Subject to several exceptions, Rule 407 prohibits the introduction into evidence of subsequent remedial measures. The Third Circuit Court of Appeals has just joined several other circuits in holding that the exclusionary rule does not apply when the remedial measures are made by a third party.
Judge Smith wrote that “The rule recognizes that manufacturers will be discouraged from improving the safety of their products if such changes can be introduced as evidence that their previous designs were defective.” He went on to say that “this policy is not implicated where the evidence concerns remedial measures taken by an individual or entity that is not a party to the lawsuit.” Judge Smith explained that every federal circuit to address the issue — the 1st, 4th, 5th, 7th, 9th and 10th — has likewise concluded that Rule 407 does not apply to subsequent remedial measures taken by a nonparty.