A Perfunctory Dismissal Of FRE 407 Remedial Evidence

In personal injury negligence suit under the Federal Tort Claim Act, plaintiff's proffer of subsequent remedial measures was inadmissible under FRE 407; an exception did not apply since no issue of “ownership, control, or the feasibility of precautionary measures” had been disputed; granting summary judgment to defendant in the absence of plaintiff's evidence that the defendant VA hospital had actual or constructive notice of the facility condition the plaintiff contended caused his fall and injury, in Nieves-Romero v. United States, _ F.3d _ (1st Cir. May 3, 2013) (No. 12–1193)

According to the Advisory Committee Notes, the general purpose of FRE 407 is to ensure that remedial actions to correct an accident-prone situation are not discouraged. While precluding evidence of subsequent repairs, the rule also provides an exception, when remedial evidence is needed to resolve "ownership, control, or the feasibility of precautionary measure[ ]" issues which are in dispute. A First Circuit case from last week provides a brief discussion of the operation of the exception and explain why it would not apply.

In the case, plaintiff Nieves-Romero was wheelchair-bound while awaiting tests at THE defendant VA Hospital. He claimed he was injured due to the negligence of the defendant hospital when he attempted to use a handicapped-accessible restroom. He contended that while using the restroom, "he attempted to transfer himself from his wheelchair onto the toilet" and was severely injured when "the toilet seat came loose and he fell to the floor." Nieves-Romero, _ F.3d at _. He filed administrative claims alleging that the defendant negligently maintained the restroom. He received no relief from the administrative process and so he sought review in the district court.

The plaintiff was no more successful in the district court in challenging the administrative denial of his injury claim. After initial discovery, the government sought summary judgment and the matter was "fully briefed" by the parties. The trial judge found that the record the parties had developed provided little evidence of the negligence the plaintiff claimed was the cause of the accident. Accordingly, the court granted summary judgment to the defendant. The plaintiff appealed to the First Circuit, citing as one error the trial court's refusal to admit evidence of remedial measures taken by the defendant after the plaintiff's accident. Had this been admitted, the disputed facts of the case would be apparent.

The First Circuit rejected the plaintiff's claim that "evidence of measures taken to repair the toilet after his accident" should have been admitted. "The law is clear," noted the circuit, "that evidence of subsequent remedial measures is inadmissible to prove negligence" under FRE 407. The circuit described the problem with the plaintiff's theory for admission of the subsequent remedial evidence:

The plaintiff seeks to bring his case within the confines of an isthmian exception to this rule. He notes that evidence of subsequent remedial measures may be admitted to prove “ownership, control, or the feasibility of precautionary measures,” and he argues that the evidence is admissible here to show the VA's control over the restroom.

This is pure sophistry. In this case, the VA's control over the restroom is not in dispute, so the exception is inapplicable. And—contrary to the plaintiff's importunings—the fact that the VA repaired the toilet after the accident does not establish a presumption of constructive notice of the dangerous condition.
Nieves-Romero, _ F.3d at _ (citing Raymond v. Raymond Corp., 938 F.2d 1518, 1525 (1st Cir. 1991) (concluding that evidence of post-accident repairs “ha[d] little bearing on whether or not [a product] was unreasonably dangerous” at the time of manufacture)).

The circuit's note that the case did not fit within the "isthmian exception" provided in FRE 407 was perfunctory. The circuit's impatience is perhaps reflected by its dismissal of the plaintiff's contention that it had a proper purpose in offering the subsequent remedial evidence the circuit found to be "pure sophistry."

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