A Walkthrough of Federal Rule of Evidence 407

An Introduction to Federal Rule of Evidence 407

A common tool utilized in many types of federal court cases in the U.S. is Federal Rule of Evidence 407, an evidentiary rule that pertains to subsequent remedial measures that may be taken after an event has occurred. From a general perspective, this rule prohibits the introduction of subsequent measures as evidence of a defendant’s negligence or culpability in a case. The purpose of this rule is to eliminate the "chilling effect" on post-incident behavior of individuals or companies by not allowing evidence of the fact that these measures have been taken to be admitted in the legal proceedings.
The rule basically states that you cannot introduce evidence of measures taken after an event (i.e., injury, fire, etc.) as evidence of that event’s negligence. Rule 407 does not mean that you cannot introduce evidence of whether measures were taken – in fact, having evidence of enacted safety measures can be important in building a case to show that all possible care was taken by the defendant. The purpose of the rule is simply to prevent evidence of faulty behavior to be automatically connected to the enactment of safety measures. By ensuring that this evidence is not automatically linked , the Rule helps to prevent a "chilling effect" on improving product and workplace safety.
There are some exemptions to Rule 407, as there are with any rule in law. For example, proper evidence related to the intent of a litigation claim may be admissible, depending on the situation. Similarly, if there is an issue of whether a defective part was present in a product, the actions taken to correct or improve upon that part may be admissible in the case. The overall principle of this rule is that the jury does not need to draw a direct line from the defendant’s action to enact a safety measure to show that the defendant was at fault for the accident, but that the actual safety measures taken to prevent a safety issue may be used as evidence if they are in important pieces of evidence to an issue of a particular case.
Companies involved in all types of legal actions must be aware of Rule 407 and how it may impact litigation. In doing so, attorneys can more effectively build a case before the court, ensuring that their clients have the best possible chance to defend themselves against litigation.

The Origin Story of Rule 407

For years, Rule 407 has been a fixture in federal courtrooms across the nation. But how did it get to be that way? And what has changed with the Rule over the years? The following will detail the historical development of one of the Federal Rules of Evidence that has most influenced the evidentiary landscape.
Rule 407 was first adopted with the Federal Rules of Evidence in 1975. Prior to that, however, most states already had some form of a rule that spoke directly to the introduction of post-accident remedial measures in state courts. For example, California adopted a version of the rule in California’s Civil Code of Evidence in 1965. Over the next five years, other states soon followed suit. By the time Rule 407 of the Federal Rules of Evidence was finalized and adopted, more than half of the states had a law or rule relating to the admissibility of evidence of subsequent remedial measures.
In adopting Rule 407, the Advisory Committee on Rules refused to rule out the admissibility of measures after an event as a means of proving prior negligence or defectiveness. In a footnote in the Advisory Committee notes on Rule 407, the Committee stated, "Evidence of precautionary measures subsequently taken may be admissible for purposes other than proving negligence or culpable conduct." Even so, it expressly noted that the Rule would only exclude remedial measures offered against claims by a person for which such measures were taken, and only as "conclusive evidence" of the defectiveness or hazard’s existence.
Over the years, Rule 407 has been amended twice. First, in 2011, the Committee amended Rule 407 to clarify the scope of Rule 407. Several courts experienced confusion as to whether remedial measures taken in the face of criminal charges were within the scope of the Rule. This confusion is natural, however, because Rule 407 only applies to civil actions, while remedial actions taken during the pendency of a criminal investigation would be quite relevant in a criminal action. To avoid this confusion, the Committee amended Rule 407 to exclude from the general definition of "subsequent remedial measures" reforms made in response to a criminal act.
Then, in 2014, the Committee amended Rule 407 to incorporate language adopted by the Supreme Court in 2011. In that case—Kan. v. Carrillo—the Court held that even if a remedial measure is not admissible for any purpose under Rule 407, the proponent of the evidence cannot prove another purpose by extrinsic evidence of the remedial measures taken. As amended, Federal Rule of Evidence 407 now provides, "But when measures are taken that would be excluded from admission by Rule 407, evidence of the subsequent measures is not admissible to prove negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction."

