PastPaperHero | Privileges and other policy exclusions

Learning Outcomes

This article explains remedial measures as a policy-based exclusion of evidence, including:

Identifying what counts as a subsequent remedial measure under the Federal Rules of Evidence.
Stating the general rule of inadmissibility and the precise purposes for which such evidence is barred.
Recognizing the core exceptions (ownership or control, feasibility, impeachment, and related uses) and when they apply.
Applying the rule and its exceptions in negligence, strict liability, and product liability fact patterns.
Distinguishing remedial measures from other public-policy exclusions (liability insurance, settlements, medical payments) on MBE questions.
Using a structured approach to analyze remedial measures issues under FRE 407 in exam-style problems.
Evaluating timing (pre- vs. post-incident), who took the measure (party vs. true third party), and whether an issue is genuinely disputed.
Integrating FRE 403 balancing with FRE 407 to determine whether remedial-measure evidence will ultimately be admitted or excluded.
Connecting subsequent remedial measures to broader concepts of relevance, logical vs legal relevance, and public-policy exclusions under the Federal Rules.
Spotting common MBE traps that mislabel remedial measures as character evidence, hearsay, or settlement evidence.

MBE Syllabus

For the MBE, you are required to understand subsequent remedial measures as part of the evidence topic on public-policy exclusions, with a focus on the following syllabus points:

The rule barring evidence of subsequent remedial measures to prove negligence, culpable conduct, product defect, design defect, or need for a warning or instruction.
The recognized exceptions allowing such evidence to prove ownership, control, feasibility of precaution, impeachment, or closely related non-liability purposes.
The application of FRE 407 to negligence, strict liability, and product liability actions, including design-change and warning-change cases.
The limitation of the rule to measures taken after the injury or harm in question and generally by the party against whom the evidence is offered.
The distinction between remedial measures and other policy-based exclusions (liability insurance, settlement negotiations, offers to pay medical expenses, plea discussions).
The fundamental public-policy rationale encouraging safety improvements by excluding certain evidence of post-incident changes.
The interaction of FRE 407 with other rules, especially FRE 401 (relevance), FRE 403 (unfair prejudice), and FRE 408–411 (other policy-based exclusions), with a focus on the following syllabus points:
- How courts combine FRE 407 with FRE 403 to admit or exclude evidence when an exception technically applies.
- How to distinguish whether evidence belongs under FRE 407 (repairs or changes) or under FRE 408–411 (insurance, settlements, medical payments, plea discussions).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

Evidence that a defendant repaired a staircase after a plaintiff fell is generally:
1. Admissible to prove the defendant was negligent.
2. Admissible to prove the defendant owned the property.
3. Inadmissible to prove negligence, but may be admissible to show ownership.
4. Inadmissible for any purpose.
In a product liability case, evidence that a manufacturer changed a product design after an accident is:
1. Always admissible to prove a design defect.
2. Inadmissible to prove a defect, but may be admissible to show feasibility of a safer design.
3. Admissible only if the manufacturer admits liability.
4. Inadmissible for any purpose.
Which of the following is NOT an exception to the exclusion of subsequent remedial measures?
1. Proving feasibility of precautionary measures.
2. Proving ownership or control.
3. Proving the need for a warning.
4. Impeaching a witness.
A plaintiff sues a driver for negligence. After the collision, the plaintiff begins wearing a seat belt whenever driving. The defendant offers this evidence to prove the plaintiff was negligent at the time of the accident for not wearing a seat belt. The evidence is:
1. Admissible, because the remedial measure was taken by the plaintiff.
2. Inadmissible, because subsequent remedial measures cannot be used to prove prior negligence.
3. Admissible, because it goes to mitigation of damages.
4. Inadmissible only if the plaintiff objects on hearsay grounds.
After a shopper slips on a spill, the store manager says, “This was totally my fault; I should have cleaned that up earlier. I’ll put out warning cones right now.” At trial, the shopper offers the full statement. The court should:
1. Admit the whole statement, because statements accompanying remedial measures are always admissible.
2. Exclude the whole statement under FRE 407.
3. Admit the admission of fault but exclude the part about putting out cones as a subsequent remedial measure.
4. Exclude the admission of fault but admit the part about putting out cones.

Introduction

Evidence law sometimes excludes relevant evidence to advance broader social goals. One important category is the exclusion of evidence of subsequent remedial measures—steps taken after an injury or harm aimed at making conditions safer or preventing recurrence.

The governing rule for the MBE is Federal Rule of Evidence 407. Understanding both the breadth of the exclusion and the narrow exceptions is essential, especially in negligence and product liability questions.

Key Term: Subsequent Remedial Measure
A repair, change, or safety improvement, made after an injury or harm occurs, that would have made the earlier injury or harm less likely to happen.

Key Term: Policy Exclusion
A rule that bars otherwise relevant evidence because admitting it would discourage socially beneficial behavior, such as fixing hazards, carrying insurance, or settling disputes.

Key Term: FRE 407
The Federal Rule of Evidence that governs subsequent remedial measures, excluding evidence of post-incident repairs and safety changes to prove negligence, culpable conduct, or product defect, while allowing use for limited other purposes.

