EvidenceProf Blog

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

Sunday, January 16, 2011

I Need A Remedy: DDC Precludes Evidence Of E-Mail Referencing Subsequent Remedial Measure After Traffic Death

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.

And, as the recent opinion of the United States District Court for the District of Columbia in Cohen v. District of Columbia, 2011 WL 108713 (D.D.C. 2011), makes clear, Rule 407 covers not solely the fact of a subsequent remedial measure but also communications related to such measures. 

In Cohen, "D.Q., a foster child and ward of the District of Columbia, was killed when he was transported by van to Progressive Life Center for an appointment, he exited the van, and stepped into oncoming traffic." Thereafter, Brett Cohen, as personal and legal representative of the Estate of D.Q., brought suit against: the District of Columbia, Progressive Life Center (the contractor that arranged for placement with foster parents and provided regular counseling and medical care to D.Q.), Nile Express Transport, Inc. (the company that operated the van that transported D.Q.), and William Woods (the driver of the oncoming car).

The District of Columbia and Progressive thereafter moved for summary judgment, and the district court granted the motion. Cohen then moved for reconsideration and sought

to introduce evidence of subsequent remedial measures, evidence that he failed to present in opposition to the motions for summary judgment. In support of his claim that the District lacked sufficient policies regarding the transportation of foster children, [Cohen] points to an email prepared by the District more than two months after the accident that refer[red] to the development of new transportation policies. The email state[d]:

In an effort for MAA to administer and manage the provision of safe transportation from pick-up to delivery, with or without driver assistance as necessary, attached are some protocols we can start applying while “formal” non-emergency transportation Policies and Procedures are being discussed, developed and written.... The medical provider or Agency (e.g.CFSA) must request or arrange for an attendant for Medicaid recipients who are minor children under the age of 15, when they know there is no parent or guardian available to accompany the child on the trip to the provider's faculty or office.

According to the  United States District Court for the District of Columbia, the first problem for Cohen was that "[t]he email [wa]s not new or newly discovered. If [Cohen] wanted to rely on this evidence, he should have filed it in response to Defendants' motions for summary judgment." And, according to the court, the second problem was that this e-mail referenced a subsequent remedial measure, and  Federal Rule of Evidence 407 bars the introduction of subsequent remedial measures."



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