EvidenceProf Blog

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

Monday, December 24, 2012

Measure for Measure?: 2nd Circuit Fails to Resolve Whether FAA Directive was Inadmissible Under Rule 407

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.

So, let's say that there's an accident, prompting the plaintiff to sue the defendant. And let's say that some third party with regulatory authority over the defendant subsequently issues directives, regulations, etc., mandating that the defendant adopt a remedial measure. Are those directives, regulations, etc. inadmissible pursuant to Rule 407? And does it change the analysis if the defendant's reporting is what led to the issuance of the guidelines, regulations, etc.? Let's take a look at the recent opinion of the Second Circuit in Lidle v. Cirrus Design Corp., 2012 WL 6603388 (2nd Cir. 2012).

In Lidle

On October 11, 2006, Cory Lidle and his flight instructor, Tyler Stanger, were flying in a Cirrus Model SR20 G2 aircraft, heading north above the East River. As the aircraft approached the controlled airspace surrounding LaGuardia Airport, it appeared to attempt a 180–degree turn to reverse its course. The aircraft failed to complete the turn and crashed into an apartment building on Manhattan's Upper East Side. Both Lidle and Stanger were killed.

The plaintiffs thereafter brought an action against Cirrus, asserting claims of wrongful death and survivorship, negligence, product liability, and breach of warranty. After the jury returned a verdict in favor of Cirrus, the plaintiffs moved for a new trial, claiming, inter alia, that the district court erred in deeming inadmissible a "Federal Aviation Administration ("FAA") Airworthiness Directive mandating certain adjustments to the rudder-aileron interconnect on all Cirrus Model SR20 aircraft." This directive "incorporated by reference a 2007 Service Bulletin issued by Cirrus

The plaintiffs claimed tha the FAA directive should have been deemed admissible because

Rule 407 does not apply to the Airworthiness Directive because it is a subsequent remedial measure taken by the government, not by Cirrus. See Appellants' Br. at 35–36 (citing Lion Oil Trading & Transp., Inc. v. Statoil Mktg. & Trading (US) Inc., Nos. 08 Civ. 11315(WHP), 09 Civ.2081(WHP), 2011 U.S. Dist. LEXIS 24516, at *21 (S.D.N.Y. Feb. 28, 2011) ("Rule 407 does not bar evidence of subsequent remedial measures by non-defendants.")).

The district court, however, excluded evidence of the directive for two reasons. First,

The district court concluded that allowing plaintiffs to introduce the Airworthiness Directive would function as a "back door" to introducing evidence of Cirrus's own subsequent remedial measure, which was squarely prohibited by Rule 407.


the district court explained that "in the circumstances of this case where the [Airworthiness Directive] was issued as a direct response to [Cirrus's Service] Bulletin, it is covered by Rule 407...because to determine otherwise might discourage manufacturers from issuing service bulletins as part of voluntary compliance procedures."...see Werner v. Upjohn Co., 628 F.2d 848, 859 (4th Cir.1980) (concluding that admission of an FDA regulation "to prove antecedent negligence simply because [a government agency] required or might have required the change,...might...discourage [ ] [manufacturers] from taking early action on their own and from participating fully in voluntary compliance procedures"); In re Airport Disaster at Metro. Airport, Detroit, Mich. on Jan. 19, 1979, 782 F.2d 1041, 1985 U.S.App. LEXIS 13811, at *16–17 (6th Cir. Dec. 3, 1985) (unpublished opinion) (excluding an FAA Airworthiness Directive).

Ultimately, the Second Circuit did not decide whether the FAA directive was admissible, finding that the plaintiffs could not prove that they were prejudiced by its exclusion.



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