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The subsequent remedial measures rule, or exclusionary rule, provides that evidence of post-accident repairs, modifications, or warnings may not be admitted into evidence to prove negligence or culpable conduct and, in some jurisdictions, to prove a defect in a product, a defect in a product’s design, or a need for a warning or instruction. Since at least the early 1970s, undeterred by lack of empirical evidence, proponents of the exclusionary rule in strict liability cases argued that allowing admission of evidence of remedial measures would discourage manufacturers from making their products safer. Nonetheless, the policy of deterrence was widely accepted.¹

Today, there remains little or no empirical evidence supporting the validity of the main policy argument in favor of this aspect of the exclusionary rule. The underlying social policies of strict liability and the emerging requirement of an alternative design require admission of post-accident changes. Thus, in strict liability actions, evidence of subsequent remedial measures should not be excluded. 

Background of the Exclusionary Rule

The rule excluding subsequent remedial measures can be traced back to English law, but the earliest Supreme Court decision on the issue was Columbia & Puget Sound R.R. v. Hawthorne.² In reversing the Supreme Court of Washington, the Hawthorne Court concluded that it was improper to admit evidence of post-accident safety measures that were applied to a pulley system that had failed and injured plaintiff in order to show negligence or fault on the defendant.³ Such evidence, the Court reasoned, was irrelevant, confusing, and prejudicial to the defendant.⁴ Quoting Baron Bramwell, the Court further noted that while several states were at one time divided on the issue, most were now following England’s lead:

People do not furnish evidence against themselves simply by adopting a new plan in order to prevent the recurrence of an accident. I think that a proposition to the contrary would be barbarous. It would be, as I have often had occasion to tell juries, to hold that, because the world gets wiser as it gets older, therefore it was foolish before.⁵

After Hawthorne, courts throughout the country adopted the exclusionary rule as it applied to general negligence actions. In 1975, Congress adopted the Federal Rules of Evidence and the exclusionary rule became codified as FRE Rule 407:

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. 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.⁶

Although the Federal Rules are not binding on states, many states followed suit and codified FRE 407 soon after its passage. However, it was not clear whether the exclusionary rule should expand the definition of “culpable conduct” to include strict product liability cases. The leading case against expansion is Ault v. International Harvester Co., where the plaintiff attempted to introduce evidence of a subsequent design change to prove a design defect.⁷

The plaintiff was injured in a motor vehicle and alleged that the composite metal of the gearbox was not strong enough; thus, the vehicle was defective. After the accident, the defendant changed the metal in the gearbox from aluminum to iron; the plaintiff sought to admit this fact into evidence. Defendants objected and relied on Cal. Evid. Code § 1151, which was identical to FRE 407,⁸ for the proposition that “culpable conduct” extended beyond negligence actions to strict product liability claims.

In refusing to extend the exclusionary rule to strict liability claims, the Ault court stated that the policy of encouraging post-accident repairs and modifications applied to negligence cases, but not strict products liability cases, as manufacturers had no incentive to not make their products safer because of the marketplace: 

[I]t is manifestly unrealistic to suggest that such a producer will forego making improvements in its product, and risk innumerable additional lawsuits and the attendant adverse effect upon its public image, simply because evidence of adoption of such improvement may be admitted in an action founded on strict liability for recovery on an injury that preceded the improvement. In the products liability area, the exclusionary rule of section 1151 does not affect the primary conduct of the mass producer of goods, but serves merely as a shield against potential liability. In short, the purpose of section 1151 is not applicable to a strict liability case and hence its exclusionary rule should not be gratuitously extended to that field.⁹

The exclusionary rule, in the context of strict liability, runs counter to the public policy of encouraging manufacturers to market safer products.¹⁰ Thus, the Ault court ruled that the subsequent remedial measures rule, Cal. Evid. Code § 1151, did not apply to strict liability claims.

In the years following Ault, state and federal courts inconsistently applied the exclusionary rule to strict liability claims. Twenty-two years after FRE 407 was enacted, still without reliable supporting evidence, it was amended to read as follows: 

When, 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.¹¹

The 1997 Amendment to FRE 407 had two major changes. First, it expanded the ban beyond negligence, excluding such evidence if offered to prove a defect in a product, defect in a product’s design, or a need for a warning or instruction. It also defined the time period as “after an injury or harm allegedly caused by an event” instead of “after an event.” The exceptions to the rule, stated in the last sentence, remained the same. The practical effect of the amendment was that the standards of admissibility concerning subsequent remedial measures became the same for cases sounding in negligence or strict liability.

A number of states have adopted or followed FRE 407 as it pertains to strict liability actions while many have not and a few are still undecided. Currently, 30 states do not allow admission of evidence of subsequent remedial measures in strict liability cases,¹² 15 states allow the evidence to prove defect,¹³ and 5 states are undecided or may allow the evidence.¹⁴ All courts, however, have adopted the exceptions to the rule, and all evidence must still undergo the equivalent of the FRE 403 balancing test, whether admission would be more prejudicial than probative.

Remedial Evidence Has Not Discouraged Safety Measures

The argument that admission of subsequent remedial measures in strict liability cases has dissuaded manufacturers from making safer products is both “doubtful”¹⁵ and “manifestly unrealistic.”¹⁶ To the contrary, manufacturers have every reason to take all practicable steps to ensure that their products are as safe as possible.

