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Publication Date

October 2007


Federal Rule of Evidence 407 and equivalent state court rules prohibit the introduction of subsequent remedial measures for the purpose of demonstrating negligence, culpable conduct, or product defect. The rule breaks down, however, in application and purpose, when a defendant undertakes a new safety measure after the plaintiff's injury but before the defendant had knowledge of the loss. Such a situation is not uncommon. Would-be defendants frequently improve their products and product safety, whether in response to injuries incurred by other users, business pressures, or simply advances in the state of the art and scientific knowledge. Toxic exposure cases, where exposure often predates diagnosis of the injury by a decade or more, represent a prime and growing example of cases where defendants are likely to have made significant product or warning improvements which, if taken before the plaintiff's exposure, may have prevented the injury. Even traditional products liability cases encounter this problem. For example, a manufacturer of industrial equipment may introduce a guard to a machine simply to make the product more competitive with other models without knowledge that plaintiff John Doe injured himself the week before on the old, unguarded machine. Should evidence that the machine now comes with a guard be admissible?

The literal text of Rule 407 suggests not. Yet allowing such measures into evidence may not have the same chilling effect as when the measure was taken in response to the plaintiff's injury. In such circumstances, it can be argued the defendant never feared the measure would be used against it. Since the policies behind Rule 407 may not support the exclusion of such evidence, should the rule still be applied?

This article explores Rule 407, its policy underpinnings, courts' differing interpretations of the rule, and how the rule should be applied to defendants who take subsequent remedial measures without knowledge of a plaintiff's injury. Finally, this article suggests an interpretation of and amendment to Rule 407 that clarifies the rule and furthers its policy bases.

Publication Title

McGeorge Law Review

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Originally published in the McGeorge Law Review, 38 McGeorge L. Rev. 653 (2007).

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