Abstract

The applicability of the "subsequent remedial measure" exclusionary rule to strict product liability cases has plagued and divided courts for over a decade. Codified in Federal Rule of Evidence 407 and various state counterparts, the rule forbids the use of evidence of post-accident modifications for proving negligence or culpable conduct. Most courts applying the exclusionary rule to strict product liability cases follow the rule used in negligence actions. They designate the date of accident as the time after which subsequent design modifications are inadmissible. Arizona and Idaho, however, have statutorily set the date of sale of the product as the effective time after which design modifications are inadmissible. Colorado has enacted a statute that may be interpreted as doing the same.

This Note examines the propriety of excluding evidence of design modifications made after the date of sale instead of after the date of accident. Next, it will be suggested that the date of sale as the effective date for excluding evidence of subsequent design modifications is more consistent with the underlying policy goals of the rule and with the theory of strict product liability as embodied in section 402A of the Restatement (Second) of Torts. 

The first part of this Note reviews the ongoing debate regarding whether to apply the subsequent remedial measure exclusionary rule to strict product liability. It must be kept in mind that the theory advanced in the second part of this Note is relevant only to jurisdictions applying an exclusionary rule to product liability. In the second part, the argument is made that a post-sale exclusion is more consistent with the Restatement's language designating the date of sale as the time liability attaches, and is thus more likely than a post-accident rule to achieve the policy results ascribed to both the post-sale and post-accident rules. Additionally, the Arizona, Colorado, and Idaho statutes and recent judicial interpretations of the Arizona and Colorado statutes are discussed. The final part of this Note provides further analysis of the comparison between a post-sale and a post-accident rule by judging their comparative effect on the broader strict product liability policy goals of consumer protection.

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