Curative Admissibility: Fighting Fire With Fire
| Publication year | 1994 |
| Pages | 2321 |
| Citation | Vol. 23 No. 10 Pg. 2321 |
1994, October, Pg. 2321. Curative Admissibility: Fighting Fire with Fire
The plaintiff sues a pharmaceutical company because he believes that the company's defectively manufactured drug caused him to fall asleep while driving, causing an injurious one-car accident. Before trial, the parties engage in settlement negotiations, and the defendant offers to pay the plaintiff's current and future medical bills if the plaintiff will dismiss his suit. The plaintiff counteroffers and includes in his offer a promise that he will not disclose the terms of the settlement or disparage the company in the press. The settlement attempts fail, and at trial, the plaintiff paints the company as an uncaring, rapacious Leviathan and himself as a public hero seeking to blow the whistle on corporate greed.
On direct examination, the plaintiff testifies to the defendant's settlement offer and its willingness to pay the plaintiff's medical expenses if he "goes away." Despite the fact that the evidence is inadmissible as an offer of compromise,(fn1) the judge allows the evidence.
On cross-examination, the defendant seeks to introduce the plaintiff's counteroffer to remain silent about the drug if he was paid enough money. Is the evidence admissible?
"Curative admissibility" is a doctrine that allows a party to introduce otherwise inadmissible evidence to rebut evidence that should not have been introduced. The rule is not found in either the Federal Rules of Evidence or the Colorado Rules of Evidence, but it is recognized by courts in almost every jurisdiction.(fn2)
Often referred to as "fighting fire with fire," the doctrine has been recognized in Colorado.(fn3) The doctrine is a rule of admissibility, but it is not based on relevance so much as on basic fairness. It is sometimes compared to estoppel.(fn4)
There is a split among the authorities as to whether the doctrine applies if an objection has been made to the introduction of the original evidence. Some courts have held that the doctrine can be invoked only if no objection has been made.(fn5) The idea is that if an objection has been made, there is no need for rebuttal evidence because the original error can be corrected by appellate review.(fn6)
Other courts, following the usual rule that counsel should...
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