§ 13.10 Key Points

• Jurisdiction: United States

§ 13.10 Key Points

Rule 407 excludes evidence of subsequent remedial measures when offered to prove (1) negligence, (2) culpable conduct, (3) a defect in a product or its design, or (4) a need for a warning or instruction. Although known as the "repair rule" at common law, Rule 407 encompasses far more than subsequent repairs. It covers the installation of safety devices, changes in company rules, discharge of employees, disciplinary action against an employee, changes in drug warnings, and modifications in product design.

Rationale. Rule 407 rests on two grounds. The most important is "a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety." The second ground is relevance: Is the repair probative of negligence or are there other motivations at work?

Timing of repair. The remedial measure must be made after the injurious accident or incident that is the subject of the litigation. A remedial measure that takes effect after purchase but before the accident or incident is not a subsequent measure.

Third-party remedial measures. When a third party makes the subsequent remedial measure, the policy of encouraging such measures is not implicated, and thus the rule does not apply. In these cases, however, the relevance of the subsequent measure (as an implied admission) becomes doubtful and is subject to exclusion under Rule 403.

Required remedial measures. Some courts have held that Rule...