(2) Evidence: Policy Exclusions

Question 1

What are the Policy Exclusions?

Overview

Answer 1

1. Subsequent Remedial Measures
2. Evidence of Liability Insurance
3. Offers to Pay Medical Bills
4. Offers to Settle/Negotiations
5. Statements of Sympathy (CA only)
6. Pleas

Question 2

Definition:

Subsequent Remedial Measures

Answer 2

A subsequent remedial measure is any measure taken that would have made an earlier injury or harm less likely to occur.

Question 3

Rule:

Subsequent Remedial Measures

Answer 3

Evidence of subsequent remedial measures is inadmissible to prove negligence, culpability, or product liability.

Evidence of subsequent remedial measures may be admissible for other purposes such as impeachment, or if in dispute proving ownership/control and the feasibility of the precautionary measures.

The measure must be subsequent to the harm.

Question 4

Subsequent Remedial Measures by 3rd Parties

Answer 4

Subsequent remedial measures taken by 3rd parties and not the defendant will be admissible.

Question 5

Evidence of Liability Insurance

Answer 5

Evidence of liability insurance is not admissible to prove culpability (that a person acted wrongfully or negligently).

However it is admissible for another purpose such as to prove bias/prejudice of a witness, or proving agency, ownership or control.

Question 6

General Rule & FRE vs CA differences:

Offers to Pay Medical Bills

Answer 6

Evidence of payment, offer to pay or promise to pay medical bills or similar expenses are inadmissible to prove liability.

Under FRE statements or conduct that accompanies the payment, offer or promise is admissible however in CA these statements or conducts are not.

Question 7

Hint: When Admissible vs Inadmissible:

Offers to Settle/Negotiate

Answer 7

Compromise offers made or any conduct or statements during negotiations are not admissible to prove or disprove the validity of the amount of a disputed claim, nor for impeachment purposes.

Evidence can be admissible when negotiating with government agencies, proving bias or prejudice of a witness, negating a claim of undue delay or proving obstruction of a criminal investigation or prosecution.

Question 8

Statements of Sympathy (CA Only)

Answer 8

In CA statements of sympathy made to a person or their family are not admissible in a civil case as evidence of an admission of liability. Any accompanying statements of fault are admissible. Under FRE no such exclusion exists.

Question 9

Pleas

Answer 9

In civil or criminal case evidence of (a) withdrawn guilty pleas; (b) pleas of no contest; (c) statements made while negotiating a plea; OR (d) statements during a plea proceeding are not admissible against the D.