Overhauled Fed. R. EVID. 407 Poses Problems for Plaintiffs

Product liability law has been reshaped by sweeping changes in the federal evidentiary rule on subsequent remedial measures. In a process largely ignored by trial lawyers, business interests prevailed in promoting revisions to Fed.R.Evid. 407 which became effective on Dec. 1, 1997. Plaintiffs' lawyers now face a greater challenge in getting evidence of subsequent remedial measures admitted than they did under the earlier version of the rule. The Advisory Committee on the Rules of Evidence had been discussing amendments to the rule for several years. Under the old version of the rule, evidence of subsequent measures "which, if taken previously, would have made the event less likely to occur" were not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. (Emphasis added.)

Now, however, a wider net has been cast. Today, the exclusion of evidence of subsequent remedial measures applies to all claims, including strict liability claims. Rule 407 now reads:

When, 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 the product, a defect in a product's design, or a need for a warning or instruction. [Emphasis added.]

A Bright-Line Test at the Federal Level

The advisory committee, in its note on the new rule, observed that it was merely following a majority of circuit courts by expanding the rule to include strict product liability lawsuits. What the change has really done is create a more difficult path for plaintiffs by establishing a "bright line" test for the admissibility of subsequent remedial measures.

Under the old rule, the admissibility of evidence in strict product liability lawsuits was determined on a case-by-case basis. The advisory committee note for the previous version of Rule 407 indicated that the exclusion of evidence of subsequent remedial measures was intended to prevent the use of evidence that may not be relevant and to promote the social policy of encouraging people and companies to take steps to improve safety. A majority of federal courts, which applied the old rule to strict product liability actions, generally cited this reasoning.

Some federal circuits, however, favored admissibility of evidence of subsequent repairs and refused to apply the old version of Rule 407 to strict product liability actions. For example, the U.S. Court of Appeal for the Eighth and the Tenth Circuits allowed evidence of subsequent remedial measures to be admitted in strict product liability cases. Porcia v. Design Equipment Co., 113 F.3d 877 (8th Cir. 1997); Herndon v. Seven Bar Flying Service, Inc., 716 F.2d 1322 (10th Cir.1983). According to these two appellate courts, negligence stems from the negligent conduct of the manufacturer, but strict product liability focuses on the defectiveness of the product. Under that reasoning, the public policy behind old Rule 407 is not advanced in strict product liability actions. The Eighth Circuit rejected arguments that manufacturers would be discouraged from making subsequent repairs: In an age of mass production it is not reasonable to assume that manufacturers would forego improvements in a product and subject themselves to mass liability for a defect just because evidence of an improvement is admissible in a pre-improvement liability case. The pure ecnomics of the situation dictate otherwise.

Farner v. Paccar, 562 F.2d 518, 527 (8th Cir.1977), quoting Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 257, n. 7 (S.D.1976).

This solid reasoning suddenly, and without explanation, became invalid under the new Rule 407. Neither the Eighth nor the Tenth Circuit has expressly dealt with the new rule yet.

Another Blow: The Deleted Exceptions

What is particularly disturbing about the new Rule 407 is the absence of any language on long-established exceptions to the rule. These exceptions allowed evidence of subsequent remedial measures to be admitted into evidence. Several exceptions routinely had been admitted in most jurisdictions to

¥ Establish feasibility of design, Ross v. Black & Decker, Inc., 977 F.2d 1178 (7th Cir.1992);

¥ Show knowledge of a dangerous condition or the feasibility of precautions, Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir,.1978);

¥ To demonstrate a defendant's control over certain premises or instrumentalities, Hull v. Chevron U.S.A., 812 F.2d 584 (10th Cir.1987) or

¥ To impeach testimony, Muzyka v. Remington Arms Co., 774 F.2d 1309 (5th Cir.1985).

The validity of these exceptions is now subject to debate. Language referring to these exceptions was deliberately deleted in the new rule. Moreover, the advisory committee's note has been revised. Under the old rule's negligence or culpable conduct standard, the note indicated that a liberal theory of relevance permitted an inference of culpability from a subsequent remedial measure. However, the note accompanying the new rule indicates that evidence of subsequent remedial measures is also subject to exclusion, pursuant to Fed.R.Evid. 403, when the dangers of prejudice or confusion substantially outweigh the probative value of the evidence.

What Can Be Expected at the State Level

Lawyers can expect fallout from the changes to the federal rule to extend, to some extent, to state courts. The language barring evidence of subsequent measures to prove negligence or culpable conduct that appeared in the earlier version of Rule 407 appears in the rules or statutes of 43 states. (See box). Whether or not states will modify their evidentiary rules or statutes to follow the new Rule 407 depends, in part, upon each state's procedural process.

Already, the Washington State Supreme Court has adopted the new rule in Hyjek v. Anthony Industries, 944 P.2d 1036 (Wash.1997). Nevertheless, Justice Philip A. Talmadge, with two justices concurring, wrote a strong dissent. According to him, the argument that safety measures are encouraged when evidence of subsequent measures is barred in strict liability actions is inapplicable. Justice Talmadge also asserted that a case-by-case determination of the relevancy of post-accident remedial measures is preferable to a universal rule. He also observed that " the more significant flaw in the majority's analysis ... is that subsequent changes in the design of the product are relevant to the question of whether, at the time of the manufacture of the product, the design of the product was feasible and practical."

His dissent underscores what is yet to come: new Rule 407 may not be uniformly followed by states. In the meantime, the disparity between the federal and state rules could lead to forum shopping among state courts.

The potentially devastating impact that the new Rule 407 may ultimately have at the state or the federal level can't yet be calculated because so few courts have addressed the changes. At the very least, the rule hasn't made plaintiffs' uphill battles any easier.