                IN THE SUPREME COURT OF IOWA
                             No. 08–0365

                        Filed October 23, 2009


STEPHEN MARTIN SCOTT,

      Appellant,

vs.

DUTTON-LAINSON COMPANY,

      Appellee.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Eliza J.

Ovrom, Judge.



      Plaintiff challenges district court ruling excluding evidence of

subsequent remedial measure under Iowa Rule of Evidence 5.407.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT AFFIRMED.



      Michael S. Jones, Patterson Law Firm, L.L.P., Des Moines, for

appellant.



      J. Campbell Helton, Whitfield & Eddy, P.L.C., Des Moines, for

appellee.
                                    2

STREIT, Justice.

      Stephen Scott was injured while using a boat trailer jack. He filed

suit against Dutton-Lainson Company, the jack manufacturer, alleging

the jack was defectively designed and did not include proper warnings.

Scott proffered evidence that Dutton-Lainson modified the jack design

after his injury, which the district court excluded under Iowa Rule of

Evidence 5.407. After a defense verdict, Scott appealed. We hold the

district court properly excluded the evidence of subsequent remedial

measures because design defect and failure to warn claims are not strict

liability claims, and Scott sought to introduce the evidence to prove

negligence or culpable conduct.

      I. Background Facts and Proceedings.

      Plaintiff Stephen Scott, the employee of a boat dealership, was

injured when the jack on a boat trailer collapsed and crushed his foot.

Scott brought suit against the jack manufacturer, defendant Dutton-

Lainson Company, based on “defects in [the jack’s] design and

manufacturing and the negligence of the Defendant[].”

      Scott planned to present evidence that, subsequent to Scott’s

injury, Dutton-Lainson modified the tooling for the jack pin which

allowed it to move into the pin hole further. Additionally, Scott sought to

introduce testimony that Ron Haase, an officer of Dutton-Lainson,

admitted Dutton-Lainson modified the jack pin as a result of Scott’s

injury.

      Before trial, Dutton-Lainson filed a motion in limine seeking to

exclude evidence of subsequent remedial measures pursuant to Iowa

Rule of Evidence 5.407.    The district court sustained the motion and

excluded the evidence.    The court submitted the case to the jury on

theories of design defect and failure to warn, and the jury returned a
                                     3

verdict finding Dutton-Lainson was not at fault. Scott appealed, arguing

the district court erred when it excluded evidence of subsequent remedial

measures. We transferred the case to the court of appeals, which held

the evidence was admissible and reversed the district court.        Dutton-

Lainson sought further review with this court.

        II. Scope of Review.

        “This court reviews standard claims of error in admission of

evidence for an abuse of discretion.” State v. Stone, 764 N.W.2d 545, 548

(Iowa 2009). “[T]o the extent a challenge to a trial court ruling on the

admissibility of evidence implicates the interpretation of a rule of

evidence, our review is for errors at law.” State v. Jordan, 663 N.W.2d

877, 879 (Iowa 2003). “Error may not be predicated upon a ruling which

admits or excludes evidence unless a substantial right of the party is

affected . . . .” Iowa R. Evid. 5.103. Therefore, reversal is warranted only

if exclusion of the evidence affected a party’s substantial rights. Tucker

v. Caterpillar, Inc., 564 N.W.2d 410, 414 (Iowa 1997).

        III. Merits.

        A.   Evidence of the Modified Jack Pin.          The district court,

relying on Iowa Rule of Evidence 5.407, excluded evidence of a change

Dutton-Lainson made to its jack pin after Scott was injured using the

jack.   Scott proffered deposition testimony from Ron Haase of Dutton-

Lainson that the company was “tuning the tooling” of the jack pin. Scott

also proffered testimony from the deposition of James Byron Wink that

Ron Haase of Dutton-Lainson told him the jack pin was lengthened as a

result of Scott’s injury.   At trial and outside the presence of the jury,

Scott elicited testimony from a witness—who is not identified in the

transcript—that the tooling of the jack was changed to allow the pin “to

move into the hole . . . [a]bout a 16th of an inch farther.” Scott claimed
                                      4

an extended pin would allow the user to verify whether the pin was

engaged and therefore prevent accidents like the one Scott suffered. The

district court refused to admit testimony of the subsequent change

because it found the evidence was of a subsequent remedial measure

offered to show negligence or culpable conduct.

