Photo of Bexis

We covered the topic of product recalls being excludable as subsequent remedial measures in some detail in our Total Recall post, including a list of all the cases we were aware of (whether they involved drugs/devices or not) that had excluded recalls for this reason.  There wasn’t a single federal court of appeals in the lot (the only appellate case to consider it had allowed admission despite it being a SRM under a theory that’s since been amended out of Rule 407.

That’s why we were delighted this morning when we came across Rutledge v. Harley-Davidson Motor Co., No. 09-50533, slip op. (5th Cir. Feb. 3, 2010), which affirmed exclusion of a motorcycle (what else) recall as a subsequent remedial measure.

We would have been even more delighted if Rutledge had been published, but unfortunately it isn’t.