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Rule 407. Subsequent Remedial Measures

 

When measures are taken that would have made an earlierevent that caused injury or harm less likely to occur, evidence of thesubsequent measures is not admissible to prove:

 

        negligence;

        culpableconduct;

        a defectin a product or its design; or

        a needfor a warning or instruction.

 

But the court may admit this evidence for anotherpurpose, such as impeachment or if disputed proving ownership, control, orthe feasibility of precautionary measures.

 

2011 Advisory Committee Note. The language of this rule has beenamended as part of the restyling of the Evidence Rules to make them more easilyunderstood and to make style and terminology consistent throughout the rules.These changes are intended to be stylistic only. There is no intent to changeany result in any ruling on evidence admissibility.

 

ADVISORY COMMITTEE NOTE

 

These amendments conform to amendments made to the FederalRule in 1997, and the rule is now the Federal Rule, verbatim.

 

Notes of Federal Advisory Committee on Rules - 1997Amendment

 

The amendment to Rule 407 makes two changes in the rule.First, the words ''an injury or harm allegedly caused by'' were added toclarify that the rule applies only to changes made after the occurrence thatproduced the damages giving rise to the action. Evidence of measures taken bythe defendant prior to the ''event'' causing ''injury or harm'' do not fallwithin the exclusionary scope of Rule 407 even if they occurred after themanufacture or design of the product. See Chase v. General Motors Corp., 856F.2d 17, 21-22 (4th Cir. 1988).

 

Second, Rule 407 has been amended to provide that evidenceof subsequent remedial measures may not be used to prove ''a defect in aproduct or its design, or that a warning or instruction should have accompanieda product.'' This amendment adopts the view of a majority of the circuits thathave interpreted Rule 407 to apply to products liability actions. See Raymondv. Raymond Corp., 938 F.2d 1518, 1522 (1st Cir. 1991); In re Joint EasternDistrict and Southern District Asbestos Litigation v. Armstrong WorldIndustries, Inc., 995 F.2d 343 (2d Cir. 1993); Cannv. Ford Motor Co., 658 F.2d 54, 60 (2d Cir. 1981), cert. denied, 456 U.S. 960(1982); Kelly v. Crown Equipment Co., 970 F.2d 1273, 1275 (3d Cir. 1992);Werner v. Upjohn, Inc., 628 F.2d 848 (4th Cir. 1980), cert. denied, 449 U.S.1080 (1981); Grenada Steel Industries, Inc. v. Alabama Oxygen Co., Inc., 695F.2d 883 (5th Cir. 1983); Bauman v. Volkswagenwerk Aktiengesellschaft, 621 F.2d 230, 232 (6th Cir. 1980); Flaminio v. Honda Motor Company, Ltd., 733 F.2d 463, 469(7th Cir. 1984); Gauthier v. AMF, Inc., 788 F.2d 634, 636-37 (9th Cir. 1986).

 

Although this amendment adopts a uniform federal rule, itshould be noted that evidence of subsequent remedial measures may be admissiblepursuant to the second sentence of Rule 407. Evidence of subsequent measuresthat is not barred by Rule 407 may still be subject to exclusion on Rule 403grounds when the dangers of prejudice or confusion substantially outweigh theprobative value of the evidence.

 

GAP Report on Rule 407.

 

The words ''injury or harm'' were substituted for the word''event'' in line 3. The stylization changes in the second sentence of the rulewere eliminated. The words ''causing 'injury or harm' '' were added to theCommittee Note.