§ 13.09 Choice of Law

• Jurisdiction: United States

§ 13.09 Choice of Law

Because the rationale underpinning Rule 407—encouraging voluntary remedial measures—may be considered a substantive policy, a potential Erie issue arises.³⁹ However, many federal courts have ruled that Rule 407 applies in diversity cases.⁴⁰

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Notes:

^[39] See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) (holding state law controls with respect to burdens of proof involving substantive elements of a claim or defense if state law determines the rule of decision).

^[40] See Kelly v. Crown Equip. Co., 970 F.2d 1273, 1278 (3d Cir. 1992) (Rule 407 "governs in this diversity action notwithstanding Pennsylvania law to the contrary. Our view is in accord with the majority of appellate courts that have considered the issue."); Flaminio v. Honda, Motor Co., 733 F.2d 463, 472 (7th Cir. 1984) ("But Rule 407 is not based on substantive considerations only. An important though not the primary reason for the rule was distrust of juries' ability to draw correct inferences from evidence of subsequent remedial measures. Although it was a...