Evidence Notes File 5-B

Malavet: A Review of Pertinent Cases

• Given the lower court cases, I am beginning to believe that the factual question will be treated under Huddleston and given to the jury, as long as the legal sufficiency of the argument has been established to the court's satisfaction, and the court believes that there is enough evidence for a reasonable jury to make the factual finding of the occurrence of the offense by a preponderance of the evidence.
• In any case, the Courts of Appeals are just about unanimous in admitting evidence of prior bad acts that did not result in a conviction or even in a complaint under FRE 413, 414, and 415. Therefore, the language of FRE 413(d) needs to be read as allowing the use of prior acts that if charged, could have resulted in a conviction under the federal statutes included in the Rule. The question as to the applicability of 104(b) and Huddleston is not quite as clear.
• Here is a brief overview of the caselaw in the area:
• 104(b) Applies. In Johnson v. Elk Lake School District, 283 F.3d 138, 144-145 (3rd Cir. 2002). In this case, the plaintiff offered evidence of past sexual abuse conduct of an employee co-defendant in her suit against the supervising school district, under FRE 415. The court ruled that the factual questions of whether the acts occurred, whether they constituted sexual offenses and whether they were committed by the school employee, were 104(b) questions to be resolved by the jury, after a minimal threshold finding by the court. This court gave a very expansive interpretation to FRE 415, but nonetheless ruled that if the alleged prior act was not sufficiently specified (supported by reliable evidence) and was similar to the actual offense involved in the case, it should not benefit from the "presumption" of admissibility of FRE 415, and was thus subject to the normal balancing of FRE 403, which resulted in exclusion.
• The Court of Appeals for the Armed Forces agrees with the Third Circuit on the 104(b) question, and explains why the prosecution may wish to use Rule 413 in addition to Rule 404(b)[2]. In a well-crafted opinion, the Court of Appeals for the Armed forces explains the application of Military Rules of Evidence that mirror the language of the Federal Rules of Evidence. The court explained how the prior acts evidence was admissible for certain limited purposes under MRE 404(b)[2], but that the prosecution sought to offer it for the propensity inference under MRE 413. The defendant, on appeal, attacked the constitutionality of 413 under Equal Protection and Due Process grounds. The court rejected both. The court also ruled that Huddleston, and consequently the military equivalent of FRE 104(b), applied to factual questions involving prior acts. U.S. v. Wright, III, 53 M.J. 476 2000 CAAF LEXIS 953 (2000).
• The other circuit cases cited below take a less "presumptive" view of the "sister" rules 413-414 than that adopted by the Third Circuit, and a stronger view in favor of FRE 403 discretion and balancing. It is unclear how they would approach the 104(a) v. 104(b) question, although some might argue that the focus on the court's discretion supports 104(a). In any case, the trial courts held evidentiary hearings without the jury, and sometimes closed to the public, before deciding to admit or to exclude the evidence.
• Due Process/Equal Protection. There have been Due Process and Equal protection attacks on FRE 413 and 414. The Courts of Appeals have rejected them. But, interestingly, the rejection of the constitutional argument is often based on (a) a refusal to interpret 413/414 as a "blank check" and (b) emphasis on the remaining discretion given to the court by FRE 403. Pretrial hearings on admissibility are also favored. See, e.g., U.S. v. LeMay, 260 F.3d 1018 (9th Cir. 2001) (FRE 414 passes constitutional muster; it is subject to balancing under FRE 403); U.S. Mound, 149 F.3d 799 (1998) (FRE 413 constitutional; it IS subject to FRE 403 balancing; hearing closed to public held before evidence was admitted).
• See also Doe ex rel Rudy-Glanzer v. Glanzer, 232 F. 3d 1258 (9th Cir. 2000) (FRE 403 balancing still applies when applying FRE 415; differences in age of VICTIMS made acts too dissimilar to be admitted); U.S. v. Guardia, 135 F.3d 1326 (10th Cir. 1998) (FRE 413 subject to 403 balancing test); U.S. v. Sumner, 119 F.3d 658 (8th Cir. 1998) (FRE 414 subject to FRE 403 balancing test); U.S. v. Larson, 112 F.3d 600 (2nd Cir. 1997) (FRE 414 is subject to FRE 403 balancing).
• Typically, the similarity in the ages of the VICTIMS will establish an adequate pattern; conversely, lack of similarity in ages will destroy the pattern argument. For an interesting factual distinction, however, see U.S. v. Johnson, 2002 US. App. Lexis 25741 (8th Cir. 2002). In a trial for "statutory rape," sexual assault of a minor, in which the defendant was 39 years old and the victim 16, it was error to admit 20-yr.-old prior conviction for assault with intent to rape where the perpetrator was a teenager and the victim was 16. Though the ages of the victims of both assaults were similar, the deciding factor, according to the court of appeals, was the age of the defendant, who was a teenager at the time of the prior offense and an adult in his thirties at the time of the second. The Court correctly believed that FRE 403 required it to balance probative value against unfair prejudice, but erred in applying 413 to the facts of the case (which means that it should not have reached 403); no pattern under 413. The error was not reversible, however, because of other "fair evidence of [the defendant's] guilt."
• See also Jones v. Clinton, 993 F.Supp. 1217 (1998) (district court discusses the admissibility of evidence of sexual contact between former President Clinton and Ms. Monica Lewinsky in Mrs. Paula Jone's case under FRE 415; the court ultimately ordered that the evidence be excluded).
• Rule 413 was tangentially mentioned in a Supreme Court opinion denying a Habeas Corpus petition. Spencer v. Kemna, 523 U.S. 1 (1998). 