The Purpose and Application of Rule 407

The basic principal underpinning Rule 407 is that it encourages remedial measures by protecting the defendants who take those steps from the prejudice they would suffer if the plaintiff were permitted to use such steps as circumstantial evidence of culpability. In other words, "one remedial measure taken by a defendant is not probative of prior negligence." See Comedy v. McGowan, 357 F.3d 424, 429 (4th Cir. 2004). Federal Rules of Evidence 407 applies in both the liability and the damages phases, and in either plaintiff’s or defendant’s cases. See Wechsler v. Macke Int’l Foods, No. 07-cv-1522, 2008 WL 5086114, at *5 (D. Md. Nov. 24, 2008)(admission of evidence properly denied in damages phase where that evidence consisting of a "subsequent remedial measure to fix the leak" was "germane to all other issues"). The Fourth Circuit has explained the policy rationale behind Rule 407 as follows: If the defendant takes such a step only after the accident in question, this evidence may be considered by the jury in determining the issue of fault. Failing to engender fear of liability, such an approach should encourage remedial action and benefit the public as a whole. On the other hand, if the defendant took this same step prior to the accident in issue, consideration of this fact may prejudice the defendant by misleading the jury into believing that the defendant is following a course of conduct which is not consistent with the conduct which created the risk of harm. See Myers v. Vignarola, 31 F.3d 727, 733 (4th Cir. 1994). In assessing the admissibility of evidence involving subsequent remedial measures, courts in the Fourth Circuit typically analyze the content of the remedial measure itself (the specific action identified as the subsequent remedial measure) and determine whether it is inconsistent with the alleged negligent conduct. The more different a particular measure is from the alleged tortuous conduct, the more likely it is to be admissible. For example, in Comedy, the Fourth Circuit addressed what it described as the "walking the plank" example: a ship carrying defendant Macke’s frozen foods was caught in a hurricane and set adrift. Once the planks had rotted or been washed away, Macke replaced the planks with planks made of plastic because the wooden planks were no longer available. The court noted that the modification "was obviously not the same kind of step that Macke would have taken to prevent injury from slipping and falling on the decks" in the first place. Comedy v. McGowan, 357 F.3d 424, 429 (4th Cir. 2004). Therefore, it could not be said to represent an admission of liability for the fall that was said to have occurred as a result of those planks being rotted and/or washed away. See also Ceschini v. United States, 240 F. Supp. 2d 391, 397 (E.D. Pa. 2002)("the determination of what constitutes a ‘subsequent remedial measure’ is entirely dependent upon the facts of a given case. . . the question is whether the remedial measure in question is an action that would be something normally done, or something done as a reaction to the forbidden act which caused the harm"). Because each measure must be considered in the context of the case and the court’s purpose in addressing the admissibility, a case-by-case analysis is required.

Analyzing the Exceptions to Rule 407

While there are exempted situations with the other rules, Rule 407 has very few exceptions. Arizona v. Hicks, 480 U.S. 321, 324 (1987). Federal Rule of Evidence 407 (and the equivalent state statutes) specifically state the exceptions in which evidence of subsequent remedial measures may be admissible. "(h) Subsequent remedial measures. When, after an injury or harm allegedly caused by the event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: (1) negligence; (2) a defect in a product or its design or formulation; or (3) a need for a warning or instruction. This rule does not exclude evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment." Therefore, if evidence is offered to show other purposes than liability, it may be admitted to combat a motion in limine. "(e) Authorizing admissibility where properly controverted. -A motion in limine to exclude evidence that a party asserts should be covered by the Rule may be properly controverted by introducing other competent evidence, outside the presence of the jury, that there were subsequent remedial measures that were taken, and that the proponent of the evidence of subsequent measures has the burden of demonstrating that the postevent measures are truly within the scope of the Rule 407 exclusion from admissibility before the evidence may be excluded by the trial court." Notably, in this opinion, the court said that, "Subsequent remedial measures are not incompetent or irrelevant, but instead are competent and relevant only for the limited purposes for which they are admissible." Because the party making the objection is required to produce evidence that the step taken was indeed a corrective measure, the court gave a presumption that included this step in order to overcome the application of Rule 407. Another exception is evidence of subsequent remedial measures may be admissible for purposes other than proving negligence, defect or need for a warning. In fact, there are many reasons for which remedial measures may be admissible. (1) To prove ownership. For example, the defense can show that the defendant is an unreasonable owner by using recent safety steps taken by an employee. (2) To prove control. In the case of a minor, the school may be charged for a fire in a building on the school’s property, but the fact that the minor has control over that property will allow the evidence of remedial measure to be excluded. (3) To prove feasibility of precautionary steps. Where a safety feature was given as a precautionary measure and was not made available, then the evidence of that may be admissible. (4) Use of the evidence for other purposes. Evidence may be used to show that the standards were set too low. A plaintiff claims injury caused by a playground equipment manufacturers product because the product height is too tall. The defense should be able to show that the height standard meets the American Society for Testing and Materials. In all of these situations, the rebutting party has the burden of showing that the evidence of the remedial measures were for the purpose other than proving negligence.