The exclusion of subsequent remedial measures is classic policy-based relevance: even though post-incident repairs and changes may strongly suggest prior negligence or defect, they are generally kept from the jury to encourage parties to improve safety without fearing the evidentiary consequences.

FRE 407 fits within a larger group of public-policy exclusions, alongside rules about liability insurance (FRE 411), settlement negotiations (FRE 408), offers to pay medical expenses (FRE 409), and plea discussions (FRE 410). All of these rules share a common structure:

The evidence is usually relevant in some sense.
It is nonetheless excluded for a policy reason (encouraging repairs, insurance, settlements, or plea bargaining).
There are limited exceptions allowing the evidence for other purposes, such as ownership, control, bias, or impeachment.

Understanding how remedial measures fit within this group—and how they differ from the other exclusions—is a frequent MBE testing point. Questions often present a mixed fact pattern (for example, post-accident repairs plus an offer to pay medical bills) and ask which parts are admissible for which purposes.

The General Rule: Exclusion of Remedial Measures

Under FRE 407, evidence of subsequent remedial measures is not admissible to prove:

Negligence,
Culpable conduct,
A defect in a product,
A defect in a product’s design, or
The need for a warning or instruction.

Key Term: Culpable Conduct
Fault-based behavior such as negligence or other blameworthy conduct that may give rise to civil liability.

This rule applies in:

Ordinary negligence cases (for example, premises liability, motor vehicle accidents),
Professional negligence (such as medical or legal malpractice), and
Strict product liability cases, including design defect and failure-to-warn claims.

The rule also reaches conduct characterized as recklessness, gross negligence, or other forms of “culpable conduct.” The key is that the evidence is being offered to show that someone behaved blameworthily before the accident or that a product was unreasonably dangerous.

Typical remedial measures include:

Physical repairs (fixing a staircase, filling a pothole, repairing a machine),
Safety improvements (installing guardrails, adding non-slip surfaces, adding interlocks),
Design changes to products (redesigning a ladder, altering a power tool’s guard),
Adding or strengthening warnings or instructions (new labels, more detailed manuals),
Changing procedures (new inspection routines, additional safety checks),
Instituting training or retraining programs,
Implementing new policies (for example, “no ladder use without a spotter”),
Adopting new maintenance schedules or checklists.

If the evidence is offered to show “They must have been negligent, because they fixed it afterward,” it falls squarely within the exclusion.

The rule is not limited to defendants. If an injured plaintiff later changes their own behavior or repairs their own property, that subsequent remedial measure also cannot be used to prove the plaintiff’s negligence or culpable conduct at the time of the accident.

Key Term: Strict Liability
A theory of liability where the plaintiff need not prove negligence; instead, liability arises from selling or supplying a defective and unreasonably dangerous product or engaging in certain inherently dangerous activities.

Key Term: Product Liability
A body of law imposing liability on manufacturers, sellers, or distributors for injuries caused by defective products, including manufacturing defects, design defects, and inadequate warnings.

A critical exam point: in 1997, FRE 407 was amended to make explicit that it applies in strict product liability cases. For MBE purposes, assume that later design changes and later-added warnings are excluded both in negligence and in strict liability actions when offered to prove a defect or the need for a warning.

A common MBE trap is an answer choice that treats FRE 407 as limited to negligence actions. You should reject that view: on the exam, the remedial-measures rule also bars using later design or warning changes as direct proof of defect in strict liability suits.

How the Text of the Rule Fits Together

FRE 407, in substance, provides:

If measures are taken that would have made an earlier injury or harm less likely to occur, evidence of those measures is not admissible to prove negligence, culpable conduct, product defect, design defect, or the need for a warning or instruction.
But the court may admit such evidence for another purpose, such as impeachment, or—if disputed—proving ownership, control, or feasibility of precautionary measures.

Three structural points matter for exam analysis:

You must identify a measure (a change or action).
That measure must be subsequent to the injury or harm at issue.
The evidence must be offered for a barred purpose (fault, defect, need for warning) or for a permitted purpose (ownership, control, feasibility, impeachment, etc.).

Rationale

The central rationale for the rule is straightforward: society benefits when people promptly correct dangerous conditions and improve product safety. If every repair or safety upgrade could be used as an admission that the original condition was unsafe or defective, rational actors might hesitate to fix problems promptly.

The law therefore sacrifices some probative evidence of fault to encourage early and thorough safety improvements. The rule reflects a judgment that preventing future harm is more important than allowing juries to draw inferences of past negligence from post-incident repairs.

There is also an evidentiary rationale: the inference from “repair” to “negligence” is not airtight. A person might repair something simply because conditions have changed, technology has improved, a new standard has been issued, insurance demands it, or they are simply cautious or risk-averse. Freely admitting such evidence risks giving it undue weight, as jurors may treat repairs as a confession of fault when multiple motives might exist.

Finally, remedial measures are often only weak circumstantial evidence of negligence or defect. For example, a manufacturer might redesign a product to outperform competitors, not because the old design was defective. Rule 407 reflects a decision that this relatively modest probative value is not worth the cost of chilling safety improvements.

What Counts as “Subsequent” and “Remedial”

Two timing and substance limits are important on the MBE:

The measure must be subsequent to the injury or harm at issue.
The measure must be remedial—that is, one that would have made the earlier harm less likely.