FRE 413 and Relevance: The casebook authors offer this interesting analysis of what "relevance" might mean under FRE 413.

• It is hard to know what to make of the phrase "may be considered for is bearing on any matter to which it is relevant," which follows and is linked to the phrase "is admissible" in FRE 413 (note 3). One possible construction is that "may be considered" actually authorizes courts to exclude proof of prior sexual offenses because they are sometimes irrelevant, even in sexual offense prosecutions. This conclusion turns on the fact that the phrase apparently recognizes that relevancy questions remain at large and are not totally resolved by FRE 413 itself. Applying this logic in Problem 5-L, the court might exclude the conviction for assaulting N. Another possible construction is that prior sex offenses are always admissible but not always relevant, and the problem with this reading is that it makes no sense to admit irrelevant evidence, and presumably the general principles of FRE 401-402 mean such evidence cannot be considered by the jury. Perhaps a third construction is that the two phrases together ("is admissible" and "may be considered") mean that prior sexual offenses are always relevant in support of the character inference (he did it before, so he probably did it this time), although in particular cases there may be elements of the charged offense that the prior offense does not prove (so the jury cannot take the prior acts as proof of everything necessary to convict in the case at hand). We incline toward the first reading, but perhaps the matter is not quite free of doubt.
• Malavet
  • FRE 404(b) Cases: Your casebook authors have collected the following additional sampling of cases that allowed prior sexual assault evidence into the case using FRE 404(b) rather than FRE 413.
  • Remember as well to cross-reference Problem 9-F.
• In our view, these cases suggest that FRE 404(b) was working reasonably well in this setting. Here is the sampling:
  • (a) State v. Lough, 889 P.2d 487 (Wash. 1995) (in trial of paramedic for sexual assault, in date situation where allegedly defendant put knockout drug in drink, committed sexual assaults, and neatly folded complainant's clothes before leaving, admitting testimony by four other women describing similar behavior by defendant over 10-year period, to show design or plan).
  • (b) State v. Casady, 491 N.W.2d 782 (Iowa 1992) (bench trial for assault with intent to commit sexual abuse in 1989; defendant allegedly asked 13-year-old girl for directions, then tried to pull her in car through passenger-side window; admitting 1979 conviction on guilty plea for kidnapping with intent to terrorize or cause injury, arising out of Missouri incident where defendant struck car driven by 17-year-old victim, then pulled her into his car and drove off and raped her in remote area; also admitting 1976 conviction on nolo plea for assault with intent to inflict bodily injury, arising out of Nebraska incident where defendant sexually assaulted 30-year-old woman after asking her to enter his car and attacking her on the spot when she refused) (given factual similarities, earlier episodes showed intent; remoteness bears on weight; evidence was needed; no jury, so less risk of prejudice).
  • (c) State v. Lamoureaux, 623 A.2d 9 (R.I. 1993) (in sexual assault trial, admitting prior episode; defendant met C at club and they danced, drank, talked about family and jobs, and defendant got C to write phone number on napkin because he knew someone seeking a secretary; he persuaded C to drive him home, but grabbed and kissed her when they got where he said he lived; allegedly he became angry and threatening when she resisted, ordering her to take off her clothes and raping her; 9 days before, defendant met L at same bar, and they talked about children, marriage, churchgoing, and L wrote phone number on napkin and agreed to drive him home; on arriving where defendant said he lived, he kissed L and asked her to hug him; he got angry when she pulled away, and pinned her between two front seats, forcing her to touch him; nightgowned woman appeared and defendant fled) (episodes substantially identical; the first showed modus operandi, common design or plan).
  • (d) State v. Winter, 648 A.2d 624 (Vt. 1994) (in trial of staff member in group home for patients with mental illness or substance abuse problems, for sexually assaulting patient in her bed, excluding evidence that 4 years earlier while living in another state defendant sexually assaulted his children's 17-year-old babysitter numerous times in his home; earlier episodes too remote, not similar enough to show modus operandi).
  • (e) State v. Whittaker, 642 A.2d 936 (N.H. 1994) (in sexual assault trial arising out of incident in which defendant was to give H a ride home in truck after a social visit at home of others, but instead allegedly drove to remote area and forced H to engage in sex on threats that he would "get rough" if she didn't, then prepared to tie her with rope when H made her escape, error to admit proof of incident 5 years earlier with L, who had lived with defendant, in which he drove L to an unfamiliar place, tried to force himself on her, tied her up when she resisted, and engaged in sexual acts) (prior incident might show propensity, which is forbidden, but not plan; nor could it show modus operandi because manner was not unique or unusual enough; nor could it show identity, which was not in issue).

