The roustabout claims he was injured when he tripped and fell while walking on a skid beam on the Lena Platform in the Gulf of Mexico. The roustabout’s employer was an Exxon contractor engaged by Exxon to perform plugging and abandonment operations on the platform. The roustabout filed suit against Exxon.
The skid beam area contained numerous cutouts, referred to as “lug slots.” The roustabout claims his foot slipped into one of the lug slots causing him to fall and sustain injuries. After the incident, Exxon installed plywood and other additions to the area. Exxon also prepared post-accident documents referring to the area as a “walkway.” The roustabout wanted to use this information at trial in his personal injury case against Exxon. Exxon filed pretrial motions asking the court to prevent the roustabout from doing so. Exxon argued the information was inadmissible subsequent remedial measures under Federal Rule of Evidence 407.
When post-incident actions are taken by a party to reduce the risk of a similar incident from reoccurring (subsequent remedial measure), evidence of the measure cannot be shown to the jury under FRE 407 to prove negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction. This rule is meant to encourage people or at least not discourage them from taking steps to increase safety after an incident because of a lawsuit. In some circumstances, subsequent remedial measures may still be introduced at trial for other purposes like impeachment or showing the feasibility of the precaution. Here is the full text of FRE 407:
Rule 407. Subsequent Remedial Measures
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 the feasibility of precautionary measures.
Exxon pointed to FRE 407 in its motion to exclude the post-incident improvements and its post-incident documents referring to the area as a walkway.
With respect to the improvements, the roustabout argued FRE 407 did not apply because Exxon’s corporate representative denied the improvements were made to enhance safety. So, the roustabout argued the societal aims of Rule 407 did not apply. Further, the roustabout argued FRE 407 did not apply to the improvements because Exxon was required by law to perform them and thus did not undertake them by choice to enhance safety.
With respect to the post-accident documents referring to the accident area as a walkway, the roustabout made several arguments to support their admissibility. First, the roustabout argued Exxon was required by law to prepare them so the policy considerations of FRE 407 did not apply. Second, the roustabout stated it intended to introduce the information to show “knowledge of a dangerous condition, the obviousness of said condition, contributory negligence, feasibility, control, ect., that are subsidiary issues which evidence of subsequent remedial issues is admissible.” Finally, the roustabout argued Exxon’s analysis and investigation into the accident “do not fall within the scope of Rule 407” because “only implemented changes should be considered subsequent remedial measures.”
Exxon responded that its post-accident actions fall squarely within the scope of Rule 407 because they were intended to make the type of injury in question “less likely to occur in the future and therefore the social policy goals of Rule 407 are achieved by its application.”
The court denied Exxon’s motion to exclude the evidence because:
Exxon’s corporate representative denied that the post-accident measures were taken to mitigate or prevent hazards.
The evidence “may be probative to impeach’” Exxon’s defense that the rig skid beam and the lug slots did not present a risk to the roustabout.
Exxon was required by federal regulations to prepare the post-incident documents.
Post-accident investigations, “‘which by themselves do not make the accident less likely to occur’ do not fall within the literal exclusionary ambit of FRE 407.”
The case citation for this decision is Billy D. Oliver v. Exxon Mobil Corporation, Civil Action No. 18-cv-568 (M.D.LA. July 29, 2022). A publicly available copy of the decision is accessible through this link:
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