Southern District of Ohio Finds Rule 407 Only Covers Subsequent Remedial Measures Made in Response to Injuries

March 6, 2021

Federal Rule of Evidence 407 provides that

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

negligence;

culpable conduct;

a defect in a product or its design; or

a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

But is this “subsequent remedial measure” rule a temporal rule or a causal rule? In other words, does it preclude evidence of any remedial measure taken after an injury, or does it only preclude evidence of remedial measures taken as a result of that injury. As the recent opinion of the United States District Court for the Southern District of Ohio in In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Products Liability Litigation, 2021 WL 486425 (S.D. Ohio 2021), makes clear, the courts are split on the issue.

The case involved an action against developers of polypropylene hernia mesh medical device to recover for injuries sustained as result of implantation of allegedly defective device. Before trial, the defendants filed a motion in limine seeking to preclude admission of actions it took in response to an FDA audit and a DVL-020 study as evidence of subsequent remedial measures. In response, the court noted that

A number of courts have considered and are split on “whether Rule 407 applies where a measure has the effect of making an injury or harm less likely to occur even if the motivation for the measure is unconnected to that injury or harm or even to improving safety” or when there is no causal connection between the measure and the injury or harm.

The court then held that

The better interpretation of Rule 407 is that there must be some sort of causal connection or nexus between the injury-causing event and the subsequent measure. Under the literal interpretation of the rule, there is no logical limit to the Rule’s application; a measure taken ten years after the injury-causing event could be considered a subsequent remedial measure because it is actually subsequent and may have reduced the likelihood that the harm would have occurred had the measure been in place earlier. This is nonsensical….

The statutory history of the Rule demonstrates that the event causing the injury must be the trigger for the subsequent remedial measure. The original version of Rule 407 provided that “after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event.”…The text “in connection with the event” supplies such a causal connection. Subsequent amendments did not purport to change this meaning. In 1997, the Advisory Committee deleted this phrase, but it did not list this deletion as one of the substantive changes to the Rule, and the 2011 amendments were expressly limited to stylistic changes….

The two policies or purposes behind Rule 407 also show that the Rule requires more than mere subsequence. The first policy is that subsequent remedial measures are “equally consistent with injury by mere accident [and] through contributory negligence,” meaning evidence of such measures is poor proof of fault….The first policy makes little sense applied to a measure that occurs years after an event that caused harm. Certainly, the measure may be still equally probative (or not probative) of an accident or negligence—but after enough time, the risk of admitting the evidence is less that the jury will conflate evidence of an innocent accident with evidence of negligence, but that the evidence of the later measure is simply irrelevant to proving any earlier negligence and is likely to distract the jury from the timeframe at issue. This is the province of Rules 401, 402, and 403—not Rule 407.

The second policy is that people should be encouraged to take steps to improve safety, which they would be deterred from doing if such acts would be counted against them in court….When a supposed remedial measure has no connection to the harm at issue in the case, it is difficult to imagine why any deterrence would result. If defendants do not view the measures taken as connected to a harm-causing event, then it is unlikely that they would be disincentivized from taking these actions and in anticipation of litigation of the injury-causing event.

In turn, this reasoning led the court to conclude that

Neither Defendants’ responses to the 2017 FDA audit nor the DVL-020 study are subsequent remedial measures because Plaintiff’s injury did not trigger these actions. It is undisputed that Defendants took these steps in response to the FDA audit and in response to changes in European regulations. Defendants themselves even state that these events “lack[ ] a logical connection to the facts in this case.”…The timing of Defendants’ responses further supports this conclusion. Their responses to the audit would have occurred after 2017, and the DVL-020 study began in 2018-both at least two years after Plaintiff’s surgery….Thus, Defendants identify no subsequent remedial measures excludable under Rule 407.

-CM