Applicability of C.r.e. 407 in Federal Court

• Publication year: 2005
• Pages: 77

34 Colo.Law. 77 Colorado Bar Journal 2005.

2005, January, Pg. 77. Applicability of C.R.E. 407 In Federal Court

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77

Vol. 34, No. 1, Pg. 77

The Colorado Lawyer
January 2005
Vol. 34, No. 1 [Page 77]

Specialty Law Columns
Evidence
Applicability of C.R.E. 407 In Federal Court
by Nathan Davis

Q: Is evidence of a subsequent remedial measure admissible in a product liability action filed in Colorado federal district court

A: Probably not. Prior Tenth Circuit precedent indicating that C.R.E. 407 would apply appears to be superseded by 1997 amendments to F.R.E. 407

Assumed Facts

Edward Employee suffered serious injuries when his arm was caught in a large piece of equipment that was manufactured by Pinch-Point Processing, Inc. Edward commenced a product liability action against Pinch-Point in the U.S. District Court for the District of Colorado

Shortly before trial, Edward's attorneys disclosed an intention to offer into evidence the fact that Pinch-Point made remedial changes to its equipment after the accident. Pinch-Point's attorneys filed a motion in limine under F.R.E. 407, seeking to exclude this evidence, notwithstanding Tenth Circuit precedent indicating that trial courts should apply state law when determining whether to admit evidence of subsequent remedial measures in product liability actions. How should the Colorado district court rule?

Discussion

Both C.R.E 407 and F.R.E 407 bar evidence of subsequent remedial measures to prove negligence or culpable conduct. In 1997, F.R.E. 407 was amended to provide that evidence of subsequent remedial measures also was inadmissible "to prove a defect in a product, a defect in a product's design or a need for a warning or instruction."1

Colorado has not adopted a similar amendment. The Colorado Supreme Court has relied, in part, on this difference in holding that C.R.E. 407 does not bar evidence of subsequent remedial measures in product liability cases that are premised on alleged design defects.2 Accordingly, in a product liability action filed in the federal court in Colorado, the choice between F.R.E. 407 and C.R.E. 407 is important.

Prior to 1997, a split developed among federal circuit courts concerning the applicability of F.R.E. 407 in product liability actions pending in federal court. Four federal circuits applied F.R.E. 407 instead of state evidentiary rules.3 On the other...