Evidence B
Visiting Professor Peter Murray
Rules of Exclusion –
Settlement Negotiations etc., Insurance
February 14, 2007
“if controverted”
• Does it modify “ownership, control or
feasibility of precautionary measures”?
• What does it take to “controvert”
ownership or control?
– Require plaintiff to carry burden of proof?
– Actively dispute proposition?
– Effect of a stipulation?
On November 26, 1978 Tom
Miller took out his Ariens
snowblower to clean an early
snowfall off his driveway….
The Maine experience -
• Pre-rules law banned evidence of sub-
sequent remedial measures to prove fault.
• Rules Committee majority recommended a
version like FRE 407.
• Minority urged a rule of admissibility.
• Maine Supreme Court (surprisingly) adopted
the minority rule.
From 1975-1996 Maine Rule
407 read:
• When, after an event, measures are
taken which, if taken previously, would
have made the event less likely to
occur, evidence of the subsequent
measures is admissible.
• In 1981 Rhode Island adopted the same
language for its Rule 407.
• For almost 20 years Maine and Rhode
Island stood alone.
The Maine experience (cont’d)
• In 1993 the Maine Legislature considered a bill to
go to Federal 407.
– Pressure from municipalities…
• Court amended Maine Rule to apply only to
“premises and things”.
• In 1996 the Legislature enacted Federal Rule 407
as substantive law.
– Part of Tort Reform package deal.
– A single legislator…
• Maine Supreme Court followed suit July 1, 1996.
– No constitutional confrontation….
What is the best rule - Federal
or Rhode Island?
• Does the Federal Rule serve a laudatory
purpose of encouraging subsequent
remedial measures?
– Or is it merely another form of legal sleight-
of-hand which only adds confusion and
encourages juries to disregard the law given
them and do what they think best?
• Is the Rhode Island rule more honest?
What are the purposes of
Rules of Evidence?
• Regulate kind and quality of information
involved in legal decision making?
• Affect outcomes desired by interest
groups?
• Promote policies with respect to out of
court behavior?
Rule 408 is similar to 407 -
• Offers to compromise a claim may not be
used to prove liability or damages.
– But may be used for other purposes
• The rationale is that we want to
encourage people to negotiate the
settlement of cases.
– Which would be inhibited if people thought
that their settlement offers could be used
against them at trial.
• Historical difference between “offers” and
“settlement talk”.
Rule 409 - Payment of
Medical Expenses
• May carry an inference of admission of
liability.
– What is that inference?
• Strong public policy to encourage
people to adjust loss voluntarily.
Problem - Nice Guy (p. 144)
• Statements at accident scene - Which
ones are protected as compromise
negotiations? Medical payments?
• Statements during litigation - Which
statements are protected?
• Statements during mediation - Should
they all be protected?
Problem - Threatening Letters (p. 146)
• What is the inference?
• Is this an offer?
• Is this letter a “statement in compromise
negotiations?”
• Should this kind of thing be protected
according to the policy of the rule?
– Where should the protection end?
• “Without prejudice”
• “Evidence otherwise discoverable”?
Problem - Plot Thickens (p. 147)
• Settlement reached between other
parties excluded by Rule 408?
• What interests are protected?
• How about the existence and amount of
a settlement between P (passenger)
and O (Plaintiff’s driver) in a case
brought by P against D (other driver)?
– Raymond Cluney….
Problem – Mediation (p. 149)
• Statements in mediation - should they have a
special protection?
• Divorce Mediation - H & W discussing joint or
individual custody of child
• Statement, “I would be willing to give up
custody on Fridays.” - admissible?
• Statement, “Well, I have to work on Fridays
this year.”
• Statement, “I never want to speak with you
again!”
Rule 410 - Pleas
• Withdrawn guilty plea
• Plea of nolo contendere
• Statement made in Rule 11 proceedings
• Statement made in unsuccessful plea
bargaining
• Exceptions:
– Completeness
– Perjury
Problem - Plea Bargain (p.151)
• Conversation with DEA agent?
• Conversation with Asst. U.S. Atty.?
• Conversation with DEA Agent C?
• “In the course of plea discussions with
an attorney for the prosecuting
authority…”
• Suppose the defendant got on the stand
and testified to his innocence….???
Problem - Turnabout Fair
Play? (p. 151)
• Defendant offers evidence that
government lawyer offered defendant
the opportunity plead to lesser charge.
