PAYMENT OF OFFERS TO PAY
MEDICAL AND SIMILAR EXPENSES Evidence of furnishing, offering, or promising
to pay medical, hospital, or similar expenses
occasioned by an injury is not admissible to prove civil or criminal liability for the
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.
Rule 409 was amended, effective March 1, 2014.
The general underpinnings of this rule are the same as those dealt with in Rules 407 and 408. A salutary action, the furnishing of medical or similar expenses is not to be discouraged by attaching to it the liability that would ensue were the fact to be admitted into evidence.
Unlike Rule 408, which protects statements made during compromise even if unrelated to the offer, Rule 409 protects only the act of furnishing or offering or promising to pay medical expenses. Statements made apart from the actual offer are not covered by the rule. There is no need to protect all discussion because discussion is not a necessary part of furnishing medical expenses.
It is likely that admissions will at times be so intertwined with an offer to furnish medical expenses that the two cannot be severed. Whenever this occurs, a choice must be made between admitting the evidence, totally, or excluding it. Balance must be made of the social policy behind this rule and the need for such evidence.
Note should be made of N.D.C.C. § 32-39-01, which prohibits the use, as evidence of liability, of a voluntary partial payment of a claim. The statute is somewhat broader than this rule as it is not limited to the payment of medical or similar expenses, but applies to payment of any part of a claim.
Rule 409 was amended, effective March 1, 2014, in response to the December 1, 2011, revision of the Federal Rules of Evidence. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. There is no intent to change any result in any ruling on evidence admissibility.
Sources: Joint Procedure Committee Minutes
: of April 26-27, 2012,
page 17; April 8, 1976,
pages 24, 25; October 1, 1975, page 4. Rule Fed.R.Ev. 409 ,
Federal Rules of Evidence; Rule
409, SBAND proposal.
Considered: N.D.C.C. §§ 32-39-01, 32-39-02, 32-39-03.
Cross Reference: N.D.R.Ev. 407 (Subsequent Remedial Measures); N.D.R.Ev. 408 (Compromise Offers and Negotiations).