EvidenceProf Blog

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

Thursday, August 14, 2008

Damages: Vermont Judge Finds Subsequent Remedial Measure Evidence Inadmissible To Mitigate Punitive Damages

A child-sex case involving Vermont's Catholic Church reveals an interesting split among courts as to whether evidence of subsequent remedial measures is admissible to determine liability for punitive damages.  Now 40 year-old former altar boy Thomas Murray has sued the church, claiming that that former priest Edward Paquette repeatedly molested him three decades ago.  According to Murray's attorney, the alleged abuse caused the then 9 year-old fourth-grader to have nightmares, avoid religion, and turn to alcohol and drugs.  Furthermore, it is alleged that these effects did not dissipate with his transition to adulthood but instead has caused him to suffer from anxiety, post-traumatic stress disorder, and problems with physical intimacy, leading to a divorce with the mother of his child

Murray's lawsuit is not unique; instead, the state's largest religious denomination was socked in May by a record $8.7 million verdict of negligence in connection with its 1970s hiring and supervision of Paquette, and Murray's lawsuit is one of 20 containing allegations against the retired clergyman.  Looking to avoid paying such a steep price in Murray's case, the church moved to prevent the court from assessing punitive damages against it based upon measures it has since taken to prevent clergy sexual abuse, but Judge Matthew Katz denied the motion, concluding that "the case law around the country is that post-wrongdoing remedies by the defendant are not admissible to mitigate punitive damages."  The reality is much more complicated and involves two rules of evidence.

Vermont Rule of Evidence 407, like Federal Rule of Evidence 407, states that:

     "When[ever], 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."

Thus, evidence of the church's post-abuse measures would be inadmissible to prove that its pre-abuse measures were insufficient and that it thus acted negligently or otherwise culpably at the time of Murray's abuse.  Similarly, if a child choked on a kid's toy at a fast food restaurant, his attorney couldn't introduce evidence about changes made to the toy or its instructions after the accident because such evidence would be used to prove "a defect in a product, a defect in a product's design, or a need for a warning or instruction."

Rule 407, however, clearly allows for the admission of evidence of subsequent remedial measures "when offered for another purpose," and it seems to me that mitigation of punitive damages would fall into this category and would not constitute a proscribed purpose.  Essentially punitive damages are damages issued to punish a defendant and to deter the defendant and others from committing acts similar to the act at issue.  Evidence of a subsequent remedial measure seems to me to be relevant to prove that such deterrence is unnecessary, which would render such evidence admissible, pending application of Rule 403, which states that:

     "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

On this count, I'm much less sure and need to do some more thinking before coming to a final conclusion of how probative value weighs against these dangers in a typical punitive damages case.  What I do know, however, is that Judge Katz's sweeping statement was incorrect.  For proof of this, let's look at Swinton v. Potomac Corp., 270 F.3d 794, 813 (9th Cir. 2001), where the Ninth Circuit concluded that:

     "A review of case law from other jurisdictions and academic commentary on this subject reveals no consistent rule on the admissibility of such evidence....Some courts have taken the view that such evidence is almost never relevant in assessing punitive damages....Other courts, however, permit the introduction of post-occurrence remediation evidence by the defendant as a shield against punitive damages."

In reviewing the opinions cited by the Ninth Circuit, I'm not quite sure who has the better of the argument, but what I do know is that there is an argument on the issue.



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