Measures taken before the incident are not “subsequent remedial measures” under the rule and are fully admissible (subject to other rules):

A warning sign installed a month before the accident may be admitted to show reasonable care.
A design change made years before the plaintiff’s injury may be used to argue the product in use was outdated or defective.
A pre-incident safety audit can be admitted to show notice of a dangerous condition or the reasonableness of precautions.

The key is to anchor “subsequent” to the particular injury in the case. If the change occurred after Accident A but before Accident B, evidence of the change is subsequent as to A and prior as to B. On the MBE, questions often exploit this by giving a timeline with multiple incidents.

Conversely, actions that are not remedial—such as an internal investigation or accident report that does not itself change conditions—are generally outside FRE 407. Those may be admissible or inadmissible on other grounds (for example, hearsay, relevance, work-product doctrine), but not because of the remedial measures rule.

Borderline examples and exam angles:

Internal investigation with no changes: Typically not a remedial measure. The report may be discoverable and admissible unless protected on some other ground. But if the investigation leads to changes in policy or design, those changes are remedial measures even if the report itself is not.
Employee discipline: Firing or disciplining an employee after an accident may be a remedial measure if offered to show earlier negligent hiring, supervision, or retention. Some courts treat discipline as covered by Rule 407; others are less clear. The MBE more commonly focuses on physical repairs or safety changes but may mention discipline as an example of a remedial step.
Product recalls: Issuing a post-incident recall of a product to correct a design or warning defect is a remedial measure and is covered by FRE 407 when offered to prove defect or negligence.
Post-accident warnings to users: Sending letters warning customers about a hazard or updating product manuals is remedial, because those steps are designed to reduce the likelihood of future harm.

Also note:

Contemplated but unimplemented measures: If a company merely discusses possible changes but does not implement them, those discussions are not “measures,” although statements made may be admissions or opinion evidence.
Neutral follow-up actions: Actions taken to document the accident (photographs, measurements) are not remedial measures, though they may relate to proof or spoliation issues later.

Who Must Take the Remedial Measure

FRE 407 primarily protects the party against whom liability is sought. The rule generally presupposes a link between:

The actor who took the remedial step, and
The party in the litigation against whom the evidence is being offered.

Key Term: Third-Party Remedial Measure
A subsequent repair or safety improvement made by someone other than a party to the litigation—such as a nonparty contractor, a governmental entity, or a later purchaser.

Key implications:

If the defendant makes the repairs, FRE 407 can bar the evidence when offered to prove negligence or defect.
If the plaintiff changes their behavior or repairs their own property, FRE 407 also applies if the defense is offering that change to prove the plaintiff’s negligence or culpable conduct.
If a nonparty (for example, a landlord who is not sued, a subsequent owner, or a government agency) makes the changes, the rule generally does not apply, and the evidence may be admissible (subject to other rules such as FRE 403).

On the MBE, carefully read who did the repair or change:

“The defendant store owner replaced the flooring” signals a party remedial measure, usually excluded to prove negligence.
“The city replaced the sidewalk” when only the adjacent store owner is being sued signals a third-party measure, which Rule 407 does not protect.

In product cases with multiple potential defendants:

If the manufacturer redesigns the product and is a defendant, subsequent redesign evidence is barred when offered to prove defect or culpable conduct.
If only a retailer is being sued and the manufacturer (who made the change) is not a party, the manufacturer’s redesign is often treated as a third-party measure and is not covered by FRE 407 when offered against the retailer. The MBE occasionally exploits this distinction.

The key exam idea is that the policy of encouraging remedial measures applies to those whose liability is at stake—i.e., the parties. True third parties are not dissuaded from making repairs by the fear of future litigation in a particular case, so the rule does not extend to them.

Exceptions: When Remedial Measures May Be Admitted

FRE 407 contains several explicit exceptions. Evidence of subsequent remedial measures may be admitted for another purpose, such as:

Proving ownership or control of the property or instrumentality, if disputed;
Proving the feasibility of precautionary measures, if feasibility is controverted; or
Impeaching a witness whose testimony conflicts with the fact of the remedial measure.

Courts also recognize closely related uses:

Showing destruction or alteration of evidence (spoliation).
Showing the condition of property at a later time in a case involving a later accident, where the remedial measure has become part of the ordinary condition of the premises.

Key Term: Feasibility
The practical possibility of taking a precaution or making a change, including technical capability, cost, and reasonable practicality under the circumstances.

Key Term: Ownership or Control
Having legal title to property (ownership) or the power to manage, direct, or maintain it (control).

Key Term: Impeachment
The process of challenging a witness’s credibility, such as by showing bias, inconsistency, or lack of perception or memory.

Key Term: Spoliation of Evidence
The destruction, alteration, or failure to preserve relevant evidence, often giving rise to adverse inferences or sanctions.

Each exception is narrow and applies only when the identified issue is genuine and material in the case. Courts are wary of pretextual attempts to get remedial measures in front of the jury under the label of “impeachment” or “feasibility” when the real goal is to suggest negligence or defect.

Ownership or Control

If a party denies owning or controlling the property or item involved in the injury, subsequent repairs can be relevant to show they in fact exercised control.

A stranger is unlikely to spend money repairing property they do not control.
Once ownership or control is admitted, the need for this evidence often disappears, and courts may exclude it as cumulative or unduly prejudicial.

