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

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Saturday, May 22, 2010

I Need A Remedy: Middle District Of Georgia Finds Subjective Intent Not Dispositive In Subsequent Remedial Measures Analysis

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.

The main ground for excluding evidence of subsequent remedial measures "rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety."  So, let's say that a company's product allegedly causes an injury. And let's say that after the injury, the company stops selling the product and begins selling a similar product that is safer. But let's say that the company's motivation for selling the new product rather than the old product has nothing to do with safety concerns. Is evidence of the change inadmissible even in the absence of a specific intent by the defendant to make a subsequent remedial measure? According to the United States District Court for the Middle District of Georgia in In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation, 2010 WL 2015146 (M.D.Ga. 2010), the answer is "yes."

Unfortunately, the court did not provide many facts in its ObTape opinion. Basically, though, it seems like the plaintiffs were injured while using an ObTape Vaginal Sling intended to treat Stress Urinary Incontinence (This site explains the possible basis for the lawsuit). The plaintiffs sought to present evidence that, after her injury, the defendant withdrew ObTape from the market and began marketing Aris, a new suburethral sling product. According to the plaintiffs, this was not a subsequent remedial measure under Federal Rule of Evidence 407 because the defendant did not make the product change based upon concerns about safety. In other words, the crux of the plaintiffs' argument was that "it must be established that the defendant took the subsequent remedial measure for the specific purpose of remediating a problem."

The court disagreed, finding

that subjective intent or motive in taking a remedial measure is not a dispositive prerequisite for exclusion under Rule 407. Therefore, if the decision to stop selling ObTape subsequent to the injuries suffered by the Plaintiffs would have made the harm suffered by the Plaintiffs less likely had the product not been sold prior to their injuries, then the discontinuation of ObTape sales 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."

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/05/407--in-re-mentor-corp-obtape-transobturator-sling-products-liability-litigationslip-copy-2010-wl-2015146mdga2010.html

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