TITLE FOUR — RELEVANCY AND ITS LIMITS
Rule 409. Expressions of Sympathy in Civil Cases; Offers to Pay Medical and Similar Expenses
Expressions of Sympathy in Civil Cases. Statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to such person or to the family of such person shall be inadmissible as evidence of an admission of liability in a civil action.
Payment of Medical and Similar Expenses. Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.
Benevolent Gesture Defined. A benevolent gesture within Rule 409(1) is an act, a statement, a writing, or a communication in the proceeding communications, in game, or in a Discord channel or direct message, which conveys condolence, commiseration, compassion, or a general sense of benevolence. It includes an apology in general terms and an expression of regret that the event occurred. The gesture must be made to the person involved in the accident or to that person’s family to be within Rule 409(1).
Statements of Fault Not Protected. A statement of fault, of negligence, or of responsibility for causing the event is not made inadmissible by Rule 409(1) or Rule 409(2) merely because it accompanies, precedes, or follows an expression of sympathy, a benevolent gesture, or a furnishing or offer of payment. Where such a statement can be separated from the protected expression or offer, the court shall admit the statement and exclude the protected part. Where the two cannot be separated without distorting the sense of either, the court shall determine under Rule 403 whether to admit the whole, exclude the whole, or admit a summary of the exchange under Rule 1006.
Similar Expenses. Expenses similar to medical and hospital expenses within Rule 409(2) include the charges of an emergency medical service, transport, rehabilitation, and the replacement of property destroyed or damaged in the course of treatment. A payment, promise, or offer made by an insurer, an employer, or another person on behalf of a party is within Rule 409(2) to the same extent as one made by the party.
Permitted Uses. Rule 409(1) and Rule 409(2) exclude the evidence described only for the purpose stated in each. The court may admit that evidence for another purpose, such as:
proving the bias, prejudice, or interest of a witness;
proving agency, employment, ownership, or control, where disputed;
proving that the injured person incurred the expenses and their amount, where damages are in issue;
rebutting a contention that the injured person failed to mitigate damages or refused available care; or
impeaching a witness by contradiction of a specific assertion made in the witness’s own testimony.
No Adverse Inference from the Absence of an Apology. No court of this State may grant injunctive relief in the form of an apology, a letter of regret, or an expression of repentance, as 7 R. Stat. § 122.001 provides. Accordingly, the failure of a party to express sympathy, to apologize, or to offer to pay expenses is not evidence of liability, of consciousness of liability, or of a state of mind, and no party shall argue it as such. This subdivision does not limit Rule 1105.
Application. Rule 409(1) applies in civil actions. Rule 409(2) applies in civil actions and, so far as it excludes evidence offered to prove liability for an injury, in criminal cases in which the fact of an injury is in issue. Where the furnishing of or offer to pay expenses was made in the course of compromise negotiations, Rule 408 also applies, and the broader protection governs.
Procedure; Limiting Instruction. A party intending to offer evidence within Rule 409(1) or Rule 409(2) for a permitted purpose shall obtain a ruling before the question is asked or the exhibit offered, out of the hearing of a jury where a jury sits. Where the evidence is admitted, the court shall on timely request restrict it to its proper scope and instruct the fact finder under Rule 105, and in a trial without a jury shall state the limited purpose on the record.