Important MBE points:

The issue must actually be disputed in the pleadings or at trial. If the defendant concedes ownership or control, this exception does not open the door.
Evidence admitted for ownership or control must still be limited to that purpose via a limiting instruction upon request (FRE 105).
More than one party can have “control” (for example, both landlord and tenant). Remedial measures by one may be admissible to show that party’s control, not necessarily the absence of control by another.

Consider also the interaction with liability insurance (FRE 411):

Proof a business insured a property can show ownership or control.
Proof the same business later repaired the property can also show ownership or control.
On an exam, you may see both offered; both are potentially admissible for that limited purpose, with jury instructions restricting how they may be used.

Worked Example 1.1

A customer slips on a wet floor in a grocery store. After the incident, the store installs non-slip mats. At trial, the plaintiff seeks to introduce evidence of the mats to prove the store was negligent. The store argues that it does not control the particular aisle, claiming that an independent kiosk operator maintains that area.

Answer:
The evidence is inadmissible to prove negligence, because it is a subsequent remedial measure under FRE 407. However, because the store disputes that it controlled the area where the mats were installed, the evidence may be admitted to show control: a business would not normally place and maintain mats in an area it does not control. The judge should give a limiting instruction explaining that the jury may consider the evidence only on the issue of control, not as proof of negligence. If the store later concedes control, the court may exclude the evidence as no longer relevant or as unduly prejudicial under FRE 403.

Feasibility of Precautionary Measures

Feasibility becomes important when the defendant argues that no safer alternative was possible, or that precautions could not reasonably have been taken.

Common defense assertions putting feasibility “in issue” include:

“There was no way to design this product more safely at the time.”
“Guards or rails could not have been installed without making the machine unusable.”
“We could not have posted a warning sign because it would violate building codes.”
“Additional inspections were impossible given staffing and time constraints.”
“No warning label could have conveyed the danger effectively.”

When the defendant makes such claims, the plaintiff may respond with evidence of subsequent remedial measures to show that the safer measures were, in fact, feasible.

Key limitations:

If the defendant does not dispute feasibility—perhaps admitting that safer designs or warnings were possible but denying negligence or defect—subsequent changes are not admissible for this purpose.
Once the defendant withdraws the infeasibility argument, the court may exclude remedial-measure evidence as no longer relevant to any permitted purpose.
Statements must do more than simply say “We were not negligent.” The testimony must meaningfully suggest that safer measures were impossible, impractical, or excessively costly or disruptive.

Worked Example 1.2

A plaintiff sues a manufacturer for a defective ladder. After the accident, the manufacturer redesigns the ladder to include wider, non-slip steps. The plaintiff offers evidence of the redesign to show the original design was defective. The manufacturer claims that a safer design was not feasible given the materials available at the time.

Answer:
The evidence is inadmissible if offered solely to show that the original ladder was defective or that the manufacturer was negligent; FRE 407 squarely bars that use. However, once the manufacturer disputes feasibility by claiming that a safer design was not possible, evidence of the redesign is admissible to show that a safer design was, in fact, feasible. The trial judge should restrict the jury’s use of the evidence to feasibility (and possibly impeachment) and, if requested, should give a limiting instruction. The judge may still exclude the evidence under FRE 403 if the risk that the jury will misuse the redesign as proof of defect substantially outweighs its value on the feasibility issue.

Impeachment

Subsequent remedial measures may be used to impeach a witness when the witness’s testimony is inconsistent with the later changes.

This exception is narrow:

The testimony must create a genuine inconsistency, not merely deny negligence (“We were not negligent” is not enough).
Courts are cautious about pretextual “impeachment” that is really just an attempt to show fault through repairs.
The impeachment typically goes to the witness’s credibility or accuracy, rather than directly to an element like negligence or defect.

Statements that may open the door to impeachment with remedial measures include:

“There was absolutely nothing we could have done to make this staircase safer.”
“At the time of the accident, our design was the safest possible, and no additional guards could have been installed.”
“We already had every reasonable warning sign that could be posted.”
“We had implemented every safety measure available in the industry.”

If evidence of remedial measures directly contradicts such testimony, it may come in to impeach the witness and, often, also to show feasibility.

For exam purposes, watch for:

A witness drawing overly broad conclusions (“We had done everything possible”), followed by proof of later additional measures.
An answer choice that describes this as “admissible to prove negligence.” That is incorrect: the evidence is admitted only for impeachment (and sometimes feasibility), not for substantive proof of fault.

Worked Example 1.3

In a negligence case, the defendant’s safety director testifies, “Our plant’s machine-guarding system was the safest possible at the time of the accident; there were no additional guards we could have installed.” After the accident, the plant installs additional interlocking guards.

Answer:
The post-accident installation is inadmissible to prove negligence or a prior defect under FRE 407. But because the safety director claimed that no additional guards were possible, the evidence is admissible for impeachment—showing that the witness’s categorical statement was inaccurate—and to show feasibility. The judge may also give a limiting instruction and could exclude the evidence under FRE 403 if its probative value for impeachment is substantially outweighed by the risk that the jury will misuse it as proof of negligence.

Proving Destruction or Alteration of Evidence

If a party’s remedial measures involve altering or destroying evidence, the evidence of those measures may be admitted to prove spoliation.