       Iowa Rule of Evidence 5.407 prevents admission of subsequent

remedial measures to prove negligence or culpable conduct but

categorically allows admission of such evidence in strict liability claims.

It states:
       When, after an event, measures are taken which, if taken
       previously, would have made the event less likely to occur,
       evidence of the subsequent measures is not admissible to
       prove negligence or culpable conduct in connection with the
       event. This rule does not require the exclusion of evidence of
       subsequent measures when offered in connection with a
       claim based on strict liability in tort or breach of warranty or
       for another purpose, such as proving ownership, control, or
       feasibility of precautionary measures, if controverted, or
       impeachment.
Iowa R. Evid. 5.407.

       Scott sought to introduce the evidence of a subsequent remedial
measure based on rule 5.407’s categorical provision for admissibility in

strict liability and breach of warranty claims.        Scott’s claims were

submitted to the jury on theories of failure to warn and design defect.

Failure to warn claims cannot be brought under a theory of strict

liability. Olson v. Prosoco, Inc., 522 N.W.2d 284, 289 (Iowa 1994). Prior

to this court’s recent decision in Wright v. Brooke Group Ltd., 652 N.W.2d

159 (Iowa 2002), design defect claims could be brought under a theory of

either strict liability or negligence. See, e.g., Chown v. USM Corp., 297

N.W.2d 218, 220 (Iowa 1980); Hawkeye-Security Ins. Co. v. Ford Motor

Co., 174 N.W.2d 672, 682–84 (Iowa 1970).         In Wright, we adopted the

Restatement (Third) of Torts: Products Liability sections 1 and 2 (1998)
                                           5

[hereinafter Third Products Restatement].             Wright, 652 N.W.2d at 169.

The Third Products Restatement recognizes that “strict liability is

appropriate in manufacturing defect cases, but negligence principles are

more suitable for other defective product cases.” Id. at 168. Therefore,

Wright adopted a standard of risk-utility analysis, which incorporates a

consideration of reasonableness, for design defect claims, 1 but chose to

“label a claim based on a defective product design as a design defect

claim without reference to strict liability or negligence.”                Id. at 169.

Because Wright rejected the categorical labels of strict liability or

negligence in the context of design defects, the parties dispute whether

rule 5.407’s categorical exception for strict liability claims applies to

design defect claims.

       We hold that evidence of subsequent remedial measures, which a

party seeks to introduce in an action based on a design defect claim, a

failure to warn claim, or a breach of warranty claim brought under either

theory, 2 is not categorically exempt from exclusion under rule 5.407

because these claims are not strict liability claims. Instead, trial courts

must analyze the reason a party seeks to admit such evidence.

According to rule 5.407, evidence of subsequent remedial measures is

       1A  product “is defective in design when the foreseeable risks of harm posed by
the product could have been reduced or avoided by the adoption of a reasonable
alternative design by the seller or other distributor, or a predecessor in the commercial
chain of distribution, and the omission of the alternative design renders the product not
reasonably safe.” Third Products Restatement § 2(b), at 14.
       2Rule 5.407 refers to breach of warranty claims as it does strict liability claims
and therefore does not require exclusion of evidence of subsequent remedial measures.
Wright held, however, that a claim for breach of implied warranty under Iowa Code
section 554.2314(2)(c) “requires proof of a product defect as defined in Products
Restatement section 2.” Wright, 652 N.W.2d at 181–82. Therefore, a breach of
warranty claim will require proof of the standard for either a manufacturing defect, a
design defect, or a failure to warn. Application of rule 5.407 to breach of warranty
claims must be determined based on which of the three tests the plaintiff chooses to
proceed under.
                                              6

not admissible to show negligence or culpable conduct. Such evidence is

admissible to show “ownership, control, or feasibility of precautionary

measures, if controverted, or impeachment.” Iowa R. Evid. 5.407.

