Rule 407: Subsequent Remedial Measures?

• Jurisdiction: Colorado,United States,Federal
• Citation: Vol. 20 No. 5 Pg. 895
• Pages: 895
• Publication year: 1991

20 Colo.Law. 895 Colorado Lawyer 1991.

1991, May, Pg. 895. Rule 407: Subsequent Remedial Measures?

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895

Vol. 20, No. 5, Pg. 895

Rule 407: Subsequent Remedial Measures

by Andrew Field

Deputy District Attorney, Arapahoe County District Attorney's Office

Q:In a product liability action, is evidence of post-injury remedial measures or post-sale scientific advancements admissible on the issue of liability?

A:Sometimes.

In Colorado, evidence of remedial actions taken subsequent to the injury is inadmissible to show "culpable conduct" except in a product liability case.(fn1) However, evidence of scientific advancements developed after the time that the product at issue was sold is inadmissible except to show a duty to warn.(fn2) Thus, in a product liability action governed by Colorado law, evidence of post-injury remedial conduct that does not constitute a scientific advancement would be admissible to prove a design defect, as well as to establish a duty to warn.

The U.S. Court of Appeals for the Tenth Circuit has held that because Fed. R. Evid. 407 "is based primarily on policy considerations rather than relevancy or truth-seeking," Colorado's statute restricting the introduction of evidence of post-sale scientific advancements is controlling when there is a conflict between the two.(fn3)

When the case is governed by the law of a state that does not have a statute such as Colorado's, then the Tenth Circuit's interpretation of Fed. R. Evid. 407 will control. Similarly, when the federal court applies Colorado product liability law, but the evidence offered to establish liability is evidence of a post-injury remedial measure that does not rise to the level of a "scientific advancement," the Tenth Circuit's interpretation of Fed. R. Evid. 407 would apply.

Awareness of when the U.S. district courts within the Tenth Circuit will be obligated to apply the Tenth Circuit's construction of Fed. R. Evid. 407 is important. The Tenth Circuit is at odds with all but one of the other federal circuit courts that have faced the question of whether Fed. R. Evid. 407 applies to product liability actions.(fn4) The Tenth Circuit has held that Fed. R. Evid. 407 does not apply to product liability actions because the rule speaks in terms of "negligence or culpable conduct," concepts the court reasoned were irrelevant in a strict liability context.(fn5)

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