EvidenceProf Blog

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

Tuesday, October 22, 2013

I Need a Remedy: Court of Appeals of Tennessee Finds Error in Exclusion of Subsequent Remedial Measure Evidence

Similar to its federal counterpartTennessee 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 remedial measures is not admissible to prove strict liability, 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 controverted ownership, control, or feasibility of precautionary measures, or impeachment.

In Burchfield v. Renfree, 2013 WL 5676268 (Tenn.Ct.App. 2013), the Court of Appeals of Tennessee found that the trial court should have permitted the plaintiffs to admit evidence that the defendant doctor stopped performing endoscopic carpal tunnel release surgery after the plaintiff's injury during the procedure Why?

In Renfree, the plaintiffs, Larry and Dinnie Burchfield, filed an action against Dr. Renfree, alleging that he negligently performed endoscopic carpal tunnel release surgery on Mr. Burchfield's right arm and caused nerve damage. During his deposition, Dr. Renfree maintained that he routinely performed endoscopic carpal tunnel release and that he believed the endoscopic procedure to be safer than open carpal tunnel release surgery. In fact, however, Dr. Renfree ceased performing the endoscopic procedure. At trial, the judge precluded the Burchfields from admitting evidence of this subsequent remedial measure, prompting their ensuing appeal.

On appeal, the Burchfields claimed that the trial court erred because evidence of this subsequent remedial measure was admissible to impeach Dr. Renfree's deposition testimony. In response, the Court of Appeals of Tennessee initially noted that the purpose of Rule 407 

is to “encourage remedial measures in order to serve the public's interest in a safe environment.”...The word “subsequent” refers to events that occur after the events giving rise to the lawsuit....An action is “remedial” if it “chang[es] a situation, usually an unsafe property or product, to prevent the situation from causing further injury.”...As with other evidentiary matters, we review a trial court's decision to admit or exclude evidence under Tennessee Rule of Evidence 407 under an abuse of discretion standard....“An abuse of discretion occurs when the trial court applies an incorrect legal standard or reaches a conclusion that is ‘illogical or unreasonable and causes an injustice to the party complaining.'"

Applying this logic, the Court of Appeals found

that the trial court erred in refusing to allow the Burchfields to present proof that Dr. Renfree had ceased performing endoscopic carpal tunnel release surgery in 2008, for the purpose of impeaching his testimony. Dr. Renfree's testimony during his deposition in 2010 lead to the conclusion that he then regularly performed endoscopic carpal tunnel release surgery.



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Why is what the dr said at his depo important? The plaintiff should be able to impeach only testimony heard by the jury. Did the depo get read to them? Did the depo contradict the dr's trial testimony?

Posted by: Fred Moss | Oct 23, 2013 1:13:54 PM

Yes, I forgot to include that in the post. At least portions of the deposition were admitted at trial.

Posted by: Colin Miller | Oct 23, 2013 4:24:26 PM

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