       Rule 5.407’s carve out for strict liability in tort and breach of

warranty claims remains relevant to only one type of product liability

claim: a claim based on a manufacturing defect. A product “contains a

manufacturing defect when the product departs from its intended design

even though all possible care was exercised in the preparation and

marketing of the product.”            Third Products Restatement § 2(a), at 14.

This definition is consistent with strict liability because fault is assessed

regardless of the exercise of all possible care. 3 See Wright, 652 N.W.2d at

168 (“The Products Restatement demonstrates a recognition that strict

liability is appropriate in manufacturing defect cases, but negligence

principles are more suitable for other defective product cases.”)

Therefore, evidence of subsequent remedial measures is admissible in

manufacturing defect cases brought under a strict liability theory.

However, even when the strict liability exception applies, courts are still

required to evaluate relevance under Iowa Rule of Evidence 5.402 and

prejudice under Iowa Rule of Evidence 5.403.
       A review of the history of our rule, its federal counterpart, and

substantive products liability law in Iowa confirms today’s result. Iowa

Rule of Evidence 5.407 differs from its counterpoint in the Federal Rules

of Evidence, rule 407, with regard to strict liability claims. See Tucker,

564 N.W.2d at 413 n.1 (“Federal Rule of Evidence 407 is similar to Iowa

       3
        Comment c of the Third Products Restatement section 2 notes that “[a]lthough
Subsection (a) calls for liability without fault [in manufacturing defect claims], a plaintiff
may seek to recover based upon allegations and proof of negligent manufacture.” Third
Products Restatement § 2 cmt. c, at 18; see also Third Products Restatement § 2 cmt. n,
at 36. If manufacturing defect claims are brought under a negligence theory, the
categorical strict liability exception in rule 5.407 would not apply.
                                      7

Rule of Evidence 407 [now 5.407] but does not provide an exception in

strict liability cases.”)    In 1983, at the time the Iowa rule was first

adopted, Federal Rule of Evidence 407 was silent regarding its

applicability to strict liability claims, and federal courts were split over

the issue. See Grenada Steel Indus., Inc. v. Alabama Oxygen Co., 695

F.2d 883, 886–88 (5th Cir. 1983) (citing cases). The drafters of the Iowa

rule addressed this conflict with the statement that rule 5.407 “does not

require the exclusion of evidence of subsequent measures when offered

in connection with a claim based on strict liability in tort or breach of

warranty.”    Iowa R. Evid. 5.407.     The 1983 comment to Iowa Rule of

Evidence 5.407 states “unlike the Federal Rule, it specifically does not

apply to actions based upon strict liability or breach of warranty.” Iowa

R. Evid 5.407 official comment (1983). In 1997, Federal Rule of Evidence

407 was amended to prevent admission of subsequent remedial

measures in product liability claims, including strict liability, unless the

need for such evidence falls under a specific exception. Fed. R. Evid. 407

(evidence of subsequent remedial measures “is not admissible to prove

negligence, culpable conduct, a defect in a product, a defect in a product’s

design, or a need for a warning or instruction” (emphasis added)); see also

Fed. R. Evid. 407 advisory committee’s note (1997). Therefore, Iowa Rule

of Evidence 5.407 allows introduction of evidence of subsequent remedial

measures in strict liability claims while Federal Rule of Evidence 407

specifically prohibits it.

