Louisiana Court Finds Rule 407 Renders a Root Cause Analysis Inadmissible

Similar to its federal counterpart, La.Code Evid. art. 407 provides that

In a civil case, 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 Article does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, authority, knowledge, control, or feasibility of precautionary measures, or for attacking credibility.

So, Rule 407 covers subsequent remedial measures. But should something like a root cause analysis that determines the cause of an error and/or injury also be deemed inadmissible under the rule? That was the question addressed by the Court of Appeal of Louisiana, Third Circuit, in its recent opinion in Certain Underwriters at Lloyd's, London v. Alliance Drilling Consultants, L.L.C., 2023 WL 8792107 (La.App. 3 Cir. 2023).

In Alliance Drilling, there was a blowout of an oil well in Lasalle Parish in July 2014. After the blowout, XTO, the company that drilled the well sent an investigation team to perform a “root cause analysis” to determine the causes of the blowout. The trial court deemed this analysis inadmissible.

On appeal, the plaintiffs claimed that

the first two sections [of the analysis] identify causes of the blowout, including XTO's alleged negligent failure to institute an adequate drilling program in a highly dangerous formation. The third section, meanwhile, contains tables that identify root causes of the accident along with corrective actions that would have prevented the blowout. Plaintiffs assert that nothing in those sections was ever acted upon or implemented by XTO: no changes were made to XTO's policies and procedures following the blowout. Thus, because no subsequent remedial measures were undertaken by XTO, the trial court erred in excluding the above portions of the investigative report. 

The appellate court disagreed, ruling as follows:

In opposition, Defendants point to several cases involving similar exclusions under La.Code Evid. art. 407. For example, in Underwriters at Lloyd's, London v. OSCA, Inc., Nos. 03-20398, 03-20817, 03-21021 (5th Cir. 4/12/06), 2006 WL 941794 (per curiam), the portion of the root cause report that proposed new procedures, policies, and training as well as the review of old procedures, policies, and training was redacted before it was given to the jury.

Additionally, in Chesapeake Louisiana, L.P. v. Innovative Wellsite Systems, Inc., No. 12-2963 (W.D. La. 1/23/15), 2015 WL 339022, at *1, evidence of a post-blowout memorandum establishing requirements for the use of barriers in wells “to further limit the chance of well control incidents” was an inadmissible subsequent remedial measure. And so too was evidence from a safety meeting regarding a presentation on operational changes and steps that should be taken to increase worker safety during future well procedures.

And finally, in Thornton v. Diamond Offshore Drilling, Inc., No. 07-1839 (E.D. La. 5/19/08), 2008 WL 2315845, the court determined that portions of an incident investigation report containing recommendations were inadmissible evidence of subsequent remedial measures. The court explained: “Although recommendations are not remedial measures that have been implemented, they are of the same character in that they reflect a party's post-accident considerations and thinking about policy changes and safety improvements.”...Thus, the recommendations were excluded.

In short, the trial court here did not abuse its discretion in excluding the disputed sections of the investigation report. This assignment of error is also without merit.

My initial inclination is to disagree with the court's conclusion. The Advisory Committee's Note to Rule 407 provides that

The rule rests on two grounds. (1) The conduct is not in fact an admission, since the conduct is equally consistent with injury by mere accident or through contributory negligence. Or, as Baron Bramwell put it, the rule rejects the notion that “because the world gets wiser as it gets older, therefore it was foolish before.”...Under a liberal theory of relevancy this ground alone would not support exclusion as the inference is still a possible one. (2) 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.

Rationale (1) doesn't really apply because a root cause analysis does show that there was a prior issue making the old way of doing business (running the oil well here) unsafe. And rationale (2) doesn't really apply because, as noted in Thornton, there's no actual remedial measure. Now, I suppose you could say that if Rule 407 doesn't cover a root cause analysis, a company would be deterred from undertaking one. But it would seem to me that there's a fundamental difference between a future-focused remedial measure and a past-focused root cause analysis that's trying to determine what went wrong.

-CM