Subsequent Remedial Measures Rule State by State Survey

Subsequent Remedial Measures Rule State by State Survey

This is the second part of the NWCDN authored document "A Comprehensive Analysis of the Subsequent Remedial Measures Rule and Applicability to the Workers' Compensation Arena", published here June 28, 2010.

Subsequent Remedial Measures State-by-State Survey

The information presented in this paper is for informational purposes only and the reader should consult legal counsel for definitive legal advice in a particular jurisdiction.

This document prepared by the member firms of the National Workers' Compensation Defense Network

Alabama
In Alabama, evidence of subsequent remedial measures is rendered inadmissible by Alabama Rule of Evidence 407.  Since the state’s workers’ compensation system is “no fault,” evidence of post-accident corrective measures is less relevant and, therefore, even less likely to be admitted.  Although such evidence may be deemed admissible if offered for another purpose, such purposes (i.e. proving ownership, control, or feasibility of precautionary measures) are rarely relevant in a workers’ compensation case.

Alaska
In the workers’ compensation “no fault” forum it seems unlikely that evidence of subsequent remedial measures could pass a relevance objection.  Such measures could be admissible in civil court as leading to relevant issues such as knowledge, etc.  Getting those measures into evidence would be difficult under the applicable evidence rules.  One possible exception would involve, for example, OSHA violations driven tort claims.  In those cases, evidence of remedial measures could be admitted into evidence via the OSHA inspection file or inspector since all such cases will involve statutorily mandated abatement of the violative condition.

Arizona
Arizona has specifically rejected the self-critical analysis privilege.  Most likely this type of information could be discoverable for a liability claim, however one could argue that it is not relevant in the state’s workers’ compensation system since it is a “no fault” system of liability.

Arkansas
Subsequent remedial measures are generally inadmissible to prove negligence or culpable conduct.  Even during discovery, one could object on the basis that subsequent remedial measures are not relevant and therefore fall outside the permissible scope of what is discoverable.    

Colorado
According to Colorado Rules of Evidence 407, evidence of subsequent remedial measures is not admissible to prove negligence or culpable conduct in connection with an event.  It does not require the exclusion of such evidence when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.  Such evidence may be discoverable based on the facts of the case, however relevance objections could be raised.  There are clearly strong policy arguments in support of the argument that such measures should not be admissible or discoverable.

Connecticut
Generally, evidence of subsequent remedial measures are inadmissible to prove negligence or culpable conduct in connection with an event.  Evidence of those measures can be admissible, however, when they are offered to prove controverted issues such as ownership, control or feasibility of precautionary measures.

District of Columbia
The District of Columbia follows Federal Rule 407, which makes subsequent remedial measures inadmissible to prove negligence or product liability.  Those attempting to circumvent the rule will argue that such measures are admissible as evidence of “feasibility” of conduct that should have been undertaken, which is determined on a case by case basis.

Florida
Florida’s Evidence Code, as a general rule, does not allow the admission of subsequent remedial measures to establish negligence.  However, evidence of such measures may be introduced to prove ownership, control, or the feasibility of precautionary measures, if controverted, or for impeachment.  See Roseman v. Town Square Associations, Inc, 810 So.2d 516 (Fla. 4th DCA 2002).

There are no reported appellate decisions addressing the issue of introduction of such evidence in a workers’ compensation case in Florida.  However, workers’ compensation cases are governed by Florida’s Evidence Code, so it appears evidence of subsequent remedial measures could be introduced if it were done as permitted by the Code.

One case specifically involving a workers’ compensation matter was Florida Dept of Transportation v. Juliano, 744 So.2d 477 (Fla. 3rd DCA 1999).  A correctional officer brought a personal injury action against the DOT for injuries he sustained while working for the Florida Department of Corrections (“DOC”).  During the negligence action, evidence was introduced about the DOT’s subsequent remedial measures to repair the floor where the injuries were sustained.  The court held introduction of such evidence was permissible because the DOT had maintained during the litigation that repairs to that area were not feasible, and admission of evidence was for impeachment and/or rebuttal purposes.

