Class 3: Subsequent Remedial Measures and Civil Settlements - Jan. 16 Flashcards
What are subsequent remedial measures? (Q)
Subsequent remedial measures are measures taken after an injury or harm that would have made the earlier injury or harm less likely to occur under certain circumstances. The term measure includes:
physical repairs;
installation of safety or warning devices;
changes in design;
removal or repair of dangerous conditions;
changes in business practices, procedures, or contracts;
written warnings to employees;
changes in the terms of employment;
changes in regulations; and
changes in labels or instructions.
However, the term measure does not include post-accident investigations or reports. (FRE 407)
Is evidence of subsequent remedial measures admissible to prove negligence? (Q)
No. Evidence of subsequent remedial measures is not admissible to prove:
negligence,
culpable conduct,
a defect in a product or its design, or
a need for a warning or instruction.
(FRE 403)
For what purposes may a party offer evidence of subsequent remedial measures? (Q)
A party may offer evidence of subsequent remedial measures for any permissible purpose other than proving negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. A court can admit the evidence for purposes such as:
impeachment;
to prove the condition of the premises or object; or
to prove ownership, control, or the feasibility of precautionary measures if those are disputed.
(FRE 407)
What is the purpose (policy) of not allowing SMRs to be introduced as evidence? (Q)
The purpose of this rule is to remove any possible discouragement of tortfeasors from taking reasonable and responsible remedial measures after an injury occurs—if subsequent remedial measures were admissible to prove negligence, there would be an incentive not to take such measures, even though it would be in the public interest to do so.
The parents of a young boy who suffered an eye injury after playing with a laundry detergent packet sued the company that manufactured the product. After the injury occurred, the company placed a new, larger warning label on the package. After the new label was introduced, a young girl suffered the same type of injury from the same type of laundry detergent packet manufactured by the same company. Her parents also sued the company.
Can either of the plaintiffs introduce evidence of the new warning label in order to prove a defect in the detergent packet or its design? (Q)
The parents of the boy cannot offer evidence of the new warning label in order to prove a defect in the detergent packet or its design, but the parents of the girl can. It comes down to timing. Evidence of a subsequent remedial measure that would have made an earlier injury less likely to occur is not admissible to prove a defect in a product or its design or a need for a warning.
Here, the company added the warning label after the boy’s injury. Evidence of the new warning label is inadmissible as a subsequent remedial measure. The girl’s accident, however, occurred after the warning label was placed on the package. In her case, the placement of the warning label was not a subsequent remedial measure. Thus, the parents of the girl can offer evidence of the new warning label but, the parents of the boy cannot.
Is evidence of a compromise offer, negotiation, or completed settlement admissible in a civil case to prove the validity of a disputed claim? (Q)
No. Evidence of a compromise offer, negotiation, or completed settlement, and any conduct or statements made during negotiations, is inadmissible in a civil case to:
prove the validity, invalidity, or amount of a disputed claim or
impeach a witness by a prior inconsistent statement or a contradiction.
(FRE 408)
A flour mill in a foreign country purchased supplies from the United States. In order to exchange foreign currency for dollars, it entered into a foreign currency exchange agreement with an American investor. The agreement stipulated the amount of the exchange. The mill completed its side of the contract by the deadline, but the investor’s checks bounced. At a meeting, the investor acknowledged to the mill owner that he owed the money and asked for an additional month in which to pay. After the investor failed to pay by the second deadline, the mill sued the investor for breach of contract. At trial, the mill owner wished to testify about the investor’s statements at the meeting. The investor objected, arguing that his statements at the meeting were inadmissible.
How should the court rule on the objection? (Q)
The court should overrule the objection because there is no dispute about the claim. Evidence of a compromise offer, negotiation, or completed settlement is not admissible to prove the validity, invalidity, or amount of a disputed claim. However, this restriction only applies if there is a dispute as to the validity or amount of the claim.
Here, the investor acknowledged that he owed the debt and did not challenge the amount owed, so the claim was not disputed. Because there is no dispute about the claim, the investor’s statements are admissible. Thus, the court should overrule the objection.
For what purposes may evidence of a compromise offer, negotiation, or completed settlement be admissible in a civil case? (Q)
In a civil case, evidence of a compromise offer, negotiation, or completed settlement may be admissible for any purpose besides proving the validity, invalidity, or amount of a disputed claim or impeaching a witness by a prior inconsistent statement or a contradiction. Specifically, a party may use evidence of a compromise offer or negotiation for purposes including:
proving a witness’s bias or prejudice,
disproving an assertion of undue delay, or
proving an effort to obstruct a criminal investigation or prosecution. (FRE 408)
Is evidence of conduct or statements made during compromise negotiations in a civil dispute involving a government regulatory, investigative, or enforcement agency admissible in a subsequent, related criminal case? (Q)
Yes. Evidence of conduct or statements made during compromise negotiations in a civil dispute involving a government regulatory, investigative, or enforcement agency are admissible in a subsequent, related criminal case. This exception does not apply to settlement offers or acceptances.
(FRE 408(a)(2))
Do SRMs apply to remedial actions by third parties? (Merritt)
No. (FRE 407 (Quiz))
Plaintiff is suing defendant for injuries sustained when the defendant hit her with his car. During settlement negotiations, the defendant admits that he may have been texting at the time of the accident, and he is willing to pay her half of what she is suing for to settle the case. Plaintiff refuses. During the defendant’s case-in-chief, he testifies that he was not texting at the time of the accident. The plaintiff seeks to admit the statement defendant made during the settlement negotiations in order to impeach the defendant’s testimony.
Is this admissible? (Merritt)
No. FRE 408 bars all statements made during compromise negotiations if offered to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or contradiction. In this case the plaintiff is seeking to admit a protected statement in order to impeach the defendant with a prior inconsistent statement. (Quiz)
What is the purpose (policy) of not allowing litigants to introduce statements made during settlement discussions? (Q)
This evidence is not admissible by either party, meaning that even the party who made the statement in question may not introduce it into evidence. During settlement negotiations, parties may necessarily make statements detrimental to their cases. The purpose of this rule is to encourage parties to reach a compromise without going to trial. As the bar to admissibility requires that there must be a dispute as to the validity or amount of a claim, a statement completely admitting liability may be admissible. (FRE 408)
What does FRE 407 govern? (LII)
FRE 407 governs subsequent remedial measures.
What does FRE 408 govern? (LII)
FRE 408 governs compromise offers and negotiations
