Page 14 - Litigation

S14 | MONDAY, MAY 5, 2014 | Litigation
| NYLJ.COM

Remedial Measures
to introduce an injury investigation report, disabled child. Following the incident, the inadmissible subsequent remedial measure

which noted that “corrective action—moving New York State Department of Education taken by the defendant, they argued that Rule
the silt fence so that any employees . will (NYSDE) promulgated regulations concerning 407 should not apply to the FAA directive
« Continued from page S4
not have to step over it—had been taken.” the use of “timeout rooms” in schools, and, because it was a measure taken by the gov-
could have been taken earlier. Notably, recent Id. at *2. However, in granting defendant’s in response to the NYSDE regulations, the ernment, a non-party. Id. at *75. Though the
decisions involving the feasibility exception motion for summary judgment on plaintiffs’ defendant adopted new policies on the use of Second Circuit did not decide whether the
have turned on whether the exception is Labor Law §200 claim, the court noted that timeout rooms as well. The defendant brought district court’s exclusion of the FAA directive
clearly at issue in the case, as required by “[u]nfortunately for plaintiffs, feasibility of a motion in limine seeking to exclude both under Rule 407 was an abuse of discretion
the Rule. See Fed. R. Evid. 407 (“But the court alternative usable locations is not at issue policies as subsequent remedial measures because plaintiffs failed to prove that they
may admit this evidence for another purpose, here” and that defendants had likewise con- under Rule 407. The court denied defendant’s were prejudiced by the exclusion, the district

such as impeachment or—if disputed—prov- ceded their ownership and control over the motion with respect to the NYSDE regulations, court’s analysis is instructive. Unlike Schafer’s
ing ownership, control, or the feasibility of location of the erosion system. Id.
holding that Rule 407 did not bar evidence
treatment of the defendant’s policy (issued in
precautionary measures.”) (emphasis added).
response to the NYSDE’s policy), the lower
For example, in Saltz v. Wal-Mart Stores, court in Lidle indicated that “where the [FAA
10-CV-4687 (NRB), 2012 WL 811500 (S.D.N.Y. directive] was issued as a direct response
March 7, 2012), the plaintiff brought a neg- to [Cirrus’s Service] Bulletin, it is covered
ligence claim against Wal-Mart for personal by Rule 407 . because to determine other- There are a variety of exceptions to that general rule at the disposal
injuries sustained after tripping over a pipe wise might discourage manufacturers from of plaintifs attempting to introduce such evidence. However, careful

in the parking lot. Immediately after the issuing service bulletins as part of voluntary pleading and discovery on key issues will be necessary if a plaintif
accident, an employee placed a yellow rope compliance programs.” Id. at *75. Arguably,
around the area where the accident occurred. Schafer is distinguishable because in that wants to lay the groundwork to avail itself of one of the exceptions.
Id. at *5. Plaintiff argued that evidence of this case, defendant issued its policies after the
subsequent remedial measure was admissible government issued theirs—in this case, the
to show feasibility—that Wal-Mart “could government issued its policies after—and in Accordingly, before assuming that evidence of the non-party’s subsequent remedial mea-
have just done what it did but before the direct reliance on—the defendant’s directive, of subsequent remedial measures is admis- sures, but granted the motion with respect to
accident rather than wait[ing] for the accident making them less easily distinguishable from sible under any of the recognized exceptions defendant’s policies, holding that “evidence
to occur.” Id. at *6. Because Wal-Mart argued the subsequent remedial measures of a party.
of ownership, control or feasibility, defense of a municipal entity’s changes to its policies

that the pipe was open and obvious and did counsel would be well-advised to conirm that constitutes ‘subsequent remedial measures’
not “dispute the self-evident feasibility of this Conclusion
the issue is actually in dispute, as courts have within the meaning of Rule 407.” Id. at *2.
precautionary measure at issue,” the evidence consistently held that the “at issue” exception This use of Rule 407 in the civil rights con-
was held “plainly inadmissible.” Id. Empha- Evidence of subsequent remedial measures to Rule 407 must be clearly established for text further illustrates the potentially broad
sizing the point that feasibility must be at can only be admitted for certain limited rea- such evidence to be admitted.
application of this Rule in a variety of litiga-
issue in order for evidence to be admitted sons, including ownership, control and fea- tion contexts. See id. (“[T]he text of Rule 407
under that exception, the court stated: “A sibility, but not to establish negligence, fault does not contain any limitation on the types
defendant must irst contest the feasibility or product defect. In a case where a plaintiff Governmental Entities
of cases to which it applies.”).
of a warning before the subsequent warning seeks to offer such evidence for other pur- An additional area of interest to both plain- Similarly, Lidle v. Cirrus Design, 505 Fed.