Example: If a defendant repaints a car immediately after a collision to hide scrape marks, evidence of the repainting can be introduced to show intentional destruction or alteration of relevant physical evidence. That evidence may support:

An inference that the physical evidence would have been unfavorable to the party, and/or
Sanctions such as adverse-inference instructions or discovery sanctions.

Because this use of the evidence is not to show negligence or defect, FRE 407 does not bar it. The critical distinction is the purpose: proving spoliation as a separate wrong versus proving negligence in causing the initial harm.

Worked Example 1.4

A trucking company’s driver is involved in a collision. The next day, the company orders the truck repainted and the damaged bumper replaced, and it destroys photos taken before the repairs. The plaintiff offers evidence of the repainting and destruction of photos to show that the company destroyed relevant evidence.

Answer:
FRE 407 does not bar this evidence when offered to prove spoliation rather than negligence. The repainting and destruction of photos may be admitted to support an inference that the company intentionally destroyed or altered evidence that would have been unfavorable. The trial judge may instruct the jury that they may consider the evidence only on the issue of spoliation, not as proof that the company was negligent in causing the collision.

Statements vs. Measures

A subtle but important distinction for MBE questions is between:

The act of repair or change (the remedial measure), and
Statements made in connection with that act (which may be admissions of a party-opponent).

FRE 407 excludes only the measure itself when offered for fault. It does not make a party’s verbal admissions inadmissible. So courts often “split” a statement that contains both:

An admission of fault, and
A reference to a contemplated or completed repair.

In such cases:

The admission of fault is generally admissible under FRE 801(d)(2) as a party-opponent admission.
The reference to the repair or change may be excluded under FRE 407.

This is a common hybrid question pattern on the MBE. You should:

Identify which portion of the statement is the admission of fault (admissible).
Identify which portion describes a remedial measure (inadmissible for fault).
Choose the answer that allows admission of the fault portion while excluding the remedial portion.

Worked Example 1.5

After a shopper slips on a puddle, the store manager says, “This was totally my fault; I knew that cooler was leaking and should have fixed it earlier. I’ll have maintenance install a drain system this afternoon.” The plaintiff seeks to introduce the full statement.

Answer:
The portion of the statement admitting fault and prior knowledge (“This was totally my fault; I knew that cooler was leaking and should have fixed it earlier”) is admissible as an admission of a party-opponent. The reference to installing a drain system is evidence of a subsequent remedial measure and is inadmissible to prove negligence or culpable conduct. The court should admit the admission and exclude or redact the reference to the planned repair. A limiting instruction may be requested to clarify that the jury may consider the admission of fault but may not infer negligence from the fact of the repair.

Application to Product Liability

The exclusion of subsequent remedial measures expressly applies to product liability cases. FRE 407 bars the use of post-incident design changes or added warnings when offered to prove:

A product was defective,
A design was defective or unreasonably dangerous, or
The product needed additional warnings or instructions.

This holds even in strict liability actions. The fact that a manufacturer later improves a design or adds warnings cannot be used as substantive proof that the original design was unreasonably dangerous.

At the same time, the usual exceptions apply:

If the manufacturer denies feasibility of a safer design, subsequent redesign evidence may be admitted to rebut that.
If there is a dispute over who designed, manufactured, or controlled the product, post-accident changes may show ownership or control.
If a company representative testifies that no safer design was possible, evidence of a later redesign may be admissible to impeach that specific claim.

Also keep in mind:

FRE 407 covers remedial measures affecting the product, not unrelated changes. For example, if a manufacturer changes its marketing campaign but not the product, that may be relevant for other purposes but is not a remedial measure.
The rule does not bar evidence that the same manufacturer used a safer design in a different product line at the same time. That is not “subsequent” and is often admissible to show the availability of safer alternatives.

Remember that the rule focuses on using the remedial measure to show defect. Other evidence of defect—expert testimony, industry standards, evidence of prior accidents, alternative designs in the market—remains fully available and is often more probative.

Worked Example 1.6

A consumer is injured when a meat-slicing machine pulls the user’s hand into the blade. The plaintiff sues the manufacturer in strict liability, claiming a design defect. Two years after the accident, the manufacturer introduces a new model with a fixed hand guard that prevents the user’s hand from reaching the blade. At trial, the plaintiff wants to introduce evidence of the new model to show that the older model was defectively designed.

The manufacturer admits it made the new model but denies any defect and does not argue that safer designs were infeasible.

Answer:
Under FRE 407, evidence of the new design is inadmissible to prove a design defect or that the older model was unreasonably dangerous, even though this is a strict liability claim. Because the manufacturer has not put feasibility in dispute, the feasibility exception does not apply. The plaintiff may instead use expert testimony about alternative designs that were available at the time of manufacture, evidence of industry practice, or other manufacturers’ safer designs to show defect. The trial court should exclude the evidence of the new guard when offered to prove defect, although it might become admissible later if the manufacturer opens the door by contesting feasibility.

Remedial Measures by Plaintiffs

Rule 407 is not limited to defendants. If an injured plaintiff takes a post-accident safety measure, a defendant may not use that evidence to show the plaintiff’s earlier negligence or culpable conduct.

