Beyond the Bar

• Year: 2025
• Citation: Vol. 36-3

BEYOND THE BAR Vol. 36 Issue 3 Pg. 25 South Carolina Lawyer January, 2025

BY WARREN MOÏSE

Rule 409 - Offers to Pay Medical and Similar Expenses

Hey. Remember this Rule way back in Wally Reiser's evidence class? It had something to do with medical bills, didn't it?

Well, here's an example of how it works to refresh your memory:

Bob, your drunk next-door neighbor, drives his Mack truck into your kitchen, breaking your arm. Bob climbs out from behind the window and spurts out, "Don't worry, man! I'll pay for it all." Yeah, right.

The next day, old Bob vacates town and disappears hi Ids 18 wheeler. Word is, Bob's dead. It's now a year later, you're at trial where you want to introduce into evidence that damning admission. The defense lawyer objects, citing Rule 409. In whose favor does the judge rule? Well, first, let's look at the rule itself.

Federal Rule of Evidence 409: Offers to Pay Medical and Similar Expenses

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

28 words, rarely cited at trial, and even less the subject of an appeal. I'm convinced that many lawyers don't know the rule exists.

Even so, let's take a look at Rule 409 hi case it reaches up and grabs you by the neck when you least expect it.

The basics

For starters, die staff notes to the South Carolina Rules of Evidence claim that the Federal and South Carolina Rules of Evidence at issue are identical. They are not. The federal rules themselves are more or less like a volcano flow. In other words, they are constantly changing (some more than others).

Federal Rule 409 was changed for stylistic reasons. No substantive changes were intended. South Carolina Rule of Evidence 409 has never been revised.

The underlying theory for federal Rule 409 is sometimes referred to as being based on humanitarian motives. See also Federal Rule of Evidence 409 Advisory Committee Note. For rules from other jurisdictions on the same subject, and phrased in terms of "humanitarian motives," see Uniform Rule 52: California Evidence Code §1152; Kansas Code of Civil Procedure §§60-452; and New Jersey Evidence Rule 52. In this regard, Rule 409 bears a relationship to Good Samaritan Laws protecting care givers from liability when they stop and render aid to an injured person.

President Gerald Ford signed the federal Rules of Evidence into law on January 2, 1975. However, the first draft of the proposed federal Rule 409...