§ 13.05 Third-Party Remedial Measures

• Jurisdiction: United States

§ 13.05 Third-Party Remedial Measures

Rule 407 does not apply when a non-party undertakes the subsequent remedial measure. "The admission of remedial measures by a non-party necessarily will not expose that non-party to liability, and therefore will not discourage the non-party from taking the remedial measures in the first place."¹² In these cases, however, the relevance of the subsequent measure as an "admission by conduct" becomes doubtful and may be excluded under Rule 403.¹³ How is the repair an implied admission if the defendant did not make it?¹⁴ "[I]t hardly makes sense to speak of a party's fault being 'admitted' by someone other than the party."¹⁵

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Notes:

^[12] Diehl v. Blaw-Knox, 360 F.3d 426, 430 (3d Cir. 2004). Accord Millennium Partners, L.P. v. Colmar Storage, LLC, 494 F.3d 1293, 1303 (11th Cir. 2007) (evidence that a subsequent tenant installed new catch basins, pumps, and drains in the facility's truck walls to prevent flooding: "The applicability of Rule 407 to repairs made by a non-defendant is a question of first impression in this Circuit. Today, we join the seven Circuits that have agreed that such evidence is not barred."); Mehojah v. Drummond, 56 F.3d 1213, 1215 (10th Cir. 1995) (Rule 407 "does not apply to subsequent remedial measures by non-defendants.").

^[13] See Raymond v. Raymond Corp., 938 F.2d 1518, 1524-25 (1st Cir. 1991) ("Rule 403 may be used to exclude evidence of subsequent third party actions which are felt to bear only marginally on the question of whether a product was unreasonably dangerous at the time of manufacture."); Gauthier v. AMF, Inc., 805 F.2d 337, 338 (9th Cir. 1986) ("Plaintiff's evidence of subsequent remedial measures by non-parties should have been excluded...