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Recall as Subsequent Remedial Measure

By James M. Beck and Mark Herrmann

We covered the topic of product recalls being excludable as subsequent remedial measures in some detail in our Total Recall post, including a list of all the cases we were aware of (whether they involved drugs/devices or not) that had excluded recalls for this reason.  There wasn't a single federal court of appeals in the lot (the only appellate case to consider it had allowed admission despite it being a SRM under a theory that's since been amended out of Rule 407.

That's why we were delighted this morning when we came across Rutledge v. Harley-Davidson Motor Co., No. 09-50533, slip op. (5th Cir. Feb. 3, 2010), which affirmed exclusion of a motorcycle (what else) recall as a subsequent remedial measure.

We would have been even more delighted if Rutledge had been published, but unfortunately it isn't.

Full post as published by Drug and Device Law on February 05, 2010 (boomark / email).