Subsequent Remedial Action and LODD Investigation Reports

Today’s burning question: My understanding is that after a line of duty death or injury, if a fire department takes affirmative steps to improve firefighter safety in order to prevent a reoccurrence, those affirmative steps cannot be used against the fire department as evidence to show what it should have been doing all along. Does that mean a LODD investigation report cannot be used against the fire department, because it was undertaken in an effort to prevent a reoccurrence?

Answer: The law does indeed provide that subsequent remedial measures undertaken after an accident to prevent a reoccurrence, cannot be used as evidence against the defendant. However, a LODD investigation is NOT a subsequent remedial measure. Rather it is a pre-cursor to whatever subsequent remedial measures need to be taken. As such the portions of the LODD investigation report that pertain to what happened, are admissible. On the other hand, any recommended remedial actions could be excluded.

That principle was reaffirmed today by United States District Court for the District of Hawaii in the case of Rigsbee v. City & County of Honolulu. Honolulu firefighter Clifford Meredith Rigsbee died on June 14, 2016 while participating in water rescue training on the southeast shore of Oahu near Diamond Head.

Rigsbee, 63, was riding in a sled being towed by a jet ski in rough seas. After traversing a series of eight-foot waves the jet ski operator looked back to find Rigsbee facedown in the water unconscious. Rigsbee died of blunt force injury to the head and neck, with cervical vertebrae fractures and spinal cord injury.

His son sued the City and County of Honolulu for wrongful death. As the trial approaches, attorneys for Honolulu sought to exclude the department’s Line-of-Duty Death Investigation Report, prepared by the department’s Occupational Safety and Health Office. The city argued that the report in its entirety was a subsequent remedial measure.

The district court disagreed, ruling that the majority of the report would be admissible. However, the court concluded that the recommendation section could rightfully be excluded. From the ruling:

• The doctrine of subsequent remedial measures does not extend to internal investigations.
• Subsequent remedial measures include only the actual remedial measures themselves and not the initial steps toward ascertaining if a remedial measure is required.
• Internal investigations and reports that are created to determine if a remedial measure is required do not fall within the scope of Rule 407 because they are not themselves remedial measures.
• Plaintiff agrees that the majority of the Recommendations section of the Line-of-Duty Death Report could constitute subsequent remedial measures and therefore should be excluded pursuant to Fed. R. Evid. 407.
• The remaining sections of the Line-of-Duty Death Report do not constitute subsequent remedial measures.
• The sections provide factual background, opinions, and analysis as to what happened during the actual events at issue in the case.
• The sections do not describe subsequent remedial measures that the Defendant City and County of Honolulu implemented as a result of the accident.
• A defendant’s self analysis of deficiencies does not constitute subsequent remedial measures.

Here is a copy of the decision: Rigsbee v. City & County of Honolulu_ 2019 U.S. Dist. L