Blog Content – Subsequent Remedies, Rule 407 and . . . Causality?

Federal rule of evidence 407, dealing with the inadmissibility of subsequent remedies, is not that complicated – as the federal rules say. It contains only 73 words:

Where action is taken that would have made an earlier injury or damage less likely to occur, evidence of subsequent action is not admissible to prove:

• neglect;
• culpable conduct;
• a defect in a product or its design; or
• need for a warning or instruction.

But the court may admit such evidence for other purposes, such as impeachment or – if contested – proving ownership, control or the feasibility of conservatory measures.

It would have been even shorter, if some courts had not insisted on reading a strict liability exception in Rule 407 which was simply not there. Thus Rule 407 was amended in 1997:

to provide that evidence of subsequent corrective action cannot be used to prove “a defect in a product or its design, or that a warning or instruction should have accompanied a product”. This amendment adopts the view of the majority of circuits that have interpreted Rule 407 as applying to product liability claims.

EN Obviously. 407, Committee Notes on the 1997 Amendments.

The problem is that the courts still cannot steer clear of the very plain language of Rule 407 – if the alleged injury “predated” the “action” the defendant had “taken”, and he there is no other “purpose” for the evidence in question, it is excluded.

In 2010, we reviewed a restrictive legal gloss on Rule 407 – an exception based on the “policy” that the rule does not apply to government-imposed measures. This caveat was made up from scratch, since the wording of Rule 407 makes no such distinction, and no caveat is mentioned in any committee memorandum. Fortunately, this 2010 decision was an anomaly favorable to the plaintiff, and label changes, recalls, etc. required by the FDA continue to be subject to the exclusion based on Rule 407. See, for example, Yates vs. Ortho-McNeil-Janssen Pharmaceuticals, Inc.808 F.3d 281, 292 (6th Cir. 2015) (“we will not consider evidence of subsequent improvement in a drug label as evidence of prior failure to warn, even in cases like this one where the FDA mandated the labeling change”) (citing Rule 407). Bexis collates these cases in §11.01[2][a] nn.101-106 of his book.

However, having two strikes against them hasn’t stopped the other side from trying to bring up other exceptions to rule 407. Our current issue involves a few decisions to graft a causation/intent requirement onto the rule 407 – even though the current rule nowhere deals with causation. So in Godelia v. Zoll Services, LLC2019 WL 3883682, at *1-2 (SD Fla. Aug. 16, 2019), the court inexplicably found that a post-accident corporate audit report was not excluded under Rule 407 because he was not motivated by the incident which injured the plaintiff:

The record does not reflect that the defendant held [the outside auditor] carry out the audit to render the damage suffered by [plaintiff] less likely to occur or to remedy the problems encountered by the respondent with corrective and preventive measures to [the claimed defect]. . . . The defendant thought there was a communication problem with the FDA. In response to this belief, the defendant retained [the auditor] − do not remedy [plaintiff’s claimed] regulatory defects or failures. . . . Therefore, this analysis and this audit report do not constitute subsequent corrective measures and are admissible.

Identifier. to *2 (footnote omitted). To see In re Davol, Inc./CR Bard, Inc., Hernia Mesh Polypropylene Product Liability Litigation, 518 F. Supp.3d 1028, 1036-37 (SD Ohio 2021) (relying on Rule 407’s “policy” against “deterrence” to avoid exclusion of subsequent remedy “does not trigger[ed]by “injury to the plaintiff”).

The interpretation of Rule 407 in these cases goes beyond mere judicial gloss. Rather, it goes against the most recent (2011) amendments to Rule 407. Prior to 2011, Rule 407 at least mentioned causation – the first clause stated that “[w]then, after injury or damage allegedly caused by an event, action is taken. . . .” (Emphasis added). The 2011 amendments even eliminated this oblique reference, replacing the current, outcome-only wording: “When action is taken that would have made a prior injury or harm less likely to occur. . . .” Moreover, since the 2011 amendments completely omitting causation were not intended to have a substantial effect, to see Committee notes on 2011 changes (“styling only”), the current absence of any reference to causation in the rule is a further indication that rule 407 was never intended to require a causal relationship between the injury of a particular plaintiff and the subsequent remedy of a defendant.

Fortunately, most courts have not restricted Rule 407 on this extratextual basis. Instead, they take a broad view, excluding evidence of any subsequent remedial action that, if taken previously, would have made harm or harm generally less likely to occur, without reference to any particular plaintiff.

[Plaintiffs] seek to circumvent Federal Rule of Evidence 407 by insisting that the change was not a subsequent “remedial” action because, according to the affidavit of a [defense witness], the change was not prompted by security concerns. But [defendant’s] the reason for the change is irrelevant. All the rule requires is that the measure “would have made the injury or harm less likely to occur”.

