Application of Federal Rule of Evidence 407 in Strict Products Liability Cases: The Evidence Weighs against Automatic Exclusion
![handle is hein.journals/umkc65 and id is 59 raw text is: APPLICATION OF FEDERAL RULE OF EVIDENCE 407
IN STRICT PRODUCTS LIABILITY CASES: THE
EVIDENCE WEIGHS AGAINST
AUTOMATIC EXCLUSION
Michael W. Blanton'
I. INTRODUCTION
After an accident has occurred or a product has caused an injury, an owner or
manufacturer will commonly take steps to prevent the occurrence of similar accidents
or injuries in the future.' Such steps are commonly referred to as remedial mea-
sures,2 and include a variety of subsequent changes, repairs, and precautions. 3 While
evidence of remedial measures would often be useful to injured plaintiffs in litigation
against an owner or manufacturer,4 American courts have long placed limitations on the
use of such evidence.5 The rule which has developed to limit the use of such evidence
is often stated in the following terms: If someone makes repairs after an accident,
those repairs are not admissible against the person making them to prove that person
was negligent prior to or at the time of the accident.6 This rule has been roughly
incorporated into Federal Rule of Evidence 407, which states as follows:
When, after an event, measures are taken which, if taken previously, would have
made the event less likely to occur, evidence of the subsequent measures is not
admissible to prove negligence or culpable conduct in connection with the event.
This rule does not require the exclusion of evidence of subsequent measures when
offered for another purpose, such as proving ownership, control or feasibility of
precautionary measures, if controverted, or impeachment.7
The rule excluding evidence of subsequent remedial measures was historically
most prevalent in industrial accident cases, but in recent years has more commonly
*. J.D. Candidate, 1997, University of Missouri-Kansas City School of Law; B.A. in
Communications, 1992, University of Missouri-Kansas City.
1. See 2 JOHN W. STRONG ET AL., MCCORMICK ON EVIDENCE § 267, at 200 (4th ed. 1992); Brent
R. Johnson, Comment, The Uncertain Fate of Remedial Evidence: Victim of an Illogical Imposition of
Federal Rule of Evidence 407, 20 WM. MrrcHELL L. REV. 191, 191 (1994).
2. STRONG, supra note 1, § 267, at 200; 2 JACK B. WEINSTEIN ET AL., WEINSTEIN's EVIDENCE,
407[01], at 407-5 (1992).
3. See STRONG, supra note 1, § 267, at 200; WEINSTEIN, supra note 2, 407[01], at 407-5 to 407-
6.
4. See Johnson, supra note 1, at 191; see also John M. Kobayashi, Subsequent Remedial
Measures and Recall Letters and Notices, 379 PRAc. L. INST. 503, 509 (1989).
5. See Columbia& P.S.R.R. v. Hawthorne, 144 U.S. 202, 206-208 (1892); Morse v. Minneapolis
& St. L. Ry. Co., 16 N.W. 358, 359 (Minn. 1883).
6. See 1 STEPHEN A. SALTZBURG ET AL., FEDERAL RULES OF EVIDENCE MANUAL 480 (6th ed.
1994).
7. FED. R. EviD. 407.](ViewImageLocal?handle=hein.journals/umkc65&div=11&collection=&method=preview&ext=.png&size=3)
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