Evidence of Subsequent Remedial Measures
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. The 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.
Indiana Evidence Rule 407 is similar to its federal counterpart. See Fed.R.Evid. 407. Pursuant to this rule, evidence of post-occurrence remedial measures is generally inadmissible absent an excepted use. State Auto Ins. Co. v. Flexdar, Inc., 937 N.E.2d 1203, 1207 (Ind. Ct. App. 2010).
Hagerman Constr., Inc. v. Copeland, 697 N.E.2d 948, 954 (Ind.Ct.App.1998), trans. denied. Evidence of a subsequent remedial measure may be admitted when offered for purposes other than proving culpable conduct. Id. Examples listed in the rule include when done for purposes of ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
Two policy considerations underlie the prohibitions of Rule 407. Strack & Van Til, Inc. v. Carter, 803 N.E.2d 666, 670 (Ind.Ct.App.2004). First, that permitting proof of subsequent remedial measures will deter a party from taking corrective action to prevent future injuries. Id. Second, the general lack of probative value of using subsequent measures in proving omission or misconduct. Id. at 670-71.
Rule 407 of the Indiana Rules of Evidence is applied mostly in tort cases. See 23 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5285 (1st ed.1980). The most common types of remedial measures addressed under the rule are product design changes, additions of safety devices, warning provisions, and abandonment of tools or products. 12 Robert Lowell Miller, Jr., Indiana Practice: Indiana Evidence § 407.101.
Rule 407 is worded broadly and has been applied in other contexts such as intentional tort and contract claims. See Wright & Graham, supra, § 5283; see also 1 Michael H. Graham, Handbook of Federal Evidence § 407:1 n.6 (6th ed. 2009) (“The breadth of exclusion under Rule 407 includes … [m]odifications made to clarify contract language.”). For example Rule 407 has been used to exclude evidence of subsequent policy revisions in insurance coverage disputes. State Auto Ins. Co. v. Flexdar, Inc., supra; Pastor v. State Farm Mut. Auto. Ins. Co., 487 F.3d 1042, 1045 (7th Cir.2007).
I have personally used a subsequent remedial measure, taken before evidence could be collected and photographed, to prove spoliation of evidence found at the scene of an accident or a crime.