Middle District of Pennsylvania Finds Subsequent Remedial Measures Rule Applies to New Prison Policies

Federal Rule of Evidence 407 states 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:

• negligence;
• 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.

Rule 407 precludes the admission of all sorts of subsequent remedial measures, including changes made to prison policies made after lawsuits filed by inmates.

In White v. Wireman, 2020 WL 6591365 (M.D. Pa. 2020), inmate Ivan White brought a civil rights action against various defendants, claiming, inter alia, that they failed to provide him with accommodations to observe the December fast and his halal diet. In response, the defendants filed a motion in limine, seeking to preclude the admission of evidence that they "changed their policy during the pendency of this action to permit observance of the December fast and the special diet."

In response,

White argue[d] that the evidence he seeks to introduce is not the change in written policy but “the actual provision of a daily halal diet and support for the December Fast with no adverse consequences.”...White assert[ed] that the fact the requested accommodations, when granted, did not cause any negative impact to a legitimate penological interest shows that Defendants fail the Turner test and that their earlier infringements were impermissible.

The court disagreed, concluding that

Rule 407 of the Federal Rules of Evidence holds that, “[w]hen 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....” Fed.R.Evid.407. “Rule 407 rests on the strong public policy of encouraging manufacturers to make improvements for greater safety.”... “The other, and more impressive, ground for exclusion rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety.” Fed.R.Evid.407 advisory committee's note.

The court...will GRANT the motion...with respect to this evidence. The new prison policy allowing inmates to observe a halal diet and the December fast are measures taken after the onset of this case which, had they existed at the time, would have avoided this litigation. See Dickerson v. Prison Health Servs., 495 Fed.App'x 154, 157 (2d Cir. 2012) (noting a change in prison policy that postdated the filing of the complaint could not be offered to show culpable conduct); Ford v. Schmidt, 577 F.2d 408, 410-11 (7th Cir. 1978) (holding a district court properly excluded evidence of a change in prison mail policy implemented after the onset of the case that would have avoided the litigation).

-CM