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First of all, yeah, we know about Wyeth v. Rowatt, ___ P.3d ___, 2010 WL 4812919 (Nev. 2010).  We’re just extremely limited in what we can say, since here on the East Coast, Dechert handles similar hormone therapy litigation for the same client.  Rowatt is one of those times when we most miss Herrmann.  With co-bloggers from different firms, if one couldn’t say a whole lot due to a representation, the other usually could.

No more.  Sorry, but it comes with the territory.

Now, on to what we can blog about.  We think there should be a rule about subsequent remedial measures.

Wait a minute, there already is.  It’s Fed. R. Evid. 407:

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction.

(Emphasis added).

Well, we think Rule 407 should be enforced.  Thus, we disagree with the decision in In re Levaquin Products Liability Litigation, 2010 U.S. Dist. Lexis 124647 (D. Minn. Nov. 24, 2010).  The Levaquin decision (the latest in a line of crummy results), held that changes to a drug’s FDA-approved label that took place entirely after the plaintiff was prescribed the drug and was injured are admissible notwithstanding Rule 407.

Why? Well, Levaquin sure doesn’t cite anything in the rule itself that allows into evidence something that’s plainly a subsequent remedial measure covered by the language of Rule 407. Instead it cites to “policy.” Specifically:

An exception to Rule 407 is recognized for evidence of remedial action mandated by superior governmental authority . . . because the policy goal of encouraging remediation would not necessarily be furthered by exclusion of such evidence.  Here, the label changes after 2005, including the black box warning, were mandated by the FDA.  Since Rule 407 does not bar evidence of subsequent remedial measures that are mandated by a governmental agency, Rule 407 is not applicable in this case.

2010 U.S. Dist. Lexis 124647, at *2 (emphasis added).  Not a word about the language of the rule.

We think that’s simply wrong for three reasons.

First, it’s a throw back to precisely what Rule 407 was amended in 1997 to get rid of.  Before 1997, a number of courts had invoked the “policy” of strict liability to exclude product liability actions altogether from the purview of Rule 407.  That was done away with by 1997 amendments:

Rule 407 has been amended to provide that evidence of subsequent remedial measures may not be used to prove “a defect in a product or its design, or that a warning or instruction should have accompanied a product.” This amendment adopts the view of a majority of the circuits that have interpreted Rule 407 to apply to products liability actions.

Notes of Advisory Committee on 1997 Amendments (citations omitted).  Indeed, the very first case that Levaquin cites – DeLuryea v. Winthrop Laboratories, 697 F.2d 222 (8th Cir. 1983) – was one of the cases repudiated by the 1997 amendments.  Id. at 228 (“This court has determined that the rule against admitting evidence of subsequent remedial measures does not apply to actions based on strict liability”).  The other supposedly controlling case, O’Dell v. Hercules, Inc., 904 F.2d 1194, 1204 (8th Cir. 1990), is another pre-1997 case purporting to carve out exceptions from Rule 407 based upon some perceived “policy.

We think that Rule 407 – particularly since its 1997 amendment rejecting “policy”-based exceptions – should be applied as written.  Our reasoning: “we will not disregard the letter of the statute under the pretext of pursuing its spirit, because the legislative intent is presumed clear from the face of the statute.”  Cudworth v. Midcontinent Communications, 380 F.3d 375, 380 (8th Cir. 2003); accord, e.g., Bollinger Shipyards, Inc. v. Director, Office of Worker’s Compensation Programs, 604 F.3d 864, 872 (5th Cir. 2010) (“the letter of the law shall not be disregarded under the pretext of pursuing its spirit”); Combs v. Homer-Center School District, 540 F.3d 231, 255 (3d Cir. 2008) (same).  Citations and quotation marks omitted in all cases – there are lots of cites for this proposition.

While these cases, of course, involve statutes rather than the Federal Rules of Evidence, we don’t know any reasons why courts should be allowed any greater leeway to ignore the plain language of the federal rules.

Second, restricting exclusion of subsequent remedial measures to “voluntary” – that is, non-governmental mandates – hasn’t been the law.  We’ve written prior posts on subsequent remedial measures that discuss the extensive case law excluding subsequent FDA-ordered label changes and recalls, so we’ll link to those and leave it at that.  In this post, we listed literally dozens of cases excluding both, such as Chlopek v. Federal Insurance Co., 499 F.3d 692, 700 (7th Cir. 2007), holding that the defendant’s “motive for making the change is irrelevant.  All the rule requires is that the measure ‘would have made the injury or harm less likely to occur.'”  In this post, we list all the cases we could find that have excluded subsequent drug/device recalls under Rule 407 or its state-law analogues.

So, in addition to ignoring the plain language of Rule 407, Levaquin is contrary to the majority of relevant case law.

Third, Levaquin is wrong about the policy of Rule 407.  The policies of the rule, at least according to the Advisory Committee on Rules, are that such measures do not amount to a defendant’s admission that it did anything wrong and that measures increasing safety should not be discouraged by litigants arguing that they are such admissions:

(1) The conduct is not in fact an admission, since the conduct is equally consistent with injury by mere accident or through contributory negligence.  Or, as Baron Bramwell put it, the rule rejects the notion that “because the world gets wiser as it gets older, therefore it was foolish before.”  Under a liberal theory of relevancy this ground alone would not support exclusion as the inference is still a possible one.  (2) The other, and more impressive, ground for exclusion rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety.  The courts have applied this principle to exclude evidence of subsequent repairs, installation of safety devices, changes in company rules, and discharge of employees, and the language of the present rules is broad enough to encompass all of them.

Notes of Advisory Committee on 1972 Enactment (citation omitted).  There’s not one word in the Advisory Committee’s notes – either in 1972 or in 1997 – suggesting that mandatory, government-decreed product changes are beyond the scope of Rule 407.  To the contrary, as the Committee pointed out, it wrote the rule “broad enough to encompass all” subsequent remedial measures.

We have to live with the letter of the law when it’s against us.  We should also be able to rely upon it when it’s in our favor.  So our humble requests to the courts is, please stop making stuff up that’s simply not there.