5.7 Habit and Routine Practice

Malavet: An Opening Note

• Initially, let me caution you against over-reading FRE 406.
  • 406 can in theory be read much too broadly. Apply an extremely healthy amount of skepticism to this rule, especially when criminal conduct or conduct that raises moral overtones is involved.
• The four descriptions of habit evidence [described by our authors] emphasize that [FRE 406]
  • (a) habits involve nonvolitional behavior (descriptions like "reflex," "semi-automatic," "regular if not invariable" come to mind),
  • (b) habits involve "specific situations" and "particular kind of situation,"
  • (c) character is more "general" (a "tendency" applicable to "all the varying situations of life"), and
  • (d) character involves "moral overtones" that are not part of our notion of habit.
  • While repetition is crucial to classification as habit, I cannot emphasize enough the effect of "moral overtones" in classifying the matter as character evidence rather than habit or routine practice. To allow to 406 to trump general or specific character prohibitions too generally would completely undue the effect of 404(a), 404(b)[1] and especially 412. That is not the intent of the rule. Therefore, the rule must be tempered by the strong policies underlying the prohibition rules, especially when dealing with conduct that can be evaluated, fairly or unfairly, as having strong moral overtones, such as criminality and sexuality.
• Handle with care
  • You have to be careful with the facts in the problems. The evidence of habit or routine practice is often required because of what you LACK, i.e., you have no other evidence to prove the facts suggested by habit or routine practice. In Problem 5-M, all the witnesses to the auto accident were dead. In Problem 5-N Halleck must have been unwilling to admit and perhaps even totally denied that he heated the cylinders. It is often like an episode of Columbo (or, for the younger crowd, Criminal Intent), everyone in the audience knows who did it and exactly how they did it, but at trial the criminals intend to deny everything (or admit nothing). And in Problem 5-O the government had to prove beyond a reasonable doubt an element of the crime, and no one could testify to having actually served the defendant.

Problem 5-M: Death on the Highway: 
Authors' Answers and my comments.

• [ Relevance.]
  • On facts like these, defendants routinely plead contributory negligence and plaintiffs hope to get to the jury on a theory of per se negligence -- car entering a highway and turning left is at fault almost by definition if a collision ensues. And the situation could support application of res ipsa loquitur: This sort of accident seldom happens unless the entering driver was negligent, and he is prima facie negligent. But if circumstances support an inference that the driver on the highway was negligent (speeding, being in the wrong lane), then evidence that he exercised due care is important.
• [Form of Proof.]
  • Should Budge or Frese be permitted to testify that Teel is "a good, careful driver"? Probably not: Evidence of carefulness or carelessness (even when connected to driving a car) is not considered habit. Rather, it amounts to character or disposition under FRE 404 (excludable when offered to prove behavior in civil case). The result seems sound because the generality of the proof means that it is worth little.
• [What Might Be Admissible?]
  • It would be different if Budge or Frese could testify that Teel drives Route 46 every day, that they regularly drive with him, and that invariably Teel drives at or below the speed limit, and never strays over the center stripe. See Barton case (note 3, page 430).
    The problem tracks a decided case, but with one critical difference. In the problem the proffered testimony is that Lance Teel is a "good, careful driver," but in the actual case the witnesses testified expansively, and the court approved habit evidence about the man driving the car on the highway that included
• [Case Example: Admissible]
  • (a) testimony by one witness that she had ridden with him and "thought he was a good driver who did not drive over the speed limit but usually drove five miles per hour under the limit," and
  • (b) testimony by another that decedent "was a good driver, cautious, obeyed the rules of the road" and "never drove over 60 miles per hour" (speed limit being 70 MPH):
    • [T]estimony regarding the deceased's care in driving, his practice of driving under the speed limit, and his regard to the rules of the road is testimony which devolved into specific aspects of the deceased's conduct. Such testimony showed more than a general disposition to be careful and showed a regular practice of meeting a particular kind of situation with a specific type of conduct. The testimony is all the more cogent because of the lack of an eyewitness account. Frase v. Henry, 444 F.2d 1228, 1232 (10th Cir. 1971) (quoted in the text at page 428 on definition of habit). The court was careful to say that proof that decedent "was a careful, cautious man" would not be admissible because it would not be "specific enough" to tend to prove he was "careful in a specific instance in specific circumstances." Not surprisingly, the court found for plaintiff (estate of driver on highway).    

