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Admissibility of Subsequent Remedial Measures: Bad Law Lurking in the 10th Circuit
Although not a part of every product liability case, if the product manufacturer makes “subsequent remedial measures” after the injury-causing event, a motion in limine seeking to exclude this evidence at trial is a must. There is a tremendous risk that the jury will irrationally assume that a product was defective when sold, and that the manufacturer was negligent for supplying such a product, simply because the manufacturer made changes to the product after the accident.
In most federal courts today, Federal Rule of Evidence 407 governs the admissibility of subsequent remedial measures in product liability actions. Although not apparent from the text of this rule, the applicability of FRE 407 to strict product liability actions at one time engendered considerable controversy. Most federal circuits ultimately resolved this controversy in favor of construing FRE 407 so as to exclude subsequent remedial measures when offered to prove a product defect. Most federal circuits also concluded that FRE 407, as opposed to state law, applies in diversity product liability actions. Not all federal circuits aligned on these issues, however, and a split in the circuits developed in the late 1970s and early 1980s, largely because of the 10th Circuit.
To eliminate this split, FRE 407 was amended in 1997 to clarify that it precludes the admission of subsequent remedial measures when offered to prove a product defect. The 1997 amendment also clarifies that federal courts sitting in diversity should apply FRE 407, as opposed to state law. Notwithstanding this amendment to FRE 407, the 10th Circuit continues to mandate that federal courts apply state law when determining whether to admit evidence of subsequent remedial measures in product liability actions. Bad law is lurking in the 10th Circuit.
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