Subsequent Remedial Measures
Plaintiff sues defendant on a theory of premises liability for injuries sustained while walking across a vacant lot. Plaintiff seeks to introduce evidence that, three weeks after his injury, defendant put up a fence around the lot.
Exclude. This is a subsequent remedial measure, aimed at proving negligence.
Plaintiff and defendant have a collision in a busy intersection. While they are exchanging insurance information, defendant says, “Wow, I totally didn’t see that red light!”
Admit. There is no disputed claim at this point in time.
In a contract dispute between a landowner and the construction company hired to build a hotel on the property, the parties are engaged in negotiations. The construction company had an expert prepare a report regarding the value of the company’s labor, and uses that report during negotiations.
The expert report is excluded under FRE 408 because it was created and used specifically for settlement negotiations, making it conduct occurring during compromise discussions and thus inadmissible to prove liability or the amount of the claim.
Plaintiff sues defendant for sexual assault. Plaintiff seeks to introduce evidence that defendant, in the parallel criminal case, offered to plead guilty to a lesser-included offense of rape.
Exclude. Defendant’s offer to plead is a statement made during plea negotiations.
Plaintiff is injured at defendant’s traveling amusement park. Plaintiff seeks to introduce evidence that defendant has liability insurance just for such accidents.
Exclude. This is evidence of liability insurance used to prove negligence.
Same as prior hypo, but defendant calls a witness who testifies that the vacant lot belongs to a third party.
Admit. Now evidence that defendant erected a fence shows defendant’s control over the property.
Plaintiff is injured in an automobile-bicycle crash. Plaintiff’s lawyer sends defendant a letter offering to accept a settlement of medical bills plus $100,000 for pain and suffering, or else will file a lawsuit.
Exclude. At this point there is a "dispute" and this is an offer to compromise.
A and B regularly do business together. B bills A for claim #1, and A pays that claim. When A does not pay for claim #2, B sues A. B introduces evidence of A’s payment on claim #1.
Claim #1 isn't a disputed claim, so it's not covered by 408.
Defendant is charged with first-degree murder. Prosecutor offers a plea deal of second-degree murder, which defendant rejects. At trial, defendant seeks to introduce evidence of the DA’s offer to show a lack of confidence in the evidence.
Admit. This is not barred by FRE 410 because it is not being offered against the defendant, but would probably be excluded under FRE 403.
Same as last hypo, but plaintiff seeks to introduce evidence that defendant lacks liability insurance.
Exclude. This is evidence of lack of liability insurance used to prove negligence.
Same as prior hypo, but defendant tells plaintiff, “Yeah, we are hoping to put up a fence to keep people away from the place you tripped.”
Admit. This is not a subsequent remedial measure; it is a statement.
Same as prior hypo, but immediately after plaintiff’s lawyer sends a letter, defendant responds by calling plaintiff and saying, “How about $50,000 for pain and suffering?”
This is continued negotiations of the same claim, so it still will be excluded.
Plaintiff and defendant collide in their cars at a very busy intersection. A few days after the accident, defendant brings plaintiff flowers and says, “I feel so bad about what happened.”
Admit. This is just sympathy not an offer to pay so it's not covered by 409.
Defendant is charged with aggravated kidnapping. Prosecutor offers a plea deal to simple kidnapping. The plea negotiations fail, and defendant seeks to introduce his statement from the negotiations, “I was forced to commit the kidnapping.” Prosecutor seeks to introduce defendant’s further statement from the negotiations, “I was forced to commit the kidnapping because I really needed the ransom money.”
Admit. Here, FRE 410’s “rule of completeness” justifies introducing the full context of defendant’s statement.
Same as prior hypo, but defendant claims that the park is operated by another entity. Plaintiff introduces the insurance policy that lists defendant as the insured.
Admit. The proof of insurance is now admissible to show ownership or control, not liability.
Plaintiff sues defendant for injuries sustained when he was attacked by plaintiff’s diseased ferret. Plaintiff seeks to introduce evidence that defendant purchased a sturdier cage for the ferret two weeks before the attack on defendant.
Admit. This is not a subsequent remedial measure, so it falls outside the rule.
Plaintiff sues defendant manufacturer for injuries sustained when using defendant’s product. Plaintiff calls the retail distributor of the product to testify about complaints the retailer has received about the product at issue. On cross-examination, defendant asks the retailer whether he has settled the lawsuit plaintiff also brought against him.
Admit. This is admissible to show bias. FRE 408(b) expressly allows settlement evidence when offered to prove bias.
Same as prior hypo, but defendant also tells plaintiff, "Let me cover the cost of your hospital stay. It's the last I can do."
This is an offer to pay hospital expenses. Exclude.
During a formal Rule 11 hearing, Defendant admits: “Yes, I knew the drugs were in the trunk.” He later withdraws his plea. Prosecutor wants to use this admission at trial.
Answer: Excluded. Statements made during a withdrawn plea or the plea colloquy are barred by FRE 410.
Plaintiff sues defendant for injuries sustained in a motorcycle accident. Plaintiff calls an eyewitness to testify that defendant ran the red light into the intersection where he collided with plaintiff. On cross-examination, defendant asks the eyewitness if he is insured by Regressive Insurance, the same nationwide insurance company that insures defendant.
Exclude. Although bias is a permissible basis for introducing evidence of insurance, with a giant company like Regressive, the risk of bias is almost nonexistent
Plaintiff sues Datsun, an auto manufacturer, for a defect in his car’s computer core that causes his model to decelerate suddenly. Plaintiff introduces evidence that Datsun issued a recall on the core a month after plaintiff was injured when he came to a sudden stop on the 210 Freeway.
Exclude. He is trying to introduce evidence of a SRM to prove a product defect.
Plaintiff sues defendant in a will contest. Defendant raises the equitable defense of laches, claiming that plaintiff waited too long to bring the contest. Plaintiff introduces evidence that defendant and plaintiff had been engaged in settlement negotiations for the past 15 months.
Admit. This is admissible to negate a contention of undue delay.
Same as prior hypo, but defendant in the course of the same conversation, says, “I don’t know what I was thinking checking my TikTok account while I was driving.”
Admit. This is an admission of liability, and falls outside the scope of FRE 409
Defendant makes false statements during his plea colloquy. Prosecutor wants to prosecute him for perjury based on those statements, which were made under oath and on the record.
Admissible. Perjury/false-statement exception applies because the statements were under oath, on the record, and counsel was present.
Same as prior hypo, but the eyewitness happens to be an insurance adjuster for Regressive Insurance.
Admit. Now the eyewitness has a much greater stake in the matter, and the insurance evidence is important to proving possible bias.