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Hello again Counselor,
Thanks for writing back -- good to hear from you. I did not initially realize you were a attorney, so it is always an honor to have a fellow member of the Bar entrust an inquiry to me.
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I will be glad to comment further -- please see below.
Yes, even in light of the additional fact pattern you have shared, I regret to say my answer remains unchanged. There are some strong public policy considerations at stake, and the "subsequent remedial measures" doctrine has become firmly established over the years. I am sorry to say that I would predict the Judge will side with the prosecution on this point. That being said, were I in your shoes I would be framing my argument around Constitutional grounds. More specifically, I would be making loud noises about the Due Process implications of allowing what without argument arose as a civil law device to prejudice your client's case. I think that a basic argument along the lines of..."A rule of evidence designed to encourage airlines and manufactures to act in a societally responsible manner should not be perverted to tie our hands at trial."
This is a very interesting case...I would be interested to learn the ultimate outcome on this point.
I hope that helps a bit more and that things work out properly for your client in this matter.
Take care and thanks again for choosing JustAnswer®!
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