Example: A plaintiff who tripped on loose carpeting later secures the carpet in their home. The defendant cannot introduce this subsequent remedial measure to show that the plaintiff was negligent before the accident.

The logic is the same as for defendants:

Society benefits when injured individuals also improve safety.
It would be undesirable to discourage plaintiffs from making their own environments safer out of fear that doing so will be used against them.

However, the plaintiff might choose to introduce their own remedial measures for a permissible purpose (for example, to show mitigation of ongoing harm or the reasonableness of post-injury conduct) if relevant and not barred by other rules. FRE 407 only bars use of remedial measures to prove negligence, culpable conduct, defect, or need for warning—not to prove other issues like damages mitigation.

On an exam, if the defendant is offering the plaintiff’s post-accident behavior to show the plaintiff was negligent at the time of the accident, think FRE 407. If the plaintiff is using the evidence, or if the purpose is something other than proving culpable conduct (for example, mitigation), the rule may not apply.

Worked Example 1.7

A plaintiff is injured in a car accident and sues the defendant driver for negligence. At the time of the accident, the plaintiff was not wearing a seat belt. After the accident, the plaintiff begins always wearing a seat belt. The defendant seeks to introduce evidence of the plaintiff’s new seat-belt habit to show that the plaintiff was negligent in not wearing a seat belt at the time of the accident.

Answer:
This is a subsequent remedial measure taken by the plaintiff. Under FRE 407, it is inadmissible to prove the plaintiff’s negligence or culpable conduct at the time of the accident. The court should exclude the evidence when offered for that purpose. Depending on the jurisdiction’s substantive law of comparative negligence and “seat-belt defenses,” the defendant might instead try to introduce other evidence (such as expert testimony on injuries) to argue that the plaintiff’s failure to wear a seat belt contributed to damages, but the plaintiff’s post-accident change in behavior cannot be used to show prior negligence.

Limitations and Scope

Several additional limits regularly appear in MBE questions:

The exclusion applies only to measures taken after the injury or harm at issue in the case.
The rule generally protects parties’ remedial measures; measures by genuine third parties are not within FRE 407.
The exclusion does not cover pre-accident safety measures or prior accidents.
The evidence must still pass ordinary relevance and balancing tests (for example, FRE 401 and 403) even when offered for an allowed purpose.
The rule applies most commonly in civil cases involving “injury or harm,” especially negligence and product liability. It is rarely applied in criminal prosecutions; the exam will overwhelmingly present civil contexts.
FRE 407 affects admissibility at trial; it does not bar discovery. Parties may still obtain information about post-accident changes in discovery, subject to other limits.

Multiple Incidents and Timing

In multi-incident scenarios, “subsequent” is measured relative to the specific injury in the suit:

If a defendant makes changes after Accident 1, those changes may be admissible in a later lawsuit about Accident 2 that occurs after the changes, because with respect to Accident 2 the measures were prior, not subsequent.
Evidence of the changed condition may be offered to show what the property or product looked like at the time of the later incident.
MBE questions often test whether you notice the time relationship between the remedial measure and the particular accident in the lawsuit.

Worked Example 1.8

A building owner has two similar accidents on its premises. After the first fall on a dim stairway, the owner adds brighter lighting and handrails. Six months later, a second person falls on the same stairway, even with the new lighting and handrails. That second person sues, alleging that even the improved system is still unreasonably dangerous. The plaintiff offers evidence of the lighting and handrails installed after the first accident.

Answer:
For the second plaintiff’s suit, the lighting and handrails are not “subsequent remedial measures”—they were in place before the second accident. FRE 407 therefore does not apply. The evidence may be used to show the condition of the stairs at the time of the second fall, subject to ordinary relevance and FRE 403. If the first plaintiff were suing, the evidence would be a subsequent remedial measure and would be inadmissible to prove negligence in the first accident.

Third-Party Measures

As noted, measures taken by third parties—such as subsequent owners, independent contractors, or governmental agencies—are generally not protected by FRE 407. Their repairs may be admissible even if introduced to show that the original condition was dangerous.

This is especially important in premises-liability and product cases where responsibility can be shared:

A city’s post-accident repair of a sidewalk is not protected by Rule 407 in a suit against an adjacent landowner.
A manufacturer’s design change is not protected by Rule 407 in a suit against a retailer, if the manufacturer is not a party.

Worked Example 1.9

A city owns a public sidewalk. A property owner adjacent to the sidewalk is sued when a pedestrian trips over a broken section in front of the owner’s store. After the accident, the city repairs the sidewalk. The plaintiff offers evidence of the city’s repair to show that the sidewalk was dangerous at the time of the fall.

Answer:
The measure was taken by a third party (the city), not the defendant property owner. FRE 407 does not bar the evidence as to the owner. The court may admit the evidence to show the condition of the sidewalk or that it was dangerous, subject to FRE 403. The owner cannot invoke the remedial-measures rule to exclude the city’s repair. The defendant might still argue that the city, not the owner, controlled or was responsible for the sidewalk, but that is a liability question, not an evidentiary bar under FRE 407.

Similarly, in product cases:

A nonparty manufacturer’s later redesign may be admissible against a defendant retailer, though its probative value may be modest.
A later purchaser’s repairs may be admissible against the prior owner if the repairs are offered to show the condition at the time of sale, so long as they are not remedial measures taken by the defendant being sued for that earlier sale.

