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Unpublished Paper
Who Knew? Admissibility of Subsequent Remedial Measures When Defendants Are Without Knowledge of the Injuries
ExpressO (2007)
  • Mark Boyko, New York University School of Law
  • Ryan Vacca
Abstract
Federal Rule of Evidence 407 prohibits the introduction of subsequent remedial measures for the purposes of demonstrating negligence, culpable conduct, or product defect. But the rule breaks down when a defendant undertakes the new safety measure after the plaintiff's injury, but before the defendant had knowledge of the loss. This situation is not uncommon. Toxic exposure cases represent a prime example where defendants are likely to have improvements before learning of a plaintiff's injury. Should evidence of these improvements be admissible? The literal text of Rule 407 suggests not. Yet admitting this evidence may not have the same chilling effect as when the measure was taken in response to the plaintiff's injury. For it can be argued the defendant never feared the measure would be used against it. Since the rule's policies may not support the exclusion of such evidence, should it still be applied? This article explores Rule 407, its policy underpinnings, courts' differing interpretations of the rule, and how it should be applied to defendants who take subsequent remedial measures without knowledge of a plaintiff's injury. Finally, we suggest an interpretation of and amendment to Rule 407 that clarifies the rule and furthers its policy bases.
Keywords
  • subsequent remedial measures,
  • evidence,
  • torts,
  • products liability
Disciplines
Publication Date
March, 2007
Citation Information
Mark Boyko and Ryan Vacca. "Who Knew? Admissibility of Subsequent Remedial Measures When Defendants Are Without Knowledge of the Injuries" ExpressO (2007)
Available at: http://works.bepress.com/mark_boyko/1/