• Relevance (what is the inference)?
• Rule 410.
– Language? Policy?
• Rule prohibits only evidence offered
against defendant.
U.S. v. Mezzanatto (p. 152)
• Waiver by defendant of Rule 510 as a
condition to plea negotiations.
• Pretrial waiver of evidence rule
protections?
– How does this affect the rules?
– Will the prosecution require this in every
case?
– Use of the evidence on credibility only?
St. Pierre v. Houde (p. 158)
• What was the role of insurance in this
case?
• Why did it matter who would pay?
• “Opening the door”…..
• How to “cure” unfair prejudice?
Problem 36 - Deep Pocket (p. 162)
• Part 1 - Did allegedly negligent
defendant carry insurance?
• Possible inference that person carried
insurance because he thought he would
need it?
• Other inferences of “Deep Pockets”
• This evidence would be generally
excluded under Rule 411.
Problem - Deep Pocket (cont’d)
• Part 2 - Was Defendant’s expert witness
hired by insurance company?
• Might show bias of witness
– Above and beyond bias of person hired by
defendant
– The amount of the coverage would show
how much the Doctor’s employer had at
stake.
• This evidence would be a close call.
Rule 411 - Evidence of
Insurance
• Evidence of insurance is not admissible on the
issue of whether a person acted negligently or
otherwise wrongfully.
• Evidence of insurance may be admissible for
some other purpose:
– Control?
• Example? David Kirk
– Agency?
• Example? Insurance of truck driven by employee?
– Bias of witness?
• Example? Person who interviewed insurance adjuster.
What is the policy behind Rule
411?
• Are we afraid that people will not get
insurance if it is admissible?
– Compare Louisiana which permits direct
actions.
• Compare policies with 407-410.
• Ironclad rule to prevent prejudice?
• Compare Rule 412.
Legal Legal
Logic and Experience Rule Decision
Fact The economic relationship with party with much at
stake may bias his testimony and make it less reliable
that
witness
Logic, Experience, Just and Right
is hired Intuition, ? Outcome
by
def‟t.‟s The poor guy was hurt and has no resources.
Why not spread the loss among all the insureds?
ins. co.
with
Outcome Dictated
$3MM by Emotion,
policy Emotion, Sympathy, Sympathy,
Prejudice, Confusion Prejudice,
or Confusion
I hate insurance companies. The insurance
company is going to pay! Let‟s sock it to „em!
Problem - Hit and Run (p. 164)
• Evidence of insurance offered by defendant
to generate inference that he would have had
no reason to run away if he thought he had
hit someone.
• Probably OK - List of potential purposes is not
exhaustive.
– Inference is not the same as inference that he
had insurance and therefore was probably
careless.
– Evidence is offered by defendant.
Problem - Absence of
Coverage (p. 164)
• Can Plaintiff be asked if he received any
worker’s comp benefits from his
employer?
• No, barred by collateral source rule.
• Can Defendant say he has no insurance
coverage?
• No, barred by Rule 411.
The “Insurance Rule” is strictly
applied.
• Because of the power of the “illegitimate
inferences”, the court is vigilant to keep any
mention of insurance out unless there is a
legitimate reason to let it in.
• There are several legitimate ways to get
evidence of insurance before the jury:
– Ownership , Control, Agency
– Note that there is no rule requirement that these
issues be “controverted”
• Rule 403-type balancing?
Where the existence of insurance
is relevant to the bias of a witness
it may be admitted on that issue.
• Statement taken by insurance adjustor.
– Sometimes courts try to sanitize “insurance”
out and use “investigator”.
– Are we changing the truth?
• Expert witness hired by insurance
company.
• Often accompanied by limiting
instruction.
– How effective is this?
The collateral source rule is a
little different -
• It is a rule of substantive law which states
that the source of payment of the injured
party’s expenses is legally irrelevant.
• It is applied as a rule of evidence (but not set
forth among the Rules of Evidence!).
• Because of the potential power of stray
inferences, any mention of third party
payments is potentially prejudicial.
On June 14, 1975 Stephen
Jenks was riding his
motorcycle home from the
Coast Guard base.....
Do these “rules of exclusion”
really make sense?
• Many exceptions which swallow the rule.
• Often the same evidence may be received
for a limited purpose.
• Legitimacy of the process rather than actual
safeguard against improper inferences?
• A gesture because there is no other way to
control the use of this information by the
jury?