Problem 5-N: The Burning Sofa:
Authors' notes with my comments.

• Girard should be allowed to testify: While both smoking and drinking are in some senses conscious and volitional, they seem for many people to be at best quasi-conscious acts, to some extent beyond or outside volition, or at least sufficiently so to be viewed as semi-automatic. Particularly the combination seems to be powerful, and drinking beer or alcohol in other forms leads in an immediate and compelling way, for very many people, to smoking as well. In any event, Girard’s task is not to establish that drinking reflects habit – we know from clinical evidence that Girard was drinking – but to establish that smoking while drinking was habitual with Rollins. Girard’s foundation (“four or five incidents” in the last year when drinking and dropping a cigarette led to damage) seems sufficient to show habitual overconsumption of alcohol in combination with careless smoking. The judge resolves the question of sufficient instances as a matter of admissibility under FRE 104(a) (issue is raised in note 2 after the Problem).
• The Problem rests on Sams v. Gay, 288 S.E.2d 822 (Ga. App. 1982), where the reviewing court concluded that plaintiff could indeed testify: ...

Superseded old Problem: The Exploding Can (p. 436, of the 6th edition)

Facts

I transcribe the facts from the old edition.

• Forest Halleck worked as a mechanic who specialized in the repair and maintenance of automobile air conditioning systems. One day after replacing the compressor unit in a vehicle, he began to charge the new unit in the usual way by injecting a pressurized liquid refrigerant (Freon). Mter two cans flowed into the unit without difficulty, he encountered problems with the third and fourth cans. He filled an empty two-pound coffee can with warm water to raise the temperature and pressure of the smaller can of refrigerant, but as he warmed the fourth can it exploded and injured him seriously.
• Halleck sued Lorton Chemicals (maker of the Freon), which defended on the basis that Halleck was negligent in ignoring warning labels on the can.
• At trial, Lorton sought to prove that Halleck habitually used an immersion heater to raise the temperature of the water in the coffee can and that the explosion was caused when the temperature went above 130 degrees (the maximum safe temperature, as noted on the can). It called Mike Newsome, a fellow worker who was prepared to testify that he had often seen Halleck use an immersion coil to heat water, and thus to heat cans of Freon.
• Halleck objects that the evidence is "barred by the rule against character evidence." Should Newsome be allowed to testify?