Georgia
Such evidence might be admissible to prove contemporaneous knowledge of a defect, causation or to rebut a contention it was impossible for an accident to have happened in the manner claimed.  Anderson v. Sears Roebuck & Co., 292 Ga. App. 603, 664 S.E.2d 911 (Ga. App 2008).

Since the issue of "negligence" is not really an issue in workers' compensation cases in Georgia, it is not surprising the issue has not been addressed in an appeal.  However, it seems the question of admissibility of an employer engaging in such remedial conduct would not be particularly relevant or area of contention in most cases.  I do see where it might become an issue in a case where compensability of the injuries allegedly caused by work or equipment at work based on impossibility might make remedial measures by the employer relevant and admissible.

It has been held that evidence of subsequent injuries caused by the machine was admissible for the limited purpose to show the condition of the machine at the time of the plaintiff's injuries. Ga. Cotton-Oil v. Jackson, 112 Ga. 620, 623-624, 37 S.E. 873 (1901).  Likewise, evidence that a linen-folding machine's guard had been taken off before the accident and was put back on after the accident was admissible to show the laundry took reasonable steps to protect visitors from injury. Medi-Clean Svcs. v. Hill. 144 Ga. App. 389, 393-394, 241 S.E.2d 290 (1977).

Idaho
There is no self-critical analysis privilege in Idaho.  While subsequent remedial measures may be discoverable, they will generally not be admissible at trial to prove liability.  It can be admitted for other purposes, such as proof of knowledge or for impeachment.  It may also be protected by the attorney-client privilege if the information such as the type and frequency of certain accidents is compiled at the clear direction of counsel or for purposes of rendering legal advice.

Indiana
Indiana Rules of Evidence 407 states:

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 not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Such evidence is likely discoverable based on the facts of the case.  However, it is subject to relevance objections.  The admissibility of such evidence is determined on a case by case basis.  The rules of evidence are applied "loosely" before the Worker's Compensation Board of Indiana where judges tend to err on the side of admissibility but reserve the right to give the evidence appropriate weight.

Kansas
Generally, accident investigation reports are discoverable in Kansas unless there is an applicable privilege or attorney work product protection.  Kansas statutes protect as confidential the records of certain investigations in the hospital setting including:  K.S.A 65-1135 (investigation of complaints against nurses), K.S.A. 65-4915 (peer review investigations), and K.S.A. 65-4922 (investigation of reportable incidents within a medical care facility).  However, Kansas courts have held that even a statutory privilege can be overcome if a litigant can show that a discovery order denying access to the investigation files violates the litigant’s right to due process and fair determination of the claim.

Furthermore, forms and documents containing factual accounts and witness names are not protected simply because they are contained within otherwise statutorily privileged files.  Kansas does recognize a qualified privilege of self-critical analysis, which prevents disclosure of confidential communications when: (1) the communications originate in a confidence they will not be disclosed; (2) the element of confidentiality must be essential to the maintenance of the relation between the parties; (3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and (4) the injury caused by disclosure must be greater than the benefit gained for the correct disposal of litigation.  While this qualified privileged of self-critical analysis has been recognized outside the health care provider context, there is no current Kansas case applying this qualified privilege in the hospital setting.

Louisiana
According to Louisiana Code of Evidence Rule 407, evidence of subsequent remedial measures is not admissible to prove negligence or culpable conduct.  However, this Rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, authority, knowledge, control or feasibility of precautionary measures, or for attacking credibility.  Ordinarily, negligence is not an issue in Louisiana workers compensation proceedings.  Further, Louisiana workers’ compensation judges are not bound by the technical rules of evidence, but all findings of fact must be based upon competent evidence and judges may look to the Code of Evidence for guidance.

Maine
In general, the Maine Rules of Evidence (Rule 407) prohibits the admission of evidence of subsequent remedial measures to prove negligence, culpable conduct, a product defect, a product design defect or the need for a warning/instruction.  They may be admissible for another purpose such as proof of ownership, control or feasibility of precautionary measures.