Design decisions are made by engineers and management, hopefully not the manufacturer’s legal department. Product design is not dictated by legal evidentiary standards in anticipation of hypothetical future cases.¹⁷ Manufacturers have no reason or incentive to risk injury to their brand name, public image, and quality of product by foregoing safety improvements in anticipation of litigation. Moreover, evidence that a manufacturer knew that its product could cause harm but did nothing to make the product safer could lead to exposure to punitive damages. Because the underlying policy in support of excluding remedial measures in strict liability claims is unrealistic and because there is to date no empirical evidence to support this policy, the subsequent remedial measures rule should no longer be applied to strict liability claims. 

Excluding Evidence of Subsequent Remedial Measures Runs Counter to Social Policies upon Which Strict Liability Was Founded

The purpose of strict liability is “to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.”¹⁸ This social policy shifts the focus from “fault” or negligence of the manufacturer to the “defect” of the product. To that end, the strict liability doctrine achieves its goals by “relieving an injured plaintiff of many of the onerous evidentiary burdens inherent in a negligence cause of action.”¹⁹ Thus, in strict liability cases, a plaintiff is able to hold a manufacturer liable for injuries sustained by its product where the product was found to be defective, irrespective of whether the manufacturer’s conduct was negligent:  

So, while a producer is not an insurer and its product need not be accident proof, it will not be shielded by the fact that it and its employees put forth their best and most meticulous efforts. If the product can be found to be defective when it leaves their possession, if the defect was a substantial factor in producing plaintiff's injuries, without more the defendant, “the one in the best position to have eliminated those dangers”, must respond in damages.²⁰

Excluding evidence of subsequent remedial measures in strict liability cases unnecessarily burdens plaintiffs with evidentiary hurdles that heighten, rather than ease, their burden of proof, directly in contravention of underlying social policy. Social policy considerations for strict liability include the public interest in human life and health and the interest in determining the truth.²¹ None of these policies are advanced by extension of the exclusionary rule to strict liability actions.

Application of the subsequent remedial measures rule to strict liability claims should be abandoned. The Ault court and its progeny had it right.
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¹ Grenada Steel Indust. Inc. v. Alabama Oxygen Co., 695 F.2d 883 (5th Cir. 1983) (rationale of manufacturers discouraged from making products safer is “based on little direct evidence”).
² 144 U.S. 202 (1892).
³ Id.
⁴ Id. at 207 (“[T]aking of such precautions against the future is not to be construed as an admission of responsibility for the past, has no legitimate tendency to prove that the defendant had been negligent before the accident happened, and is calculated to distract the minds of the jury from the real issue, and to create a prejudice against the defendant”).
⁵ Hart v. Ry., 21 Law T. (N.S. 1869) 261, 263.
⁶ FRE Rule 407 (1975) (superseded by 1997 Amendment).
⁷ Ault v. Int’l Harverser Co., 13 Cal.3d 113, 528 P.2d 1148 (Cal. 1974).
⁸ Ault was decided several months prior to the enactment of FRE 407.
⁹ Ault, 13 Cal.3d at 116.
¹⁰ Id.
¹¹ FRE Rule 407 (1997).
¹² Arizona, Arkansas, Delaware, Florida, Idaho, Indiana, Kansas, Kentucky, Maine, Maryland, Michigan, Minnesota, Mississippi, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, and Washington.
¹³ Alaska, California, Colorado, Connecticut, Georgia, Hawaii, Iowa, Massachusetts, Missouri, Nevada, Ohio, Rhode Island, South Carolina, Wisconsin, and Wyoming.
¹⁴ Alabama, Illinois, Louisiana, Oklahoma, and West Virginia.
¹⁵ Traylor v. Husqvama Motor, 988 F.2d 729, 733 (7th Cir. 1993) (expressing “doubt that a producer will often be deflected from making improvements by fear about the consequences to his litigating position in hypothetical future cases—cases especially hypothetical because no accident has yet occurred”).
¹⁶ See Ault, 13 Cal.3d at 116 (“It is manifestly unrealistic to suggest that such a producer will forego making improvements in its product, and risk innumerable additional lawsuits and the attendant adverse effect upon its public image, simply because evidence of adoption of such improvement may be admitted in an action founded on strict liability for recovery on an injury that preceded the improvement”); Herndon v. Seven Bar Flying Serv., 716 F.2d 1322, 1327 (10th Cir. 1983) (“It is unrealistic to think a tort feasor would risk innumerable additional lawsuits by foregoing necessary design changes simply to avoid the possible use of those modifications as evidence by persons who have already been injured”).
¹⁷ Traylor, 988 F.2d at 733.
¹⁸ Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 63, 377 P.2d 897, 901 (Cal. 1963).
¹⁹ Anderson v. Owens-Corning Fiberglass Corp., 53 Cal.3d 987, 994, 810 P.2d 549, 552 (Cal. 1991).
²⁰ Caprera v. Chrysler Corp., 52 N.Y. 2d 114, 123, 417 N.E. 2d 545, 549 (NY 1981).
²¹ Boddie v. Litton Unit Handling Sys., 455 N.E.2d 142, 148 (Ill. App. 1983).

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