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Weblog Content material – Subsequent Remedial Measures, Rule 407, and . . . Causation?

Federal Rule of Proof 407, coping with the inadmissibility of subsequent remedial measures, isn’t all that sophisticated – as Federal Guidelines go.  It’s solely 73 phrases lengthy:

When measures are taken that may have made an earlier harm or hurt much less prone to happen, proof of the next measures just isn’t admissible to show:

  • negligence;
  • culpable conduct;
  • a defect in a product or its design; or
  • a necessity for a warning or instruction.

However the court docket could admit this proof for one more goal, similar to impeachment or − if disputed − proving possession, management, or the feasibility of precautionary measures.

It will have been even shorter, if sure courts hadn’t insisted on studying a strict legal responsibility exception into Rule 407 that merely wasn’t there.  Thus Rule 407 was amended in 1997:

to supply that proof of subsequent remedial measures is probably not used to show “a defect in a product or its design, or {that a} warning or instruction ought to have accompanied a product.”  This modification adopts the view of a majority of the circuits which have interpreted Rule 407 to use to merchandise legal responsibility actions.

F.R. Evid. 407, Committee Notes to 1997 amendments.

Hassle is, courts nonetheless can’t hold their palms off of Rule 407’s quite simple language – if the claimed harm was “earlier” than the “measure” the defendant had “taken,” and there’s no different “goal” for the proof at problem, it’s excluded.

Again in 2010, we examined one restrictive judicial gloss on Rule 407 – a “coverage” based mostly exception that the rule one way or the other doesn’t apply to government-mandated measures.  That caveat was made up out of complete fabric, because the language of Rule 407 attracts no such distinction, neither is any caveat talked about in any committee notice.  Fortuitously, that 2010 resolution has been a pro-plaintiff anomaly, and FDA required label adjustments, remembers, and many others. proceed to be topic to Rule 407-based exclusion.  See, e.g., Yates v. Ortho-McNeil-Janssen Prescription drugs, Inc., 808 F.3d 281, 292 (sixth Cir. 2015) (“we is not going to take into account proof of a subsequent enchancment to a drug label as proof of prior failure to warn, even in circumstances similar to this by which the FDA mandated the change in labeling”) (citing Rule 407).  Bexis collects these circumstances in §11.01[2][a] nn.101-106 of his e book.

Having two strikes in opposition to them hasn’t stopped the opposite aspect from making an attempt to conjure up different Rule 407 exceptions, nevertheless.  Our current beef is with a few selections purporting to engraft a causation/intent requirement onto Rule 407 – though the present rule nowhere discusses causation.  Thus in Godelia v. Zoll Providers, LLC, 2019 WL 3883682, at *1-2 (S.D. Fla. Aug. 16, 2019), the court docket inexplicably held that {that a} post-injury company audit report wasn’t excludable below Rule 407 as a result of it was not prompted by the incident that injured the plaintiff:

The file doesn’t mirror that Defendant retained [the outside auditor] to conduct the audit to make the hurt suffered by [plaintiff] much less prone to happen or to treatment any points Defendant had with corrective and preventative motion for [the claimed defect]. . . .  Defendant believed that there was a communication problem with the FDA.  In response to this perception, Defendant retained [the auditor] − to not treatment [plaintiff’s claimed] defects or regulatory failures. . . .  Accordingly, this evaluation and Audit Report aren’t subsequent remedial measures and are admissible.

Id. at *2 (footnote omitted).  See In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Merchandise Legal responsibility Litigation, 518 F. Supp.3d 1028, 1036-37 (S.D. Ohio 2021) (counting on “coverage” of Rule 407 in opposition to “deterrence” to keep away from exclusion of a subsequent remedial measure “not set off[ed]” by “Plaintiff’s harm”).

The interpretation of Rule 407 in these circumstances goes past mere judicial gloss.  Moderately, it flies within the face of the newest (2011) amendments to Rule 407.  Earlier than 2011, Rule 407 used to no less than point out causation − the primary clause offered that “[w]hen, after an harm or hurt allegedly brought on by an occasion, measures are taken. . . .” (Emphasis added).  The 2011 amendments eradicated even that indirect reference, substituting the present language focusing solely on consequence:  “When measures are taken that may have made an earlier harm or hurt much less prone to happen. . . .”  Additional, because the 2011 amendments omitting causation altogether weren’t supposed to have substantive impact, see Committee Notes to 2011 Amendments (“stylistic solely”), the Rule’s present lack of any reference to causation is additional indication that Rule 407 was by no means supposed to require any cause-and-effect relationship between a selected plaintiff’s harm and a defendant’s subsequent remedial measure.

Fortuitously, most courts haven’t narrowed Rule 407 on this extratextual foundation.  Moderately, they take a broad view, excluding proof of any subsequent remedial measure that, if taken beforehand, would have made the harm or hurt usually much less prone to happen, regardless of any explicit plaintiff.

[Plaintiffs] search to sidestep Federal Rule of Proof 407 by insisting that the change was not a subsequent “remedial” measure as a result of, in response to the affidavit of a [defense witness], the change was not prompted by security issues.  However [defendant’s] motive for making the change is irrelevant.  All of the rule requires is that the measure “would have made the harm or hurt much less prone to happen.”

