September 23, 2013
Experienced personal injury litigators are very familiar with the doctrine of subsequent remedial measures. Repairs made subsequent to the claimed injury are often raised in settlement negotiations to highlight the acknowledgement of the claimed defect by the defendant. However, for that very reason of the prejudicial effect the subsequent repairs can have they are generally precluded from trial.
This public policy decision is encapsulated in the Connecticut Code of Evidence Rule in 4-7. While the rule specifically precluded subsequent remedial measures from being offered into evidence for the purpose of proving negligence, the rule specifically does allow subsequent remedial measures to be introduced into evidence for the purpose of proving controverted issues such as ownership, control or the feasibility of precautionary measures. It is this exception to the prohibition of the use of subsequent remedial measures which has been the basis of evidentiary arguments over this rule.
The Supreme Court has recently weighed in on Rule 4-7 and the proper use of subsequent remedial measures at trial and provided a lengthy discussion on the exceptions included in the rule and the risks associated with those exceptions. This extensive discussion of the uses of subsequent remedial measures makes the case of Duncan v. Mill Management Company of Greenwich, 308 Conn. 1 (2013), of particular interest to any personal injury litigator in the state. It is undoubted that Duncan will be cited in briefs across the state by plaintiff's counsels trying to have evidence of subsequent remedial measures admitted at trial. However, there are a few important points to note with the Duncan decision.
The Supreme Court expressly felt that the trial court in Duncan erred in allowing the introduction of evidence of subsequent remedial measures. The Supreme Court disagreed with the trial court's admittance of this evidence for the purposes enumerated in the exceptions to Rule 4-7. Instead, the Supreme Court upheld the plaintiff's verdict on other grounds. Chief among those grounds was the fact that the Supreme Court held that the evidence of subsequent remedial measures was cumulative of other evidence properly admitted by the trial court. The court also noted that the trial court had properly instructed the jury on the limited uses of the evidence of subsequent remedial measures and how the jury could not use that evidence on the issue of negligence.
It is also important to note that the Supreme Court did not create any new exemptions to the prohibition of the use of subsequent remedial measures in the Duncan case. What the Court did do was to provide a careful analysis of when and how to properly use the exemptions contained in Rule 4-7. The most commonly accepted proper uses for evidence of subsequent remedial measures is to establish control over the area the accident occurred, establishing the feasibility of repairs to the claimed defect and impeaching a witness. In addition to these, the Supreme Court discussed the proper admission of photographs showing the layout of the scene of the accident even when those photographs depicted subseqent remedial measures.
In the Duncan case, the subsequent remedial measure at issue was that the step the plaintiff fell on was rebuilt to a different configuration after the plaintiff was injured. In addition to this fact, the plaintiff also offered expert testimony at trial that the original step failed to comply with the state building code. The Supreme Court, in agreeing with the Appellate Court's application of Rule 4-7, held that the evidence of the subsequent repair of the step was improperly admitted into evidence as it did not qualify under any of the exceptions.
The Court held that the replacement of the step could not properly be introduced to establish control over the step or the feasibility of repairing the step. The Court's holding was premised on a prerequisite to these exceptions to Rule 4-7 which were previously recognized by the Court. In order for the replacement of the step to be introduced for either purpose, the issue of control over the step or the feasibility for replacing it must have been controverted in the trial. Neither of these issues were disputed in the Duncan case at trial. In it holding, the Supreme Court expressly held that counsel must first demonstrate that the issue of who had control of the premises or whether a repair was feasible must first be demonstrated to be in controversy, then counsel must demonstrate that the evidence whose admittance is being sought is probative on that issue.
The holding in Duncan continued to recognize the proper use of subsequent remedial measures to impeach a witness at trial. However, the Court did caution that there are two factors that must be weighed by the court prior to the introduction of this evidence. First, the Court must weigh the probative value of impeaching the witness on that issue versus the prejudicial value of introducing evidence of subsequent remedial measures. Second, the Court must consider whether there are less prejudicial options available prior to introducing the prejudicial evidence of subsequnt remedial measures.
In the Duncan case, the trial court did not engage in this analysis, or at least did not do so on the record. Additionally, the Supreme Court and Appellate Court both held that the issue to which the witness was being impeached on offered limited probative value on the issues of credibility and truthfulness of the witness.
While the Supreme Court went to great lengths to outline the scope of the exemptions to the prohibition on introducing evidence of subequent remedial measures, this case will undoubtedly be cited over and over again for the purpose of having this very evidence admitted at trial. Evidence that the defendant has identified and repaired the very defect claimed by a plaintiff remains too enticing of a piece of evidence to be ignored by counsel, even if it is only able to be utilized for a limited purpose at trial. While the plaintiff in Duncan ultimately was able to retain her jury award, the warnings on the use of of this evidence cannot be ignored and it is to be expected that in the wake of this decision the trial court will be hesitant to admit such evidence in the future.
This article was published in the Connecticut Law Tribune Personal Injury Special Section on September 23, 2013.
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