Authors' Answers, with my notes

• [Halleck's objection should be overruled:]
  • Newsome's testimony describes behavior that is specific and (if not subconscious) at least semi-automatic. Thus it qualifies as habit under FRE 406. Perhaps the real question is whether testimony that Halleck "often" used the warming technique is enough to show habit. In part, the answer may turn on how many times Newsome observed Halleck: If the two have worked together for quite a while (weeks at least) and "often" means "daily" or "many times a week," Newsome's testimony is sufficient and should be admitted. In part, the answer turns on how long Halleck has been changing freon and how much of his time is spent doing that: If he has been in the business for quite a while (months or years) and spends much of his time (a tenth, quarter, a half) changing freon, then a few "sample" observations are sufficient and Newsome's testimony should be admitted.
• Malavet
  • Be careful in reading the language "a few 'sample' observations." If it means that the witness was sufficiently familiar with the actor's conduct, then he or she may limit their testimony to describing a few sample observations. On the other hand, a few sample observations might be a proper foundation for the testimony, IF they are sufficiently reliable (e.g., he always did it that way under the same circumstances, as we discussed in class). Note that this also comes up when evaluating the witnesses' competence (FRE 601) and personal knowledge (FRE 602). Actual Case: Specific Inference of Conduct
• [The Actual Case]
• The problem tracks a New York case, which held that the trial court erred in excluding the evidence. The reviewing court noted that "New York courts have long resisted allowing evidence of specific acts of carelessness or carefulness to create an inference that such conduct was repeated when like circumstances were again presented," but thought that "proof of a deliberate and repetitive practice" was different: Far less likely to vary with the attendant circumstances, such repetitive conduct is more predictive than the frequency (or rarity) of jumping on streetcars or exercising stop-look-and-listen caution in crossing railroad tracks. Under no view, under traditional analysis, can conduct involving not only oneself but particularly other persons or independently controlled instrumentalities produce a regular usage because of the likely variation of the circumstances in which such conduct will be indulged. Proof of a deliberate repetitive practice by one in complete control of the circumstances is quite another matter and it should therefore be admissible because it is so highly probative.
• As previously noted, Halloran, in the course of his work as a mechanic, had serviced "hundreds" of automobile air conditioners and had used "thousands" of cans of Freon. From his testimony at trial it seems clear that in servicing these units he followed, as of course he would, a routine. If, indeed, the use of an immersion coil tended to be part of this routine whenever it was necessary to accelerate the flow of the refrigerant, as he indicated was often the case, the jury should not be precluded from considering such evidence as an aid to its determination.
• Of course, to justify introduction of habit or regular usage, a party must be able to show on voir dire, to the satisfaction of the Trial Judge, that he expects to prove a sufficient number of instances of the conduct in question . . . . If defendant's witness was prepared to testify to seeing Halloran using an immersion coil on only one occasion, exclusion was proper. If, on the other hand, plaintiff was seen a sufficient number of times, and it is preferable that defendant be able to fix, at least generally, the times and places of such occurrences, a finding of habit or regular usage would be warranted and the evidence admissible for the jury's consideration.
• Halloran v. Virginia Chemicals, Inc., 361 N.E.2d 991, 995-996 (N.Y. 1977).

NOTES [CB]:

• Malavet
• All the notes are important. But let me just comment on the cases that I think are simply wrong.
  • Note. 1. *** Physically abusing or threatening someone? Compare Brettv. Berkowitz,706A.2d 509,516 (Del.1998) (in sexual misconduct and malpractice suit against lawyer, excluding proof that he had "prior relations with clients") with State v. Huerta, 947 P.2d 483, 490 (Mont. 1997) (in trial of boyfriend of victim's mother, evidence that she abused child, offered to show she was source of his injuries, qualified as habit, but court could exclude under FRE 403).
• Both of these cases are in my mind and in your authors' minds wrong. They should be 404(b) cases, not 406 cases.
• Note further the new 2000 case resolved in Maryland.

Problem 5-O: Was he Served (the exception that proves the rule?): 
Authors' Answers, with my notes.

• [In General]
  • Organizational routine supports an inference that it was followed in a particular instance, and such proof could support the inference here. Probative worth depends not on individual proclivities, but on supervision and authority, guidelines and manuals, attitudes and pressures that develop in a workplace. Such proof is more readily admitted than evidence of individual habit, perhaps because organizational routine seems more regular and more probative than personal habit.
  • Does a person who does not himself follow the routine have the necessary knowledge? The answer is yes if he has observed it firsthand and understands how it works, meaning he has seen people or machines performing their functions and understands the underlying purposes and relationships.
• [Is it Admissible under these facts?]
  • But Lesher apparently has not observed service of the sort of papers involved here. And where understanding depends largely on what the witness has heard from others, the situation is troubling. If he has heard "what goes on" from several people in a position to know and has corroborative firsthand knowledge about organizational practices, circumstantial knowledge might be all right. It generally suffices when a party offers business records under FRE 803(6) (see chapter 4).
  • On these facts, Lesher seems to fall below a reasonable minimum. If he had some firsthand corroborative information (seeing many deportations where organizational routine was followed, and many cases where the person who dealt with Gutierrez served the deportee), then he would be an adequate witness. Short of offering such a basis in the knowledge of Lesher, the government should produce a witness who serves warrants to describe how it is done, or at least one who has observed warrants being served.
• [The Actual Case: Admit]
  • The problem tracks a case that approved such testimony. The court conceded that the agent could not testify about "out-of-court statements of detention officers as to the procedures followed at deportations," and could not satisfy the personal knowledge requirement by "reliance on inadmissible hearsay." Still the court thought it was sufficient that the agent had extensive experience in "the normal rule of things and the normal processes of deportation," and was thus "familiar with the procedure." United States v. Quezada, 754 F.2d 1190, 1195-1196 (5th Cir. 1985) (government had other proof, including defendant's thumbprint on back of warrant, which makes it look very much as though he was served; other parts of the legend on the warrant also indicated service, since the officer apparently filled out the time and place of service).
• NOTES:
  • [CB] 5. Should proof of industry practice be admitted on the question of standard of care? See Avena v. Clauss & Co., 504 F.2d 469, 472 (2d Cir. 1974) (custom of moving bales by inserting longshoremen's hooks under the bands to move packages, admissible to prove intended use, hence dangerous condition). [Your authors think this is about standard, not conduct. I am not so sure.] And sometimes it bears on the interpretation of contracts. See M/V American Queen v. San Diego Marine Construction Co., 708 F.2d 1483,1491 (9th Cir. 1983) (custom and practice regarding limits of liability in ship repair). Are these uses regulated by FRE 406? [NO.] This evidence provides context for contract interpretation not for conduct. Could it be Admissible?

