Part I

This is the first in a two part series provided by our content partners at the National Workers' Compensation Defense Network. Tomorrow we will be publishing a specific State by State Survey compiled by the NWCDN.

Part II, The State By State Survey, is available here.

The information presented in this paper is for informational purposes only and the reader should consult legal counsel for definitive legal advice in a particular jurisdiction

Prepared on behalf of the National Workers' Compensation Defense Network by Alana McKenna, Esquire of Ritsema & Lyon, P.C., NWCDN member firm for Colorado and Nebraska

I.   COMPARISON OF FEDERAL AND STATE EVIDENTIARY RULES REGARDING SUBSEQUENT REMEDIAL MEASURES

Federal Rule of Evidence Rule 407 states "[w]hen, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the 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, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment."

States have adopted their own rules regarding subsequent remedial measures but most have rules that are identical or substantially similar to the federal rule.   State administrative courts typically utilize their respective states' rules of evidence.  However, a minority of administrative courts either is not bound by the technical rules of evidence or applies the rules of evidence loosely where judges tend to err on the side of admissibility but reserve the right to give the evidence appropriate weight.  Thus, the admissibility results in these workers' compensation cases can vary from hearing officer to hearing officer and from case to case.

II. INTERPRETATIONS OF AND POLICY CONSIDERATIONS BEHIND THE RULE

Some courts have adopted a literal approach to this problem and try to adhere to the text of the subsequent remedial measure rule to solve the dilemma of admissibility. However, this literal approach has its own variations in how closely the text is read.  If a court takes the literal approach and strictly follows the text of the rule, one can argue that a measure is not remedial if it is not taken in reaction to a specific injury or event.  Therefore, under the literal application of the rule, notice of an injury or at least an event causing the injury at issue would be required.   Most courts utilize the policy approach in applying the subsequent remedial measure rule to exclude this type of evidence. 

Three distinct public policy grounds support the subsequent remedial measures rule. The first is that subsequent remedial measures are irrelevant to proving negligence, culpable conduct, or product defects.  The second is a social policy consideration encouraging individuals, companies, and other entities to take remedial measures to prevent further injuries. Admitting such evidence in court will dissuade parties from making the improvements in the first place if those changes will later be used against them.  Thus, the rule works to preclude evidence of steps taken to reduce the likelihood of future injury after an injury has already occurred.  The third, an alternative to the first, is that although the evidence may be relevant, its admission would be more prejudicial than probative.

III. WHAT IS A SUBSEQUENT REMEDIAL MEASURE?

For the most part, it is easy to identify what constitutes a subsequent remedial measure. Some examples are obvious: the changing of a hazardous condition, the newer design of a product, or the use of a warning label.  Other subsequent remedial measures may be less obvious: the firing of an employee or the institution of a safety program.  The following analysis breaks down the rule and discusses its limitations and allowances.

1.  Conduct that would have made the event less likely to occur.
An important limiting principle stated in the rule is that the subsequent remedial measures excluded from evidence are those that would have made the event less likely if they had been taken before the accident.  If the subsequent measure would not have made the event less likely to occur--that is, if the measure was not remedial--then it is not barred from evidence.   For instance, accident investigation reports are discoverable in some states unless there is an applicable privilege or work product objection.  The reasoning behind allowing the discoverability of the accident investigation reports comes from a textual interpretation of the subsequent remedial measures rule that investigation reports will not make the event less likely to happen.  Only the subsequent implemented changes to the property, product, or service would have an effect on the likelihood of the event's repeated occurrence.  Although some states have created a statutory privilege for records of certain investigations, such as in a hospital setting, these statutory privileges may be overcome by a litigant's right to due process and fair determination of the claim.

An interesting question is whether studies or reports generated prior to an accident or lawsuit regarding an entity's vulnerability to the particular accident or lawsuit at issue are discoverable.  A recent article in the New York Times discussed this exact issue.   The report in dispute was likely not discoverable as it was created by a law firm hired by the entity and thus subject to the attorney-client privilege.  However, if such a report or study is not created by an entity's attorneys or in anticipation of litigation and thus not subject to a privilege or work product objection, the report may be discoverable if able to pass a relevance objection. As discussed below, a report or study created before an accident or lawsuit does not technically constitute a subsequent remedial measure and thus does not appear to violate the aforementioned public policies against admitting such evidence.   However, the argument exists that the report may have subsequently inspired changes within the entity that made the accident or event leading to litigation less likely to occur and thus is a remedial measure subject to the protection of the pertinent evidence rule.

