§ 13.03 "Remedial Measures" Defined

• Jurisdiction: United States

§ 13.03 "Remedial Measures" Defined

Although known as the "repair rule" at common law, Rule 407 encompasses far more than subsequent repairs.³ It covers the installation of safety devices,⁴ changes in company rules,⁵ discharge of employees,⁶ as well as disciplinary action against the employee who caused the injury. Rule 407 also applies to subsequent changes in warnings⁷ and modifications in product design.⁸ In contrast, post-accident reviews or studies are generally not considered subsequent remedial measures.⁹

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Notes:

^[3] See Webb v. CSX Transp., Inc., 615 S.E.2d 440, 448 (S.C. 2005) ("Rule 407 bars the introduction of any change, repair, or precaution that under the plaintiff's theory would have made the [railroad crossing] accident less likely to happen. . . . The evidence of the clear cutting [at a crossing] was inadmissible at this trial under Rule 407.").

^[4] See Baker v. Canadian National/Illinois Cent. R.R., 536 F.3d 357, 367 (5th Cir. 2008) ("lights and gates were installed two years after the accident" at railroad crossing); Bogosian v. Mercedes-Benz of N. Am., Inc., 104 F.3d 472, 480 (1st Cir. 1996) ("installation of park ignition interlocks on Mercedes-Benz vehicles apparently beginning with the 1990 model year"); Mehojah v. Drummond, 56 F.3d 1213, 1214 (10th Cir. 1995) (after accident a fence was installed on the west side of the creek).

^[5] See First Sec. Bank v. Union Pac. R.R. Co., 152 F.3d 877, 881 (8th Cir. 1998) ("Rafferty's memorandum, issued several months subsequent to the accident, instructed Union Pacific employees to enforce a policy that discouraged, 'if possible,' the placement of cars within 250 feet of the crossing.").

^[6] Fed. R. Evid. 407 advisory committee's note.

^[7] See Chlopek v. Federal Ins. Co., 499 F.3d 692, 700 (7th Cir. 2007) (excluding evidence of a change in warning label on Polar Care 300 (device that delivers cooling therapy to postoperative patients) some time after Chlopek's injury; motive for making the change is irrelevant); Wagner v. Roche Labs., 671 N.E.2d 252, 258 (Ohio 1996) ("To avoid the temptation of using 20/20 hindsight in this case, the trial court did not allow appellant to place evidence before the jury that, in 1984, both the package insert and the PDR Physicians' Desk Reference entry for Accutane an acne medication were supplemented to include a warning that Accutane used concomitantly with tetracycline therapy (e.g., such as Minocin) could be associated with PTC pseudotumor cerebri. The...