EvidenceProf Blog

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

Sunday, December 13, 2009

Hardwood, Hard Coaching: Sixth Circuit Finds Evidence Covered By Rule 407 In Corporal Punishment Appeal

Federal Rule of Evidence 407 provides that:

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.

Usually, this rule applies when an instrumentality causes an injury and the defendant subsequently makes the instrumentality safer. Sometimes, however, the rule applies in other factual contexts. As I noted in a recent post, the rule also applies to changes to allegedly discriminatory hiring practices. As the recent opinion of the Sixth Circuit in Nolan v. Memphis City Schools, 2009 WL 4723166 (6th Cir. 2009), makes clear, the rule also applies to other employment changes.

In NolanMartin Nolan and his father brought a civil rights action against Martin's high school basketball coaches, superintendent, principal, and the Memphis City Schools alleging that the defendants violated Martin's substantive due process rights and Tennessee state law by using excessive corporal punishment against him while he played for the Hamilton High School basketball team. The evidence introduced at trial indicated that:

-Between 2001 and 2004, Martin Nolan played basketball at Hamilton High School;

-Defendants Theodore Anderson and Eldridge Henry coached the various basketball teams at the school;

-Hamilton had a corporal punishment policy under which its teachers paddled students;

-Anderson and Henry both paddled students on the basketball team, including Martin; and

-The use of corporal punishment in schools is permitted by Tennessee law.  

At trial,

Martin testified at trial that Anderson routinely paddled him for missing practice, being late for practice, missing shots, and getting poor grades; and that Anderson paddled him once for missing a car wash....He claimed that in a single practice during his ninth grade year he was paddled 12 strokes for missing the car wash....During one away game, Martin contended, Anderson punched him in the chest with a closed fist....During his time at Hamilton, Henry also paddled Martin....Martin estimated that he was paddled roughly two to three times a week....The paddlings were painful. On one occasion he placed his hands between himself and the paddle to block the blows and had to ice his hands due to the injury....Nevertheless, he admitted that he never complained to Anderson, Hicks, the school principal, or anybody else about being paddled....He also testified that he never sought medical treatment for physical injuries resulting from the paddlings....Furthermore, at trial the Nolans stipulated that Martin was not seriously injured by any of Anderson's or Henry's acts.

Anderson and Henry, however, both contradicted Martin's account of the frequency and nature of the paddlings, and the jury apparently agreed with them as it found for the defendants. In reaching this conclusion, the jury did not have the benefit of some evidence. Apparently, the principal of Hamilton High and Anderson "were no longer assigned to teach at Hamilton" after the paddlings at issue. The plaintiffs claimed that testimony regarding the reasons why they were no longer assigned to teach at Hamilton High would establish the defendants' liability, but the district court excluded it under Federal Rule of Evidence 407.

On the plaintiffs' appeal, the Sixth Circuit affirmed, finding that "[e]vidence that an employer subsequently discharged an employee accused of causing a plaintiff's injury may be properly excluded as a subsequent remedial measure under Rule 407." 



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