      Scott argues the district court should have admitted evidence of

subsequent remedial measures because his design defect claim is not an

ordinary negligence claim.      Design defect claims could be brought as

strict liability claims when rule 5.407 (then rule 407) was originally

adopted in 1983.       See, e.g., Chown, 297 N.W.2d at 220; Hawkeye-
                                           8

Security, 174 N.W.2d at 682–84.            Scott contends rule 5.407’s specific

exception for strict liability should be read to apply to design defect

claims after Wright because Wright refused to classify such claims under

a theory of either strict liability or negligence.          Wright, 652 N.W.2d at

169.

       We disagree. Scott’s design defect and failure to warn claims are

not strict liability claims. Although we chose not to label design defect

claims as either negligence or strict liability claims, we recognized that

“negligence principles are more suitable” for design defect and failure to

warn claims. Id. at 168. The standards for design defect and failure to

warn claims—as recognized by the Third Products Restatement and

Wright—require        consideration      of    reasonableness        and     therefore

incorporate negligence principles. Third Products Restatement § 2(b), (c),

at 14.     Although the drafters of rule 5.407 intended to create a

distinction between strict liability claims and negligence, Iowa tort law no

longer supports this distinction in the context of design defect and failure

to warn claims.        Scott seeks to introduce evidence of a subsequent

remedial measure to do exactly what the rule forbids: prove negligence

or culpable conduct. 4

       The Third Products Restatement section 2, as adopted in Wright,

requires plaintiffs in design defect cases to demonstrate the existence of

a reasonable alternative design. 5 Third Products Restatement § 2(b), at

14 (stating a product “is defective in design when the foreseeable risks of

       4Before the district court, Scott argued the proffered evidence was admissible to

demonstrate the feasibility of an alternative design with a longer pin. Dutton-Lainson
argued that it did not take the position that the pin could not be lengthened. We do not
reach the merits of the feasibility exception here because Scott has not raised the
argument on appeal.
       5Parishv. Jumpking, Inc., 719 N.W.2d 540, 543–45 (Iowa 2006) noted a limited
exception to the reasonable alternative design requirement for “manifestly
unreasonable” products as explained in comment e to the Third Products Restatement.
                                     9

harm posed by the product could have been reduced or avoided by the

adoption of a reasonable alternative design” (emphasis added)).        Some

courts have suggested the reasonable alternative design requirement is

inconsistent with a rule of evidence excluding subsequent remedial

measures. See Rahmig v. Mosley Mach. Co., 412 N.W.2d 56, 73, 82 (Neb.

1987) (stating “[t]he exclusion sometimes warranted by Neb. Evid. R. 407

is, therefore, subordinated . . . [lest plaintiff] be prevented from proving

requisite feasibility of a safer product and thereby risk an adverse

directed verdict or forfeiture of a favorable verdict on account of such

absence of proof” and overruling prior precedent requiring plaintiff to

prove a reasonable alternative design).

      We find the exceptions in rule 5.407 accommodate plaintiff’s

burden to prove a reasonable alternative design.        Rule 5.407 allows

admission of evidence to demonstrate “ownership, control, or feasibility

of precautionary measures, if controverted, or impeachment.”        Iowa R.

Evid. 5.407.   Plaintiffs have the opportunity to introduce evidence of

subsequent remedial measures if the defendant disputes the feasibility of

a suggested alternative design. Cf. 23 Charles Alan Wright & Kenneth W.

Graham, Jr., Federal Practice and Procedure § 5288, at 136 (1980) (“Use

of   subsequent   remedial    measures    to   prove   ‘the   feasibility   of

precautionary measures’ . . . demonstrates the narrow scope of the

general rule excluding such proof.”). In Bangs v. Maple Hills, Ltd., 585

N.W.2d 262, 267 (Iowa 1998), we held that a defendant who argued a

proposed design “would not work” controverted feasibility and the trial

court did not err by admitting evidence of subsequent remedial

measures.

      Scott nevertheless argues the policy analysis in the comment to

rule 5.407 supports admission of subsequent remedial measures in
                                     10

product liability cases, including claims of defective design. Two policy

reasons are typically cited to support rule 5.407 and its federal

counterpart.   First, the advisory committee notes to Federal Rule of

Evidence 407 explain that “the rule rejects the notion that ‘because the

world gets wiser as it gets older, therefore it was foolish before.’ ” Fed. R.