5.8 Subsequent Remedial Measures

While some arguments for exclusion might be made under the traditional approach of FRE 401, 402 and 403, the fact is that it is unlikely that evidence of subsequent remedial measures would be held to be inadmissible in the absence of FRE 407. In any case, FRE 407 reflects some concerns about relevance, probative value and unfair prejudice/confusion, etc. Nevertheless, the ultimate reason for rules like this one are policy concerns usually legislative policy concerns.

Rule 407. Subsequent Remedial Measures

• [CB] The exclusionary doctrine rests on policy, relevance, and confusion of issues. As a matter of policy, it is thought wise to avoid discouraging efforts to make things better or safer (hence furthering an aim completely "extrinsic" to the conduct of litigation). Also it is considered unfair to introduce against a person, over his objection, evidence that he behaved responsibly after the fact. Concerns over relevancy arise because efforts to prevent future accidents may not show or even indicate that past practice or conditions amounted to negligence or fault. Concerns over confusion of issues arise partly because of the relevancy problem and partly because it may be impossible even to show that changes that follow an accident were made because of the accident.
• [CB] Three major issues arise in the application of FRE 407. First, does the exclusionary doctrine apply in product liability cases? (Any question on that point was resolved by a 1997 amendment to FRE 407, which expressly says the exclusionary doctrine does apply here, but many states do not apply the exclusionary doctrine in this setting.) Second, does the Erie doctrine require federal courts to follow state practice on subsequent measures? (The bulk of modern authority says no, but the matter is still open to debate. And as noted above, federal law conflicts with many state rules in product liability cases.) Third, when may subsequent [507] measures be shown to prove "feasibility"? (FRE 407 so permits if that point is "controverted," but what does "controverted" mean?)
• Malavet
  • I suppose that, as Ms. Hall suggested, we might be more concerned about allowing defendants to hide their failure to take precautionary measure SOONER behind FRE 407 than with creating incentives to remedy the problem after the accident (that is what "feasibility" is intended to prevent). This is a tough call, especially when viewed through the lens of the informational disadvantage of plaintiffs in personal injury cases. Nevertheless, in defense of the Rule, we might say that once an accident has occurred we might as well help prevent a future one by creating the privilege. On the other hand, changing protocols ought to occur not because of a fear of liability, but out of concern for public safety. I think that the CDC's changing view of Anthrax exposure is motivated by concerns about the public health, not by fear of liability. But, the reality is that we as a society make cost/benefit analysis, some involving lives, every day.

Case: Tuer v. McDonald

I think that Tuer needs to be read in the context of medical malpractice's standard of care. Essentially, were the actions of the doctor objectively reasonable at the time he took them, even if as a result of the death of Mr. Tuer they re-evaluated the protocols and their underlying risk-benefit analysis.

On the other hand, in a products liability case the question usually is "Could you have designed better?" This is why applying the rule to products cases is controversial.

In the DuPont case, as I mentioned in class, the Plaintiffs were allowed to argue that the building could easily have been designed originally with an additional fire escape within the casino. Since the casino lacked such an independent fire escape, and the fire had engulfed the only avenue of escape --the lobby area-- the casino patrons were trapped. (This was not an FRE 407 situation because the building had not yet been remodeled, but it would certainly have been a feasibility argument if remodeling with a new exit had occurred by the time of the trial).