Chlopek v. Federal Insurance coverage Co., 499 F.3d 692, 700 (seventh Cir. 2007) (quoting textual content of Rule 407).  Earlier, in Mills v. Beech Plane Corp., 886 F.second 758, 763 (fifth Cir. 1989), the court docket refused to show Rule 407 exclusion right into a battle over the defendant’s subjective intent, holding as an alternative:

Within the current case, as within the overwhelming majority of the circumstances, it isn’t recognized why the adjustments had been made.  As a substitute of making an attempt to show or disprove the explanations for subsequent product adjustments, we must always take into account the probative worth of such proof on the purpose at problem . . . whether or not the product or design was faulty on the time the product was bought. . . .  The introduction of proof about subsequent adjustments within the product or its design threatens to confuse the jury by diverting its consideration from whether or not the product was faulty on the related time to what was finished later.

Id. at 763 (quotation and citation marks omitted) (emphasis added).  See Bush v. Michelin Tire Corp., 963 F. Supp. 1436, 1449 (W.D. Ky. 1996) (“The rule’s language doesn’t go to Defendant’s intent in adopting the later measures.  It merely asks whether or not the later measures might have prevented the sooner accident.”); see additionally Maiorano v. Dwelling Depot U.S.A., Inc., 2018 WL 2128609, at *3 n.3 (S.D. Cal. Might 9, 2018) (quoting and following Chlopek).  Cf. Hassebrock v. Air & Liquid Methods Corp., 2016 WL 4496917, at *6 (W.D. Wash. April 11, 2016) (Rule 407 barred admission of the defendant’s subsequent remedial measures after the date of plaintiff’s final publicity to asbestos, though that publicity was not from the defendant’s merchandise).

The problem has additionally come up in a variety of state circumstances making use of Rule 407 analogs.  We warning that, in all such circumstances, the language of the related rule won’t be equivalent to Rule 407, however listed below are a number of state excessive court docket examples:  Johnson v. State, Dept. of Transportation, 233 P.3d 1133, 1137 (Ariz. 2010) (“Rule 407 requires the exclusion of proof of subsequent measures to show a celebration’s negligence or culpable conduct, even when such measures are taken with out particular data of the accident in query”); Martin v. Norfolk Southern Railway Co., 271 S.W.3d 76, 88 (Tenn. 2008) (Rule 407 utilized though motion was “carried out pursuant to company coverage” fairly than in response to an accident as a result of “it corrected an allegedly harmful situation and made the [area] safer”); Webb v. CSX Transportation, Inc., 615 S.E.second 440, 448 (S.C. 2005) (“slim interpretation” of Rule 407 “that solely measures taken in direct response to the accident qualify for exclusion” rejected as a result of it “ignores the literal language of the rule”); Doe v. Johnston, 476 N.W.second 28, 34 (Iowa 1991) (Rule 407’s “coverage wouldn’t be served if proof of defendants’ modified habits could possibly be used to show legal responsibility simply because defendant was unaware that any harm or accident had occurred”).

Choices making use of Rule 407 within the particular context of prescription medical product legal responsibility litigation additionally apply the rule with out detours into whether or not the plaintiff’s harm one way or the other brought about the defendant to take the remedial measure at problem.  “[A] plaintiff couldn’t keep away from the impact of Rule 407 just by arguing a label change was not prompted by security issues.”  Hill v. Novartis Prescription drugs Corp., 944 F. Supp.second 943, 961 (E.D. Cal. 2013).

[T]he court docket didn’t maintain that the absence of a remedial motive prevented exclusion below Rule 407 . . .[, and] different courts particularly addressing this exact problem have held in any other case.  The Court docket reaffirms its conclusion on the pretrial convention that subjective intent or motive in taking a remedial measure just isn’t a dispositive prerequisite for exclusion below Rule 407.

In re Mentor Corp. ObTape Transobturator Sling Merchandise Legal responsibility Litigation, 2010 WL 2015146, at *1 (M.D. Ga. Might 20, 2010).  See Herrera-Nevarez v. Ethicon, Inc., 2017 WL 3381718, at *3 (N.D. In poor health. Aug. 6, 2017) (rejecting argument that Rule 407 didn’t apply as a result of “the change was not made for safety-related or different remedial causes”); In re Depakote, 87 F. Supp. 3d 916, 925 (S.D. In poor health. 2015) (“motives are irrelevant to the Court docket’s Rule 407 evaluation”) (each Chlopek-bound courts).

As this dialogue signifies, there hasn’t been loads of litigation over what brought about a defendant to undertake a selected remedial measure in prescription medical product legal responsibility litigation.  Just like the would-be strict legal responsibility and authorities mandate exceptions earlier than it, this purported exception has no foundation within the textual content of Rule 407, and that ought to be the tip of the inquiry.  We predict issues ought to keep that method.  “When the specific phrases of a statute [here a rule, but the proposition is the same] give us one reply and extratextual issues recommend one other, it’s no contest.  Solely the written phrase is the legislation, and all individuals are entitled to its profit.”  Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 1737 (2020).



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