concurring.
I concur. However, I cannot agree with Judge Bright’s analysis in Part II. C. concerning the admissibility of evidence of Procter & Gamble’s withdrawal of Rely from the market as a post-remedial occurrence. This case was tried as a strict liability action; and consequently, Rule 407 of the Federal Rules of Evidence should have no applicability. Without reversing the trial court’s admission of the evidence, the majority, however, approves a rationale previously adopted in DeLuryea v. Winthrop Laboratories, 697 F.2d 222 (8th Cir. 1983) (Rule 407 can apply to a strict liability case). The question whether admission of Procter & Gamble’s withdrawal of Rely from the market was proper, however, does not require us to approve the reasoning of DeLurye a.
In dicta, DeLurye a finds that in strict liability cases involving a drug manufacturer’s duty-to-warn, Rule 407 applies and thus the admission of subsequent remedial conduct is limited. DeLurye a relies on the Fourth Circuit’s decision in Werner v. Upjohn, Inc., 628 F.2d 848 (4th Cir.1980), cert. denied, 449 U.S. 1080, 101 S.Ct. 862, 66 L.Ed.2d 804 (1981). With all due respect to our sister circuit, the Werner rationale, that “culpability” within Rule 407 was intended to apply to strict liability cases, is not historically or logically supported.13
In DeLurye a the panel distinguished strict liability cases in which the issue was the adequacy of the defendant drug manufacturer’s warning from other strict liability actions. DeLuryea, 697 F.2d at 229 (citing Werner v. Upjohn, Inc., 628 F.2d 848 (4th Cir.1980), cert. denied, 449 U.S. 1080, 101 S.Ct. 862, 66 L.Ed.2d 804 (1981)). In making the distinction, the DeLurye a panel attempted to distinguish Robbins v. Farmers Union Grain Terminal Assoc., 552 F.2d 788 (8th Cir.1977). In Robbins this court reasoned that Rule 407 is not applicable to strict liability cases, first, because the rule is addressed to issues of negligence or culpability, which by definition are irrelevant in a strict liability case; and, second, because the policy behind the exclusion is not persuasive in strict liability cases. Despite the unfortunate use of negligence terminology in jury instructions, there is a fundamental difference between strict liability actions and negligence actions. Robbins, 519 F.2d at 794-95.14 This distinction has been recognized in other Eighth Circuit de*629cisions. See, e.g., Randall v. Warnaco, Inc., 677 F.2d 1226, 1232 (8th Cir.1982) (Bright, J.); Sterner v. U.S. Plywood-Champion Paper, Inc., 519 F.2d 1352, 1354 (8th Cir.1975).
The attempt in DeLurye a to distinguish Robbins is accomplished without a supporting rationale. I submit that the distinction, which creates an exception for duty to warn in drug cases, is without substance. It would be more appropriate to overrule Robbins than to generate variant applications of Rule 407 to issues that are identical. I believe DeLurye a should be limited to the facts of that case and its dicta should not become the controlling law within the circuit.
In concurring, I find the admission of evidence of Procter & Gamble’s withdrawal of Rely from the market was proper. I do so for the reason that in a strict liability case involving a defective and unreasonably dangerous product, subsequent remedial change is relevant. The Seventh Circuit has made this clear:
[T]he plaintiff must establish that the “product in question has [not] lived up to *630the required standard of safety.” [Citation omitted.] This, of course, requires proof that, inter alia: 1) the product as designed is incapable of preventing the injury complained of; 2) there existed an alternative design which would have prevented the injury; and 3) in terms of cost, practicality and technological possibility, the alternative design was feasible. Evidence of post-occurrence change which tended to satisfy plaintiff’s burden on any of these issues would therefore, be relevant.
Lolie v. Ohio Brass Co., 502 F.2d 741, 744 (7th Cir.1974). A product can be made unreasonably dangerous when the manufacturer fails to provide safe warning to its users. Thus, evidence of Procter & Gamble’s withdrawal was clearly admissible.
. This meaning was rejected in Ault v. International Harvester Co., 13 Cal.3d 113, 117 Cal. Rptr. 812, 528 P.2d 1148 (1944). Although Ault was rejected by Werner, our court had previously adopted the Ault rationale in Robbins, 552 F.2d 788 (8th Cir.1977).
. In Robbins we reasoned:
In product liability cases relating to the alleged failure of a manufacturer to give adequate instructions, the cases are confusing as to whether strict liability (defective product by reason of inadequate instructions) and negligence (failure to exercise reasonable care in instructing) theories of recovery require the same elements of proof as to known or foreseeable dangers. Compare Phillips v. Kimwood Machine Co., 269 Or. 485, 525 P.2d 1033 (1974); and Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975); with Karjala v. Johns-Manville Prods. Corp., 523 F.2d 155 (8th Cir.1975); and Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1088 (5th Cir. 1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974).