Exploring the Implications of Rule 407

Given Rule 407’s prohibition against the admission of evidence of subsequent remedial measures to prove a defect in products liability cases, lawyers are forced to modify their approach to data and testimony relating to subsequent remedial measures. Notably, many lawyers factor the potential impact of Rule 407 into their initial case assessments, particularly in products liability and personal injury cases, where subsequent remedial measures often play a significant role.
For instance, some lawyers may decide not to pursue a case if the measures taken after the harm was done strongly suggest the defendant’s liability and the evidence cannot be admitted at trial. While this is an extraordinarily difficult decision to make , it is often made at the outset, before significant time and expense is incurred addressing the issues of subsequent remedial measures. Further, the potential legal effect of Rule 407 encourages opposing counsel to push divergent factual theories and claims. When one party will be unable to address the impact of subsequent remedial measures in trial, it seems virtually indisputable that the opposing party will be aware of the legal consequences and will take advantage of the opportunity. In many ways, the potential for issue and theory expansion necessitated by Rule 407 puts a premium on proper case assessment and early settlement opportunities.

A Critique of Rule 407

While Rule 407 is often supported for its own policies, it has also been subject to criticism. Opponents of the rule argue that complete finality is inappropriate in a legal system that is constantly evolving to provide greater access to justice. Proponents are divided on whether the rule should be amended to allow for some exceptions or kept as it is. Some critics have suggested that the rule’s restriction on the admission of post-event remedial measures in product liability cases should be lifted to allow plaintiffs in such cases to access important evidence.
Critics of the rule’s outright prohibition of post-incident remedial measures contend that it violates the parties’ right to a fair and just trial. They argue that the rule’s constriction of evidence in post-accident matters, while sometimes preventing unfair prejudice to defendants, can also be unfair to victims who are unable to present evidence that is essential to proving their case. Proponents of the rule counter that the concerns over the potential for prejudice raised by the inclusion of post-incident remedial measures outweigh the benefits of including such evidence. They suggest that allowing post-event evidence in product liability cases might give manufacturers and sellers incentives to produce safer products and conduct more extensive testing. They further argue that manufacturers and sellers proven liable in product liability suits may be more inclined to settle if evidence of their decisions to take steps after an incident is available to the plaintiff.
Reform movements have been critical of the tightening of the rule, suggesting that the modification to the rule that prohibits defendant "from testifying about pre-accident remedial measures" is unnecessary and unjustly burdens F.R.E. 407. They advocate that the court should adopt a more flexible and fact-specific rule that allows for admissibility upon a showing of relevance in all cases. They argue that the 2006 change to the rule was a departure from the plain meaning of the rule that did not add substantive value to the rule. In addition, they assert that prohibiting the defendant from testifying about a pre-incident remedial measure was an unnecessary and unwarranted prohibition where the defendant himself could not testify about the events surrounding the incident. The critics of the amendment are seemingly split between those who view the change to the rule as an unwarranted departure from the plain language of the rule, and those who advocate for a more flexible and less restrictive rule.
The United States Supreme Court has not yet weighed in the controversy surrounding the rule. In addition, the conflict and differences between the various jurisdictions that have adopted the Federal Rules of Evidence complicates the issue. As the debate continues surrounding post-incident remedial evidence, it remains unclear whether the strict non-admissibility of post-incident evidence will remain a vital part of the rules of evidence going forward.

