Tampering With the Evidence Rule

It's deja vu.

Living through tort reform once in Illinois should have been enough. And the folly of it was demonstrated in the recent decision of the Illinois Supreme Court, which rejected the Civil Justice Reform Act.

But, now the nation is witness to similar business-influenced changes in product liability law, as evidenced by significant modifications to Federal Rule of Evidence 407. The rule deals with the admissibility of evidence of subsequent remedial measures.

When it originally was enacted in 1975 it read:

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. 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.

It had been left to the courts to decide whether the rule applied to strict products liability actions. But last year, following three years of discussion, the Advisory Committee, apparently influenced by business interests, cast a wider net in the exclusion of subsequent remedial measures. Now, the exclusion of this evidence applies to all claims, including strict liability claims. Effective Dec. 1, 1997, a new Rule 407 took effect that reads:

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 the product, a defect in a product's design, or a need for a warning or instruction.

The Advisory Committee in its Note stated it was merely adopting the majority of the circuits' thinking on the rule, but an examination of the process that led to these changes causes one to be suspect of what led to that assertion.

In a process largely ignored by trial lawyers, the Advisory Committee last year recommended the sweeping changes to the Standing Committee on Rules and Practice, a group hand-picked by William Rehnquist, chief justice of the United States.

After approval by the Standing Committee, the amendment to Rule 407 was forwarded to the Supreme Court, which under the procedures prescribed by the Rules Enabling Act, must approve any new evidence rules or amendments. By May 1 of 1997, the Supreme Court recommended to Congress various changes in the rules, which included the Rule 407 amendments.

For a rule not to go into effect, Congress must pass a resolution of disapproval, handled initially by the House and Senate Judiciary Committees. If not, the Rule becomes effective Dec. 1 of that same year.

However, in the absence of involvement by consumer groups or trial lawyers, it was unlikely such a measure would have been rejected by the current Judiciary Committees, now under Republican control. Therefore, the changes that have gone into effect were the result of a questionable political process that should have been more neutral with more balanced substantive input from plaintiff and defense practitioners.

A disturbing aspect of the new rule is the deliberate deletion of the language that allowed for exceptions to the rule's inadmissibility requirement. Several exceptions routinely allowed evidence of subsequent remedial measures to be admitted into evidence to establish feasibility of design, to show knowledge of a dangerous condition or the feasibility of precautions, to demonstrate a defendant's control over certain premises or instrumentalities or to impeach testimony.

Illinois applies Rule 407 in strict product liability actions and recognizes these exceptions. See, e.g., Davis v. International Harvester Co., 167 Ill.App.3d 814, 521 N.E.2d 1282 (2d Dist. 1988).

But the validity of these exceptions is now subject to debate. Although the Advisory Committee Note acknowledges they will still be recognized, it instead suggests that each court add the Fed. Rule of Evidence 403 balancing test to the equation: to exclude the evidence when the dangers of prejudice or confusion substantially outweigh the probative value of the evidence. Given the negligence and culpable conduct standard now gone, the scales seem predestined to balance in favor of excluding the evidence.

The real impact of the new rule creates an uphill battle for plaintiffs in a courtroom. Federal courts applying the previous federal rule to strict products liability actions justified their holdings generally on a two-fold public policy argument: The use of such evidence was irrelevant in strict liability actions and companies would be discouraged to take steps in furtherance of added safety. The 7th U.S. Circuit Court of Appeals followed the majority's line of thinking. Flaminio v. Honda Motor Company, Ltd., 733 F2d 463, 469 (7th Cir. 1984).

However, two circuits, the 8th and 10th, did not apply the old rule to strict products actions for business as well as common-sense reasons.

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 economics 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.Sup.Ct. 1976).

The Advisory Committee does not even attempt to reconcile this reasoning with the new rule. The federal courts have not yet expressly dealt with the new Rule 407, but already the Washington state Supreme Court has adopted the new Rule 407, but not without a strong dissent. Justice Philip Talmadge, with two justices concurring, disagreed with the majority and said that the "sounder approach" is to determine the relevancy of post-accident remedial measures on a case-by-case basis. He went on to say:

The more significant flaw in the majority's analysis, however, 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. Hyjek v. Anthony Industries, 133 Wash.2d 414, 944 P.2d 1036, 1044 (1997).

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