EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, October 6, 2007

Third Party Problems: The 11th Circuit fails to apply Rule 403 to Rule 407

In Millennium Partners, L.P. v. AIG Trading Corporation, the Eleventh Circuit Court of Appeals considered a question of first impression in that circuit:  whether Federal Rule of Evidence 407 bars evidence of subsequent remedial measures by a non-defendant (to prove the defendant's negligence, culpable conduct, etc.).  The Eleventh Circuit join[ed] the seven Circuits that have agreed that such evidence is not barred.

I agree with this holding in principle because the policy reasons behind Rule 407 do not apply with equal force when a non-defendant is making the subsequent remedial measures.  The problem, however, is that such third party measures also lack similar probative value because it is not the defendant taking the measures.

What the Eleventh Circuit failed to acknowledge in its opinion is that pursuant to this probative value problem. many of its sister circuits have engaged in detailed 403 analyses to determine whether the probative value of subsequent remedial measure by third parties is substantially outweighed by the danger of unfair prejudice, etc.  The Eleventh Circuit, however, didn't even mention Rule 403.

In Millennium Partners, the defendant was a tenant who allegedly failed to adequately protect against flooding, and the court allowed the admission of evidence that a subsequent tenant installed pumps in truck wells to protect against flooding.  To me, this certainly seems like a factual context in which 403 balancing should have been done by the court.



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