Elevators also present many feasibility-of-retrofitting arguments. Many old controls, for example, were activated by heat, thus opening the elevator precisely where there was a fire, with tragic (and gruesome) results. Otis Elevator has long offered new controls that are NOT activated by fire, but many customers argue that the cost of retrofitting is too high.

Look at any old building on our campus and you will notice safety retrofits.

• [CB] [The Subsequent Measure]
  • After Tuer's death, and apparently because of it, St. Joseph changed its protocol with respect to discontinuing Heparin for patients with stable angina. Under the new protocol, Heparin is continued until the patient is taken into the operating room.
• [The FRE 407 Issue]
  • [CB] Defendants made a motion in limine to exclude any reference to the change in protocol under Maryland Rule 5407. Plaintiff countered that (a) the change was not a remedial measure because the defense claimed the prior protocol was correct, and (b) she was entitled to prove the change to show that continuing Heparin was "feasible." The trial court rejected the first argument (saying that defendants did not have to admit wrongdoing in order to claim that a change was remedial), but ruled that it would admit the proof if defendants denied feasibility.
  • [CB, middle of the paragraph] Plaintiff got Dr. McDonald to say that under no circumstances would a patient in Tuer's condition (unstable angina stabilized by Heparin) continue on Heparin to the time of surgery. He considered restarting the Heparin when surgery was postponed, but decided against it. The court sustained a defense objection to the question whether it was "feasible to restart Heparin," but plaintiff got McDonald to say that restarting it would have been unsafe.
  • Malavet
    • It is interesting that court seems willing to read Dr. McDonald's statements as saying "Given my medical knowledge and experience, at the time prior to Mr. Tuer's death, I considered it unsafe to restart Heparin."
  • [CB] Plaintiff argued that she was entitled to prove the change in protocol, to impeach and to show it was not unsafe to restart Heparin, but the court disagreed. [FRE 407] On cross, McDonald testified that he would have restarted Heparin if Tuer had developed new chest pains indicating unstable angina, pointing out that Heparin is used later in CABG surgery to prevent clotting as blood circulates through a heart-lung machine. [FRE 611(b)] [FRE 611(c)]
  • [CB] Two doctors testified for plaintiff that Tuer had unstable angina and failing to restart Heparin departed from the customary standard. Three testified for defendant that it was right not to restart Heparin, since Tuer had stabilized.
• Tuer: FEASIBILITY [CB]
  • Rule 5-407(b) exempts subsequent remedial measure evidence from the exclusionary provision of Rule 5-407(a) when it is offered to prove feasibility, if feasibility has been controverted. [FRE 407] That raises two questions: [1] what is meant by "feasibility" and [2] was feasibility, in fact, controverted?
  • [CB] *** Some courts have construed the word narrowly, disallowing evidence of subsequent remedial measures under the feasibility exception unless the defendant has essentially contended that the measures were not physically, technologically, or economically possible under the circumstances then pertaining. Other courts have swept into the concept of feasibility a somewhat broader spectrum of motives and explanations for not having adopted the remedial measure earlier, the effect of which is to circumscribe the exclusionary provision. [FRE 407]
  • [Feasibility NOT Controverted]
    • [CB] Courts in the first camp have concluded that feasibility is not controverted -and thus subsequent remedial evidence is not admissible under the Rule- when a defendant contends that the design or practice complained of was chosen because of its perceived comparative advantage over the alternative design or practice ([citing cases]); or when the defendant merely asserts that the instructions or warnings given with a product were acceptable or adequate and does not suggest that additional or different instructions or warnings could not have been given ( [citing cases] ); or when the defendant urges that the alternative would not have been effective to prevent the kind of accident that occurred ( [citing cases] ).
  • [Feasible AND Controverted]
    • [CB] Courts announcing a more expansive view have concluded that "feasible" means more than that which is merely possible, but includes that which is capable of being utilized successfully. In Anderson v. Malloy, 700 F.2d 1208 (8th Cir. 1983), for example, a motel guest who was raped in her room and who sued the motel for failure to provide safe lodging, offered evidence that, after the event, the motel installed peepholes in the doors to the rooms. The appellate court held that the evidence was admissible in light of the defendant's testimony that it had considered installing peepholes earlier but decided not to do so because (1) there were already windows next to the solid door allowing a guest to look out, and (2) based on the advice of the local police chief, peepholes would give a false sense of security. Although the motel, for obvious reasons, never suggested that the installation of peepholes was not possible, the court, over a strident dissent, concluded that, by inferring that the installation of peepholes would create a lesser level of security, the defendant had "controverted the feasibility of the installation of these devices." [Court describes other cases.]
