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November 9, 2012
Remedial Chaos?: Why Rule 407's Impeachment Exception Isn't Really An Exception
Federal Rule of Evidence 407 provides that
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
- culpable conduct;
- a defect in a product or its design; or
- a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.
Similarly, South Carolina Rule of Evidence 407 provides that
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. 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.
As you can see, both the Federal and South Carolina versions of Rule 407 potentially allow for the admissibility of evidence of subsequent remedial measure to prove negligence. So, let's say that there's a collision between a train and a car. And, let's say that defense witnesses testify that the site distance at the time of the collision was adequate. But, let's say that the defendant shortly thereafter cut the vegetation bordering the tracks where the accident occurred. Can the plaintiff introduce evidence of this subsequent remedial measure to impeach these defense witnesses? According to the recent opinion of the Supreme Court of South Carolina in Carson v. CSX Transp., Inc., 2012 WL 5420337 (S.C. 2012), the answer is "no."
In Carson, the facts were as stated above, with the "Appellant contend[ing] she should have been permitted to introduce evidence of post-accident cutting to impeach CSX's position that the available sight distance on May 30, 2004, was adequate and that the vegetation did not need to be cut." The court disagreed, finding that "[a]llowing a party to invoke the impeachment exception to Rule 407 in response to the opposing party's general defense against a negligence claim would swallow the rule." According to the court,
I agree, and the way I look at the situation is as follows: When evidence of a subsequent remedial measure is admissible for a permissible substantive purpose, it is also admissible to impeach. But when evidence of a subsequent remedial measure is not admissible for a permissible substantive purpose, it is not admissible to impeach.
If a dog bites Vince, and Dan says, "It was the junkyard dog," a photo of Dan putting up a fence in his yard with the dog in the yard would be admissible to prove ownership and to impeach Dan. And the same goes for feasibility or control. But if a subsequent remedial measure could only be offered for an impermissible purpose such as negligence or other culpable conduct, it is not admissible to impeach.
November 9, 2012 | Permalink
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