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Rule 407.?Subsequent Remedial Measures.

 

Whenmeasures are taken that would have made an earlier event that caused injury orharm less likely to occur, evidence of the subsequent measures is notadmissible to prove:

 ??????????  ?    negligence;

 ?    culpable conduct;

 ?    a defect in a product or its design; or

 ?    a need for a warning or instruction.

 

But thecourt may admit this evidence for another purpose, such as impeachment or ? ifdisputed ? proving ownership, control, or the feasibility of precautionarymeasures.

 

 

EffectiveNovember 1, 2006

 

 

2011Advisory Committee Note. ?The language of this rule has been amended as part of the restyling of the EvidenceRules to make them more easily understood and to make style and terminologyconsistent throughout the rules. These changes are intended to be stylisticonly. There is no intent to change any result in any ruling on evidenceadmissibility.

 

Original Advisory CommitteeNote.? These amendments conform to amendments made to the Federal Rule in1997, and the rule is now the Federal Rule, verbatim.

 

Notes ofFederal Advisory Committee on Rules - 1997 Amendment.

 

Theamendment to Rule 407 makes two changes in the rule. First, the words ''aninjury or harm allegedly caused by'' were added to clarify that the rule appliesonly to changes made after the occurrence that produced the damages giving riseto the action. Evidence of measures taken by the defendant prior to the''event'' causing ''injury or harm'' do not fall within the exclusionary scopeof Rule 407 even if they occurred after the manufacture or design of theproduct. See Chase v. General Motors Corp., 856 F.2d 17, 21-22 (4th Cir.1988).

 

Second,Rule 407 has been amended to provide that evidence of subsequent remedialmeasures may not be used to prove ''a defect in a product or its design, orthat a warning or instruction should have accompanied a product.'' Thisamendment adopts the view of a majority of the circuits that have interpretedRule 407 to apply to products liability actions. See Raymondv. Raymond Corp., 938 F.2d 1518, 1522 (1st Cir. 1991); In re JointEastern District and Southern District Asbestos Litigation v. Armstrong WorldIndustries, Inc., 995 F.2d 343 (2d Cir. 1993); Cann v.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. AlabamaOxygen Co., Inc., 695 F.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); Gauthierv. AMF, Inc., 788 F.2d 634, 636-37 (9th Cir. 1986).

 

Althoughthis amendment adopts a uniform federal rule, it should be noted that evidenceof subsequent remedial measures may be admissible pursuant to the secondsentence of Rule 407. Evidence of subsequent measures that is not barred byRule 407 may still be subject to exclusion on Rule 403 grounds when the dangersof prejudice or confusion substantially outweigh the probative value of theevidence.

 

GAPReport on Rule 407.

 

The words''injury or harm'' were substituted for the word ''event'' in line 3. Thestylization changes in the second sentence of the rule were eliminated. Thewords ''causing 'injury or harm' '' were added to the Committee Note.

 

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