TITLE FOUR — RELEVANCY AND ITS LIMITS
Rule 407. Subsequent Remedial Measures
Prohibited Uses. When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event.
Exceptions. The court may admit this evidence for another purpose, such as impeachment or, if disputed, proving ownership, control, or the feasibility of precautionary measures.
Measures Within This Rule. A measure within Rule 407(1) includes:
a repair, replacement, alteration, or removal of a thing or condition;
a change of design, of a warning, of a sign, or of an instruction;
the adoption, amendment, or rescission of a policy, directive, standard operating procedure, or general order;
the institution of training, supervision, or inspection not previously conducted;
the discipline, reassignment, suspension, decertification, or termination of a person; and
a change to the configuration, permissions, membership, or moderation of a Discord server or channel, or to the operation of an in-game system, made in consequence of the event in issue.
Culpable Conduct. Culpable conduct within Rule 407(1) includes negligence, negligence per se within the meaning of 7 R. Stat. § 121.302, recklessness, a defect in a thing or a condition, and the failure to warn. The prohibition applies whatever the theory upon which the claim is framed.
Timing. This Rule applies only to a measure taken after the injury or harm in issue occurred. A measure taken before that time, or taken after an earlier and unrelated event, is not within Rule 407(1), though it remains subject to Rule 403.
Measures by Another Person. Rule 407(1) applies to a measure taken by or at the direction of the party against whom the evidence is offered, or by a person for whose conduct that party is answerable. A measure taken by a person not a party and not answerable to a party is not within Rule 407(1), but the court shall consider under Rule 403 whether evidence of it will be understood by the fact finder as proof of the party’s culpability.
Disputed Issue Required. Evidence offered under Rule 407(2) to prove ownership, control, or the feasibility of precautionary measures is admissible only where the matter is genuinely disputed. A denial in a pleading does not of itself place the matter in dispute; the matter is in dispute where the party maintains the denial at trial, or offers evidence tending to negate the matter, or asserts that the precaution was impossible, impracticable, or beyond its authority.
Impeachment. Evidence of a subsequent measure offered for impeachment is confined to the contradiction of a specific assertion made by a witness. The assertion must have been made in the witness’s own testimony, and the measure must contradict it directly. Evidence of a subsequent measure shall not be admitted for impeachment where its only tendency is to suggest that the party could have acted otherwise.
Government Remedial Action. Where a policy, order, procedure, or directive of a government is challenged under 7 R. Stat. § 122.101, evidence that the government amended or rescinded the instrument after the action was commenced is not admissible to prove that the instrument impeded a right, immunity, or privilege. Such evidence is admissible upon the question whether the injunctive relief sought is available and feasible, upon a contention that the plaintiff suffered no concrete harm, and upon a contention of mootness.
Procedure; Limiting Instruction.
A party intending to offer evidence of a subsequent measure under Rule 407(2) shall, before the question is asked or the exhibit offered, state to the court out of the hearing of a jury the purpose for which it is offered and the disputed matter to which it is directed, and shall obtain a ruling. A party who offers such evidence without obtaining a ruling is subject to sanction under Rule 103(7).
The court shall apply Rule 403 to evidence offered under Rule 407(2), giving weight to the strength of the prohibited inference the evidence also supports.
Where evidence is admitted under Rule 407(2) the court shall, on timely request, restrict it to its proper scope and instruct the fact finder under Rule 105 that the evidence may not be considered as proof of negligence or culpable conduct. In a trial without a jury the court shall state the limited purpose on the record.