Forma Scientific, Inc. v. BioSera, Inc., 96SC860

• Citation: 960 P.2d 108
• Decision Date: 01 June 1998
• Docket Number: No. 96SC860,96SC860
• Parties: Prod.Liab.Rep. (CCH) P 15,278, 98 CJ C.A.R. 2885 FORMA SCIENTIFIC, INC., Petitioner, v. BIOSERA, INC., a Colorado corporation, Respondent.
• Court: Colorado Supreme Court

Page 108

960 P.2d 108

Prod.Liab.Rep. (CCH) P 15,278, 98 CJ C.A.R. 2885

FORMA SCIENTIFIC, INC., Petitioner, v. BIOSERA, INC., a Colorado corporation, Respondent.

No. 96SC860.

Supreme Court of Colorado En Banc.

June 1, 1998.

William H. ReMine, P.C., William H. ReMine, III, Denver, Montgomery, Little & McGrew, P.C., John R. Riley, Kevin J. Kuhn, Englewood, for Petitioner.

Holland & Hart, Harry Shulman, Marcy G. Glenn, Denver, for Respondent.

Justice MULLARKEY delivered the Opinion of the Court.

I.

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 "[w]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 ¹ and red cell antibodies, are utilized by hospitals and blood donor banks for tissue typing ² 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 BioSera inadvertently turned off the on/off power switch located at the back of the ultra-cold temperature freezer while performing cleaning services. ³ Although the unit made an audible beeping sound when the electricity was shut off, the janitorial service failed to respond to the warning signal and the unit remained off from Thursday night until the following Monday morning, April 13, 1992, when BioSera employees arrived at work. Consequently, BioSera's inventory in the freezer (HLA plasma and red blood cells for immunizations) was destroyed.

BioSera brought suit against Forma on negligence and strict liability grounds, ⁴ seeking damages for the cost of the blood product inventory and blood immunizations that were destroyed, $248,863.50 and $7,024.63 respectively. In addition, BioSera sought lost profits/replacement costs for the immunizations ($15,819,100). ⁵ BioSera alleged that Forma could have better protected the rocker switch, and indeed that Forma had changed the design of the rocker switch after BioSera purchased the freezer unit from Forma. Specifically, commencing January 1992, Forma equipped its freezers with a larger and more visible power switch. BioSera alleged that the increased visibility of the switch would render it more difficult to turn off the freezer inadvertently.

Forma moved for summary judgment on BioSera's claims for lost profits/replacement costs and subsequently filed a motion in limine to exclude evidence of subsequent remedial measures taken in the design of the power switch. The trial court dismissed BioSera's claim for lost profit/replacement costs for the donor immunizations, ruling that such damages are not recoverable in products liability cases. The trial court, however, denied Forma's motion in limine to exclude evidence that Forma used a different rocker switch on its ultra-cold temperature freezers beginning in January 1992, ruling that the motion was "denied to the extent such evidence will be offered on the issue of strict liability."

Before the start of trial, which was held in April 1995, Forma orally renewed its motion in limine to have evidence of subsequent remedial measures stricken. In addition to the 1992 change, Forma had decided, approximately five to six weeks prior to trial, to add a red light to the power failure switch and was considering a recommendation by an internal engineering committee proposing to add guards (plastic wings) to protect the on/off power switch on its freezers. Evidence of the latter consisted of a memo detailing an engineering change request which noted as a "problem" that the switch could inadvertently be shut off and proposed as a "solution" that the rocker switch be protected with plastic wing guards. Thus, Forma moved to exclude the new evidence, as well as the evidence raised in its earlier written motion in limine (the original motion predated both the accepted and proposed changes made in 1995). The trial court again denied the motion based on its earlier ruling that evidence of subsequent remedial measures is admissible as to strict liability claims. After trial, the jury returned a verdict for Forma on the negligence claim and a verdict for BioSera on the strict products liability claim.

BioSera appealed the trial court's summary judgment ruling denying it damages for lost profits/replacement costs. Among the other grounds raised by it, Forma cross-appealed the trial court's ruling on the admissibility of evidence of subsequent remedial measures. The court of appeals affirmed the trial court in all respects. We accepted certiorari review to consider only the evidentiary issue, i.e., whether CRE 407 applies to strict liability claims premised on a design defect theory.

III.

A.

The court of appeals considered only briefly the admissibility of the subsequent remedial measures taken by Forma. First, citing CRE 407, the court of appeals noted that:

Generally, evidence of subsequent remedial measures cannot be introduced to prove negligence or culpable conduct. However, it can be admitted to prove the feasibility of precautionary measures, if that issue is contraverted.

BioSera, 941 P.2d at 287. Next, the court of appeals noted that, although Forma argued that it did not contest the feasibility of design changes, "the record reflect[ed] that defendant's position at trial was that the design change it ultimately made would have been a poor design choice based on the relative risks and benefits." ⁶ Id. The trial court, however, did not consider feasibility when it issued its ruling on the motion in limine on strict liability grounds only. ⁷ Nevertheless, because "one of the factors to be considered under the 'risk/benefit' test is the manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility," the court of appeals concluded that Forma's trial strategy raised feasibility as an issue. Id. (citing Ortho Pharm. Corp. v. Heath, 722 P.2d 410 (Colo.1986)). Thus, the court of appeals sanctioned the admission of the evidence because it was probative as to the feasibility of an alternative design.

Hence, the court of appeals did not address directly the issue with which we are presently confronted. The court of appeals' decision, to allow the evidence under the feasibility exception, however, implicitly assumed that CRE 407 applies to products liability cases which sound in strict liability instead of negligence.

B.

The Colorado Rules of Evidence were adopted by this court on October 23, 1979, and became effective January 1, 1980. For the most part, the evidentiary rules were patterned directly on the federal evidentiary rules which were approved by the United States Supreme Court and enacted into statute by Congress in 1975. The Colorado rules were drafted and proposed to the court by a select...