  • Malavet
    • A situation similar to the motel case is found in every apartment complex in Gainesville. As a result of the Rollin case (the murder of five young people in Gainesville) and the payment of damages by apartment complexes to the families of the victims, most Gainesville complexes now prominently advertise peepholes, security locks, alarms and policies giving discounts to law enforcement officers who live in the complex. All these are, potentially, subsequent remedial measures.
  • [CB, end of paragraph] defendants often are willing to stipulate to feasibility in order to avoid having the subsequent remedial evidence admitted.
  • [The Big Question: Is it Feasible OR it IS feasible (possible) but not recommended.]
    • [CB] The issue arises when the defendant offers some other explanation for not putting the measure into effect sooner -often a judgment call as to comparative value or a trade-off between cost and benefit or between competing benefits- and the plaintiff characterizes that explanation as putting feasibility into issue.9 To the extent there can be said to be a doctrinal split among the courts, it seems to center on whether that kind of judgment call, which is modified later, suffices to allow the challenged evidence to be admitted.
    • [CB] *** That does not, in our view, constitute an assertion that a restarting of the Heparin was not feasible. It was feasible but, in their view, not advisable.
• [Tuer: IMPEACHMENT []]
  • [CB] The exception in the Rule for impeachment has created some of the same practical and interpretive problems presented by the exception for establishing feasibility. [Testimony] [FRE 407]
  • [CB] If the defendant is asked on cross-examination whether he thinks that he had taken all reasonable safety precautions, and answers in the affirmative, then a subsequent remedial measure can be seen as contradicting that testimony." [Testimony] [FRE 407] 1 Saltzburg, Martin, and Capra, [Federal Rules of Evidence Manual 487 (6th ed. 1994)].
  • [CB] *** Thus, as Saltzburg, Martin, and Capra point out, most courts have held that subsequent remedial measure evidence is not ordinarily admissible for impeachment "if it is offered for simple contradiction of a defense witness' testimony." 1 Saltzburg, Martin and Capra, supra, at 487.
  • [CB] *** In Muzyka v. Remington Arms Co., 774 F.2d 1309, 1313 (5th Cir. 1985), for example, where a defense witness asserted that the challenged product constituted "perhaps the best combination of safety and operation yet devised," a design change made after the accident but before the giving of that testimony was allowed as impeachment evidence, presumably to show either that the witness did not really believe that to be the case or that his opinion should not be accepted as credible. [Testimony] [FRE 407] In Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613 (5th Cir. 1977), the court allowed evidence of a post-accident letter by the manufacturer to its dealers warning of "death dealing propensities" of the product when used in a particular fashion to impeach testimony by the defendant's design engineer, who wrote the letter, that the product was safe to operate in that manner.
  • [CB] Consistent with the approach taken on the issue of feasibility, however, subsequent remedial measure evidence had been held inadmissible to impeach testimony that, at the time of the event, the measure was not believed to be as practical as the one employed, or that the defendant was using due care at the time of the accident.
  • [CB] *** It is clear that Dr. McDonald made a judgment call based on his knowledge and collective experience at the time.... The only reasonable inference from his testimony . . . was that Dr. McDonald and his colleagues reevaluated the relative risks in light of what happened to Mr. Tuer and decided that the safer course was to continue the Heparin. That kind of reevaluation is precisely what the exclusionary provision of the Rule was designed to encourage.
• Malavet
  • Again, as a standard of care case, Tuer is not troubling, but as to FRE 407, it is a tough case, especially on impeachment.
  • The only impeachment that the court appears willing to allow would be if Dr. McDonald denied that the protocol had been changed, or, if he were stupid enough to testify that he would "not do anything different today"! On feasibility, it appears that the court would require the defendant to argue that it would have been impossible to give Heparin, in order to trigger the feasibility exception.
  • BTW, the reason why it is unlikely that the hospital could have been held liable is that the Doctors are usually independent contractors rather than employees of the hospital. Thus, the doctors' actions do not expose the Hospital to liability because the doctors are usually not considered to be agents or employees of the hospital. This is a tough substantive reality. The hospital might be held liable if a nurse employed by the hospital applied the wrong protocol or applied the protocol incorrectly. Also, in a teaching hospital, the interns and students may be hospital employees.