THE COURTS
Title 225--RULES
OF EVIDENCE
[225 PA. CODE ART. IV]
Subsequent Remedial Measures
[33 Pa.B. 197] The Committee on Rules of Evidence is planning to recommend that the Supreme Court of Pennsylvania amend Rule of Evidence 407 and approve the revision of the Comment to Rule of Evidence 407. These changes are being proposed to update the Pennsylvania Rules of Evidence in view of the Opinion of the Supreme Court of Pennsylvania in Duchess v. Langston Corp. 769 A.2d 1131 (Pa. 2001).
The Committee proposes this amendment and Comment revision to Pa.R.E. 407 to provide that the rule applies to strict liability actions. Conflicting opinions over the years left open and unresolved the issue now covered by the proposed amended rule.
This proposal has not been submitted for review by the Supreme Court of Pennsylvania.
The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Report.
The text of the proposed rule changes precedes the Report. Additions are shown in bold, and deletions are in bold and brackets.
We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel,
Richard L. Kearns
Staff Counsel
Supreme Court of Pennsylvania
Committee on Rules of Evidence
5035 Ritter Road Suite 800
Mechanicsburg, PA 17055no later than February 20, 2003.
By the Committee on Rules of Evidence
CHARLES B. GIBBONS,
Chair
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 [event] 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 [in connection with the event], 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 [controverted] matters, if controverted, such as ownership, control, or feasibility of precautionary measures.
Comment--2002 Pa.R.E. 407 is [consistent with Pennsylvania law] substantially the same as F.R.E. 407. [It restates the traditional Pennsylvania doctrine that evidence of subsequent remedial measures is not admissible to prove fault or negligence. See Baran v. Reading Iron Co., 202 Pa. 274, 51 A. 979 (1902).] The wording has been modified in order to clarify two ambiguities in the federal formulation.
[Pa.R.E. 407 differs from F.R.E. 407 in several ways. First, F.R.E. 407 provides that evidence of subsequent measures is not admissible to prove ''a defect in a product, a defect in a product's design, or a need for a warning or instruction.'' Pa.R.E. 407 is silent on the issue whether it excludes subsequent remedial measures when offered to prove a defect in strict products liability. The Pennsylvania Superior Court has issued partially conflicting decisions on whether subsequent remedial measures are admissible to prove defect in strict products liability cases. Compare Matsko v. Harley Davidson Motor Co., Inc., 325 Pa. Super. 452, 473 A.2d 155 (1984) (proof of recall admitted to prove defect) (2-1 split opinion), with Connelly v. Roper Corp., 404 Pa. Super. 67, 590 A.2d 11 (1991) (post-sale design changes not admissible to prove design defect) (2-1 split opinion); Dunkle v. West Penn Power Co., 400 Pa. Super. 334, 583 A.2d 814 (1990) (post-sale safety standard not admissible to prove defective design or inadequate warning where no recall required); and Gottfried v. American Can Co., 339 Pa. Super. 403, 489 A.2d 222 (1985) (post-sale design changes not admissible to prove design defect). Pa.R.E. 407 allows the Pennsylvania courts to continue to develop the law in this area, leaving the Supreme Court of Pennsylvania free to decide this matter in the context of a case or controversy.
Pa.R.E. 407 makes clear in the first sentence that the rule of exclusion operates only in favor of a party who took the subsequent remedial measures. F.R.E. 407 is silent as to whether there is any restriction on the actor who must have taken the subsequent remedial measure for the rule to preclude admissibility of such evidence. The majority of federal courts have held that the rule does not apply when one other than the allegedly liable party takes the action because the reason for the rule (to encourage remedial measures) is not implicated. See, e.g., TLT-Babcock, Inc. v. Emerson Electric Co., 33 F.3d 397 (4th Cir. 1994) (collecting cases). Pa.R.E. 407 does not, however, address whether measures taken by another party are admissible against a party that did not take the measures.
Regardless of Pa.R.E. 407, evidence of subsequent remedial measures is not admissible unless it satisfies the standards of Pa.R.E. 401, 402, and 403.
The last sentence of Pa.R.E. 407 differs from F.R.E. 407 to make clear that, when subsequent remedial measures are offered to prove issues such as ownership, control or feasibility of precautionary measures, those issues must be controverted.]
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 ______ , effective ______.
Committee Explanatory Reports:
Report explaining the proposed revision of the Comment published at 33 Pa.B. 198 (January 11, 2003).
REPORT
Proposed Amendment and Revision of the
Comment to Pa.R.E. 407
SUBSEQUENT REMEDIAL ACTIONS The Committee is proposing amendments to Rules of Evidence 407 (Subsequent Remedial Measures). These changes update the rule in view of the recent opinion of the Supreme Court of Pennsylvania in Duchess v. Langston Corp., 769 A.2d 1131 (Pa. 2001).
At common law, evidence of subsequent remedial measures was not admissible to prove fault or negligence. Left open was the question whether or not Rule 407 applied to strict liability cases. The Supreme Court in Duchess v. Langston Corp., 769 A.2d 1131 (Pa. 2001), held that it did, leading to the proposed amendment to Rule 407.
In this amendment, the Committee proposes some rewording. The rule of exclusion operates only in favor of the party who took the subsequent remedial measures. This is done to make clear that there may be instances in which the rule of exclusion would not apply.
The rule, thus amended, reflects the holding of the Supreme Court in the Duchess case, and the Comment is being revised to emphasize that Pa.R.E. 407 is now substantially the same as F.R.E. 407.
[Pa.B. Doc. No. 03-53. Filed for public inspection January 10, 2003, 9:00 a.m.]
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