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Univ. of South Carolina School of Law

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Friday, January 25, 2008

Quite Feasibile Now: Court Fails To Fully Quote Rule 407 In Finding Subsequent Remedial Measure Evidence Admissible

In United States v. Shanrie Co., 2008 WL 161467 (S.D. Ill. 2008), the United States brought an action to enforce the Fair Housing Act, claiming that the defendants failed to design and construct Applegate Apartments in Swansea, Illinois so as to be accessible to persons with disabilities.  In order to help prove its case, the government sought to introduce evidence of subsequent remedial measures taken by the defendants to make the apartments more handicapped accessible to prove that such measures were feasible. Id. at *1.  The defendants responded by making a pretrial motion in limine to exclude this evidence pursuant to Federal Rule of Evidence 407. 

The District Court for the Southern District of Illinois noted that the government contended that while Rule 407 "prohibits evidence of subsequent measures when used 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' the rule 'does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ... feasibility of precautionary measures.'” Id.  The court noted that the government further contended that the evidence it sought to admit was admissible under Rule 407 "for the purpose of 'showing that the defendants can feasibly and promptly make Applegate Apartments accessible.'" Id.  The court agreed with the government and thus denied the defendant's motion in limine.

There's a huge problem, however, with the court's decision.  The problem becomes clear when language of Rule 407 is listed in its entirety.  Under Rule 407, "[w]hen, 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." (emphasis added).  As is clear from this language, evidence of subsequent remedial measures is only admissible to prove feasibility if the opposing party has claimed that such a measure was not feasible.  Furthermore, it appears that the 7th Circuit has taken the "narrow" view of feasibility and determined that a party only controverts feasibility when he claims that a remedial measure was economically or technologically impossible. See Lolie v. Ohio Brass Co., 505 F.2d 741, 745 (7th Cir. 1974).

Now, I don't have access to the defendants' brief, so perhaps they did claim that it was impossible to make the apartments accessible, triggering the feasibility portion of Rule 407.  That said, it is clear that the court did not mention such an argument in its opinion, and its partial citation of Rule 407 makes it appear as if feasibility does not need to be controverted to be proven under RUle 407.

-CM   

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