Subsequent Remedial Measures (FRE 407)
What is the Subsequent Remedial Measures (FRE 407)?
When measures are taken after an injury or harm that would have made the earlier injury or harm less likely to occur, evidence of those measures is not admissible to prove negligence, culpable conduct, a defect, or a need for a warning. It may be admitted for other purposes.
Definition
Federal Rule of Evidence 407 excludes evidence of subsequent remedial measures when offered to prove negligence, culpable conduct, a product defect, or a need for a warning or instruction. The rule rests on two policy rationales: first, the evidence has limited probative value because a remedial measure may reflect a desire for extra safety rather than an admission of prior fault; second, and more importantly, the rule encourages parties to make safety improvements without fear that doing so will be used against them in litigation.
The rule applies only to measures taken after the injury or harm giving rise to the action. If the remedial measure was taken before the plaintiff's injury but after the product was manufactured, courts have split on admissibility. The 1997 amendment clarified that FRE 407 applies in product liability cases, resolving a prior circuit split. The rule covers a wide range of remedial activity, including repairs, design changes, policy changes, employee discipline, installation of safety devices, and changes to warnings.
Critically, FRE 407 only bars the evidence when offered for the prohibited purposes (negligence, culpable conduct, defect, need for warning). It does not exclude the evidence when offered for other purposes such as proving ownership or control, impeachment, or the feasibility of precautionary measures (if controverted). The feasibility exception is narrow — it applies only when the defendant has actually placed feasibility in dispute. Merely denying negligence does not controvert feasibility.
Key Elements
- 1A measure was taken after an injury or harm occurred
- 2The measure would have made the earlier injury or harm less likely to occur if taken previously
- 3The evidence is offered to prove negligence, culpable conduct, a product defect, or a need for a warning
- 4Such evidence is inadmissible for those purposes
- 5The evidence may be admissible for other purposes: ownership, control, feasibility of precautionary measures (if controverted), or impeachment
Landmark Cases
Tuer v. McDonald
347 Md. 507 (1997)
Landmark case narrowly construing the feasibility exception — merely denying negligence does not place feasibility in dispute so as to allow subsequent remedial measure evidence.
Ault v. International Harvester Co.
13 Cal. 3d 113 (1974)
Influential state case that declined to apply the exclusionary rule to strict product liability, prompting the 1997 federal amendment extending FRE 407 to product liability.
Anderson v. Malloy
700 F.2d 1208 (8th Cir. 1983)
Addressed when subsequent remedial measures are admissible for impeachment, allowing evidence to contradict defendant's testimony about safety adequacy.
Exam Tips
- Always check the timing — the measure must have been taken after the event causing injury. Pre-event measures are not covered by FRE 407.
- The feasibility exception is a favorite exam trap: it only applies when the defendant has actually controverted feasibility, not merely when the defendant denies negligence.
- Identify the purpose for which the evidence is being offered — if offered for impeachment, ownership, control, or controverted feasibility, it may be admissible despite FRE 407.
Common Mistakes to Avoid
- Assuming that denying negligence automatically controverts feasibility — it does not. The defendant must specifically claim the precaution was not feasible.
- Forgetting that FRE 407 applies to product liability cases (as clarified by the 1997 amendment), not just negligence.
- Overlooking that the rule only excludes evidence for specific prohibited purposes — it does not create a blanket ban on all evidence of remedial measures.
Memory Aid
FRE 407 says: 'Fix it without fear' — the law encourages safety improvements by keeping them out of evidence when offered to prove fault.