I concur in the judgment only.
The issue presented by this case is whether Evid. R. 407 applies to strict products liability actions. I believe it does. See Hall v. American Steamship Co. (C.A. 6, 1982),688 F.2d 1062, 1066-1067; Gauthier v. AMF, Inc. (C.A. 9, 1986),788 F.2d 634, amended (1986), 805 F.2d 337; Cann v. Ford Motor Co. (C.A. 2, 1981), 658 F.2d 54, certiorari denied (1982), 456 U.S. 960;Werner v. Upjohn Co. (C.A. 4, 1980), 628 F.2d 848, certiorari denied (1981), 449 U.S. 1080. Indeed, as detailed in the majority opinion, such an interpretation is supported not only by the history of the rule, but also by the policy of encouraging subsequent remedial measures which underlies Evid. R. 407. Accordingly, the trial court correctly applied Evid. R. 407 to appellants' case. Even so, appellants suggest in their brief that the letter, and the doctors' testimony relating thereto, were admissible for purposes other than proof of culpable conduct, such as causation and control. While Evid. R. 407 allows evidence of remedial measures for such limited purposes, appellants did not attempt to introduce their evidence for those limited purposes. In any event, since the substance of the letter was placed into evidence through appellants' cross-examination of defendant's witness, appellants sustained no prejudice as a result of the trial court's ruling. As a result of the foregoing, I would overrule the first assignment of error.
Appellants also contend that the trial court erred in excluding the doctors' deposition testimony offered in rebuttal. The deposition testimony of the doctors included numerous direct references to the advisory letter, both in the questions and the answers, references which appellants deleted in order to facilitate admission of the testimony. However, because of the extent to which appellants' deletions took the questions and doctors' answers out of context, the trial court reasonably could conclude that the probative value of the testimony was substantially outweighed by the danger of confusion of the issues or of misleading the jury. See Evid. R. 403(A). In short, I cannot say that the trial court exceeded the bounds of its discretion in so concluding. See State v. Morales (1987), 32 Ohio St. 3d 252,257, 513 N.E.2d 267, 273; Humphrey v. Dept. ofMental Health Mental Retardation (1984), 14 Ohio App. 3d 15,18, 14 OBR 18, 21, 469 N.E.2d 981, 985. The trial court having so determined, it properly excluded appellants' doctors' deposition testimony under Evid. R. 403(A). Accordingly, I would overrule appellants' second assignment of error.
For the foregoing reasons, I would affirm the judgment of the trial court.