A plaintiff sues a car manufacturer for injuries sustained due to an alleged defect in the vehicle's braking system. During discovery, the plaintiff requests internal company emails discussing design flaws in the braking system that were sent after the plaintiff's accident but before the lawsuit was filed. The manufacturer objects, citing the rule against subsequent remedial measures. How should the court rule?
- AOverrule the objection, as the rule against subsequent remedial measures only applies to physical repairs, not internal communications.
- BOverrule the objection, as the evidence is admissible to show the feasibility of precautionary measures if feasibility is disputed.
- CSustain the objection, as these emails constitute subsequent remedial measures and are inadmissible to prove negligence.
- DSustain the objection, as the emails are protected by attorney-client privilege.
Show answer & explanationAnswer & explanation
Correct answer: B. Overrule the objection, as the evidence is admissible to show the feasibility of precautionary measures if feasibility is disputed.
While subsequent remedial measures are generally inadmissible to prove negligence, culpable conduct, or a defect, they can be admitted for other purposes, such as proving ownership, control, or the feasibility of precautionary measures, if disputed. Here, the emails discussing design flaws would be highly relevant to the feasibility of precautionary measures, assuming the manufacturer disputes feasibility.
Why the other options are wrong
- A. The rule against subsequent remedial measures applies broadly to actions taken after an injury or harm that would have made the injury or harm less likely to occur, including changes in design, instructions, or warnings, not just physical repairs.
- C. While generally inadmissible to prove negligence, FRE 407 provides exceptions for other purposes, such as feasibility, which likely applies here.
- D. The objection specifically cites subsequent remedial measures, not attorney-client privilege. Without more information, there's no basis to assume privilege applies, especially if the emails are about design flaws and not legal advice.
Subsequent Remedial Measures (FRE 407)
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.
- Inadmissible for proving fault (negligence, defect, etc.).
- Admissible for other purposes, such as proving ownership, control, or the feasibility of precautionary measures (if disputed), or impeachment.
- Applies to measures taken after the injury or harm.
Memory trick: Policy exclusions: 'P.L.E.A.S.E. D.O.N.T. S.U.E. M.E.'