Friday, March 20, 2020
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.
But when is a remedial measure a subsequent remedial measure under the Rule? That was the question addressed by the United States District Court for the District of Nebraska in its recent opinion in Susman v. Goodyear Tire & Rubber Company, 2020 WL 1065179 (D.Neb. 2020).
In Susman, there was a partial tread separation on a tire manufactured by Goodyear during a car accident. Before trial,
Goodyear move[d] to preclude at trial any evidence, comment, argument, reference, or innuendo regarding post-manufacture design changes to the Subject Tire as irrelevant under Rule 402, as unduly prejudicial, misleading, and confusing under Rule 403, and as a subsequent remedial measure under Rule 407. Goodyear modified the design of the LT235/85R16 Goodyear Wrangler HT tire after the tire at issue in this case was manufactured, but before the tread separation involving Loveland and Summers.
The court, however, rejected this argument, holding that
The evidence cannot be excluded under the current iteration of the rule. In 1997 the advisory committee amended Rule 407 for the explicit purpose of “clarify[ing] that the rule applies only to changes made after the occurrence that produced the damages giving rise to the action.” Fed.R.Evid. 407 advisory committee’s note to 1997 amendment. The committee also states that “evidence of measures taken by the defendant prior to the event causing injury or harm do not fall within the exclusionary scope of Rule 407 even if they occurred after the manufacture or design of the product.”...Therefore, the evidence is not excluded under Rule 407. The relevance and admissibility of the evidence under Rules 402 and 403 are not yet clear. Therefore, the motion will be denied as it relates to Rule 407, and denied without prejudice to reassertion at trial regarding Rules 402 and 403.