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        Simon v. Kinnebunkport, p. 165
           Supreme Court of Maine, 1980




Why did the trial court exclude the evidence?

Why did the Supreme Court of Maine reverse?




                                                2
Suppose another Maine case arises in which the plaintiff fell
on a sidewalk. All else being equal, the injured plaintiff has
a better chance of getting in evidence that someone else fell
on the same sidewalk if --


1.   The other fall occurred
     before plaintiff’s fall                               70%
2.   The other fall occurred
     after plaintiff’s fall
                                                                                              23%
3.   It doesn’t matter.                                                       7%




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                                                                                                        3
A group of children is being given a tour of a flour mill by one of its
employees. One of the children falls down a flight of stairs, leading to a
personal injury suit. Plaintiff maintains that mill was negligent in taking
the children down a slippery staircase. To prove negligence, it offers
evidence that shortly after the child’s fall, the mill installed a new, more
abrasive surface on the stairway. The evidence is --
                                                                         88%

1. Inadmissible because it
   is irrelevant.
2. Inadmissible because of
   Rule 407.
3. Both of the above.                                                                  10%
                                                          0%                                          1%
4. Admissible.

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                                                                                                          4
 Suppose that in the case involving the fall down the stairs,
the mill’s safety expert testified that it would have been
negligent to make the stairs more abrasive, because people
would trip on a more abrasive surface. Evidence that the
stairs were later changed to make them more abrasive is --

                                                           80%
1. Inadmissible.
2. Admissible

                                                 20%




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                                                                   7
Suppose that the mill’s safety expert testified that there is
a difficult trade-off in deciding whether to have abrasive
stairs. A smooth surface can cause slips, but an abrasive
surface can cause trips. Evidence that the stairs were made
more abrasive after the accident is --

                                                88%

1. Inadmissible.
2. Admissible

                                                          12%




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                                                                   8
Courts seem to weigh the probative value of the impeachment
evidence against the danger of frustrating the goals of the
remedial measures rule.

The Tuer court held that defense testimony in the case before
it did not open the door to impeachment with evidence of
remedial measures. In dictum, it provided examples of
stronger assertions that would open the door:

-- a case in which the defense produced testimony that the
challenged product is “perhaps the best combination of safety
and operation yet devised.”

-- a case in which a defense witness, who designed the
challenged product and testified that it was safe to operate it in
a particular fashion, later sent dealers a letter warning of
“death dealing propensities” of the product when used that
way.
                                                                 9
 Hypo. P heard a knock on her motel room door and opened it, thinking
it was her husband. An intruder attacked her. She sued the motel,
claiming it was negligent in not providing peepholes and door chains.
The motel operator testified that peepholes were unnecessary (there
was a window next to the door) and that an expert told him that door
chains were “false security.” Claiming that feasibility is now in issue, P
seeks to put in evidence that after the attack, the motel installed
peepholes and door chains. The evidence is --




1.    Admissible
                                                                            54%
2.    Not admissible.                                        46%




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          Tuer v. McDonald, p. 169
          Court of Appeals of Maryland, 1997




Plaintiff argued that the change in hospital
procedure was admissible to show feasibility.
What’s the answer to that argument?             11
Turn to restyled Rule 407




                            12
 Hypo. Plaintiff bought a 2004 model Ford Valdez SUV. In
2005, Ford improved the Valdez with a design change
reducing the risk of rollover. Driving his 2004 model, plaintiff
was injured in 2006 because of a rollover. Ford’s 2007
model included another improvement that reduced rollover
danger. In the 2008 trial of plaintiff’s claim against Ford,
plaintiff offers evidence of the changes to prove negligence.

1.   Evidence of the 2005
     change is not admissible.
2.    Evidence of the 2007
     change is not admissible.                                      39%
                                                                                    34%
3.   Both of the above.                                                                            18%
                                                        9%
4.   Neither of the above.




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Why would the rule allow evidence of remedial measures
taken before the event but prohibit evidence of remedial
measures taken after the event?

1. Safety measures taken before the event
   should be admitted because they show                                                  90%
   that the defendant was aware of danger
   and should have recalled the product.
2. If safety measures taken after the event
   were admissible, defendant would be
   afraid to improve the product. That’s not
   true for measures taken before the event.
3. Both                                                               2%            7%




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                                                                                           14

                                                               If
             Offers in Compromise – Rule 408




Suppose that Rule 408 didn’t exist.

