Table of Contents

Chapter 5. Other Forbidden Inferences 1

A. Subsequent Remedial Measures 4

1. Civil Settlements 4

2. Criminal Settlements 7

C. Medical Payments and Liability Insurance 9

A. Introduction 10

B. Character for Untruthfulness 11

1. In General 12

2. Prior Criminal Convictions 14

a. Admissible and Inadmissible Convictions 14

b. Preserving Claims of Error 18

C. Prior Inconsistent Statements 19

D. Bias and Incapacity 26

E. Specific Contradiction 28

F. Rehabilitation 32

1. In General 32

2. Character for Truthfulness 33

3. Prior Consistent Statements 36

*NB: This outline accords with Sklansky, Evidence: Cases, Commentary and Problems 4th ed.

Chapter 5. Other Forbidden Inferences

Introduction

• Hearsay and character evidence rules share a similar structure: each forbids a certain kind of proof used for a certain kind of purpose. This chapter includes various other rules with the same structure.

  • Evidence of subsequent remedial measures typically inadmissible to prove fault.

  • Settlement efforts generally cannot be probed to show the merit or weakness of a civil claim or criminal charge.

  • Humanitarian payments typically are inadmissible to demonstrate liability.

  • Presence of absence of liability insurance generally cannot be proved to show fault or lack of fault.

A. Subsequent Remedial Measures

FRE 407. Subsequent Remedial Measures

• 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.

Advisory Committee Note to FRE 407

• Rule rests on two grounds:

  • Conduct is not in fact an admission, since it is equally consistent with injury by mere accident or contributory negligence. (But under a liberal theory of relevance, this would not justify exclusion, since the inference is still possible.)

  • Social policy of encouraging people to take steps in furtherance of added safety.

• Rule only excludes evidence when offered as proof of negligence or culpable content, i.e. admitting fault. Other purposes are allowable:

  • Showing, if controverted, ownership or control, existence of a duty, feasibility of precautionary measures. Use for impeachment also permissible.

• Alternative purpose must be controverted, so evidence is automatically excluded unless a genuine issue is present. This allows the opposing party to lay the groundwork for exclusion by making an admission.

Clausen v. Storage Tank Development Corp., 21 F.3d 1181 (1st Cir. 1994)

Facts:

• In 1989, P fell while working on job site owned by D1 and occupied by D2. Ds filed third-party complaint against P’s employer, E.

• D1 complaints of allowance of evidence that, in 1992, at D2’s request, replaced ramp where P fell with set of stairs.

• D1 failed to timely object, so Court here reviews decision only for plain error.

Opinion (Campbell):

• TC’s decision to admit evidence was not plain error.

• FRE 407 proscribes admission of evidence of subsequent remedial measures to prove negligence or culpable conduct, but not when offered to prove another purpose, such as control.

  • Parties agree control of ramp area was material issue. And parties dispute who was in control.

• TC committed no plain error in FRE 403 analysis.

  • D1 argues evidence was inadmissible under control exception to FRE 407 because it failed to satisfy independent requirements of FRE 403; evidence from three years later does not prove who controlled the ramp at the time of the accident. But D1 did not preserve its right to argue the merits, and does not demonstrate plain error in TC believing the evidence carried at least some probative weight.

  • D1 also argues evidence was prejudicial. But Judge offered proper limiting instructions; while not always effective, the instructions here were not plain error.

In Re Asbestos Litigation, 995 F.2d 343 (2d Cir. 1993)

Facts:

• D appeals from wrongful death judgment awarded to P, whose husband died from asbestos manufactured by D.

• D appeals TC’s admission of evidence D placed warning on product after decedent’s last exposure.

  • TC held P’s use of label evidence focused on statement no warning labels were placed on the products at the time of decedent’s exposure, not that the labels were placed on the products later because D recognized the danger.

  • P argues this evidence was used to show feasibility.

Opinion (McLaughlin):

• The warnings were subsequent remedial measures, inadmissible under FRE 407.

  • Feasibility is not a magic word. Defendant must first contest the feasibility of a warning before the subsequent warning would become admissible.

  • Feasibility here was not an issue here, since D instead contested the product was defective without a warning or required a warning.

Diehl v. Blaw-Knox, 360 F.3d 426 (6th Cir. 2004)

Facts:

• In 1999, P was injured working on a road crew for IA construction company (not party to suit). P was working behind road-widening vehicle when it backed up over him. P sued D, which manufactured vehicle in 1970.

  • P argued product was defective because it lacked bumper or wheel enclosure, back-up alarm was inaudible, and it lacked proper warnings.

• P sought to introduce testimony by IA mechanic that shortly after accident, IA modified vehicle by adding safety features.

  • TC ruled evidence subsequent remedial measure inadmissible under FRE 407; and alternatively excluded under FRE 403, on the basis evidence of measures in 1999 would confuse jury, whose focus should be on whether vehicle was safe in 1970.

Opinion (Smith):

• TC erred in excluding evidence under FRE 407.

  • FRE 407 rests on policy of encouraging manufacturers to make improvements for greater safety. The policy is not implicated where evidence concerns remedial measures taken...

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