Admissibility of evidence of subsequent remedial measures in strict liability: some state courts fail to follow Federal Rule 407 that this evidence is just as irrelevant in strict liability as in negligence actions.

• Author: McManus, Brian C.

THE RULE that evidence of subsequent remedial measures is not admissible in negligence actions for the purpose of proving a party's conduct emerged as a common law evidentiary rule during the mid-nineteenth century. (1) In 1975, it was codified as Rule 407 of the Federal Rules of Evidence and now has been adopted by almost every state.

Shortly after the enactment of the Federal Rules of Evidence, questions arose concerning the applicability of Rule 407 outside the context of negligence actions, and specifically its extension to products liability actions. Several federal courts of appeals and states split on the question of whether evidence of subsequent remedial measures should be admitted in products liability cases, which are analyzed under a theory of strict liability. Some legal scholars, practitioners and judges argued that the language of Rule 407 excluded strict liability claims. Others disagreed about whether the underlying rationale for the rule was applicable outside the context of a negligence action. (2)

In 1997, Federal Rule 407 was amended to require its application in strict products liability cases brought in the federal courts. This amendment, according to the Advisory Committee Notes, reflected the holdings of the majority of the federal circuits. Many state courts, however, declined to follow Rule 407 as amended. (3) As is often the case when there is a jurisdictional split concerning a fundamental principle of law, this issue has created, and will continue to create, a myriad of problems, among which is the likelihood of divergent verdicts, leading to additional forum shopping issues and generating complex diversity arguments. (4)

A uniform approach to the exclusionary rule is preferable. The arguments advanced by state courts that evidence of subsequent remedial measures should be admissible are not persuasive. The exclusionary rule should be applied to strict products liability actions, as well as negligence actions.

THE EXCLUSIONARY RULE

At common law, evidence of a subsequent remedial measure was not admissible in negligence actions for the purposes of establishing a party's negligence. The exclusion applies to evidence of changes, repairs or precautions taken by a party after an injury or harm allegedly caused by an event that would have made the injury of harm less likely to occur. (5) In negligence actions, courts concluded that this evidence was of limited relevance, was often mistaken by juries as an admission of culpability, tended to unduly prejudice defendants, and discouraged persons from taking action to prevent future harm.

The development of the exclusionary rule is often attributed to Baron Bramwell's 1869 decision in Hart v. Lancashire & Yorkshire Railway Co. The court excluded evidence that the defendant made improvements to its railroad tracks following an accident, reasoning that the exclusion of such evidence was necessary because juries often considered such evidence to be an implicit admission of culpability. The court explained:

People do not furnish evidence against themselves simply by adopting a new plan in order to prevent the recurrence of an accident. I think that a proposition to the contrary would be barbarous. It would be (as I have often had occasion to tell juries) to hold that, because the world gets wiser as it gets older, therefore it was foolish before. (6) In 1892, the U.S. Supreme Court recognized this rule in Columbia & Puget Sound Railroad Co. v. Hawthorne, (7) in which the plaintiff, who was employed in the railroad's sawmill, was injured when a pulley fell off a machine and landed on him. Following the accident, Columbia added several safety features to the mechanism that would prevent future accidents. At trial, the plaintiff sought to introduce evidence of subsequent remedial measures. The Supreme Court held that evidence of the subsequently added safety features was not admissible to show fault. The Court reasoned that (1) the subsequent measures were not relevant to the issue of past conduct, (2) the evidence probably would be construed by the jury to be an admission, and (3) extrinsic policy supported the elimination of disincentives to responsible social behavior.

The rationale behind the exclusionary rule, as articulated by the Court, was that the prejudicial and confusing effects of subsequent remedial measure evidence, when coupled with an exclusionary rule's positive impact on social behavior, outweighed the evidence's marginal relevancy. The Court explained that taking "precautions against the future is not to be construed as an admission of responsibility for the past." It further justified its conclusion on the ground that the admission of the evidence tended to create "an inducement for continued negligence."

Following Columbia & Puget Sound Railroad, state courts universally applied the exclusionary rule to negligence actions.

In 1975, Federal Evidence Rule 407 codified the common law exclusionary rule in the federal courts. The 1975 version provided:

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. Under the express language of the 1975 version of the rule, Rule 407's limitations applied only to claims involving "negligence or culpable conduct." With the advent of strict products liability as a distinct theory of liability, the significance of the term "culpable conduct" generated confusion. (8) Opponents of the exclusionary rule argued that if Rule 407 were controlling in strict products liability actions, courts would have to find that the evidence was being offered to prove "culpable conduct"; otherwise, the rule was inapplicable. This language presented a serious problem for those seeking to bar the evidence because the culpability of the defendant's conduct is not at issue in strict liability cases. Most federal jurisdictions, however, held that evidence of subsequent remedial measures was not admissible under Rule 407. (9) In addition to this technical quagmire, the rule was assaulted on the grounds that its underlying rationale did not extend to strict products liability actions.

Shortly after the rule's promulgation, a chasm developed among the various federal courts and the states. (10) Today, some state courts hold that the rationale underlying the exclusionary rule is not applicable to products liability cases and do not apply the rule. (11) Other state courts apply the rule to products liability cases. (12) In the federal courts, however, the debate was settled when the rule was amended in 1997. In the 1997 version, Rule 407 was extended beyond claims of "negligence or culpable conduct" to include products liability claims.

The rule currently provides:

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. RATIONALE FOR EXCLUSIONARY RULE

Courts cite two rationales that combine to form the foundation for the exclusionary rule: (1) the limited relevancy of the evidence (13) and (2) extrinsic public policy. (14)

The basis for the limited relevancy rationale is the proposition that the relevancy of a subsequent repair is limited and does not outweigh the potential prejudice to a defendant. Courts utilizing this rationale reason that although the repairs may evidence the fact that an object is capable of causing an injury, the repairs do not demonstrate culpability or constitute an admission of liability.

The premise for the extrinsic public policy rationale is the proposition that the rule encourages responsible social behavior. Courts cite several public policy goals that are furthered by the application of the rule, including encouraging individuals to remedy dangerous conditions, limiting disincentives to repairs arising from fear of liability, and not punishing those who act in a socially responsible manner.

Courts generally cite both rationales when considering whether the rule should be applied in negligence actions. (15) Therefore, the importance of the combination of the relevancy rationale and the extrinsic public policy rationale cannot be overlooked. Several courts and commentators, including the Advisory Committee on the Federal Rules of Evidence, concluded that the relevancy argument, standing alone, would probably be insufficient to bar subsequent remedial measures evidence in most negligence cases. (16) Similarly, the extrinsic public policy rationale would probably not be enough to prevent the admissibility of probative evidence either. It is the combination of the two factors--relevancy...