Also known as: feasibility of a precautionary measure · precautionary measures feasibility
Written by attorneys — see sources below.
A disputed factual issue that permits admission of evidence of subsequent remedial measures under Federal Rule of Evidence 407. The rule creates an exception allowing such evidence when offered to prove the feasibility of precautionary measures if that point is genuinely controverted by the opposing party.
Noel fell from a hospital bed lacking rails or alarms and sued United Care for negligence. United Care denied in its answer and deposition that installing alarms was feasible. Noel offered evidence that the hospital added bed-rail alarms and a fall-prevention policy two weeks later. The court admitted the evidence with a limiting instruction because United Care had placed feasibility in dispute.
Flaminio sued Honda after his Gold Wing motorcycle wobbled and caused injury. Honda had later thickened the front struts to reduce wobble. Flaminio sought to introduce the design change to prove feasibility of a safer design. The court excluded the evidence because Honda never denied that thicker struts were feasible and instead argued a tradeoff with weave.
In 1978 Forrest Flaminio purchased a Gold Wing motorcycle manufactured by the Honda Motor Company of Japan and distributed in the United States by its wholly owned subsidiary American Honda Motor Company. The motorcycles arrived from Japan partially assembled, with dealers completing final assembly. Three days after taking delivery, after consuming one or two drinks at dinner, Flaminio rode the motorcycle at night on a two-lane road. While passing a car traveling about 40 miles per hour at a speed between 50 and 70 miles per hour, he felt a vibration in the front end. Leaning backward on highway pegs installed by the dealer to inspect the front wheel, he lost control when the motorcycle began to wobble uncontrollably, left the road, and crashed, leaving him a paraplegic. Flaminio and his wife sued both Honda companies. They alleged that the wobble resulted from defective design that should have been corrected or that the defendants should have warned users of the motorcycle's propensity to wobble. The jury found Japanese Honda not liable on any theory. It found American Honda negligent and 30 percent responsible for the accident while attributing 70 percent responsibility to Flaminio's own negligence, resulting in judgment for the defendants. On appeal the plaintiffs challenged several trial rulings. They argued that the district court should have given a strict liability instruction on the failure-to-warn claim against Japanese Honda instead of the negligence instruction actually given. They also contested the exclusion of two blueprints showing that after the accident the manufacturer had made the front forks two millimeters thicker. Additional claims on appeal concerned the applicability of Federal Rule of Evidence 407 to strict liability claims and whether Wisconsin law on subsequent remedial measures should have been applied in this diversity case. The plaintiffs contended that the verdict was inconsistent because the wife's damages for loss of consortium exceeded the husband's damages for pain and suffering. They also argued that the district court improperly limited the trial to 33 hours with 18 hours allotted to the plaintiffs.
View caseThe evidence is admissible only if the defendant has genuinely disputed feasibility. The rule permits admission for that purpose when the issue is controverted, and the court may give a limiting instruction to confine jury use to the permitted purpose.
Supporting sources
No. The exception requires an actual dispute. When the defendant does not deny feasibility, evidence of later measures remains inadmissible even if offered under that label.
Supporting sources
Yes. The rule allows admission for the limited purpose of proving feasibility when disputed, and courts routinely issue limiting instructions directing the jury to consider the evidence only for that purpose.
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The exception balances the policy of encouraging safety improvements with the need for truthful fact-finding when a party affirmatively disputes whether safer measures were possible.
Supporting sources
…negligence or culpable conduct. The rule does not, however, bar such evidence when offered for other purposes, such as proving feasibility of precautionary measures or impeachment. In this case, Beck offered the evidence for several purposes: to show that Caterpillar had knowledge of the danger of rollover prior to his accident, to show the…