Time is Money: Eastern District of Pennsylvania Finds Evidence of Subsequent Remedial Measure Inadmissible Against Dollar General

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.

In McLeod v. Dollar General, 2014 WL 4634962 (E.D.Pa. 2014), the plaintiff sought to admit evidence of the defendant’s subsequent remedial measures to impeach a witness. So, was he successful?

In McLeod, the

plaintiff entered a Dollar General store….Upon entering the store, plaintiff slipped and fell in the vestibule….Approximately three minutes later, Dollar General employee Patty Reed placed two pieces of cardboard on the floor in the area where plaintiff fell….Store manager Maceo Randall then almost immediately removed the cardboard and “adjusted and/or twisted” the black entrance mat into a different position.

Prior to trial, Dollar General filed a motion in limine, seeking to preclude the plaintiff from presenting video surveillance footage “showing the placement and removal of cardboard pieces on the floor in the area where plaintiff fell and the adjustment of the entrance mat on the ground that such evidence constitutes subsequent remedial measures….”

The plaintiff disagreed, asserting that the footage was admissible to impeach Reed’s deposition testimony. According to the court,

In her testimony, Ms. Reed repeatedly stated that there was no water on the floor at the time of the accident….In response to counsel’s question as to why she put the cardboard down, Ms. Reed testified, “It’s just—I don’t know why. I just—I heard falling and I am thinking, okay I don’t want nobody else to fall, but there was no water there.”…When probed as to why she thought to put cardboard down, whether “that was something she did,” she replied, “No, it’s just an instinct.”

Ultimately, the court granted Dollar General’s motion in limine, concluding that

Significantly, the video surveillance does not show any evidence of water on the floor at the time of plaintiff’s accident, which would be a direct contradiction of Ms. Reed’s testimony. While it could be argued that the video footage of her placing the cardboard on the floor where plaintiff fell after the accident tends to refute Ms. Reed’s statements, it does not directly contradict her testimony, which is required for admissibility under F.R.E. 407. Therefore, the evidence is inadmissible. In so ruling, the Court again notes that video footage of plaintiff’s fall may be shown to the jury.

-CM