A Problem in Need of Repair: Louisiana's Subsequent Remedial Measures Rule

• Author: Erin G. Lutkewitte
• Pages: 195-226

Page 195

Erin G. Lutkewitte: I would like to thank Professor Frank L. Maraist for his invaluable assistance and insight in developing this topic. I would also like to dedicate this comment to my friend and fellow law student Joseph Ryan LoProto (1980- 2005).

I Introduction

American legal theory has long rejected the view that "because the world gets wiser as it gets older, therefore it was foolish before."¹ Such a position leads to weak inferences when one attempts to read fault into the conduct of another. In the area of evidence of subsequent remedial measures, the weak inference of guilt forcibly collides with a strong social policy favoring exclusion. Although Louisiana recognizes the exclusionary rule when the underlying theory of liability is "negligence or culpable conduct,"² we seem to ignore this aspect of conventional wisdom when the plaintiff is invoking products liability under the Louisiana Products Liability Act. Instead, the judicial interpretation of Louisiana Code of Evidence article 407³ allows the trier of fact to infer fault from the mere act of implementing post-accident modifications.

Part II of this comment examines the legal history of the subsequent remedial measures rule, discussing the evolution of Federal Rule of Evidence 407 and Louisiana Code of Evidence article 407. Despite the drafters' initial desire to follow the federal rule,⁴ the substance of article 407 and the jurisprudential application of the exclusionary rule remain stagnant as the federal rule has evolved to reflect changing attitudes toward including products liability within the scope of the rule. In 1997, Congress amended Federal Rule of Evidence 407 to expressly include products liability within the provision's protection, thereby officially adopting the position of the majority of federal circuits Page 196 and many states.⁵ The current position in Louisiana, however, maintains the antiquated Louisiana Supreme Court interpretation of article 407 as exclusive of products liability, a pronouncement proclaimed in the seminal case of Toups v. Sears, Roebuck & Co.⁶

Part III argues that the time is ripe for Louisiana to revisit and reevaluate its interpretation of the subsequent remedial measures rule. Specifically, article 407 needs to be expanded to bar the admissibility of subsequent remedial measures evidence when the underlying theory of culpability is products liability. Jurisprudence discussing this article is sparse and old. The most recent Louisiana Supreme Court decision to consider the Toups ruling was announced in 1994.⁷ The two appellate decisions since the 1997 federal amendment cite Toups for propositions based on grounds unrelated to article 407.⁸

Commentators have repeatedly criticized the Toups decision.⁹

They chastise the Louisiana Supreme Court for failing to address the position of the majority of federal circuits at the time of Toups and for relying on external authority without providing an explanation for why such a novel construction of article 407 was adopted as Louisiana law.¹⁰ Moreover, they condemn the court for overstating the conformity of its holding with prior Louisiana law.¹¹

Part IV argues that, upon reevaluation of article 407, Louisiana must embrace the federal position. Allowing the use of subsequent remedial measures as evidence promotes inferences of guilt with weak probative value.¹² These legal relevancy concerns reinforce Page 197 a strong social policy encouraging manufacturers to continue improving their product, a collision of forces that urges exclusion. Thus, the exclusionary rule for subsequent remedial measures should be extended to products liability actions. Jury confusion presents an additional concern when juries are asked to weigh the value of a weak inference of fault against the strong social policy favoring exclusion. Measures enacted after an accident may not be relevant in proving what a manufacturer knew or should have known at the time of the injury; however, it is difficult to convey this reality to a jury assessing liability. Finally, the current treatment produces different results in Louisiana if litigated in federal or state court. This inconsistency undoubtedly inspires defendants to seek removal of the case to federal court in order to avoid harsh treatment.¹³

Part V concludes that Louisiana must expand article 407 to bar the admissibility of subsequent remedial measures as evidence in a products liability case. This solution can be achieved through an amendment to article 407 or through a new judicial interpretation, reversing Toups. Regardless of the means chosen for modernizing the provision, policy and logic dictate that Louisiana must embrace the federal position, rendering evidence of subsequent remedial measures inadmissible in products liability cases.

II Background and Legal History

The drafters of Louisiana Code of Evidence article 407 expressed an initial desire to follow the federal counterpart;¹⁴ however, the two provisions are drastically different today because of contrasting treatment of products liability and its place within the subsequent remedial measures rule.¹⁵ Through the 1997 amendment to Federal Rule of Evidence 407, Congress expressly included products liability within the scope of the rule, an act codifying the position of the majority of federal circuits at the time.¹⁶ In contrast, Louisiana maintains its interpretation of article 407 as exclusive of products liability, a position which has remained stagnant since the Louisiana Supreme Court originally interpreted the provision in Toups v. Sears, Roebuck & Co.¹⁷ Page 198

A Federal Rule of Evidence 407

The exclusion of subsequent remedial measures as evidence is a fundamental aspect of the law.¹⁸ Federal Rule of Evidence 407, which codified the common law rule, precludes the use of subsequent remedial measures to prove negligence or culpable conduct.¹⁹ Through its enactment, the rule recognized two important policy considerations: a concern that evidence of subsequent remedial measures is logically irrelevant in assessing liability, and the fear of deterring safety measures.²⁰

Commentators agree that evidence of measures implemented after an event or injury is "logically irrelevant" in determining whether an individual breached a duty of care because the improvements may have been motivated by factors completely unrelated to negligence.²¹ The Rules Committee explained that such conduct cannot be an admission of fault because that conduct is equally consistent with an accident or an injury exacerbated by contributory negligence.²² Depending on the unique facts and circumstances of the case, the inferences drawn from subsequent remedial measures suggesting that the defendant failed to exercise due care "can vary considerably in probative force."²³

Recognizing that a trier of fact may erroneously infer guilt from conduct, the Committee added that, when considered in conjunction with a strong social policy encouraging further safety measures, evidence of subsequent remedial changes demands exclusion.²⁴ This legislative balance was premised on the fear that admitting evidence of subsequent remedial measures would thwart progression toward a safer environment.²⁵ Simply, the policy of Page 199 encouraging individuals to take safety measures outweighed the possible relevance of a determination of negligence. As a result, the rule prevents injured plaintiffs from introducing evidence of subsequent improvements to prove negligence or other conduct falling into the umbrella category of "culpable conduct."²⁶

Nevertheless, the applicability of the general subsequent remedial measures rule to actions predicated on products liability remained the source of debate long after the enactment of Rule 407. Following the landmark case of Ault v. International Harvester Co.,²⁷ the relationship between evidence of subsequent remedial measures and products liability became a heated issue that divided the federal circuits for decades.²⁸ The circuit split essentially turned on the Ault court's disparate treatment of the distinctive features separating "negligence or culpable conduct" and products liability. Ault and...