DTCI: Admission of subsequent remedial measures

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By Andrew L. Palmison

palmison-andrew-mug Palmison

In September 2011, this author concluded that, in the context of a strict liability claim arising under Indiana law, Indiana Rule of Evidence (IRE) 407 would likely preclude the admission of subsequent remedial measures. Indiana Lawyer, Sept. 14, 2011, “Admissibility of Subsequent Product Modifications.” Other states, such as California, hold that the subsequent remedial measures would be admissible. See Ault v. Int’l Harvester Co., 528 P.2d 1148, 1151 (Cal. 1974). If a conflict arises between a state which does not follow the exclusionary rule and either a state or federal district which does, the question arises as to whether the interpretation of the rule of evidence is substantive or procedural. This article concludes that, in such a conflict in a diversity action, a majority treats the rule as procedural and applies the federal interpretation. The result is unclear, however, in a state court action in which the court applies the substantive law of a state whose interpretation of the rule differs from its own.

In Fasanaro v. Mooney Aircraft Corp., plaintiff’s husband was killed while piloting an aircraft designed and manufactured by Mooney. 687 F. Supp. 482, 483 (N.D. Cal. 1988). The estate brought a products liability action in a California state court that was subsequently removed to a California District Court. Evidence emerged that, subsequent to the accident, Mooney had undertaken a number of remedial measures related to the design, manufacture and warnings associated with the aircraft. Mooney moved to exclude such evidence pursuant to Federal Rule of Evidence (FRE) 407.

Pursuant to Ault, California Evidence Code § 1151 would not bar the subsequent remedial measures undertaken by Mooney. Under FRE 407, however, the evidence would be inadmissible. The court, analyzing the conflict under the Erie doctrine, articulated that when, in a diversity case, the court is faced with a question of the applicability of a federal rule over a contrary state provision, the court is to apply the two-part test of Hanna v. Plumer, 380 U.S. 460, 471 (1965), as restated in Walker v. Armco Steel, 446 U.S. 740 (1981). Under the foregoing test, the court first asks whether the federal rule directly covers the situation before it. If not, the court then evaluates the choice of law in light of the policies underlying the Erie doctrine. If, however, the court finds that the situation before it is covered by the federal rule, then the federal rule is followed provided that it was within the power of Congress and the Supreme Court through the Rules Enabling Act.

Finding that the rule can be rationally classified as procedural, the court noted that the advisory committee notes reflect a congressional judgment that juries will make the error of treating subsequent remedial measures as admissions of fault, when “[t]he conduct is not in fact an admission, [but] is equally consistent with injury by mere accident or through contributory negligence.” Id. at 485. The foregoing represents a congressional concern that the admission of certain evidence will unduly emphasize certain evidence for the jury. Id. In addition, the admission of subsequent remedial measures would open the door for a defendant to rebut the evidence, creating a “mini-trial” of tangential issues. Id. Consequently, the court determined, the rule advances the procedural goals of accuracy of the evidence, preventing undue bias, and advancing judicial economy. Id. at 485-86. Having concluded that FRE could rationally be classified as procedural, the court next determined whether plaintiff’s attempt to admit the evidence of subsequent remedial measures was covered by the FRE 407, which it clearly was. Id. In the face of a controlling Federal Rule, the only remaining issue was whether Congress had the power to enact the rule. Id. at 486. Clearly, Congress has the power to regulate the proceedings in Article III courts under the Necessary and Proper Clause of the United States Constitution. Id. Based on the foregoing, the Fasanaro court had little trouble concluding that FRE 407 is procedural and that the federal interpretation of FRE 407 would govern the admissibility of the evidence of subsequent remedial measures. Id.

