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Evidence of Subsequent Remedial Measures: Strategies and Practical Considerations Under FRE 407

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, July 19, 2023

Recorded event now available

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This CLE webinar will discuss strategies to position counsel either to put evidence of remedial measures in front of a jury or to make sure it is excluded. The program will review Federal Rule of Evidence 407 and its many exceptions, the relevancy requirement of FRE 403, and how defendants' instinct to disclaim responsibility and plaintiffs' instinct to secure admissions affects admissibility of this powerful category of evidence. The panel will also discuss the ongoing debates: (1) whether FRE 407 applies to every change that would have made the plaintiff's injury less likely to occur or only those made in response to the injury, and (2) whether the rule applies beyond injury cases, such as in contract actions.

Description

Evidence of subsequent remedial measures can only be admitted under FRE 407 for certain limited reasons and not to prove negligence, fault, or product defect.

A plaintiff wanting to avail itself of one of FRE 407's exceptions will need to carefully plan its allegations and discovery on key matters to tee up disputed issues for which subsequent remedial measures can be admitted. Defense counsel, on the other hand, must see three moves ahead, and where evidence of subsequent remedial measures is anticipated, consider conceding issues that would keep such measures from the jury.

Although FRE is short, its application is not always straightforward. What constitutes a remedial measure is debatable as well as whether the measure would make the earlier injury or harm less likely. Federal courts are divided on whether Rule 407 applies to modified language in contractual agreements and whether the changes must have been made in response to the injury.

Listen as this experienced panel leads counsel through strategies and best practices for leveraging FRE 407.

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Outline

  1. Evolution of FRE 407 and policy rationales
  2. Analysis of the rule
    1. Defining subsequent remedial measure
      1. Application to contract actions
      2. Causation requirement
    2. Impermissible uses
    3. Exceptions
  3. Strategies for getting subsequent remedial conduct into evidence
  4. Strategies for excluding subsequent remedial conduct

Benefits

The panel will review these and other important issues:

  • Does Rule 407 apply to every change that would have made the injury less likely to occur or just those made in response to the injury?
  • Does Rule 407 apply to contracts, such as new insurance exclusions?
  • Does Rule 407 apply to contributory negligence issues?
  • Is it ever beneficial to affirmatively introduce remedial measures?
  • How can subsequent remedial measures be used for impeachment?
  • Are communications that refer to subsequent remedial measures excludable?

Faculty

Angeletti, Ashleigh
Ashleigh L. Angeletti
Attorney
DLA Piper

Ms. Angeletti focuses her practice on the defense of medical device, life science, and pharmaceutical companies in a...  |  Read More

Campbell, Christopher
Christopher G. Campbell
Partner
DLA Piper

Mr. Campbell is a partner in the firm’s Product Liability and Mass Tort practice. He has experience in all phases...  |  Read More

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