Evid. 407 advisory committee’s note (1972) (quoting Hart v. Lancashire &

Yorkshire Ry., 21 L.T.R. N.S. 261, 263 (1869)).         Second, as we have

recognized, “[t]he public policy supporting the rule is ‘that the exclusion

of such evidence may be necessary to avoid deterring individuals from

making improvements or repairs after an accident.’ ” Bangs, 585 N.W.2d

at 266 (quoting Tucker, 564 N.W.2d at 412).

      Scott points to the Iowa rule’s official comment, which suggests a

contemporary     corporate    mass    producer    may    choose    to   make

improvements to a product even if those improvements are admissible

because the producer would otherwise risk additional lawsuits and

negative effects on its public image. Iowa R. Evid. 5.407 official comment

(1983) (citing Ault v. Int’l Harvester Co., 528 P.2d 1148, 1151–52 (Cal.

1974)). Ault, however, is not without criticism, particularly in the context

of design defects. See Duchess v. Langston Corp., 769 A.2d 1131, 1140–

41 (Pa. 2001) (noting a “substantial body of criticism” of Ault for

(1) overstating the relevance of subsequent remedial measures, (2) an

unsound focus on mass producers, and (3) a flawed distinction between

negligence and strict liability). Also, the 1983 official comment to rule

5.407 relies on the theory that “a products liability case looks to, or

emphasizes a defect in the product, rather than any conduct or culpable

act on behalf of the manufacturer.” Iowa R. Evid. 5.407 official comment

(1983). We have rejected this distinction in the context of design defect
                                          11

and failure to warn claims. Wright, 652 N.W.2d at 164–69; Olson, 522

N.W.2d at 289.

       The plain language of rule 5.407 specifically prevents introduction

of subsequent remedial measures to show negligence but exempts claims

brought in strict liability.      Therefore, evidence of subsequent remedial

measures is inadmissible in design defect claims, failure to warn claims,

and breach of warranty claims brought under either of those theories,

unless the evidence is offered to prove ownership, control, feasibility, or

impeachment. Evidence of subsequent remedial measures continues to

be admissible in manufacturing defect claims and breach of warranty

claims brought under the manufacturing defect standard.

       B.    Mr. Haase’s Alleged Statement.                 James Byron Wink, a

representative of trailer manufacturer Prestige Trailers, testified in a

deposition     that   Ron     Haase,     Dutton-Lainson’s        vice   president     of

engineering, told him the jack pin was lengthened as a result of the

accident involving Scott.         The district court excluded this statement

under rule 5.407. Scott argues the statement is admissible under Iowa

Rule of Evidence 5.801(d)(2) as an admission by a party-opponent. 6

       A statement is not automatically admissible simply because it is
not excluded under the hearsay rule. Non-hearsay may still be excluded

based on other rules of evidence, including relevancy under rule 5.402,

undue prejudice under rule 5.403, and here, admissibility under rule

5.407. Because the district court properly held evidence of the modified


       6Dutton-Lainson    claims this issue was not raised before the district court and
therefore is not preserved. This is incorrect. After the district court issued a ruling
excluding evidence based on rule 5.407, Scott’s attorney argued to the district court
that with respect to the deposition testimony he “consider[ed] that to be an admission of
a party opponent.” The district court responded, “Well, I think what you point out here
is a discussion of subsequent remedial measure, which under my ruling would not be
admissible.”
                                   12

jack pin was not admissible, Scott could not avoid this ruling by seeking

to introduce the evidence as an admission by a party-opponent.

      IV. Conclusion.

      Under Iowa Rule of Evidence 5.407, evidence of subsequent

remedial measures is not exempt from exclusion in design defect claims

because they are not strict liability claims. The district court properly

excluded Scott’s proffered evidence.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.