Similar to other jurisdictions, it is possible that these types of measures could get into the record by way of an OSHA investigation, though that specific issue has not yet been litigated.

Maryland
Maryland law regarding subsequent remedial measures is governed by Rule 5-407, which states that evidence of subsequent remedial measures may be admitted:

(a)    In general.  When, after an event, measures are taken which, if in effect at the time of the event, would have made the even less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event.
(b)    Admissibility for other purposes.  This Rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as (1) impeachment or (2) if controverted, ownership, control or feasibility of precautionary measures.

Massachusetts
Evidence of subsequent remedial measures is inadmissible in Massachusetts for the purpose of establishing negligence or culpable conduct.  It may be admissible to prove other disputed issues, such as ownership, control, knowledge of danger or the feasibility of safety improvements.  Negligence is typically not an issue in state workers’ compensation proceedings.

Michigan
Evidence of subsequent remedial measures is inadmissible in Michigan under MRE 407 for the purpose of establishing negligence or culpable conduct.  It may be admissible to prove ownership, control or the feasibility of precautionary measures.  Negligence is typically not an issue in state workers’ compensation proceedings since the system is “no-fault” and therefore one could object on the basis of relevance.  As the Michigan Board of Magistrates is not necessarily bound by the Rules of Evidence, the admission of such evidence would likely be on a case by case basis.

Minnesota
In Minnesota, if evidence of subsequent remedial measures were offered at trial one could object on two grounds:

1)    Lack of relevance; and
2)    Violation of the rule regarding remedial measures.

In workers’ compensation the courts in Minnesota do not, per se, follow the rules of evidence. The Judges are allowed to consider “competent” evidence only. Nevertheless, in cases like this most, Courts probably look to the rules of evidence for guidance.

Minn. Rule of Evidence 407 excludes evidence of remedial action if it is for the purpose of proving culpable conduct. The theory behind the rule is two fold: 1) admission of this type of evidence would discourage taking steps for added safety and 2) remedial conduct is not an admission.

Relevancy deals with the basic worth of the evidence. One must argue against admission based upon logic, i.e., the plaintiff’s case must stand or fall based upon the specific facts of his/her case….not someone else’s claim or injury.

Missouri
Evidence of subsequent remedial measures will most likely be discoverable but not admissible.  In workers’ compensation proceedings, one could object on relevance grounds because negligence is not at issue under the Missouri workers’ compensation statute.  In general, such measures are inadmissible for proving negligence, and may be offered for another purpose such as proof of control.

New Jersey
New Jersey recognizes a self-critical analysis privilege.  In those instances where a privilege for self-critical evaluative documents has been recognized, courts have insisted on differing criteria for its application.  In Reid, for example, the Court identified the following prerequisites: a) the information (for which the privilege is sought) must result from a critical self-analysis by the party seeking to invoke the privilege; b) the public must have a strong interest in preserving the free flow of the information at issue; c) the flow of the information could be curtailed if discovery were allowed; d) the information must have been prepared with the expectation that it would remain confidential; and e) the information concerns only a subjective analysis and not statistical or objective factual material.  Reid, 199 F.R.D. at 386.

New York
Evidence of subsequent remedial measures is generally not admissible or discoverable unless it is being used to prove something other than negligence, such as whether a party had control over or maintained a location where an injury occurred.  See Hughes v. Cold Spring Const. Co., 26 A.D.3d 858 (4th Dept., 2006); Neimann v. Luca, 214 A.D.2d 658 (2nd Dept., 1995).  Thus, such measures are generally not relevant to nor raised in adjudication of workers’ compensation claims.

North Carolina
In workers’ compensation proceedings, one would object that the attempted introduction of evidence of subsequent remedial measures on the basis of lack of relevance.  State workers’ compensation proceedings do not follow the North Carolina Rules of Evidence per se, as Commissioners need only admit and consider “competent” evidence.  The evidence should be excluded, but would likely be handled on a case by case basis.  In general, such evidence if excluded if being used for the purpose of trying to prove culpable conduct.

