§ 13.04 Timing of Remedial Measures

• Jurisdiction: United States

§ 13.04 Timing of Remedial Measures

The remedial measure must be made after the injurious accident or incident that is the subject of the litigation.¹⁰ In 1997, Rule 407 was amended to clarify that it applies only to post-event changes, not post-sale, pre-event remedial measures. Although not excluded by Rule 407, the evidence of pre-event measures must still be relevant and is subject to exclusion under Rule 403.¹¹

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Notes:

^[10] See Trull v. Volkswagen of Am., Inc., 187 F.3d 88, 96 (1st Cir. 1999) ("Although evidence concerning subsequent remedial measures generally is not admissible at trial, see Fed. R. Evid. 407, measures that take place before the accident at issue do not fall within the prohibition.").

^[11] See Bogosian v. Mercedes-Benz of N. Am., Inc., 104 F.3d 472, 481 (1st Cir. 1997) (Rule 407 "does not apply where, as here, the modification took place before the accident that precipitated the suit. In cases such as this, the district court may, if necessary, exclude evidence of the remedial modification by resort to its...