Book IV is, he argues, directed against Aetius' Syntagmation and Eunomius' Apology, theses from both of which it cites and
controverts. That, I think, must be correct, and Dr Risch's conclusion (p.
Rule 407 identifies exceptions for recall evidence that is used to prove ownership and control, (33) feasibility (if controverted), or impeachment.
When a company is silent on the issue of feasibility, there is a split regarding the interpretation of "if controverted." (47) The minority view, taken by the Tenth and Seventh Circuits, is that feasibility is presumed controverted unless the company expressly admits to feasibility.
Because feasibility is almost always an issue in prescription products liability cases, courts adopting the majority approach will often re-characterize a defendant's arguments regarding feasibility in an effort to hold that feasibility is not controverted and that the feasibility exception has not been invoked.
(52) Courts which characterize the defendant's feasibility position as a "trade-off' or "limited knowledge" argument find that feasibility is not "controverted" for purposes of Rule 407 and its "feasibility" exception.
Otherwise inadmissible subsequent remedial measures are admissible on the issue of feasibility of safety precautions, if controverted. (53) If a defendant claims that the alternative suggested is not feasible for any reason, the feasibility is controverted and the evidence is admissible under this exception.
Hoffman-La Roche, (57) plaintiff sought to introduce a post-accident informed consent form on the issue of the feasibility of providing adequate warnings, which she argued was controverted at trial.
1984); Herndon, 716 F.2d at 1329 ("Even where the feasibility of remedial measures is as apparent as in our case, manufacturers should be deemed to controvert that feasibility unless they unequivocally admit it.