2.  Time of conduct.
Another important issue concerns the time used as the measuring point for whether conduct is "subsequent" for purposes of the rule. Actions after the accident and injury are clearly "subsequent," and therefore within the scope of the rule's exclusion.  However, the line is blurred when evidence is sought to be admitted of a remedial measure that occurred before the injury to the plaintiff.  This predicament most commonly occurs in product liability cases.  Nevertheless, most courts have found that the accident is the "event" referred to in the rule and if the measure was taken before the accident, it is not "subsequent."

3.  Admissible for Other Purposes
As stated above, most state courts follow the federal rule that evidence of subsequent remedial measures is not barred unless the evidence is offered to prove negligence or culpable conduct in connection with the event.  A majority of states also do not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.   Nevertheless, getting those measures into evidence would be difficult under the applicable evidence rules.

The federal rule and parallel state rules note that evidence of subsequent remedial measures is admissible to prove control. This exception applies when a party denies ownership of property but after the event acts in a manner suggesting control. For example, if an individual is attacked in a common area of a store's premises, and the store denies responsibility on the basis that it had no control of that area, evidence of subsequent remedial measures by the store which demonstrate control of the area would be admissible. The federal rule and equivalent state rules also recognize that evidence of subsequent remedial measures is admissible to establish ownership.

Evidence of subsequent remedial measures is further admissible to show what was feasible and what the defendant knew or should have known.  If a party states that there was nothing else that could possibly have been done which would have avoided the accident, evidence that it did something else that could have avoided the accident obviously is relevant, even if the measure was taken after the accident.
 
The federal rule and the comparable state rules include the "if controverted" limitation.  Thus, evidence of subsequent remedial measures is not admissible if the issue is not in controversy.  This limitation is logical because a party should be able to prevent the introduction of evidence of a subsequent remedial measure to prove such things as ownership, control, or feasibility of precautionary measures simply by admitting them.  Of course, the "if controverted" requirement does not apply when the evidence is offered as impeachment since credibility is always in issue.

Subsequent remedial measures taken by non-parties are admissible under the federal rule and thus likely under the analogous state rules as well.   Interestingly, the subsequent remedial measure rule does not define who must take the remedial measure for it to be inadmissible.  In relevant part, the rule simply states that "[w]hen, after an injury or harm allegedly caused by an event, measures are taken . . . ."  F.R.E.R. 407.  Thus, courts may use policy arguments to introduce an exception allowing the admission of remedial measures taken by third parties.   The federal courts also use the Federal Rule of Evidence Rule 407's Advisory Committee Notes to justify their position that subsequent remedial measures by third parties are admissible.   The Advisory Committee Notes state that the rule "incorporates conventional doctrine which excludes evidence of subsequent remedial measures as proof of an admission of fault."   Logically, the pertinent cases reason that fault cannot be "admitted" at trial by someone who is not a party and therefore evidence of subsequent remedial measures by a non-party cannot be an admission of fault. Thus, Rule 407 and its parallels found in the state evidence rules do not require that evidence of subsequent remedial measures taken by non-defendants be excluded.  One can anticipate that the most common instance of a non-party making improvements to a product will be the employer of the injured plaintiff in a product liability case who is generally protected by the workers' compensation laws of the state.

IV. APPLICABILITY OF THE RULE IN THE WORKERS' COMPENSATION FORUM

Admissibility of Subsequent Remedial Measures
In the "no fault" world of the workers' compensation system, negligence or culpability is not an element to be shown or proven.  Therefore, whether the workplace environment was or was not "safe" or whether all proper precautions were taken at the time of the accident, is generally not relevant.  Consequently, employers have a strong relevance objection against the admissibility of evidence of subsequent remedial measures.  However, even if the evidence appears to be protected under the subsequent remedial measures rule, it may yet be admissible under the exceptions to the rule. 

As mentioned, most state courts and their administrative courts follow the federal rule and allow evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.  This broad rule permits one to properly introduce evidence, ordinarily inadmissible under the subsequent remedial measures rule, in a variety of situations.  To admit such evidence, the claimant will need to establish a proper foundation. To establish a proper foundation, the claimant need only explain the purpose for which the evidence is being offered.  Any evidence of subsequent remedial measures must also pass the usual balancing test.  The claimant will have to explain how the probative value of this evidence outweighs any prejudicial effect with regard to the specific reason for which it is being offered.  Since negligence and culpability are immaterial theories in the workers' compensation system, subsequent remedial measures may be admissible in situations where an employer disputes the nature of the accident (i.e., the accident could not have taken place as claimant testified because all proper precautions were in place to prevent such accidents.)  However, such purposes (i.e. proving ownership, control, or feasibility of precautionary measures) are rarely relevant in a workers' compensation case.

