OTHER FORBIDDEN INFERENCES

Rationale: CL’s (and then FRE drafters’) assessment that the Rule 403 balance categorically should result in exclusion for all of these types of evidence.

-SUBSEQUENT REMEDIAL MEASURES [FRE 407]

Rationale: avoiding discouragement of remedial measures, and juries overvalue bc of hindsight bias. World just gets wiser as it gets older.

0) Remedial measure taken by a party (caselaw gloss on rule based on its rationale).

NO=>if remedial measure taken by a non-party, 407 doesn’t block admissibility.

Diehl: suing manufacturer for defective road-widening machine. After the accident, the road-building company made modifications to the machine (backup alarm, bumper, etc). Admissible against the defendant manufacturer. Road-builder wasn’t a party.

1) Remedial measure taken that would’ve made the injury/harm at issue in the present lawsuit less likely.

NO=>407 doesn’t block admissibility.

2) Remedial measure taken after the injury/harms that are the subject of the present lawsuit

NO=>407 doesn’t block admissibility of measures taken before the incident.

Ex: Plf bought product in 2012. Redesign in 2013. Accident in 2014. Plf not barred by 407, the redesign predated the accident.

3) Valid reason for admitting the evidence?

NOT Def’s fault: negligence, culpable conduct, or defective product/warning

Examples of valid reasons:

-Impeachment

Ex: ‘we couldn’t have made a safer table saw’ impeach w/ subsequent remedial measure

-If disputed - Proof of ownership

-If disputed - Proof of control

-If disputed - Feasibility of precautionary/remedial measures

-dispute whether it was technologically/scientifically feasible.

-dispute whether it was economically feasible

4) REVERSE 403 Balancing

Does probative value of controverted other purpose substantially outweigh the dangers (like using the evidence to show D’s culpable conduct)?

YES=>admissible. (Def should get limiting instruction though).

-COMPROMISE OFFERS AND NEGOTIATIONS [FRE 408]

*if contract suit about the settlement contract itself, obviously 408 doesn’t apply.

1) Evidence arises out of…

*including parties negotiating w/ non-parties.

*including pre-lawsuit statements, as long as there was some dispute.

-Settlement agreement

-Settlement offer

Including offer to start negotiations. (Davis – “I’ll split this with you to make it go away” – recipient seemed to take it as offer, and there was some back and forth) But offering more than what was taken would’ve been an attempt to buy them off – not settlement.

-Conduct/statements/documents made during settlement negotiations

-BUT cannot use negotiations to thwart discovery. Can’t make otherwise discoverable documents inadmissible by offering them during litigation.

Test: Document wouldn’t exist but for settlement negotiations

=>covered by the rule. Inadmissible. (Rauch v. Ramada)

NO=>408 doesn’t exclude. May be otherwise admissible as statement by an opposing party.

2) There is a genuine dispute as to validity of the claim OR the amount of damages

NO=>408 doesn’t exclude. May be otherwise admissible as statement by an opposing party.

3) EXCEPTION Offered in a criminal case, and the negotiations concerned a claim by a public office/agency in exercise of its regulatory, investigative, or enforcement authority

=>not excluded by 408. (some) if party was un-represented in negotiations, don’t let the statements in. (cite 403, but its really just equity)

4) EVIDENCE OFFERED FOR VALID REASON? NEXT PAGE

4) Evidence offered for a valid reason?

CAN’T be offered for the validity/amount of the claim subject of the negotiations,

NOR impeachment by prior inconsistent statement. (would swallow the rule).

Examples of valid reasons

- INDIRECT: Rule exempts evidence focused on issues different from the elements of the primary claim in dispute. (US Polo Assoc.)

Otherwise, FRE 408 would be meaningless, because settlement evidence would always be barred. All evidence is meant to help you win or other side lose.

-Affirmative defense: US Polo - Settlement negotiations where plf gave permission to use one version of their logo. Later sued over that logo. Previous negotiations admissible to establish affirmative defense of estoppel.

*counter ex: if plf had said “our claim is invalid, so go ahead” => then covered by FRE 408. Excluded.

-some other issue that indirectly supports/undercuts a claim

-To show validity of claim other than the one being settled

-Carney: Settlement offer in employment discrimination suit admitted she might be entitled to severance under her contract. Admissible to establish her contract claim, and retaliation claim (that they withheld severance bc of her discrimination suit.

-Witness bias/prejudice.

Ex: defendant who already settled is biased in favor of the plf and against the other defendant.

Ex: employee plf settled with his employer, now called by employer as defense witness in other suit arising out of same incident. Instant plf can use settlement to show bias.

-Negating claim of undue delay

Ex: we missed the SOL because def was...

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