Ohio
Two separate issues seem to be implicated by the inquiry.  First is the admissibility of “subsequent remedial measures.”  Presumably, a plaintiff-claimant would like to introduce such evidence in order to make a defendant-employer look bad before a hearing officer or jury (as in:  “look at all the things that the company could/should have done before the injury but didn’t bother to get around to doing until after the injury”).

There are no rules of evidence before the Ohio Industrial Commission, so almost anything is fair game (generally allowed in by a hearing officer along the lines of:  “your objection is noted, I’ll consider the evidence for what it’s worth”).  Proceedings in court on allowance and additional allowance appeals under O.R.C. § 4123.512 are governed by Ohio Evid R 407:

When, after an injury or harm allegedly caused by an event, measures are taken which, if taken previously, would have made the 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.  This rule does not require  the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Id.  This rule is grounded in public policy that, without it, no potential defendant would take any corrective steps after an accident because it would be concerned that it would somehow be used as an admission that the situation or condition at issue was unsafe at the time of the accident.  However, plaintiffs’ attorneys can be creative in arguing that their facts in their case fall within one of the rule’s listed exceptions.

Federal Rule of Evidence 407 was amended in 1997 in two respects.  Ohio only followed the first amendment:  the phrase “injury or harm allegedly caused by an” was added to clarify that a repair or remedial measure must take effect after the accident or incident being litigated in order for the rule to apply.  A measure that takes effect after a purchase but before the accident or incident being litigated is not a subsequent measure.  See Traylor v Husqvarna Motor (7th Cir. 1993), 988 F.2d 729, 733 (“The problem with applying Rule 407 was not lack of culpable conduct but the fact that the remedial measures were taken before rather than after the ‘event,’ which in an accident case the courts have invariably and we think correctly understood to mean the accident.”); Cates v Sears, Roebuck & Co. (5th Cir. 1991), 928 F.2d 679, (“The ‘event’ to which Rule 407 speaks is the accident, not the sale.”); Chase v. General Motors Corp (4th Cir. 1988), 856 F.2d 17, 21-22.

The second change to the federal rule, which involves strict liability cases, has not been adopted in Ohio.

Another consideration is that in a workers’ compensation “right to participate” appeal case, “culpability” is not an element to be shown or proved, so whether the workplace environment was or was not “safe,” or whether all proper precautions were taken at the time of the accident, is generally not relevant.  One can imagine, however, certain scenarios where an employer’s own defense (i.e., the accident could not have taken place as plaintiff testified; all proper precautions were in place to prevent such accidents”) could open the door to the admission of evidence on subsequent remedial measures under one of Rules 407’s exceptions.  Finally, “culpability” is an issue in intentional tort and dual capacity claims, Kiminski notwithstanding, but a full discussion of the potential use of subsequent remedial measures by a plaintiff outside of workers’ compensation is beyond the scope of this memorandum.

Second is the “anticipation of litigation” and “self-audit” privileges -- could the company’s investigation of the accident in question and related steps it took in the run up to litigation be admissible?  If not admissible, what about discoverable?  While full discussion of this issue is also beyond the scope of this memorandum (we have briefed the “anticipation of litigation” privilege, sometimes intertwined with the “self-audit” privilege, before Ohio courts on behalf of various clients over the decades; a review of case law in this area covers ten to fifteen pages alone), the rule would be that if the evidence (such as employee statements, photographs, expert analysis, and the final report of investigation itself, etc.) is part of the company’s business practice of investigating accidents as they occur (there is an expectation that most companies have such a practice), then it is discoverable as being simply another company record created in the usual course of business.  On the other hand, particularly with a serious industrial accident or fatality, if the company investigation is taken to a different level in anticipation of litigation, such as being headed up by company legal counsel, then the results may indeed be privileged under the “anticipation of litigation” privilege.