Chlopek v. Federal Insurance Co., 499 F.3d 692, 700 (7th Cir. 2007) (citing text of Rule 407). Earlier in Mills v. Beech Aircraft Corp.886 F.2d 758, 763 (5th Cir. 1989), the court declined to turn the exclusion of Rule 407 into a battle over the defendant’s subjective intent, instead stating:

In the present case, as in the vast majority of cases, it is not known why the changes were made. Rather than attempting to prove or disprove the reasons for subsequent product modifications, we should consider the probative value of that evidence on the point at issue. . . if the product or design was defective at the time the product was sold. . . . The introduction of evidence regarding subsequent changes to the product or its design may confuse the jury by diverting their attention from the question of whether the product was defective at the relevant time to what was done later.

Identifier. at 763 (quote and quotation marks omitted) (emphasis added). To see Bush v. Michelin Tire Corp., 963 F. Supp. 1436, 1449 (WD Ky. 1996) (“The language of the rule does not concern the defendant’s intention to take the subsequent measures. It merely asks whether the subsequent measures could have prevented the prior accident.”); see also Maiorano v Home Depot USA, Inc.2018 WL 2128609, at *3 n.3 (SD Cal. May 9, 2018) (citing and following Chlopek). see Hasebrock v. Air & Liquid Systems Corp.2016 WL 4496917, at *6 (WD Wash. April 11, 2016) (Rule 407 prohibits the admission of defendant’s subsequent remedies after the date of the plaintiff’s last exposure to asbestos, even if that exposure was not from defendant’s products).

The issue has also been raised in a number of state cases applying analogs of Rule 407. We caution that in all such cases the language of the relevant rule may not be identical to Rule 407, but Here are some examples of high state courts: Johnson v. State, Department of Transportation233 P.3d 1133, 1137 (Ariz. 2010) (“Rule 407 requires the exclusion of evidence of subsequent steps to prove a party’s negligence or culpable conduct, even when such steps are taken without specific knowledge of the accident in question”); Martin v. Norfolk Southern Railway Co.271 SW3d 76, 88 (Tenn. 2008) (Rule 407 applied even if the action was “taken pursuant to company policy” rather than in response to an accident, because “it corrected a condition allegedly dangerous and made the [area] safer ” ); Webb v CSX Transportation, Inc.615 SE2d 440, 448 (SC 2005) (“narrow interpretation” of Rule 407 “that only actions taken in direct response to the accident are eligible for exclusion” rejected because it “ignores the literal language of the rule” ); Doe v. Johnston476 NW2d 28, 34 (Iowa 1991) (rule 407 “policy would not be served if evidence of defendants’ changed behavior could be used to prove liability simply because the defendant was unaware that an injury or accident occurred was produced”).

Decisions applying Rule 407 in the specific context of prescription medical product liability litigation also apply the rule bluntly in determining whether the plaintiff’s injury somehow caused the defendant to take the remedy at issue. . “[A] the plaintiff could not avoid the effect of Rule 407 simply by arguing that a label change was not motivated by safety concerns. Hill v Novartis Pharmaceuticals Corp.944 F. Supp.2d 943, 961 (ED Cal. 2013).

[T]The court did not find that the lack of a ground for relief precluded exclusion under Rule 407. . .[, and] other courts dealing specifically with this specific issue have decided otherwise. The Court reaffirms its conclusion at the pre-trial conference that the intention or subjective motive for taking a remedy is not a determinative precondition for exclusion under Rule 407.

In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation2010 WL 2015146, at *1 (MD Ga. 20 May 2010). To see Herrera-Nevarez vs. Ethicon, Inc.., 2017 WL 3381718, at *3 (ND Ill. 6 Aug 2017) (rejecting the argument that Rule 407 did not apply because “the change was not made for security reasons or for other corrective reasons”); In re Depakote, 87 F. Supp. 3d 916, 925 (SD Ill. 2015) (“the reasons are irrelevant to the Court’s rule 407 analysis”) (both Chlopek– related courts).

As this discussion indicates, there has not been much litigation about what prompted a defendant to undertake a particular remedy in a prescription medical product liability dispute. Like the possible strict liability and governmental warrant exceptions, this purported exception has no basis in the text of Rule 407, and that should be the end of the investigation. We think things should stay that way. “When the express terms of a law [here a rule, but the proposition is the same] give us one answer and extratextual considerations suggest another, it’s not a contest. Only the written word is the law, and all people are entitled to its benefit. Bostock v. Clayton County, Georgia, 140 S.Ct. 1731, 1737 (2020).