Relevant but Inadmissible

1
Relevant but Inadmissible

• FRE 407, 408, 409, 410, 411

2
Where we are to date

• Rule 402 Relevant evidence is presumptively
  admissible.
• Rule 403 Relevant evidence may nonetheless be
  excluded if it is subject to misuse or likely to
  waste time.
• Rule 404 No character evidence to show action
  in conformity therewith.
• This week More types of evidence where the risk
  of misuse is so high that it is reasonable to
  exclude categorically all evidence of that
  type.

3
Categorical Exclusion

• 407 Subsequent remedial measures
• 408 Compromise and offers to compromise
• 409 Payment of medical expenses
• 410 Plea discussions and withdrawn pleas
• 411 Liability insurance

4
Why keep this information out?

• Truth-seeking values
• Low probative value
• Prejudice estimation problems
• Prejudice regret matrix problems
• Efficiency
• Low probative value
• Avoid extended litigation on collateral issues
• Other (non-truth-seeking) values
• Encourage post-accident repairs
• Protect openness of settlement/plea negotiations

5
Tort Precautions Review

• U.S. v. Carroll Towing (2d Cir. 1947)
• Liability is a function of (1) P the
  probability of loss (2) L the likely severity
  of the loss and (3) B the burden of adequate
  precautions.
• A precaution is necessary if B lt PL.
• So if the precaution (B) costs 100
• To prevent a 10 (P) chance of loss,
• And the loss (L) would cost 20000,
• 100 lt 10 x 20000,
• So the precaution is necessary.

6
Tort Precautions Revisited

• You are the CEO of Disney.
• Providing security in your parking lot will cost
  10,000 (B)
• To prevent a 10 (P) chance a guest will be
  mugged in the parking lot,
• And the mugged guest will lose an average of
  1,000 (L).
• 10,000 vs 10 x 1,000
• Do you take the precaution?

7
Subsequent Remedial Measures

• Not Admissible for
• Negligence and negligence-plus cases
• Negligence
• Culpable conduct
• Strict Liability cases
• Product defect
• Need for warning

• Admissible for
• Ownership
• Control
• Feasibility of precautionary measures, if
  controverted
• Impeachment

8
Doctor discontinues Heparin 3 hours before surgery

• Stopping Heparin 3 hours before surgery is an
  accepted medical practice.
• Administering Heparin within 3 hours of surgery
  is unsafe. It would have caused fatal bleeding.
• Administering Heparin within 3 hours of surgery
  is unsafe. The risk of fatal bleeding outweighs
  the risk of heart attack.

9
Settlement Negotiations

• Not Admissible for
• Validity of claim
• Amount of claim

• Admissible for
• Bias of a witness
• Negating a contention of undue delay
• Obstruction of criminal investigation or
  prosecution

10
Offers to Compromise

• Furnish, offer or accept a valuable consideration
• Compromise or attempt to compromise
• Claim
• Disputed as to validity or amount

11
Payment of Medical Expenses

• Not Admissible for
• Liability

• Admissible for
• Anything else

12
Plea Negotiations

• Withdrawn guilty pleas
• Nolo contendere pleas
• Statements made during plea discussions

13
Plea Negotiations

• Not Admissible for
• ANYTHING against the ?, except ?

• Admissible for
• If ? introduces another part of the plea
  negotiation
• In a criminal proceeding for perjury

14
Liability Insurance

• Not Admissible for
• Negligence

• Admissible for
• Agency
• Ownership
• Control
• Bias of a witness