FRE 407-11

Each of the rules outlined below discuss evidence that is relevant, but which should be excluded for whatever reason. That means that we should still keep FRE 403 in our mind. If the material passes FRE 401 and then the associated specialized rule, a FRE 403 analysis should still occur.

Subsequent Remedial Measures

FRE 407

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

  • negligence;
  • culpable conduct;
  • a defect in a product or its design; or
  • a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or–if disputed–proving ownership, control, or feasibility of precautionary measures.

In other words, subsequent remedial measures (such as a warning sign being put up after an injury) can’t be used to prove liability but can be used for another reason. Because of the phrase “such as” in the rule, this is not a complete list. As such, the evidence may be admitted to correct unfair inferences to the jury.

Why is this evidence often excluded? We don’t want to discourage individuals from taking remedial action.

Tuer v. McDonald

347 Md. 507 (Ct. App. 1997).

This was a case of medical malpractice. The plaintiff was scheduled for surgery and taken off heparin. However, the surgery was rescheduled, they determined not to put him back on heparin, and the patient died. Afterwards, the hospital changed the protocol concerning the discontinuation of heparin for certain patients.

At trial, the change of protocol was excluded with a motion in limine. However, if the issue became a matter of feasibility then the court would allow the protocol as evidence.

The issue, was the protocol feasible? Here, making the protocol may have been unsafe, but it was definitely feasible and the hospital did not content feasibility. Neither was it impeachment to say that the protocol was unsafe.

Even if the evidence can be allowed, we need to make sure that the evidence does not create an unfair prejudice against the party in accordance with FRE 403.

Compromise Offers and Negotiations

FRE 408

Bankcard America, Inc. v. Universal Bancard Systems, Inc.

203 F.3d 477 (7th Cir. 2000).

These two parties had a contract that fell apart leading to a lawsuit. During the settlement proceedings, Universal was under the impression that they could work with other venders. However, this was not the case and Bankcard sued for breach of contract. During trial, Universal argued that the parties had settled. Universal won at trial, twice (because it was a new trial). However, the district court said that a new trial should be granted because the discussions about the settlement should not have been included based on FRE 408.

This court reversed, saying that the material should have been included.

According to FRE 408, compromise offers (settlements) and negotiations cannot be submitted as evidence “to prove or disprove the validity or amount of a disputed claim.”

However, this was a subsequent claim from the original claim. Additionally, the circuit court does not believe it would be fair for Bankcard to lull Universal into a false sense of security and then prevent Universal from explaining why they sought other venders. Even so, this was limited to only say that a “negotiation” occurred, but none of the settlement details could be shared.


  1. Rule of limited exclusion – not everything will be excluded.
  2. Can’t use a rule as a shield against evidence that would explain conduct.
  3. A reading of the rule says that it applies to the claim at issue (here, they were different claims)
  4. The evidence did not discuss the validity of the claim or the amount associated with it.
  5. What was permitted was limited to the bare necessities to explain the conduct.

The purpose of the rule is to encourage settlement.

Offers to Pay Medical and Similar Expenses

FRE 409

If someone offers to pay medical expenses, those statements cannot be submitted as evidence to establish liability.

Liability Insurance

FRE 411

Evidence about whether a party has liability insurance is not admissible to establish liability. However, it can be admitted for a purpose such as proving witness bias or prejudice, ownership, or control.

Ventura v. Kyle

825 F.3d 876 (8th Cir. 2016).

The parties were engaged in a bar fight where Kyle claimed that Ventura was present. Ventura then filed the lawsuit against Kyle for defamation. Kyle passed while the litigation was pending and his estate took over the proceedings. During arguments, Kyle’s counsel mentioned several times that there was insurance. A jury verdict was returned for Ventura.

On appeal, Kyle is arguing that prejudicial testimony about the insurance was improperly admitted. “When a jury hears that the defendant isn’t paying the damages, they’re fine with the insurance picking up the cost.” This case was reversed, the evidence should not have been allowed. The only way for this evidence to be allowed was to show that the witnesses would have been biased, not the case here.

Jury Room Ruminations on Forbidden Topics

87 Va. L. Rev. 1857 (2001).

The question asked within this article is whether juries discuss liability insurance despite the court’s attempt to preclude evidence about insurance. Ultimately, the article found that the jury talks about insurance about 85% of cases even when they are instructed not to. The jurors are also more interested in knowing whether the plaintiffs are insured (don’t want them to double dip). As a result, the solution is to blatantly tell jurors they are not to consider insurance.


FRE 410

Withdrawn pleas and plea discussions with an attorney (not an officer) may not be admitted as evidence. Although the rule expressly names that the rule benefits the defendant, the underlying policy of the rule is to encourage plea bargains and most of the time will be equally applied when the evidence is sought to be offered against the prosecutors.

United States v. Biaggi

909 F.2d 662 (2d Cir. 1990).



The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.