Wash. Court of Appeals published opinion — 877933 Order and Opinion.pdf

Citation: Wash. Court of Appeals published opinion — 877933 Order and Opinion.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/877933%20Order%20and%20Opinion.pdf ↗

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not admissible to prove negligence or culpable conduct in connection with the

event.” ER 407. But ER 407 does not protect reports or investigations into what

went wrong. 4 See Rocky Mountain Helicopters, Inc. v. Bell Helicopters Textron,

805 F.2d 907, 918 (10th Cir. 1986)) (“It would strain the spirit of the remedial

measure prohibition in Rule 407 to extend its shield to evidence contained in post-

event tests or reports . . . such tests are conducted for the purpose of investigating

the occurrence to discover what might have gone wrong or right.”). The protected

remedial measures would be “actions taken to remedy any flaws or failures

indicated by the” report. Id.

The hospital argues that “[c]ourts diverge from Rocky Mountain when, as

here, post-event tests or studies serve both investigatory and remedial ends.”5

Although the Covington report did include both findings and recommendations,

4 See also CLIFFORD S. FISHMAN & ANNE TOOMEY MCKENNA, JONES ON EVIDENCE §