Discoverability of Subsequent Remedial Measures
In contrast, subsequent remedial measures taken by an employer may be discoverable in workers' compensation proceedings.  According to the rules of evidence, parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.  Relevance means that the evidence will either increase or decrease the probability of a claim or defense. Objections such as materiality, cumulative evidence, waste of time, and undue prejudice are not considered in discovery as they are at trial. This is the difference between relevance for purposes of discovery as opposed to relevance with regard to admissibility at trial.

Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.  Thus, the requested evidence need not be admissible at trial in order to be discoverable.  As a result, although workers' compensation is a "no fault" forum, many parties will assert that their discovery request for information regarding subsequent remedial measures is proper because it is "reasonably calculated to lead to the discovery of admissible evidence," regardless if admissible evidence actually later materializes.  It is the probability that some admissible evidence will turn up which may make the request proper and render the responding party's relevance objection inoperative. 

Employers will often seek ways to shield documentation and information obtained during an investigation that took place subsequent to an accident or event by asserting various privilege arguments.  Thus, discovery requests seeking information regarding subsequent remedial measures may be objectionable based on privileges such as work product and attorney-client privilege.  However, the materials gathered may fall outside the scope of these well-established privileges.  Consequently, a minority of states have codified a "self-critical analysis" privilege which prevents disclosure of self-evaluative material where the public interest in maintaining confidentiality outweighs the public's need for discovery.   This privilege is not generally accepted and, although it has been applied by some courts, it has been rejected by many others.

CONCLUSION
Employers often assume that if an act by an employer occurred after the accident, then evidence of the act is not admissible. However, as explained above, the subsequent remedial measure rule is a rule with many limitations, exceptions, and applications that are dependent on the jurisdiction.  The evidence sought to be discovered or admitted needs to be carefully reviewed to determine whether it truly is subject to the evidence rule concerning subsequent remedial measures.

 Footnotes:

1  ALA. R. EVID. 407 (Alabama), ALASKA R. EVID. 407 (Alaska), ARIZ. R. EVID. 407 (Arizona), ARK. R. EVID. 407
(Arkansas), CAL. EVID. CODE § 1151 (2010) (California), COLO. R. EVID. 407 (Colorado), DEL. R. EVID. 407
(Delaware), FLA. STAT. ch. § 90.407 (2009) (Florida), IDAHO R. EVID. 407 (Idaho), IND. R. EVID. 407 (Indiana),
KAN. STAT. ANN. § 60-451 (2009) (Kansas), KY. R. EVID. 407 (Kentucky), LA. CODE EVID. ANN. art. 407 (2009)
(Louisiana), ME. R. EVID. 407 (Maine), MD. R. EVID. 5-407 (Maryland), MICH. R. EVID. 407 (Michigan), MINN. R.
EVID. 407 (Minnesota), MISS. R. EVID. 407 (Mississippi), MONT. R. EVID. 407 (Montana), NEB. R. EVID. 407
(Nebraska), NEV. REV. STAT. 48.095 (2010) (Nevada), N.H. R. EVID. 407 (New Hampshire), N.J. R. EVID. 407 (New Jersey), N.M. R. EVID 11-407 (New Mexico), N.C. R. EVID. 407 (North Carolina), N.D. R. EVID. 407 (North
Dakota), OHIO R. EVID. 407 (Ohio), OKLA. STAT. tit. 12, § 2407 (2010) (Oklahoma), OR. R. EVID. 407 (Oregon), PA.R. EVID. 407 (Pennsylvania), R.I. R. EVID. 407 (Rhode Island), S.C. R. EVID. 407 (South Carolina), S.D. CODIFIED LAWS § 19-12-9 (2009) (South Dakota), TENN. R. EVID. 407 (Tennessee), TEX. R. EVID. 407 (Texas), UTAH R.EVID. 407 (Utah), VT. R. EVID. 407 (Vermont), VA. CODE ANN. § 8.01-418.1 (2009) (Virginia), WASH. R. EVID. 407(Washington), W. VA. R. EVID. 407 (West Virginia), WIS. STAT. ANN. § 904.07 (2009) (Wisconsin), and WYO. R.EVID. 407 (Wyoming).
2  Administrative courts in Indiana, Louisiana, Michigan, Minnesota, North Carolina, Ohio, Pennsylvania, Vermont, and West Virginia.
3  K.S.A. 65-1135, K.S.A. 65-4915, K.S.A. 65-4922 (Kansas).
4  Steven Greenhouse, (June 3, 2010).  Report Warned Wal-Mart of Risks Before Bias Suit.  The New York Times, p.B1.
5  An OSHA investigation in an OSHA violation driven tort claim is an example of records that may fall under the exception to the subsequent remedial measures rule as all such cases will involve a statutorily mandated abatement of the violative condition.
6  Diehl v. Blaw-Knox, (3d Cir., 2004).
7  FED. R. EVID. 407 advisory committee's note (1972).
8  Kansas, New Jersey, Ohio.

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