Interaction with FRE 403

Even when an exception applies, judges may still exclude remedial-measure evidence if its limited probative value is substantially outweighed by the danger of unfair prejudice or jury misuse.

Common patterns:

The evidence is technically admissible to prove feasibility, but the defendant has already largely conceded feasibility.
The impeachment value is minor, but the risk is high that the jury will treat the remedial measure as a confession of negligence.
The same point (for example, ownership or control) can be established through less prejudicial evidence.

In those situations, a court may rely on FRE 403 to exclude the remedial-measure evidence despite the applicability of an exception. On the MBE, look for language such as “substantially outweighed by the danger of unfair prejudice” to signal that FRE 403 is being applied in addition to FRE 407.

Comparison with Other Policy-Based Exclusions

FRE 407 often appears on the MBE alongside other public-policy exclusions. Distinguishing them quickly is important.

Liability insurance (FRE 411):
- Excludes evidence that a person was or was not insured against liability when offered to prove negligence or wrongful conduct, or ability to pay.
- Allows such evidence to show ownership, control, or bias (for example, a witness employed by an insurance carrier).
Settlement negotiations (FRE 408):
- Excludes offers to compromise and statements made during compromise negotiations about a disputed claim, when offered to prove liability, invalidity, or amount of the claim, or to impeach by prior inconsistent statement.
- Allows such evidence to show bias, prejudice, obstruction of a criminal investigation, or other permissible purposes.
- Requires a disputed claim; casual apologies or offers before a claim is asserted may fall outside the rule.
Offers to pay medical expenses (FRE 409):
- Excludes offers to pay medical, hospital, or similar expenses when offered to prove liability.
- Does not exclude accompanying admissions of fact (unlike settlement negotiations, where accompanying statements are generally excluded).
Plea discussions (FRE 410):
- Excludes withdrawn guilty pleas, pleas of nolo contendere, offers to plead guilty, and statements made during plea negotiations in later civil or criminal cases.
- Can be waived by a defendant in some circumstances, but only if the waiver is knowing and voluntary.
Rape-shield and prior sexual offenses rules (FRE 412–415):
- Exclude most evidence of a victim’s prior sexual behavior and, conversely, allow certain propensity evidence of a defendant’s prior sexual misconduct in limited cases.
- These are policy-based but are conceptually distinct from remedial measures and settlement rules.

Key contrasts with remedial measures:

FRE 407 focuses on post-incident changes in physical conditions, designs, warnings, or procedures.
FRE 408–410 focus on communications made during negotiations or plea discussions.
FRE 409 focuses on offers to pay expenses, not on repairs or changes.
Statements of fault can often be severed and admitted even when part of an excluded category (for example, under FRE 409 and FRE 407), but not generally when made during settlement negotiations (FRE 408).

On the exam, a single fact pattern can trigger multiple rules:

A defendant says, “I’m sorry; it was my fault. I’ll pay your medical bills, and we can settle this if you don’t sue. Also, I’ll have the stairs fixed immediately.”
This invokes FRE 407 (repairs), FRE 409 (medical expenses), and FRE 408 (settlement offer).

The correct solution requires slicing the statement into its component parts and applying the correct rule to each.

Worked Example 1.10

Immediately after a slip-and-fall accident, the store manager says to the customer, “I’m so sorry you fell; I didn’t realize the aisle was wet. I’ll pay your hospital bills, and I’ll have maintenance fix that leaky freezer tomorrow.” The customer later sues the store and seeks to introduce the full statement.

Answer:
Three distinct policy rules are implicated:

The offer to pay hospital bills (“I’ll pay your hospital bills”) is inadmissible to prove liability under FRE 409, but the surrounding admission (“I didn’t realize the aisle was wet”) is admissible as a party admission.

The promise to “fix that leaky freezer tomorrow” is a subsequent remedial measure and is inadmissible to prove negligence or culpable conduct under FRE 407.

The apology and factual admission of not realizing the aisle was wet are admissible as admissions of a party-opponent (subject to any state apology statutes, which are not tested on the MBE).

The court should admit the admission and apology but exclude the offer to pay medical expenses and the reference to future repair when offered to prove negligence. A careful answer choice will usually track this division, admitting some parts of the statement while excluding others.

MBE Strategy: Step-by-Step Analysis

When remedial measures appear in a fact pattern, use a structured approach:

Step 1 – Identify the measure:
- Is there a post-incident repair, design change, added warning, procedure change, training program, recall, or policy change?
Step 2 – Check timing:
- Was the measure taken after the injury in question?
- If it was taken before the incident, FRE 407 does not apply—it is simply ordinary evidence of pre-incident conduct.
Step 3 – Ask who took the measure:
- Was it taken by a party (plaintiff or defendant) against whom the evidence is offered?
- Or was it taken by a genuine third party (for example, a city, a later owner, a nonparty manufacturer)?
Step 4 – Determine the purpose for which it is offered:
- To prove negligence, culpable conduct, product defect, design defect, or need for warning?
  - If so, the general rule bars it.
- To prove ownership, control, feasibility, impeachment, or spoliation?
  - If so, it may fall within an exception.
Step 5 – Ask whether the issue is truly disputed:
- If ownership, control, or feasibility are conceded, the corresponding exceptions usually do not apply.
- If the witness has not made a broad or inconsistent statement, the impeachment exception does not apply.
- Look for pleadings or explicit testimony showing the issue is “in controversy.”
Step 6 – Apply FRE 403:
- Even if an exception applies, consider whether the court may exclude the evidence because the danger of unfair prejudice or jury misuse substantially outweighs its probative value.
- On the MBE, if an answer mentions both FRE 407 and FRE 403, it may be the best answer if the question emphasizes prejudice or limited probative value.