“Discoverability” of course does not equate to admissibility -- relevance must be shown.  Nonetheless,  it would be prudent to assume that at least in Ohio the results of the company investigation of the accident in question will be subject to plaintiff’s counsel’s scrutiny at some point in subsequent litigation.

A separate and weaker privilege (at least in Ohio) is the “self-audit privilege,” which could be raised as to overall safety and health effects, prior accidents, or as to the accident in question.  At least in the industrial industry context, this privilege has not generated much support in the Ohio courts.

Oklahoma
Under 12 Okla. Stat. § 2407, evidence of subsequent remedial measures are inadmissible to prove negligence or culpability, but may be admissible when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.  However, Oklahoma’s Workers’ Compensation system is no fault, which could lead to a successful relevance objection.

Oregon
In the workers’ compensation “no fault” forum it seems unlikely that evidence of subsequent remedial measures could pass a relevance objection.  Such measures could be admissible in civil court as leading to relevant issues such as knowledge, etc.  Getting those measures into evidence would be difficult under the applicable evidence rules.  One possible exception would involve, for example, OSHA violations driven tort claims.  In those cases, evidence of remedial measures could be admitted into evidence via the OSHA inspection file or inspector since all such cases will involve statutorily mandated abatement of the violative condition.

Pennsylvania
The litigation of workers’ compensation claims in Pennsylvania is controlled by several statutory references, to include the Pennsylvania Workers’ Compensation Act, 77 P.S. § 1-1001, et seq., the Special Rules of Administrative Practice and Procedure before Workers’ Compensation Judges, § 131, et seq., and Pennsylvania Rules of Evidence, Rule 101 et seq.

In general, workers’ compensation judges are not bound by either common-law or statutory rules of evidence, in conducting a hearing, or investigating a workers’ compensation claim, although all findings of fact rendered by workers’ compensation judges must be based on substantial competent evidence, as required under Section 422(a) of the Pennsylvania Workers’ Compensation Act.  Evidence relied upon by Pennsylvania workers’ compensation judges must be relevant, material, and factual.  West Virginia Pulp & Paper Co. v. WCAB, 18A.2d 452 (Pa. Super. 1941).

Although the evidentiary rules before workers’ compensation judges are relaxed, by legislative intent to assist pro se Claimants who are not represented by counsel, the adjudicated decisions of the workers’ compensation judges must still be predicated on competent evidence. City of Pittsburgh v. WCAB, 315 A.2d 901 (Pa. Cmwlth. 1974).

In 1998, the Pennsylvania Bureau of Workers’ Compensation formally approved workers’ compensation judges to use and rely upon the Pennsylvania Rules of Evidence, in considering the admissibility and relevance of evidence presented, either in support of or in opposition to a litigated workers’ compensation claim.

Under Rule 407-1 of the Pennsylvania Rules of Evidence, adopting both the common law rule and the federal rule, Pennsylvania excludes evidence of precautions taken after an allegedly injurious event, when that evidence is presented for the purpose of proving the antecedent negligence or culpable conduct, in connection with the injurious event.  This evidentiary precept was adopted by the Pennsylvania Supreme Court in Baron v. Reading Iron Co., 51 A. 979 (Pa. 1902).

This rule applies to “measures” taken, and this rule applies in workers’ compensation proceedings, although typically liability is fixed in workers’ compensation proceedings with proof that a work-related injury arose in and was related to the course and scope of employment, as this analysis typically excludes any consideration of negligence, as a basis for liability.

As to the broader issue of discoverability of subsequent remedial measures, discovery in Pennsylvania workers’ compensation proceedings is extremely broad, requiring parties to fully exchange all “relevant documentation”, whether or not the documentation is intended to be utilized in the prosecution or defense of the workers’ compensation claim.  Obviously, “work product” and otherwise confidential/privileged documentation/information need not be disclosed, in the context of responding to a discovery request in a litigated workers’ compensation claim.

