Subsequent Remedial Measures (Ch. 9) Flashcards
What is a SRM?
When measures are taken that would have made an earlier injury or harm less likely to occur
When SRM is barred?
Bars SRM to prove: Negligence Culpable conduct A defect in a product or its design A need for a warning or instruction
When SRM is allowed?
For another legitimate purpose, such as:
Impeachment,
If disputed: ownership, control, or the feasibility of precautionary measures
** NOT exhaustive
Policy of 407
- Want parties to make products safer
- Don’t want perverse incentive to postpone repairs
- Juries give SRM a lot of weight
- Might mislead jury (403 problem) b/c SRM doesn’t mean the original condition or practice was UNREASONABLY dangerous
Examples of “measures”
design changes, warning labels, recalls, removing something from the market, policy change, additional training, firing or disciplining an employee responsible for an injury
NOT a measure
investigative report that simply reports on its causes
How do courts deal with govt mandated remedial measures?
Some allow evidence in - analogize it to third-party measures
How does subsequent affect the analysis?
two parties injured by the same product at different times might not be able to introduce the same evidence
Do you have to ask for a limiting instruction if evidence comes in for “another legit purpose?” List rule.
YES! If request is timely, the judge MUST give one. Rule 105.
What does impeachment mean under 407?
Read narrowly. Likely to admit if:
- narrow fit
- specific representation that conflicts
- W makes an absolute declaration
- W was personally involved in creating or implementing the SRM
Proving feasibility of precautionary measures
Sounds like impeachment - also just because D made change, doesn’t mean earlier actions or design were legally insufficient
For SRM, ask - when is it admissible? When is it not admissible?
Admissible: impeach or when ownership, control, or feasibility are disputed
NOT Admissible: to prove negligence
When is feasibility disputed?
When a W rejects a remedial measure in terms that are too strong
W can explain why remedial measure was not taken before, but can’t use too strong of language
Difference between impeachment and feasibility?
Evidence of SRM for impeachment - wipes out W’s testimony, does NOT constitute substantive proof
Evidence of SRM for feasibility - admissible to show fault
What types of cases does 407 apply to?
Usually tort, but nothing in the plain language bars it from contract disputes.
NOT applicable to criminal cases (according to a few fed courts)