Since knowledge and culpable fault are not elements in the proof of strict liability in product cases, it is somewhat anomalous to confuse negligence and strict liability by suggesting the same elements of proof. Conceptually, when dealing with a product made unreasonably dangerous by reason of inadequate instructions, to require proof that the manufacturer knew or should have known of the danger (“foreseeable dangers”) is a misapplication of the principles underlying strict liability. As stated in Dreisonstok v. Volkswagenwerk, A.G., 489 F.2d 1066 (4th Cir. 1974), discussing the second collision rule set forth in Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968):
The key phrase in the statement of the Larsen rule is “unreasonable risk of injury in the event of a collision”, not foreseeability of collision. The latter circumstance is assumed in collision cases under the Larsen principle; it is the element of “unreasonable risk” that is uncertain in such cases and on which the determination of liability or no liability will rest.
*629489 F.2d at 1071 (emphasis added). In recognizing this distinction in a product case involving a failure to adequately warn, the Supreme Court of Oregon perhaps says it best:
In a strict liability case we are talking about the condition (dangerousness) of an article which is sold without any warning, while in negligence we are talking about the reasonableness of the manufacturer’s actions in selling the article without a warning. The article can have a degree of dangerousness because of a lack of warning which the law of strict liability will not tolerate even though the actions of the seller were entirely reasonable in selling the article without a warning considering what he knew or should have known at the time he sold it. A way to determine the dangerousness of the article, as distinguished from the seller’s culpability, is to assume the seller knew of the product’s propensity to injure as it did, and then to ask whether, with such knowledge, he would have been negligent in selling it without a warning.
It is apparent that the language being used in the discussion of the above problems is largely that which is also used in negligence cases, i.e., “unreasonably dángerous,” “have reasonably anticipated,” “reasonably prudent manufacturer,” etc. It is necessary to remember that whether the doctrine of negligence, ultrahazardousness, or strict liability is being used to impose liability, the same process is going on in each instance, i.e., weighing the utility of the article against the risk of its use.
Phillips v. Kimwood Machine Co., 269 Or. 485, 525 P.2d 1033, 1039 (1974).
Later in the same opinion the Oregon court referred to Professor Wade’s article, On the Nature of Strict Tort Liability for Products, 44 Miss.L.J. 825, 830 (1973), and observed:
Professor Wade also suggests an appropriate jury instruction which embodies the new standard. We have taken the liberty of modifying his suggestion to a form which seems to us more appropriate for use by a jury. It is as follows:
“The law imputes to a manufacturer [supplier] knowledge of the harmful character of his product whether he actually knows of it or not. He is presumed to know of the harmful characteristics of that which he makes [supplies]. Therefore, a product is dangerously defective if it is so harmful to persons [or property] that a reasonably prudent manufacturer [supplier] with this knowledge would not have placed it on the market.” 525 P.2d at 1040-41 n. 16. See also Keeton, Product Liability and the Meaning of Defect, 5 St. Mary’s L.J. 30 (1973); Keeton, Products Liability — Inadequacy of Information, 48 Tex.L.Rev. 398 (1970); Keeton, Manufacturer’s Liability: The Meaning of “Defect” in the Manufacture and Design of Products, 20 Syracuse L.Rev. 559 (1969); Noel, Products Defective Because of Inadequate Directions or Warnings, 23 Sw.L.J. 256 (1969); and Wade, Strict Tort Liability of Manufacturers, 19 Sw. L.J. 5 (1965). But see, Kidwell, The Duty to Warn: A Description of the Model of Decision, 53 Tex.L.Rev. 1375, 1395-96 (1975).
The relevant issue concerning foreseeability in strict liability relates to intended use. We have previously acknowledged that “intended use” is merely a convenient adaptation of the test of foreseeability. See Polk v. Ford Motor Co., 529 F.2d 259 (8th Cir.), cert. denied, 426 U.S. 907, 96 S.Ct. 2229, 48 L.Ed.2d 832 (1976); and Passwaters v. General Motors Corp., 454 F.2d 1270, 1275 (8th Cir. 1972). Under strict liability the knowledge of the danger is otherwise imputed to the defendant. Proof of a subsequent remedial modification, under these circumstances, therefore becomes relevant to show that a different design or instruction would have prevented the harm and that it was technologically feasible to provide a safer design or give a more adequate instruction before the product was marketed. See Lolie v. Ohio Brass Co., 502 F.2d 741, 744 (7th Cir.1974).
519 F.2d at 794-95 n. 15.