0806

One good response to the objection is that the redesign of the loader does not fit the definition of a subsequent remedial measure. Under Rule 407, a remedial measure is a step that, if taken previously, would have made the injury less likely to occur. No matter when Caterpillar redesigned the loader, it would not have made an injury involving bulldozer any less likely to occur.

It is because of this definitional problem that I would have initially objected under Rule 403, not 407. If you see an easy response to a 407 objection before you make it, then look for a better objection

Questions? E-mail tanford@indiana.edu and refer to 0806.

Assume the judge excluded the evidence when offered by plaintiff. Part 3 of the problem wonders what would happen if Caterpillar in its case called an expert who testified that it simply was not feasible to move the cab on the bulldozer. In scenario 1, Caterpillar’s expert says it is a question of engineering, physics and center of gravity, and moving the cab would make the bulldozer less safe, not safer.
In rebuttal, plaintiff calls the same expert whose testimony was previously excluded. What objection should Caterpillar’s lawyer make? When you have decided, click here.