Exam Warning

Evidence of subsequent remedial measures is never admissible to prove negligence, culpable conduct, or product defect, even in strict liability cases. The exceptions do not create a backdoor for using repairs directly as evidence of fault; they allow use only for specific, limited purposes (ownership, control, feasibility, impeachment, or spoliation).

Common traps include:

Selecting an answer that says post-accident repairs are admissible “because they show that the defendant knew the condition was dangerous.” That is precisely the inference Rule 407 forbids when offered to prove negligence.
Forgetting that the rule covers post-accident warnings and instructions as well as physical changes and design changes.
Ignoring who took the remedial measure; repairs by a nonparty are not protected by FRE 407.

Do not confuse this rule with:

Liability insurance (FRE 411), where insurance may be admissible to show ownership, control, or bias.
Settlement negotiations (FRE 408), where almost all statements made in compromise talks are excluded to encourage settlement.
Offers to pay medical expenses (FRE 409), which exclude the offer itself but not necessarily accompanying factual statements.

Revision Tip

If you see evidence of repairs, design changes, or added warnings after an accident, ask in order:

Is it an actual post-incident remedial measure?
Who did it—party or third party?
For what purpose is it offered—fault or one of the narrow exceptions?

If the purpose is to show fault or defect of the party who took the measure, the evidence is likely inadmissible, unless it fits a disputed exception and survives FRE 403 balancing. Always connect back to the precise language of FRE 407: no use to prove negligence, culpable conduct, defect, or need for warning.

Key Point Checklist

This article has covered the following key knowledge points:

Evidence of subsequent remedial measures is generally inadmissible to prove negligence, culpable conduct, product defect, design defect, or need for a warning or instruction.
FRE 407 is a classic policy-based relevance rule: relevant evidence is excluded to encourage safety improvements and prevent juries from overvaluing repairs as admissions of fault.
The rule applies in both negligence and strict liability cases, including product liability actions involving design defects and failure-to-warn claims, due to the 1997 amendment explicitly covering product defects and the need for warnings.
Subsequent remedial measures are measures taken after the injury or harm that would have made the earlier harm less likely; pre-accident safety measures are not covered and are admissible subject to ordinary relevance rules.
Remedial measures can include repairs, design changes, added warnings, new policies or procedures, safety training, and recalls, as long as they aim to reduce the likelihood of future harm.
The exclusion protects parties’ remedial measures (plaintiffs or defendants); measures by true third parties (such as municipalities or nonparty manufacturers) are not generally covered by FRE 407.
Recognized exceptions permit admission of remedial measures to prove ownership or control, feasibility of precautionary measures (when disputed), impeach conflicting testimony, or show spoliation of evidence.
Use of remedial measures for impeachment requires a genuine inconsistency (such as a witness claiming “nothing more could be done”), not merely a denial of negligence; courts are skeptical of pretextual impeachment.
Evidence may be admitted for feasibility only when feasibility is actually controverted; if a party concedes feasibility, the exception does not apply.
Statements of fault accompanying remedial measures may be admissible as party admissions, even though the repair or change itself remains inadmissible to prove negligence or defect; courts often sever the admissible admission from the inadmissible remedial act.
In product liability and strict liability cases, evidence of later design changes or added warnings may not be used to prove a defect, but may be used, in appropriate circumstances, for feasibility or impeachment.
The rule focuses on the party whose conduct is in question; third-party measures and measures taken before a different accident are usually outside the rule.
Multiple-incident scenarios require careful attention to timing: “subsequent” is measured relative to the particular accident in the case; a change may be subsequent to one accident and prior to another.
FRE 407 interacts with FRE 403: even when an exception applies, courts may exclude the evidence if the danger of unfair prejudice, confusion, or misleading the jury substantially outweighs its probative value on the permitted issue.
Distinguishing remedial measures (FRE 407) from liability insurance (FRE 411), settlement negotiations (FRE 408), offers to pay medical expenses (FRE 409), and plea discussions (FRE 410) is essential for accurate MBE analysis, especially when fact patterns combine several of these.
A structured approach—identifying the measure, timing, actor, purpose, disputed issue, and FRE 403 balancing—is critical for handling remedial-measures questions on the MBE.
Rule 407 does not bar discovery of remedial measures; it governs admissibility at trial, not whether information can be obtained.
The rule applies equally to remedial measures taken by plaintiffs when those measures are offered to show the plaintiff’s prior negligence or culpable conduct.

Key Terms and Concepts

Subsequent Remedial Measure
Policy Exclusion
FRE 407
Culpable Conduct
Strict Liability
Product Liability
Feasibility
Ownership or Control
Impeachment
Third-Party Remedial Measure
Spoliation of Evidence

Privileges and other policy exclusions - Remedial measures