On Tuesday, Judge Kaplan granted a motion in limine concluding, in a matter of first impression in SDNY, that the evidentiary bar in Federal Rule of Evidence 407 against subsequent remedial measures applies to plaintiffs just the same as defendants. The plaintiff is the tax-collecting arm of the Dutch government, which accuses various defendants of obtaining fraudulent refunds, and which sought to exclude evidence that it updated it guidelines after the underlying events in ways that potentially would have flagged the refund requests as improper. The defendants wanted to introduce the evidence to show (among other things) that the Dutch government was partly to blame for processing the refunds.
Judge Kaplan granted the motion, and, in doing so, rejected the defendants’ arguments that that Rule 407 applies only to measures taken by defendants.
As Judge Kaplan explained, the Rule “provides that when measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove, inter alia, negligence or culpable conduct. The court may, however, admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.” It is well settled that Rule 407 applies to “evidence of a defendant’s negligence,” but the court noted there was no binding precedent considering whether Rule 407 applies to plaintiffs as well.
In light of this “blank slate,” the court looked to a plain text reading of the statute and the underlying purpose of the rule to support its holding. Judge Kaplan explained that “the text of the rule is unqualified,” that is, “it refers to ‘subsequent remedial measures’ without regard for who undertook them.” And the purpose of the rule — encouraging subsequent remedial measures — “applies where, as here, plaintiffs would be disincentivized from taking corrective action lest doing so be used against them at trial as evidence of, for example, their contributory negligence.”