By Dr. Ken Broda-Bahm:
The adage, “If it ain’t broke, don’t fix it” carries a special meaning in litigation. It can be one of those classic “damned if you do, damned if you don’t” situations: After an injury or other tortious event, if you fix whatever led to the problem you confirm that you could and should have fixed it earlier, but if you leave it alone you confirm that you don’t care about the safety of the public. The law tries to account for this dilemma through Federal Rule of Evidence 407 and its state counterparts, which generally restrict the use of evidence of subsequent remedial measures to establish liability. But there are exceptions, such as showing feasibility, that can allow that evidence in, and there can even be situations where the defense wants the information to come in. When it does come in, the question is what jurors are going to do with that information.
One of the few studies addressing that question (Chao & Santos, 2019) confirms some of the most common fears about including information on subsequent remedial measures, while at the same time raising some questions about when and how that information might be less harmful, or even helpful for a defendant. The study used nearly 1,000 mock jurors who were exposed to rich fact patterns on a premises liability case (a staircase) and a products liability case (a snowboard), in both cases keeping the facts consistent while varying whether the information on a subsequent fix or redesign came in or not. In this post, I will review the four main findings from this study as they bear upon the strategic decision to allow or to exclude that information.
Evidence of Subsequent Remedial Measures Increases Liability
The first finding is intuitive: Defendants are found liable more often at a substantial and significant level when information about subsequent measures is included, all else being equal. This higher plaintiff win rate is likely a hindsight-driven effect, with jurors reasoning that if it was fixed, that means it was broken in the first place, and the counterfactual of “what if the defendant had just fixed it earlier?” is too much to resist.
Instructions Help But Don’t Fully Cure That Effect
When evidence is admitted for a specific purpose, the court’s solution is often a limiting instruction: Jurors are asked in effect, “Please use this information just to show feasibility of a fix, not to show liability.” That works about as well as you might expect: better than nothing, but not terribly good. The researchers concluded, “Our results also suggest that limiting jury instructions can reduce, but not eliminate, the effect of subsequent remedial measures on liability findings,” and this is consistent with research generally on the limits of limiting instructions generally. In this case, adding an explanation for the instructions helped a bit, but the results were not statistically significant.
Evidence of Subsequent Remedial Measures Can Reduce Damages
An additional finding of the study is more helpful to the defendant. Information about subsequent remedial measures may reduce damages, counteracting the effect of increased liability. In the snowboard experiment, including information about a subsequent redesign reduced damages, counteracting the effect of increased liability and providing a net benefit to defendants. The researchers add that this doesn’t apply in every case (and did not work in the staircase fact pattern): “We suspect that damages will only decrease if the specific remedial measures at issue make the defendant look like a good citizen.” It also may depend on the strength of the liability case. Including information on a fix would probably only make sense in situations where a finding of liability is likely, with or without the information on subsequent remedial measures.
And It Depends on the Case
Ultimately, the stories that underly litigation claims are unique. That means there is not a one-size-fits-all answer on whether information on subsequent measures helps or hurts a defendant. The researchers only tested two fact patterns, but found that the degree of enhanced liability coming from the tested information varied substantially between the two. In addition, the information helped the defense on the damages front on only one scenario. This underscores the fact that, while general research can often point you in some helpful directions, the most useful research is going to center on your own case. A focus group or a mock trial, particularly one designed to test reactions with and without subsequent remediation information, can tell you more precisely how that information is likely to factor in your individual case.
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Other Posts Relating to Remedial Measures:
- Understand the Two-Edged Sword of Subsequent Remedial Measures
- Negligence Cases: Make Mental State Part of the Story
- Find Your Six Ways to Sorry
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Chao, B., & Santos, K. (2019). How evidence of subsequent remedial measures matters. Mo. L. Rev., 84, 609.