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The New Jersey version of this rule provides that
“[e]vidence of remedial measures taken after an event is not
admissible to prove that the event was caused by negligence or
culpable conduct.”^239 The rationale for this rule “rests on a
social policy of encouraging people to take, or at least not
discouraging them from taking, steps in furtherance of added
safety.”^240 Courts and commentators have recognized the
parallels between the self-critical analysis privilege and the
subsequent remedial measures doctrine.^241 For example, one
court recognized that both rules protect parties from the
Hobson’s choice of aggressively investigating accidents... , ascertaining the causes and results, and correcting
the violations or dangerous conditions, but thereby
creating a self-incriminating record that may be evidence
of liability, or deliberately avoiding making a record on
the subject (and possibly leaving the public exposed to
danger) in order to lessen the risk of civil liability.^242
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.(^239) N.J. R. EVID. 407.
(^240) FED. R. EVID. 407 advisory committee’s note. As Baron Bramwell
described it over a century ago, this rule rejects the idea that “because the
world gets wiser as it gets older, therefore it was foolish before.” Hart v.
Lancashire & Yorkshire Ry., 21 L. Times Rep. (n.s.) 261, 263 (Eng. 1869).
(^241) See, e.g., Making Sense of Rules of Privilege, supra note 46, at 1351–
55 (advocating that federal courts evaluate self-critical analysis claims
utilizing the “activity-privilege” inquiry of Rule 407 rather than the broader
“relational” privilege rules under Rule 501); see also Reid v. Lockheed
Martin Aeronautics Co., 199 F.R.D. 379, 384 n.2 (N.D. Ga. 2001);
Capallupo v. FMC Corp., 46 Fair Empl. Prac. Cas. (BNA) 1193 (D. Minn.
1988) (noting that a defendant’s claim of self-critical analysis “is perhaps
most closely related to the philosophy of Rule 407 of the Federal Rules of
Evidence”).
(^242) Reichhold Chems., Inc. v. Textron, Inc., 157 F.R.D. 522, 524 (N.D.
Fla. 1994).