A Comparison of Rule 407 with Other “407” Rules

While Federal Rule of Evidence 407 is the primary federal enactment regarding subsequent remedial measures, other similar evidentiary rules have been passed in individual states and in other jurisdictions. Federal Rule of Evidence 407 does not contain a notice requirement, but some state statutes and rules of evidence include such a requirement (for example, California Evidence Code § 1151). With the exception of the federal government, the use of Federal Rule of Evidence 407 as a model for state rulemaking has been limited with only about one-third of the states adopting any portion of Federal Rule of Evidence 407.
Alaska’s version of Rule 407, called Alaska Rule of Evidence 407, contains similar language and follows virtually the same structure and numbering as Federal Rule of Evidence 407 including an identical advisory committee note. The only difference between Alaska Rule of Evidence 407 and Federal Rule of Evidence 407 is the omission from Alaska Rule of Evidence 407 of the subdivision (b) stating that the rule does not limit the admissibility of evidence for impeachment purposes. This deletion aligns with both Alaska Supreme Court Rule 86(c) and the Alaska Rule of Evidence 616, which are the states rules governing impeachment, which provide that questions regarding subsequent remedial measures are not sufficient to open the door to impeachment. Alaska Rule of Evidence 407 is also applied the same as Federal Rule of Evidence 407 in civil actions as well as actions against the state.
Kansas has adopted a Rule of Evidence 407 that is almost identical to Federal Rule of Evidence 407 and has similar construction and numbering. Kansas Rule of Evidence 407, however, contains additional language in its advisory committee notes stating that because Kansas Rule of Evidence 407 is similar to the Federal Rule of Evidence 407 which does not apply in an admiralty context, Kansas Rule of Evidence 407 does not preclude evidence of post-event remedial measures in such cases. Although Kansas Rule of Evidence 407 includes in its advisory committee’s notes language regarding actions in admiralty cases, the advisory committee notes do not expressly state if the State of Kansas considers the rule applicable to such actions. Because Kansas Rule of Evidence 407 does not state or cite to any Kansas law regarding its applicability in the context of admiralty cases, it may not be applicable to such actions. Other states have adopted rules that are identical to Federal Rule of Evidence 407 and very closely follow the rule in substance and form. Like Federal Rule of Evidence 407, most of the other rules follow one of two models; those illuminate that subsequent remedial measures do not go to negligence or fault, and those that only illuminate that subsequent remedial measures are not admissible to prove negligence. For example, the South Carolina Rule of Evidence 407 has adopted Federal Rule of Evidence 407 with one exception that its rule of evidence shall apply to all products liability actions.

A Final Appraisal of Federal Rule of Evidence 407

The substantial concerns about the potential for juror confusion and unfair prejudice that are inherent in 407’s complete preclusion of experimentation evidence prior to causation findings from the jury, however, are being documented. As a result, in an era of continuing concern over dilatory and shadowy industry tactics to "repeat" conduct while shielding evidence from the jury, the door is arguably opening for at least some reform to Rule 407. The challenge will be in balancing the scope of such reform against the broader concerns that inform Rule 407’s central purposes – including subject matter relevance, efficiency, and source attribution. Additional considerations, such as differentiation of products and industries, also will be important. For example, while product reformulation evidence may be far more probative of causation than is an adjustment by the manufacturer in order to comply with a state safety statute, the impact of jury confusion would be essentially the same. Accordingly, amendments to Rule 407 continue to be the subject of significant commentary, with interest groups arguing for both sides of the question, and reforms at the state level being pursued as well. Advocacy groups have urged the American Bar Association’s Litigation Section to form a Task Force on Rule 407, citing that inquiry as a critical first step in determining whether reform is warranted and if so, what shape such reform should take . While the issue in part relates to the purpose policy of Rule 407, the reform issue also is very much about product liability law on a larger scale. While not limited to product liability issues, Rule 407 is a thinly disguised evidentiary rule primarily dealing with same. Rule 407 arises on the "plaintiff’s side" of the fault line between tort and non-tort law and policy. In that sense, 407 is the private side of the public policy represented by statutes such as the Consumer Product Safety Act. Moreover, as different states review Rule 407, differences, such as those involving "whole industry" and "compliance with statute or regulation," may also lead to differing, potentially significant, jurisprudential trends across state procedural federal courts. Notably, as plaintiffs frequently point for adoption of the rule, the Federal Advisory Committee on Rules gave one related justification in favor of 407, namely, that Rule 407 "reflect[s] judicial and legislative requirements that limits the admissibility of subsequent remedial measures." Indeed, it would not be surprising to see other state legislatures consider the consumer products liability forum’s growing frustration with Rule 407’s current application and the visible growing conflict between product liability and consumer product safety laws to determine whether to adopt 407 or otherwise reform the rule.