Gregory Chandler on Subsequent Remedial Measures

Many attorneys are aware that courts typically exclude evidence of subsequent remedial measures. A subsequent remedial measure is an act undertaken after the alleged harm or

injury that tends to make the alleged harm or injury less likely to happen again.

Under the Federal Rules of Evidence, Rule 407 speaks to subsequent remedial measures.

Most state courts, that have codified rules of evidence, have a rule of evidence that is similar

to Federal Rule of Evidence Rule 407.

An interesting case is Chlopek v. Federal Insurance Company, 499 F.3d 692 (7th Cir. 2007).

In this case, the Court affirmed a judgment for the defendants in a product liability action

arising from injuries allegedly caused by a device that delivers cooling therapy to

postoperative patients.

The Seventh Circuit found no trial court abuse of discretion in the exclusion of evidence that

the manufacturer changed the warning label some time after the plaintiff's injury. Although

the plaintiff argued that the change was not prompted by safety concerns, the Court noted

that Federal Rule of Evidence 407 does not speak to the motive for the change but only

whether it would have made the alleged harm or injury less likely to occur.

GREGORY CHANDLER, Attorney at Law