Rule 407: the Other Purposes for Introducing Subsequent Remedial Measures

• Publication year: 1999
• Pages: 59
• Citation: Vol. 28 No. 5 Pg. 59

28 Colo.Law. 59 Colorado Lawyer 1999.

1999, June, Pg. 59. Rule 407: The Other Purposes for Introducing Subsequent Remedial Measures

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59

Vol. 28, No. 5, Pg. 59

The Colorado Lawyer
June 1999
Vol. 28, No. 6 [Page 59]

Specialty Law Columns
Civil Evidence
Rule 407: The Other Purposes for Introducing Subsequent Remedial Measures
by Richard F. Rodriguez

Q: Can documents obtained from the Internet be authenticated so that they may be introduced as evidence?1

A: Yes. Despite several unique aspects of documents obtained from the Internet, the practitioner may draw analogies to evidentiary rules and court decisions regarding more traditional types of documentary evidence

Assumed Facts

Plaintiff Bernie Rubber sustained several injuries when his mini-go-cart skidded off the tracks at the Indy250 Go Cart Expressway and onto an island median containing concrete barriers. Susan Attorney's firm represents Bernie in his suit against Indy250

At the time of the accident, Indy250 guaranteed that its drivers could reach top speeds in excess of 50 m.p.h., based on its patented "GlideRide" track lubricant, a chemically complex oil-based additive. Twelve days after the accident, however, Indy250 replaced its GlideRide lubricant with "SmoothMove" lubricant. SmoothMove is a chemically simple, water-based additive that provides better traction, but reduces top speeds

At trial, Indy250 calls Porter, the amusement center safety manager. Porter testifies that over the course of several days, he conducted safety and performance tests of many lubricants, including both GlideRide and SmoothMove. Porter states that test results demonstrated that GlideRide performed better and was safer than the remaining lubricants. Porter also testifies that the use of SmoothMove would have been impractical, as it takes twice as long to apply and cure as GlideRide.

Susan Attorney seeks to introduce evidence regarding Indy250's subsequent replacement of GlideRide with SmoothMove. Opposing counsel objects on the grounds that the change was an inadmissible subsequent remedial measure. Is the evidence admissible?

Analysis

Rule 407 of the Colorado Rules of Evidence ("C.R.E.") provides:

When after an event, measures are taken which, if taken previously, would have made the event less likely to occur evidence of subsequent remedial measures is not admissible to prove...