should be carefully evaluated as well, to be sure it actually is probative of ownership or control.

Subsequent remedial measures are potentially dangerous evidence in defending lawsuits. The policy considerations argue in favor of making changes that will render a condition safer. The general rule supports this by excluding such evidence for the purposes of proving that the defendant acknowledges that the condition was not safe, before. However, because of the exceptions available to the general rule, and the other ways such evidence can be presented at trial, careful consideration must be given to decisions about making such changes and how to defend claims brought in situations where such changes have been made.