The Fasanaro court compared the approaches for the 7th Circuit in Flaminio v. Honda Motor Corp., 733 F.2d 463 (7th Cir. 1984), and the 10th Circuit in Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917 (10th Cir. 1984). In Flaminio, the plaintiff was injured while riding a motorcycle manufactured by Honda. The rider felt a vibration in the front end of the motorcycle and rose from his seat to attempt to identify the source of the vibration. While doing so, the motorcycle began to wobble uncontrollably resulting in an accident, which left the rider a paraplegic. According to the plaintiffs, Honda subsequently reinforced the struts in an effort to reduce front-end wobble. The plaintiffs sought to introduce blueprints demonstrating the foregoing, an effort the District Court denied. The District Court, sitting in diversity, applied Wisconsin substantive law. The Wisconsin Supreme Court had interpreted its equivalent of FRE 407 to permit evidence of subsequent remedial measures when at least one of the plaintiff’s liability theories is strict liability. Id. at 470 (citing Chart v. General Motors Corp., 258 N.W.2d 680, 684 (1977)). The 7th Circuit concluded, on the other hand, that FRE 407 bars such evidence. Flaminio, 733 F.2d at 469-70. Judge Posner, addressing the “difficult question” of whether the state or federal interpretation should apply, addressed the argument that the application of the federal rule would contravene Erie’s mandate that Congress not invalidate the substantive laws of a state:

Having been enacted by Congress rather than promulgated by the Supreme Court pursuant to the Rules Enabling Act . . . the Federal Rules of Evidence are not subject to the Act’s proviso that rules promulgated under it “shall not abridge, enlarge or modify any substantive right ....” And we have held that Congress intended the Federal Rules of Evidence to apply in [diversity cases]. [internal citation omitted]. But we must not forget that [Erie] held that federal courts were constitutionally obligated to decide diversity cases in accordance with the rules of decision prescribed by state law (statutory or common), though the precise source of this obligation is not clear from the Supreme Court’s opinion. [ . . . ] It is true that, as Erie itself suggests, the obligation is limited to matters of substantive law – “Congress has no power to declare substantive rules of common law applicable in a State,” 304 U.S. at 78. … But the Notes of the Advisory Committee to Proposed Rule 407 indicate that the rule is based primarily (in the Committee’s words) “on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety.” See also McCormick, Handbook on the Law of Evidence 666 (Cleary 2d ed. 1972). As is apparent from Chart, Wisconsin has come to a different conclusion on this question, at least with respect to products liability cases; and it might appear that under Erie this judgment – a judgment on a matter of substantive policy rather than trial management – should be controlling in any case, such as this, where Wisconsin law rather than federal law supplies the standard against which the defendant’s conduct is to be judged.

Id. at 470-71. Yet, Judge Posner rejected this argument, finding instead the FRE 407 is “entwined with procedural considerations” such as ensuring that jurors do not draw incorrect inferences from evidence. Id. at 471-72. Said Judge Posner:

Although Rule 407 has substantive consequences by virtue of affecting incentives to take safety measures after an accident occurs, this just puts the rule in that borderland where procedure and substance are interwoven. The necessary-and-proper clause of Article I extends into the borderland, where are found “matters which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either.”

. . .

[FRE 407] has substantive consequences, but that is true of many procedural and evidentiary rules. A notable example is Rule 35 of the Federal Rules of Civil Procedure, which authorizes compulsory physical and mental examinations of parties to federal diversity (as to other federal) cases. Rule 35 was held valid in Sibbach v. Wilson & Co., 312 U.S. 1 (1941), despite the fact that it both infringes on personal privacy and makes it harder for plaintiffs to get sizable damage awards in personal-injury cases. And the rule has only the authority of the Rules Enabling Act behind it.

. . .

We are reluctant to cast a cloud over the whole federal rulemaking enterprise and open a new chapter in constitutional jurisprudence by holding that a procedural rule is beyond even the power of Congress to enact for application to diversity cases, because the rule affects substantive questions that the Erie doctrine reserves to the states.

Id. at 472.

