Pg 27 Flashcards
If in a suit against McDonald’s for coffee being too hot, and at trial the defendants call a witness that is a senior VP of the company to testify that the temperature of the machines cannot be lowered, because the coffee will be too cold to enjoy, on cross the plaintiff’s attorney asks if 10 days after the accident McDonald’s ordered the temperatures to be lowered by 40° and no customer complained about the cold coffee, would that be allowed?
Yes, because the witness put into dispute the feasibility of lowering the coffee temperature. So this question was asked to rebut the claim of feasibility and to impeach the witness
If the plaintiff is training at McDonald’s and gets hurt when a glass coffee pot shatters in her hand, and she says the coffee machine maker defectively designed the pot, at trial if she offers evidence that two months after the accident the company started using tempered glass, would that be allowed?
No, because you can’t use subsequent remedial measures to show a design defect in a product liability case
How is the rule in California different than the FRE when it comes to subsequent remedial measures?
In California the rule only applies in negligence claims or for culpable conduct, it does not apply to strict liability cases. The idea is that companies will fix dangerous products to avoid more liability
What is involved in the extrinsic policy of offers to compromise?
Settlement offers and statements made in connection with compromise negotiations, either formally or informally, to prove/disapprove the validity or amount of a disputed claim will be excluded
What is the rationale behind the exclusion of offers to compromise as an extrinsic policy?
If the parties knew that what they were going to say and the amounts that they would suggest during an offer to compromise would be used against them at trial, they wouldn’t enter settlement negotiations. Courts want parties to settle because the system would collapse if everyone litigated. It is important that the statements are protected because parties need to be able to explain why the other side should accept their offer
What are the pieces of evidence that are not admissible to prove or disprove the validity or amount of a disputed claim or to impeach by prior inconsistent statement under offers to compromise as in extrinsic policy?
– Giving, promising, offering, or accepting valuable consideration in compromise or trying to compromise the claim, and
– conduct or statements that are made during a compromise negotiation about the claim
When can a court admit conduct or statements that are made during compromise negotiations about a claim because of an exception to the offers to compromise extrinsic policy?
A court can admit this for another purpose, like to prove a witness’ bias, prejudice, to negate a claim of undue delay, to prove effort to obstruct a criminal investigation, etc. There is no exception for impeachment for prior inconsistent statements because then you could always find a way to get stuff included from the settlement meeting
What are the major requirements for offers to compromise being excluded as an extrinsic policy?
– There must be a dispute about the validity or the amount for this rule to apply
– statements are protected too
If a statement was made regarding an offer to compromise before there was a dispute about a claim or amount, is that protected under the offers to compromise extrinsic policy?
No, because there must first be a dispute about the validity or amount in order for this rule to keep evidence out
In a negligence case during the plaintiff’s case in chief, the plaintiff’s attorney examines a third-party witness and asks what the defendant said immediately after the accident. If the witness said that the plaintiff said it was all the defendant’s fault, and the defendant said he didn’t know whose fault it was but he would pay $500 for the guy to go away, would that be allowed?
No because once the plaintiff accused the defendant of being at fault, and the defendant called it into question, that was a disputed claim, so the defendant’s statement made to resolve the dispute is protected.
If after an accident the defendant jumped out of the car and said it was all his fault and it looked like $1000 of damage, but he would pay $500, would that statement be permitted in court?
Yes, because there was no dispute between the parties, even though the defendant is agreeing to pay less. So this would not count as an offer to compromise and would thus not be excluded under extrinsic policies
If a plaintiff sues a D for $100,000 for injuries from a car accident, and the parties enter settlement negotiations and state dollar amounts they would settle for, try to convince each side of the strength of their cases, and also acknowledge their weaknesses, and the settlement fails, can the plaintiff say at trial that during settlement talks the defendant said he could’ve been more sober?
No, because statements that are made during offers to compromise are protected as extrinsic policy
What is the learned information caveat to offers to compromise?
Any information learned during the mediation can be used, it just can’t be a direct statement
In a negligence case on cross-examination of the defendant, if the plaintiff’s attorney asks if prior to the accident defendant had three shots of whiskey, would that be ok if he learned that information during settlement negotiation?
Yes under the caveat of learned information because even though he knew about it from mediation, he didn’t say that defendant had said it then. Statements made during settlement talks are protected, but information in the statement itself is not
If a defendant’s attorney does direct on the defendant and asked if he was drinking on the day in question, and the defendant said he wasn’t, then on cross-examination the plaintiff asked if he said in mediation that he could’ve been more sober, would that be allowed?
No because that was a statement made during settlement negotiations so it is protected as an offer to compromise
