EvidenceProf Blog

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

Tuesday, May 24, 2011

Whole Grain: ND OH Opinion Reveals Rule 407 Doesn't Cover Plaintiff Subsequent Remedial Measures, But Rule 403 Does

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.

So, if a plaintiff claims that a defendant's instrumentality was defective and that this defect caused the plaintiff to suffer damages, the plaintiff cannot present evidence of improvements by the defendant (subsequent remedial measures) to prove that the instrumentality was previously defective. But what if a defendant wants to present evidence of a subsequent remedial measure by a plainti? As the recent opinion of the United States District Court for the Northern District of Ohio in Younglove Const. v. PSD Development, 2011 WL 1933755 (N.D.Ohio 2011), makes clear, Rule 407 does not deem such evidence inadmissible, but courts often exclude it under Federal Rule of Evidence 403.


Younglove Construction, LLC...entered into a written contract with PSD Development, LLC...for the construction of a Feed Manufacturing Plant to be located at 7148 State Highway 199, Upper Sandusky, Ohio, (the "Project")....As a part of the Project, Younglove was to build a grain bin and foundation and provide related parts and accessories at the PSD facility (the "Bin")....Younglove entered into a subcontract agreement with CAS, whereby CAS was to build the Bin, provide Bin parts and accessories and build and design the Bin foundation for the Project.

Younglove thereafter brought an action sounding in, inter alia, breach of contract against PSD, and PSD brought a third-party complaint against CAS. After Younglove brought its action, it "made a number of modifications to the grain bin and tunnel, including: adding warning signs next to exterior outlets in the bin tunnel, placing chains and locks on exterior outlet gates, enlarging the center outlet channel and adding one exterior outlet." CAS anticipated that PSD would try to "use evidence of these subsequent remedial measures to attempt to prove that the bin was defective as-built and to show breach of the signage and training provisions of the prime contract." Therefore, CAS brought a motion in limine to exclude this evidence.

In addressing this motion, the Northern District of Ohio noted that

The Sixth Circuit has not decided whether Rule 407 applies to evidence of subsequent remedial measures by a non-defendant, but as PSD points out, "every other Court of Appeals that has considered the issue has held that Rule 407 does not require the exclusion of subsequent remedial measures taken by a non-defendant." Bowling v. Scott Co., 2006 WL 2336333, *5 (E.D.Tenn.) (collecting cases). 

Although the court agreed with these courts, it noted that it could still exclude subsequent remedial measure evidence if it was lacking in relevance or if, under Federal Rule of Evidence 403, its probative value was substantially outweighed by the danger of unfair prejudice. And it did just that, finding that

PSD must prove that it did not receive that for which it contracted. The recommendations of CAS and Brock are relevant to that end. Evidence about the alleged inadequacies of the as-built grain bin are obviously relevant. The necessity of repair is relevant. But the relevance of the modifications themselves is marginal at best to the issue of whether there was a breach. Any marginal relevance that this evidence might have is substantially outweighed by the danger of unfair prejudice.



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