Public Policy Exclusions

Question 1

Liability Insurance

Answer 1

Evidence of a party’s insurance against liability (or lack thereof) is not admissible to show whether the party acted negligently or otherwise wrongfully.

However, it may be admissible to show:

1. ownership or control, if disputed;
2. to impeach a witness (usually to show their bias); or
3. As part of an admission of liability, where the reference to insurance coverage cannot be severed without lessening its probative value as an admission of liability.

Question 2

Subsequent Remedial Measures

Answer 2

Evidence of repairs or other precautionary measures made following an injury is not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction.

However, it may be admissible if:

1. to prove ownership or control, if disputed;
2. to rebut a claim that a precaution was not feasible; or
3. to prove that the opposing party has destroyed evidence.

Question 3

Civil Settlements and Settlement Negotiations

Answer 3

Evidence of a compromise (settlement) or an offer to compromise a civil claim is not admissible in any case to:

1. prove or disprove the validity or amount of a disputed claim, or
2. impeach a witness by prior inconsistent statement or contradiction.

Conduct or statements made in the course of negotiating a compromise - including direct admissions of liability - are also inadmissible for these purposes.

NOTE: evidence of settlement is admissible to impeach a witness on the ground of bias.

Question 4

Civil Settlements and Settlement Negotiations - Disputed Claim Required

Answer 4

The public policy exclusion for settlements and negotiations only kicks in if there was a claim or some indication that a party was going to make a claim (although the party need not have actually filed suit).

Furthermore, the claim must have been in dispute as to either (1) liability or (2) amount.

Question 5

Limited Exception to Rule - Civil Dispute with Government Authority

Answer 5

Conduct or statements made during compromise negotiations regarding a civil dispute with a governmental regulatory, investigative, or enforcement authority are not excluded when offered in a criminal case.

Question 6

Plea Discussions

Answer 6

The following are generally inadmissible in any criminal or civil case against the defendant who made the plea or participated in the discussions:

Offers to plead guilty;

Withdrawn guilty pleas;

Actual pleas of no contendere (no contest); or

Statements of fact made during any of the above plea discussions

NOTE: an actual guilty plea (not withdrawn) is generally admissible in related litigation as a statement of an opposing party (see hearsay)

Question 7

Payments of and Offers to Pay Medical Expenses

Answer 7

Evidence that a party has paid or offered to pay an injured person’s medical, hospital, or similar expenses is inadmissible to prove liability for the injury.

However, unlike the situation with settlement negotiations, admissions of fact accompanying such payments and offers are admissible.