M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: Rule 407, N.D.R.Evid.; Subsequent Remedial Measures
Rule 407, N.D.R.Evid., governs the admissibility of subsequent remedial measures. The Rule is patterned after Rule 407, Fed.R.Evid., which was amended, effective December 1,1997.
The federal amendment clarifies the rule applies only to remedial measures made after the occurrence that produced the damages giving rise to the action. "Evidence of measures taken by the defendant prior to the 'event' causing 'injury or harm' do not fall within the exclusionary scope of Rule 407 even if they occurred after the manufacture or design of the product." See 1997 Committee Note, Rule 407, Fed.R.Evid.
The federal amendment also prevents evidence of subsequent remedial measures to prove a defect in a product or its design, or that a warning or instruction should have accompanied a product. In essence, the exclusionary principle is extended to product liability actions.
Should North Dakota's Rule 407 be amended to follow the 1997 federal amendment?