South Carolina
Under SCRE Rule 407, subsequent remedial measures will not be admissible to prove negligence or culpable conduct in connection with the event.  They may be admissible for other purpose, such as proving ownership, control, feasibility of precautionary measures, if controverted, or impeachment.

South Dakota
Evidence of subsequent remedial measures is not admissible as evidence of negligence or culpable conduct in connection with an event.  Exclusion is not required when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.  Despite these limits on admissibility, however, subsequent remedial measures may be discoverable.

Tennessee
Under Rule 407, Tennessee Rules of Evidence, evidence of subsequent remedial measures is not admissible to prove strict liability, negligence or culpable conduct in the connection with an event.  However, the rule does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving controverted ownership, control, or feasibility of precautionary measures, or impeachment.  Despite the limits on admissibility, facts concerning subsequent remedial measures could be subject to discovery.

Texas
Texas Rule of Evidence 407(a) states:

“When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent remedial measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.”

Since Texas has a “no fault” workers’ compensation system, evidence of subsequent remedial measures will rarely be relevant in workers’ compensation cases.  Such evidence would be admissible if the evidence is necessary to prove ownership or control, to show the condition of premises or equipment at the time of the accident, or for impeachment purposes.  

However, where an employee is injured in the course and scope of employment as the result of a third party’s negligence, an insurance carrier that paid workers’ compensation benefits to the employee has a statutory right of subrogation, and may seek damages from the liable third party on the employee’s behalf. In such a case, a carrier seeking to introduce evidence of subsequent remedial measures must show that the evidence is being offered for some purpose other than to prove negligence.

The Texas Rules of Evidence do not apply in administrative dispute resolution proceedings before the Division of Workers’ Compensation.  While the evidence admitted during a contested case hearing must be relevant to the issues in dispute, the hearing office is the sole judge of what is relevant, and is not required to conform to legal rules of evidence.  Evidence of subsequent remedial measures may be admitted at the administrative level if the hearing officer feels that it has any bearing at all on the issues in dispute, regardless of the potential for prejudice.

Vermont
The rules of evidence/civil procedure that would limit the admissibility of subsequent remedial measures are only loosely applied in the administrative hearing arena.  In an administrative hearing such as workers’ compensation, there is no guarantee that this type of information would be inadmissible.  The results would likely vary from hearing officer to hearing officer and from case to case.

Virginia
Evidence of subsequent remedial measures, including post-accident repairs or safety measures, is inadmissible to prove negligence.  In Virginia, evidence of such improvements may not be admitted even to rebut that the condition was safe.  This evidence is only admissible for a limited purpose, such as to show ownership, control, and feasibility of precautionary measures if controverted.  See Virginia Code Ann. 8.01-418.1.

Washington
In the workers’ compensation “no fault” forum it seems unlikely that evidence of subsequent remedial measures could pass a relevance objection.  Such measures could be admissible in civil court as leading to relevant issues such as knowledge, etc.  Getting those measures into evidence would be difficult under the applicable evidence rules.  One possible exception would involve, for example, OSHA violations driven tort claims.  In those cases, evidence of remedial measures could be admitted into evidence via the OSHA inspection file or inspector since all such cases will involve statutorily mandated abatement of the violative condition.

West Virginia
While one could certainly raise the standard arguments regarding the inadmissibility of subsequent remedial measures, the discoverability and admissibility of subsequent remedial measures will likely be analyzed under a more liberal standard.  The Workers’ Compensation Office of Judges is not bound by the usual rules of evidence, and one could certainly raise objections to relevance and privilege.  The self-critical analysis privilege is not recognized in West Virginia.

Wisconsin
Per Wisconsin Statute Sec. 904.07, evidence of subsequent remedial measures is not admissible to prove negligence or culpable conduct in connection with an event.  They may be admissible when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.  Another exception pursuant to case law would involve products liability cases that involve a “mass produced” product.  See Chart v General Motors Corp, 80 Wis 2d 91, 100 (1977).

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