would become admissible. . Feasibility is poses, counsel must carefully assess early tiff and defense counsel is the admissibility of Appx. 72 (2d Cir. 2012), involved the publica-
not an open sesame whose mere invocation on what allegations will be necessary to set subsequent remedial actions taken by entities tion of two policy directives after an aircraft
parts Rule 407 and ushers in evidence of sub- the groundwork for admitting the evidence who are not parties to the action. Though crash—one published by the government,
sequent repairs and remedies.” Id. (citing In re at trial. When arguing against the admissibil- not technically an exception to Rule 407, a non-party, and the other by defendant, a
Joint Eastern Dist. and Southern Dist. Asbestos ity of such evidence, defense counsel must courts have generally held that evidence of private corporation. In Lidle, the decedent
Litig., 995 F.2d 343, 345 (2d Cir. 1993)). Find- be prepared to recognize and challenge the remedial actions taken by non-parties such (a New York Yankee pitcher) and his light
ing no issue of fact as to whether the pipe purpose for which plaintiffs may be attempt- as the government are admissible—Rule 407 instructor were flying in a Cirrus aircraft
was open and obvious and not inherently ing to use evidence of subsequent remedial has generally been interpreted to bar only when they attempted a 180-degree turn and

dangerous, the court granted the defendant’s measures, possibly conceding issues such as evidence of subsequent remedial measures crashed into an apartment building in the
motion for summary judgment.
ownership or control over the instrumental- taken by parties to the suit.
Upper East Side. Plaintiffs sued Cirrus, assert-
As noted above, the evidentiary rule ity of the accident or feasibility. Of course, The case of Schafer v. Board of Cooperative ing claims for wrongful death and survivor-
excluding proof of subsequent remedial mea- even if such evidence can it within one of Educ. Servs. of Nassau Cty., 89 Fed. R. Evid. ship, negligence, product liability and breach
sures is by no means limited to the products the recognized exceptions, a party may argue Serv. 1237 (E.D.N.Y. Nov. 15, 2012), addresses of warranty. On appeal, plaintiffs challenged
liability context. In DeStefano v. MVN Assoc., that it should be properly excluded on other this issue most directly in the context of a the district court’s exclusion of a Federal Avia-
10-CV-05441 ALC, 2013 WL 395440 (S.D.N.Y. grounds, such as Federal Rule of Evidence school operated by defendant. In Schafer, tion Administration Airworthiness Directive,
Feb. 1, 2013), the plaintiffs brought claims 403. Both parties must consider the relevance plaintiffs brought federal §1983 claims, as issued after the accident, which mandated
for negligence and violations of New York and circumstances surrounding any subse- well as state law claims for false imprison- certain adjustments to the rudder of the

Labor Law for alleged work condition viola- quent remedial measures early in litigation to ment, negligence, intentional infliction of aircraft at issue and incorporated by refer-
tions after a worker’s foot got caught in a address Federal Rule 407 and New York com- emotional distress and negligent inliction ence a 2007 Service Bulletin issued by Cirrus.
metal silt fence while working near a soil ero- mon law in this area. Change may be good, of emotional distress arising from the use Though the plaintiffs conceded on appeal that
sion control system. The plaintiffs attempted
but in many cases it is not admissible at trial.
of a “timeout room” for a developmentally
the 2007 company Service Bulletin was an

Make informed strategic decisions. 24-HOUR FREE PREVIEW
Win larger verdicts.
Quick access
Negotiate from strength.

3 Full Case Views
GET STARTED
Advanced Search
verdictsearch.com

VerdictSearch | 120 Broadway 5th Floor | New York, NY 10271 | 877-807-8076