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Forma Scientific Inc. v. Biosera Inc.6/1/1998
EN BANC
CHIEF JUSTICE VOLLACK Dissents.
JUSTICE KOURLIS does not participate.
We granted certiorari in BioSera, Inc. v. Forma Scientific, Inc., 941 P.2d 284 (Colo. App. 1996), a strict products liability case involving an ultra-cold temperature freezer manufactured by Forma Scientific, Inc. (Forma), the petitioner. The respondent, BioSera, Inc. (BioSera), owned a freezer manufactured by Forma which was inadvertently shut off one night. As a result, all of the medical contents stored in the freezer by BioSera were destroyed. Over Forma's objection, the trial court admitted evidence of subsequent remedial measures (design changes) made by Forma to the unguarded on/off power switch of its freezers. The court of appeals affirmed the trial court's evidentiary ruling based on its finding that the feasibility of design changes was at issue during the trial. Pursuant to Colorado Rule of Evidence 407 (CRE 407), evidence of subsequent remedial measures is generally precluded if it is introduced "to prove negligence or culpable conduct." CRE 407. That rule provides further that such evidence is admissible, however, to demonstrate the feasibility of a design change, if feasibility is at issue. Here, the court of appeals concluded that the evidence was admissible under this exception. Thus, the court of appeals implicitly assumed that CRE 407 applies to strict liability cases.
Forma sought this court's review of " hether evidence of post-accident changes in the design of a product is admissible in strict liability cases, when the feasibility of the design alternative is not an issue." We now affirm the judgment of the court of appeals on different grounds and hold that CRE 407 does not apply to strict liability claims based on design defect. Because of our Disposition, we need not address Forma's contention that it did not place feasibility at issue.
II.
BioSera is a corporation located in Aurora, Colorado that sells blood products to the health industry. Ultimately, the blood products sold by BioSera, comprising HLA plasma and red cell antibodies, are utilized by hospitals and blood donor banks for tissue typing in bone marrow and organ transplant cross-matching as well as for transfusion crossmatching. As part of its regular business operations, BioSera collects blood plasma from donors who have rare blood types. The donors are able to donate plasma twice a week as long as the concentration of the desirable type of cells in their plasma ("titer") remains above a certain level. If the titer falls below a certain level, the donor must be immunized with "stim" cells to stimulate production of these desirable cells. Typically, the donor can start donating plasma again within one to two weeks of immunization. BioSera's blood products and donor-specific immunizations must be stored at ultra-cold temperatures.
Forma, a company located in Marietta, Ohio, manufactures and sells freezers for scientific use as well as other laboratory equipment. In November 1990, BioSera purchased an ultra-cold temperature freezer from Forma to store its products. The freezer, a 700-pound upright model, had a temperature range of -50 degrees Celsius to -86 degrees Celsius. This particular freezer was manufactured by Forma in 1990 and had an on/off power switch located on the lower back right-hand side of the unit, approximately eight inches above the floor and one inch away from the power line cord. The on/off power switch operated as a rocker switch which was not recessed or guarded. In its complaint, BioSera described the rocker switch as operable without application of any significant force.
On April 9, 1992, a janitorial service employed by Bi
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