Hypothetical: Plaintiff sued Bill Clinton for sexual
  harassment. He offered to settle the case for $70,000.
  She refused. At trial, she seeks to put in his settlement
  offer to show that he knew that she had a good case.
  Objection!

Is there any basis, other than Rule 408, for excluding the
   evidence?

                                                             15
What are the reasons behind Rule 408?



1. Prejudice, confusion – a
   settlement offer doesn’t                                                           93%
   necessarily show that the
   other side had a good
   case.
2. We want to encourage
   people to settle
3. Both of the above                                    2%           5%




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                                                                                            16
      Comment: Settlement isn’t always a good thing




• Example: pollution case

• The adversary system has goals of satisfaction of the
  parties, conflict resolution, and bringing peace. These
  sometimes override goals of achieving accurate verdicts
  or vindicating public policy.

• Sometimes “knowledge is sorrow.”


                                                        17
Rule 408 is a typical evidence rule in which evidence
  excluded if offered for certain purposes but admissible if
  offered for others.

It is not admissible if offered to prove liability, amount of
    claim, or to impeach with an inconsistent statement or by
    contradiction.

It is admissible for other purposes.

                                                           18
Rule 408 hypo. There is a three-car accident. A sues B and
C. C offers $100,000 if A will drop the claim against him.
A agrees. C then testifies on behalf of A that the accident
was B’s fault. B wants to put in evidence of the settlement
between A and C.


1.   Admissible.
2.   Not admissible
                                                  73%



                                                                 27%




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                                                           t
                                                        No
 A contractor has a cost-plus contract with the city. The
contractor writes the city a letter describing cost overruns
and stating specific facts. The city refuses to pay the
contractor for the overruns and the contractor sues. Some
of the details in the letter help the city, so the city offers it in
evidence.

1.    Admissible.
2.    Not admissible                                     79%




                                                                        21%




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                                                                  t
                                                               No
               Davidson v. Prince, p. 179
               Court of Appeals of Utah, 1999




Why was the evidence admissible?


If you were the plaintiff, what would you put in the letter?




                                                               21
The Davidson court indicated that the following arguments in
favor of admitting the evidence were valid:




1. The letter was not an
   offer in compromise
2. The letter was admissible
   to impeach its writer
3. Both




                                                          22
Under Fed. R. Evid. 408 (as amended 2006) the strongest
argument for admitting the letter in Davidson would be --




1. The letter was not an
   offer in compromise
2. The letter was admissible
   to impeach
3. The two arguments are
   equally strong




                                                            23
Immediately after a collision, a driver spontaneously said
“I’m sorry, I was talking on my cell phone, I’ll pay your
medical expenses.” The other driver did not answer. Later
the other driver sued and offered the statement in evidence.

1. The statement is
   inadmissible
2. The statement is
   admissible
3. The statement is
   admissible in part




                                                           24
Police arrest a suspect and bargain with him after he waives
his Miranda rights. They tell him that if he cooperates, they
will recommend leniency. He confesses. At a later trial, the
confession is offered in evidence.
 (Note: this is not a situation involving Rule 411 of the Rules
of Criminal Procedure.)

  1. Inadmissible under Rule
     408
  2. Inadmissible under Rule
     410.
  3. Inadmissible for another
     reason.
  4. Admissible.

                                                             25
                Coverage of Rule 410



• Withdrawn guilty plea
• Nolo plea
• Statement during plea allocution concerning withdrawn
  plea or nolo plea
• Plea discussions with prosecutor

Caveat: Rights can be waived. US v. Mezzanato, p. 182.
Rule 411. Liability Insurance (restyled)

         “Evidence that a person was or was not insured against liability
is not admissible upon the issue whether the person acted negligently or
otherwise wrongfully. But the court may admit this evidence for another
purpose, such as proving a witness’s bias or prejudice or proving
agency, ownership, or control.”


How could liability insurance be relevant to negligence?

How could it be prejudicial?




                                                                       27
Hypo. A defense witness will testify that the plaintiff told
him that she ran a red light. Before the testimony, the
defense asks the judge to tell the plaintiff not to ask the
witness whether he is an insurance investigator for the
defendant. The judge should --


1.    Prohibit the question
2.    Allow the question
3.    Require that the
     question be re-phrased
4.   Not rule on the issue until
     the question is asked.
5.   Other
The end

				
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