Third Circuit Expands Admissibility of Subsequent Remedial Measures

    The Third Circuit this week released an opinion that provides an interesting perspective on the intersection between Rule 702 of the Federal Rules of Evidence, which allows an expert to rely on material not otherwise admissible as a foundation for an expert opinion, and Rule 407, which excludes  evidence of a subsequent remedial measure. The decision, Pineda v. Ford Motor,   allowed an expert to describe, as the basis for his decision on the feasibility of an alternative design,  a design  put in use by the defendant after the event giving rise to the claim.  The Court admitted this evidence (through the backdoor of Rule 702) over the objection of the defendant that admission was prohibited by Rule 407.  The court held that the alternative design was relevant to the expert's opinion and that the evil addressed by Rule 407 could be prevented by allowing the expert to refer to the alternative design but to prohibit him from tesitifying that the design was developed by the defendant or used by the defendant following the incident in controversy.

    If this is a correct result, it would allow subsequent remedial maeasures to be used in most cases, as long as they are not directly introduced as evidence of an admission by the defendant that what it did before the incident was culpable.  It seems to ignore another policy of 407, though, beyond providing an admissiion of culpability.  That is the policy that seeks to encourage remedial action.  If a defendant believed its remedial action could be used against it for any purpose, even if not for the direct purpose of an implicit admission of the indadquacy of its earlier conduct, remedial action would likely be discouraged.