Subsequent remedial measures: the misunderstood Rule of Evidence.

• Author: Graham, Michael H.

Rule 407 does not exclude all evidence of subsequent remedial measures. Lawyers should carefully review evidence to determine whether it is truly excluded.

The evidence rule concerning subsequent remedial measures is among the most misunderstood rules of evidence. Many lawyers fail to understand the limited scope of this rule of exclusion. The purpose of this article is to help remedy this deficiency.

The Rule

The evidence rule concerning subsequent remedial measures, codified at F.S. [sections] 90.407, is relatively simple and straightforward: "Evidence of measures taken after an event, which measures if taken before it occurred would have made the event less likely to occur, is not admissible to prove negligence or culpable conduct in connection with the event."

The rule is based on the public policy consideration that precautionary measures to avoid injuries are to be encouraged. A party should feel confident that it can repair a dangerous condition without the concern that the remedial measure will be admitted as an admission of liability.[1]

What Is a Subsequent Remedial Measure?

It is important to note that [sections] 90.407 does not broadly require that evidence of subsequent remedial measures be excluded from evidence. Rather, the rule provides that evidence of subsequent remedial measures is barred only when offered to prove negligence or culpable conduct. If the evidence is offered to prove anything other than negligence or culpable conduct, then the evidence is outside the scope of the rule.

For the most part, it is easy to identify what constitutes a subsequent remedial measure. Some examples are obvious: the changing of a hazardous condition,[2] the newer design of a product,[2] or the use of a warning." Other subsequent remedial measures may be less obvious: the firing of an employee[5] or the institution of a safety program.[6]

Sometimes a measure is subsequent, but not a remedial measure by a party opponent. For example, a manufacturer's government-ordered recall, while remedial, is not taken voluntarily by the manufacturer, and thus is not excluded by [sections] 90.407 .7

Conduct that would have made the event less likely to occur. An important limiting principle, stated in the rule, is that the subsequent measures excluded from evidence are those that would have made the event less likely if they had been taken before the accident. If the subsequent measure would not have made the event less likely to occur--that is, if the measure was not remedial--then it is not barred from evidence." For example, the rule does not require the exclusion of evidence of post-accident tests or reports, since these are not, in fact, remedial measures.[9] Similarly, evidence of a postaccident coverup of a hazard is not "remedial," and thus not excluded by the rule.[10] Also, evidence of a post-accident hazard or accident is not barred by [sections] 90.407--such events are not "remedial measures."[11]

Time of conduct. Another important issue concerns the time used as the measuring point for whether conduct is "subsequent" for purposes of the rule. Evidence of actions after the accident and injury is clearly "subsequent," and therefore clearly within the scope of the rule's exclusion. But, what if the subsequent remedial measure occurred before the injury to the plaintiff? This most commonly occurs in a product liability case:[12] A product is manufactured in 1980; a defect is discovered in 1984, after which there is a recall or change in product design (that is, a remedial measure); and the plaintiff is injured in 1988.

Florida courts have held that remedial measures taken after manufacture but before the accident at issue in the lawsuit are not barred by [sections] 90.407.[11] The courts have concluded that the accident is the "event" referred to in the rule; if the measure was taken before the accident, it is not "subsequent." Rule 407 of the Federal Rules of Evidence has been revised, effective December 1, 1997, to clearly confirm that the subsequent remedial measures rule excludes only those measures taken "after an injury or harm allegedly caused by an event."[14] This change clarifies that "the rule applies only to changes made after the occurrence that produced the damages giving rise to the action. Evidence of measures taken by the defendant prior to the `event' causing `injury or harm' does not fall within the exclusionary scope of Rule 407 even if they occurred after the manufacture or design of the product."[15]

Consistent with this principle that the date of the accident is the crucial date, a memo written after the accident, but memorializing remedial measures taken before the accident, should not be barred by [sections] 90.407.

Admissible if "Offered for Another Purpose"

As stated above, evidence of subsequent remedial measures is not barred by [sections] 90.407 unless the evidence is offered "to prove negligence or culpable conduct in connection with the event." Rule 407--but not the Florida rule--expressly adds that the rule "does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving ownership, control, or...