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Forma Scientific Inc. v. Biosera Inc.6/1/1998
The DeLuryea distinction applies to the circumstances of this case. Sani-Tate can be deemed defective only if the warnings were not adequate. The test of adequacy includes a comparison of the conduct of the defendant to the conduct of a hypothetical "reasonable" entity in the defendant's position at the time. Because this claim requires proof that the defendant's conduct fell short of some objectively ascertainable minimal standard, any liability will be based on "fault" in the traditional tort sense of failure to exercise reasonable care in circumstances wherein one has a duty to exercise reasonable care. We thus conclude that, in the circumstances of this case, CRE 407 is applicable.
Id.
After exhausting this Discussion, however, we found that the evidence at issue did not constitute a subsequent remedial measure because the revised warning was submitted to the Environmental Protection Agency one year prior to the plaintiff's accident. Id. Thus, we reasoned that CRE 407 was not applicable because it concerned only "measures taken 'after an event.'" Id. (quoting CRE 407). Although we theorized at length about the applicability of CRE 407 to strict liability cases premised on failure to warn, we did not ultimately reach that issue in Uptain.
Here, we are presented with a products liability case premised on design defect rather than failure to warn. Thus, while we conclude that the Colorado Committee Comment applies to design defect cases, we leave for another day the question whether the comment also applies to strict products liability cases premised on a failure to warn theory. Nevertheless, we note that our holding here follows logically from the Uptain dicta. Specifically, strict liability cases based on design defect theories do not entail considerations of "fault" in the traditional tort sense as do strict liability cases grounded in failure to warn claims.
IV.
While we conclude that CRE 407 does not apply to products liability cases premised on design defect, evidence of subsequent remedial measures must nevertheless pass muster under the general relevancy and balancing tests of CRE 401 and 403 and must be probative of the claimed defect. See CRE 407, Colorado Committee Comment (stating that although culpable conduct does not include strict liability cases, the "subsequent measure must properly admitted as evidence of the original defect").
Pursuant to CRE 401, evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." The relevancy of evidence, however, must be balanced against its unfair prejudicial impact. Thus, CRE 403 provides that:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
We deem that the evidence of subsequent remedial measures taken by Forma to the design of the on/off rocker switch relevant and probative as to the design of the freezer at the time the incident at issue here took place. Furthermore, the relevancy and probative value of that evidence amply outweighs any unfair prejudice caused to Forma by virtue of its admission. This analysis was implicit in the trial court's ruling to admit the evidence and is supported by the record. We will not disturb the trial court's evidentiary ruling on appeal absent an abuse of discretion. See Uptain, 723 P.2d at 1329 (" rial courts have broad discretion as to the admis
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