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PA Bulletin, Doc. No. 03-1244

THE COURTS

Title 225--RULES OF EVIDENCE

[225 PA. CODE ART. IV]

Order Adopting Amendment to Rule 407 and Revision of Comment; No. 313 Supreme Court Rules; Doc. No. 1

[33 Pa.B. 2973]

Order

Per Curiam:

   Now, this 12th day of June, 2003, upon the recommendation of the Committee on Rules of Evidence, this proposal having been published before adoption at 33 Pa.B. 197 (January 11, 2003) and a Final Report to be published with this Order:

   It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rule of Evidence 407 and revision of comment is hereby amended as follows.

   This Order shall be processed immediately in accordance with Pa.R.J.A. 103(b), and shall be effective July 1, 2003.

Annex A

TITLE 225.  RULES OF EVIDENCE

ARTICLE IV.  RELEVANCY AND ITS LIMITS

Rule 407.  Subsequent Remedial Measures

   When, after an injury or harm allegedly caused by an event, measures are taken which, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove that the party who took the measures was negligent or engaged in culpable conduct, or produced, sold, designed, or manufactured a product with a defect or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for impeachment, or to prove other matters, if controverted, such as ownership, control, or feasibility of precautionary measures.

Comment

   Pa.R.E. 407 is substantially the same as F.R.E. 407. The wording has been modified in order to clarify two ambiguities in the federal formulation.

   The first sentence of Pa.R.E. 407 makes clear that the rule of exclusion favors only the party who took the subsequent remedial measures. Though F.R.E. 407 is silent on the point, the courts have generally held that the federal rule does not apply when one other than the alleged tortfeasor takes the action because the reason for the rule (to encourage remedial measures) is not then implicated. See, e.g., TLT-Babcock, Inc. v. Emerson Electric Co., 33 F.3d 397, 400 (4th Cir. 1994) (collecting cases).

   The last sentence of Pa.R.E. 407 makes clear that the rule's exception for evidence that is offered to prove matters such as ownership, control, or feasibility of precautionary measures, applies only when those issues are controverted. Though the federal rule, as worded, can be construed to mean that only feasibility need be controverted, the cases have generally interpreted it to mean that any issue for which evidence is admitted under the rule's exception must be controverted. See, e.g., Hall v. American Steamship Co., 688 F.2d 1062, 1066-67 (6" Cir. 1982); Hull v. Chevron U.S.A., Inc., 812 F.2d 584, 586-87 (10th Cir. 1987).

   Duchess v. Langston Corp., 564 Pa. 529, 769 A.2d 1131 (2001), is a case dealing with the admissibility of evidence of subsequent remedial measures in a strict product liability case, and, in particular, the applicability of exceptions to the rule of exclusion when the evidence is offered to prove feasibility of precautionary measures, or to impeach the credibility of a witness.

   The original wording of Pa.R.E. 407 applied to negligence cases, but, like the original wording of F.R.E 407, left open whether it applied to strict product liability cases. In Duchess v. Langston Corp., 564 Pa. 529, 769 A.2d 1131 (2001), the Supreme Court held that it did. The rule was amended to make this clear.

   Official Note:  Adopted September 11, 1998, effective October 1, 1998; Comment revised June 12, 2003, effective July 1, 2003.

FINAL REPORT

Amendment of Pa.R.E. 407 and Revision of Comment

   On June 12, 2003, upon the recommendation of the Committee on Rules of Evidence, the Supreme Court adopted the changes to Pa.R.E. 407 and Comment effective July 1, 2003. These changes are made to reflect the opinion of the Supreme Court in Duchess v. Langston Corp., 769 A.2d 1131 (Pa. 2001). This Amended Rule 407 makes it clear that evidence of subsequent remedial measures is not admissible in products liability cases. The amended rule expands the interpretation of the two exceptions to the exclusionary rule, i.e., when evidence is offered to (a) prove feasibility of precautionary measures, or (b) to impeach the credibility of a witness. The rule of exclusion favors only the party who took the subsequent remedial measures.

[Pa.B. Doc. No. 03-1244. Filed for public inspection June 27, 2003, 9:00 a.m.]


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