Both Flaminio and Fasanaro rejected as dicta the 10th Circuit’s discussion in Moe, supra. In Moe, a diversity action arising out of an airplane crash near Denver, Colo., the District Court had determined that the Colorado state court interpretation of Rule 407 (which allowed the admission of subsequent remedial measures in a strict liability action) was not binding on it and excluded the evidence pursuant to FRE 407 and 403. Id. at 930-31. The court affirmed the District Court’s decision with respect to its FRE 403 analysis but concluded that, when state law is clear with respect to the Rule 407 analysis, the state interpretation must govern:

[W]hen state courts have interpreted Rule 407 or its equivalent state counterpart, the question whether subsequent remedial measures are excluded from evidence is a matter of state policy. [internal citation omitted]. The purpose of Rule 407 is not to seek the truth or to expedite trial proceedings; rather, in our view, it is one designed to promote state policy in a substantive law area. See, comments of Professor Schwartz, Vol. 2, Weinstein’s Evidence, Rule 407, 407-1, 2 (1982). . . . We hold that when such conflicts arise, because Rule 407 is based primarily on policy considerations rather than relevancy or truth seeking, the state rule controls because (a) there is no federal products liability law, (b) the elements and proof of a products liability action are governed by the law of the state where the injury occurred and these may, and do, for policy reasons, vary from state to state, and (c) an announced state rule in variance with Rule 407 is so closely tied to the substantive law to which it relates (product liability) that it must be applied in a diversity action in order to effect uniformity and to prevent forum shopping. [internal citation omitted].

Id. at 932. The court rejected the argument that Erie/Hanna required the application of the federal interpretation:

We are not unmindful of the rule laid down in [Hanna] that where the federal and state rules both govern the issue in dispute and are in direct conflict, the federal rule applies in a diversity based case if the federal rule is arguably procedural in nature. However, we observe that while the sufficiency of the evidence is tested against the federal standard in a diversity case . . . the underlying cause of action, with its attendant elements and requirement of proof in a diversity case, is governed by state law. [internal citation omitted]. The ground for exclusion of remedial measures under Rule 407 rests on the social policy of encouraging people to take steps in furtherance of safety. The decision is necessarily a state policy matter. Product liability is not a federal cause of action but, rather, a state cause of action with varying degrees of proof and exclusion from state to state. If a state has not announced controlling rules . . . the federal district court, sitting as a state court in a product liability diversity case, must determine whether Rule 407 applies. Where the state law is expressed in product liability cases, these expressions control the application of Rule 407.


The majority of federal courts faced with the question whether to apply the state or federal interpretation of the exclusionary rule opted for the federal, finding that the federal rule is procedural. Pursuant to the Erie/Hanna analysis, the rule may rationally be classified as procedural and governs because it was within Congress’s power to enact such a rule. The courts do not (and need not) address the issue of whether the rule is substantive or procedural in light of the policies underlying the Erie analysis. One must question, therefore, whether the interpretation of Rule 407 would be substantive or procedural if not presented in the context of the Erie/Hanna analysis. For example, a claim may pend in a jurisdiction that does not follow the exclusionary rule but the court, pursuant to its choice of law determination, has chosen to apply the substantive law of a jurisdiction that does follow the exclusionary rule. In this context, the determination of whether the interpretation of the rule is substantive or procedural does not hinge upon the Erie/Hanna analysis but rather may implicate the discussion set forth in Moe.•

Mr. Palmison is an associate with Rothberg Logan & Warsco in Fort Wayne and is a member of the DTCI Product Liability Section. The opinions expressed in this article are those of the author.


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  1. Mr Smith, while most reading these posts are too busy making money or cranking out what passes for justice in our legal-techocrat order,I have often attempted to resist your cynicism, well thought out cynicism I admit. Please know that I give up, I can resist your logic no more. From Locknarian Platonic Guardians, through the incorporation doctine, to substantive due process, to Roe, to the latest demands that all states redefine the foundational stone of all civilized social order, the history of America's fall from Grace is inscribed on the dockets of the judiciary. From the federal judges' apostasy of a kind that would have caused John Jay to recommend capital punishment, to the state judges' refusal to protect the sanctuary of the state constitutions, seeing in them merely a font from which to protect pornographers, those who scream "f*ck the police" and pemubras and emanations following the federal apostates, it has been the judiciary, by and large, that has brought the Experiment in Ordered Liberty to an end. The Founders had great and high hopes that they had designed the third branch to save the Republic from such a time as this ... rather the third branch has allowed itself to be used to drag the Republic into rat infested sewers from which no nation has ever returned. Save me from tomorrow:

  2. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  3. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  4. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  5. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied