Rule 407 Subsequent Remedial Measures; Notification of Defect

Maine Restyling Note [November 2014]

The bulk of Maine Rule 407(a) has been restyled in accordance with Federal Rule 407. Maine Rule 407(b), which has no federal counterpart, has been restyled.

Federal Advisory Committee Note

The language of Rule 407 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

Rule 407 previously provided that evidence was not excluded if offered for a purpose not explicitly prohibited by the Rule. To improve the language of the Rule, it now provides that the court may admit evidence if offered for a permissible purpose. There is no intent to change the process for admitting evidence covered by the Rule. It remains the case that if offered for an impermissible purpose, it must be excluded, and if offered for a purpose not barred by the Rule, its admissibility remains governed by the general principles of Rules 402, 403, 801, etc.

Advisers’ Note to former M.R. Evid. 407

(February 2, 1976)

[Caution: Much of this Adviser’s Note is not applicable to the Rule as amended effective July 1, 1996, following a statutory change. See below.]

Subdivision (a) is directly contrary to Maine law. See Carleton v. Rockland, Thomaston & Camden St. Ry., 110 Me. 397, 86A. 334 (1913). It declares that evidence of repairs and the like after an event is admissible to prove negligence or culpable conduct. The public policy behind the rule against admissibility was that it would deter repairs. This rationale is unpersuasive today. In some instances subsequent repairs may be evidence of culpability. In other instances quite the contrary is the fact. Despite this departure from prior authority, it is still open to the trial judge under Rule 403 to exclude such evidence if he believes its probative value is substantially outweighed by danger of unfair prejudice, confusion of issues, or misleading the jury. A situation when the change is effectuated for reasons unrelated to the hazard would be a clear case for such exclusion. Moreover, evidence of subsequent repairs goes only to the proof of an existing defect. It has no relevancy to the question whether the condition had existed long enough before the accident in suit so that the defendant should have known of it. Indeed, evidence that the condition was promptly corrected when the defendant learned of it might be helpful to the defendant.

The exclusionary rule is already subject to numerous exceptions in Maine and elsewhere. See Carleton v. Rockland, Thomaston & Camden St. Ry., supra (evidence of subsequent repairs admissible, not on the issue of negligence, but on whether it was the duty of the defendant or someone else to make the repairs).

It should be emphasized that although evidence of subsequent remedial measures is admitted, it remains for the jury to decide whether the standard of reasonable care has been satisfied. Proof that such measures were taken clearly does not compel a finding that the previous condition reflected culpable conduct.

Subdivision (b) is aimed at the increasingly common situation where a manufacturer sends a “recall letter” to purchasers notifying them of a defect in a product and asking its return for corrective measures. This is relevant as an admission of existence of the defect and would be receivable against the manufacturer under Rule 801(d)(2) unless excluded by reasons of policy. There appear to be no such reasons. A manufacturer of motor vehicles or tires is now required by statute to give notification of any safety-related defect. 15 U.S.C. §1402.35 Manufacturers of other products would almost certainly give a similar notification. It would be in their enlightened self- interest to do so.

This problem has sufficient similarity to proof of subsequent remedial measures to warrant making it a separate subdivision of the rule. Actually the difference is substantial. Proof of subsequent remedial measures is not an admission of anything. Repairs made after damage related to the very property or chattel involved in an accident may warrant the inference of 35 This statute has been repealed.

negligence. Similarly a change in design may warrant the inference that the previous design was faulty. A recall letter is an out-and-out admission of the existence of a defect. The case for allowing it in evidence is much stronger.

The recall letter should not of itself suffice to establish causation. For instance, if there is evidence that the steering gear of an automobile suddenly failed, a recall letter would be admissible as to the existence of a defect. If, however, there is no evidence that steering gear failure caused the accident, the claim would fail for lack of proof of causation.

It would also seem that proof that a plaintiff received and did not heed the warning of a defect would be admissible on the question of his due care.

The Federal Rule follows the conventional doctrine that evidence of subsequent remedial measures is not admissible to prove negligence or culpable conduct and does not deal with the admissibility of recall letters.

Consultant’s Note (July 15, 1995 Amendment)

Caution: This note relates to a version of Rule 407(a) which has been largely superseded!

This amendment is designed to limit the effect of prior Rule 407. The new version of Rule 407(a) makes admissible subsequent remedial measures involving the design or condition of premises or a tangible thing to the extent such measures are logically relevant to an issue in the case. This formulation merely restates and clarifies the prior formulation of Rule 407(a) as that rule applied to premises and tangible things. The amended rule does not make admissible subsequent remedial measures not involving premises or a tangible thing. Thus, the revised rule would not support admissibility of changes in institutional practice, training, procedures, or instructions in cases based on allegedly negligent practice, procedures, training or instructions. The admissibility of post-event changes in cases of this kind is determined by the general rules of relevance, Rules 401-403. Presumably it would be permissible for the Law Court to construe these rules to re-erect a common law barrier to such evidence, at least in certain contexts.

The amendment also makes evidence otherwise admissible under Rule 407(a) nonetheless excludable if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. The inclusion of Rule 403 language in the text of Rule 407 is not intended to suggest that Rule 403 does not apply to evidence made admissible by other rules, but is to make it clear that the positive grant of admissibility in Rule 407(a) is always subject to the authority of the trial court to apply the policies of Rule 403. Consultant’s Note (July 4, 1996 Amendment)

This amendment is designed to bring Rule 407(a) in conformity with Chapter 576 of the Public Laws of 1996 as enacted by the Maine Legislature on March 29, 1996.

The rule as amended follows Federal Rule 407 in making subsequent remedial measures inadmissible to prove negligence or culpable conduct, but potentially admissible for other purposes. The list of such other purposes for which such evidence may be admitted is not intended to be exhaustive, but includes the most common bases on which admission may be warranted in specific cases. Chapter 576 expressly states that it “applies to causes of action in which the harm or injury occurred on or after the effective date of this Act.” Non-emergency legislation of the 1996 legislative session becomes effective on July 4, 1996.

The amendment makes revised Rule 407 effective as of July 4, 1996 and would apply to trials and rulings occurring on or after its effective date regardless of the date of injury or of the date of commencement of the action. This provision on applicability of the new rule was chosen by the Law Court in preference to the corresponding provision of Chapter 576, in the interest of clarity and simplicity of application.

Advisory Committee Note

(April 1, 1998 Amendment)

This amendment is proposed to bring Maine Rule 407(a) in conformity with Federal Rule 407 as amended in 1997. The amendment makes clear that the operative date for “subsequent” is the date of the injury on trial, not the date a product was designed or manufactured, and not the date of some prior failure or other occurrence. The amendment also makes it clear that Rule 407 applies in cases of strict liability and “products liability” as well as traditional negligence.