When David Bowie sang about “Changes” more than 40 years ago, he most certainly was not referring to measures by a defendant after an injury that “would have made an earlier injury or harm less likely to occur.” See Fed. R. Evid. 407. It is, of course, black letter law under Federal Rule of Evidence 407 and New York’s common law that evidence of remedial changes (or “ch-ch-ch-changes,” to quote Mr. Bowie) after an injury are inadmissible to prove the defendant’s negligence, culpable conduct, or other fault. However, evidence of subsequent remedial measures may be admissible if offered for another purpose, including “proving ownership, control, or the feasibility of precautionary measures,” if disputed. See id.; Stolowski v. 234 East 178th Street, 89 A.D.3d 549 (1st Dept. 2011).
Though subsequent remedial measures are most commonly associated with product liability litigation, New York courts apply this doctrine in other types of litigation as well, often in creative ways. Thus, plaintiff and defense counsel must keep informed of developing case law in this area, and give advance thought as to how such potentially powerful evidence could get before the jury in a particular case.
