Exceptions to Rule that Subsequent Remedial Measures are Inadmissible
In a recent case dealing with a design defect in a motorcycle, where a product safety recall was issued, the appellate court gave a good discussion on what’s known as a “subsequent remedial measure.” Consider this discussion on the inadmissibility of subsequent remedial measures as well as EXCEPTIONS to this rule of inadmissibility:
Even if relevant, Suzuki [motorcycle manufacturer] asserts that the recall is a subsequent remedial measure inadmissible under section 90.407, Florida Statutes. Section 90.407 precludes evidence of remedial measures from being used to establish negligence or a product defect. See § 90.407, Fla. Stat. (“Evidence of measures taken after an injury or harm caused by an event, which measures if taken before the event would have made injury or harm less likely to occur, is not admissible to prove negligence, the existence of a product defect, or culpable conduct in connection with the event.”). At the same time, the trial court maintains discretion to admit this evidence if offered for another purpose. Id. (“This rule does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving ownership, control, or the feasibility of precautionary measures, if controverted, or impeachment.” (emphasis added)); cf. Cavey v. Wells, 313 So. 3d 188, 195 (Fla. 2d DCA 2021) (“This testimony would not necessarily be inadmissible as a subsequent remedial measure if it could be used for impeachment purposes or to prove the feasibility of precautionary measures.” (emphasis added)).
Here, the issue was waived by Suzuki’s failure to adequately address the trial court’s reasoning in its initial brief. Before each trial, Suzuki filed motions in limine regarding the safety recall. In response to each motion, [plaintiff] argued that the recall was either not a subsequent remedial measure or that it fell under the control and impeachment exceptions. The trial court denied the first motion explicitly finding the recall was a subsequent remedial measure but that it was admissible under the control exception, which might also be used for impeachment at trial. Each subsequent motion was also denied but with little explanation. When ruling on the fourth motion — the subject of this appeal — the trial court declared: “I don’t think anything is new. I have the same ruling. The motion is denied.” In its initial brief, Suzuki asserted only that the recall was inadmissible as a subsequent remedial measure, failing to challenge the exceptions on which the trial court explicitly relied in admitting the evidence. Thus, Suzuki waived this issue. See Union Planters Bank v. Guardianship of Heft, 866 So. 2d 1246 (Fla. 5th DCA 2004) (finding issue waived where appellant failed to “directly address the court’s reasoning”); see also D.H. v. Adept Cmty. Servs., Inc., 271 So. 3d 870, 880 (Fla. 2018) (“A trial court’s ruling is treated as correct except insofar as an appellant raises claims of error. Points covered by a decree of the trial court will not be considered by an appellate court unless they are properly raised and discussed in the briefs. Claims of error not raised by an appellant in its initial brief are deemed abandoned.” (citation modified)).
Suzuki Motor Corp. v. Winckler, 51 Fla.L.Weekly D761a (Fla. 5th DCA 2026).
Here, the manufacturer argued a safety recall served as a subsequent remedial measure to preclude its admissibility at trial. The plaintiff argued it’s being admitted for another purpose, which the trial court agreed. The manufacturer never challenged the exception the trial court agreed with that led to the admissibility of the safety recall. For this reason, the appellate court found the manufacturer abandoned this argument.
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