M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: Rule 407, N.D.R.Ev.; Subsequent Remedial Measures
Rule 407, N.D.R.Ev., governs the admissibility of subsequent remedial measures. The rule is patterned after Rule 407, Fed.R.Ev., which was amended, effective December 1, 1997.
Prior to being amended, the federal rule was unclear as to which event was being referred to by the word "event." For instance, the word "event" could be interpreted as referring to the defendant's negligent act or the resulting injury to the plaintiff. Courts have uniformly held the "event" determining whether a repair is a "prior" or "subsequent" remedial measure is the occurrence of the injury to the present plaintiff. 23 Charles Alan Wright § Kenneth W. Graham, Jr., Federal Practice and Procedure § 5281.1 (Supp. 1998).
In accordance with case law, the 1997 federal amendment clarifies the triggering event is the "injury or harm" to someone rather than the negligent act of someone. "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.Ev.
The Committee Note cites Chase v. General Motors Corp., 856 F.2d 17, 21-22 (4th Cir. 1998). In Chase, the plaintiffs purchased a Chevrolet Citation in April 1980. In July 1980, GM made a design change in the braking system of Citations of the type purchased by the plaintiffs. In January 1982, the plaintiffs were in an accident. The court held the change in the brake design was a "measure" which was taken before the "event" mentioned in Rule 407 and therefore was not a subsequent remedial measure excluded by the rule.
See also Beniek v. Textron, 479 N.W.2d 719, 723 (Minn. App. 1992), holding admission of post-sale duty-to-warn evidence did not violate Rule 407, Minn. Rule Ev., as the evidence regarding the post-sale duty-to warn related to the manufacture's actions before the accident.
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.
The justification given in the Committee Note for extending Rule 407 to products liability is the majority of the circuits have interpreted Rule 407 to apply to products liability actions. However, the majority of states have held Rule 407 does not apply to product liability cases. 23 Federal Practice and Procedure, supra, §5282.1.
The rationale for excluding products liability cases from the application of Rule 407 is based on the assumption the conduct of a manufacture of mass-produced product will not be guided by the evidentiary rule. See Ault v. International Harvester Co., 528 P.2d 1148, 1151 (Cal. 1974) In Chart v. General Motors Corp., 258 N.W.2d 680, 684 (Wis. 1977), the court explained: "Economic realities will set the course and these realities are that the sooner remedial measures are taken, the less costly the defect will be to the manufacturer. 258 N.W.2d at 684.
The Minnesota Supreme Court has rejected the logic of Ault. In Kallio v. Ford Motor Co., 407 N.W.2d 92, 98 (Minn. 1987) the Court said: "Better protection is afforded the public by encouraging manufacturers to pursue actions to correct perceived design flaws without fear that the corrections will be used by plaintiffs to raise the inference that the manufacturer has admitted the product's defect by altering the product."
At the last meeting, the Committee decided the proposed rule should correspond to North Dakota's comparative fault statutes, by using the word "fault" instead of "negligence." North Dakota's comparative fault statutes cover breach of warranty, strict liability, negligence, etc. See Chapter 32-03.2, N.D.C.C.
The Committee concluded by postponing discussion of Rule 407, so more thought could be given to the amendment.
In the material following are four proposals for the Committee's consideration. The first alternative tracks the federal amendment. The second alternative contains the change approved by the Committee making evidence of subsequent remedial measures inadmissible to prove "fault" rather than "negligence." The third alternative contains amendments moved, but not voted upon at the last meeting. The third alternative also removes the language making Rule 407 applicable to products liability actions. The fourth alternative is based on comments made by Committee members at the last meeting. It prohibits evidence of remedial measures undertaken after a product is manufactured, instead of just prohibiting evidence of remedial measures undertaken after the subject accident.