News of a product recall often motivates potential plaintiffs to a search for a lawyer. But the truth is a product recall is an act of responsibility and should not be used to penalize a manufacturer in court.
More than one hundred years ago, the United States Supreme Court established that evidence of subsequent remedial measures was “incompetent” and inadmissible on multiple grounds. The Supreme Court held:
[T]he taking 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.
Columbia & P. S. R. Co. v. Hawthorne, 144 U.S. 202, 207 (1892). Federal Rule of Evidence 407 is the codification of the principal that subsequent remedial measures should be excluded when offered to prove a product defect. The commentary to the rule states that “the more impressive [ ] ground for exclusion rests on a social policy of encouraging people to take . . . steps in furtherance of added safety.” Advisory Committee’s Note to Rule 407.
In Rutledge v. Harley-Davidson Motor Co., 364 F. App’x 103 (5th Cir. 2010), the Fifth Circuit affirmed an exclusion of a product recall pursuant to Fed. R. Evid. 407. The plaintiff in Rutledge alleged she was injured when her motorcycle malfunctioned due to an allegedly defective steering mechanism. Id. at 104. Shortly after the accident, Harley Davidson issued two recall notices advising that the voltage regulator could contact the motorcycles front fender and affect the ability to steer. Id. The Fifth Circuit stated that “[i]f Rutledge had received the notices before the accident and taken the motorcycle to the dealership for repair, it might have made her injury less likely to occur. Therefore, the district court correctly identified the recall notices as subsequent remedial measures under Rule 407.” Id. at 106 (emphasis added).
Other product liability cases have also properly excluded product recalls as subsequent remedial measures under Rule 407. See, e.g., Mildemont, Inc. v. Ford Motor Co., No. 1:15-CV204-HSO-JCG, 2017 WL 151400, at *5 (S.D. Miss. Jan. 13, 2017) (finding recall notices constitute “subsequent remedial measures” under 407 and cannot be construed to be an admission); Cothern v. Baxter Healthcare Corp., 798 F. Supp. 2d 779, 783...
