dissenting.
Use of evidence of the modification of the saw by Diehl’s customer, Bassett, the modification occurring at least twelve years after sale of the saw and the commencement of its use, as proof of a design defect existing at the time of earlier sale, was prejudicial error. Thus, I would reverse the case and remand the matter for a new trial.
As noted by the court, the saw was manufactured in 1968 and was sold to Buchanna’s employer at least twelve years (and probably many additional years) prior to 1992, the year of the accident. After the accident, and without Diehl’s knowledge, Buchanna’s employer extended a shaft through the clean-out door and created a whirling T-bar arrangement designed to prohibit opening the door while the saw blade was in motion.
This, Buchanna contends and the court agrees, was a “subsequent remedial measure” admissible as substantive evidence of a defect in the saw under this circuit’s analysis of Federal Rule of Evidence 407. See Robbins v. Farmers Union Grain Terminal Ass’n, 552 F.2d 788, 793-95 (8th Cir.1977).3 *373Federal Rule of Evidence 407 is, however, in no way applicable to a modification made by a customer of the manufacturer, especially when the alteration is made many years after the sale of the product and without the manufacturer’s knowledge. The admissibility, or not, of this evidence is governed by Federal Rules of Evidence 402 and 403. The question is: are the facts relevant and, if relevant, are they or are they not unfairly prejudicial? In this case, evidence of this poorly conceived and dangerous customer modification was barely, if at all, relevant and clearly inadmissible according to any reasonable test under Rule 403.
Rule 407 is a rule of exclusion and not inclusion and it so states. The Rule clearly deals with the conduct of a tortfeasor or defendant manufacturer or seller, not a third person not a party to the litigation. Indeed, as the advisory note to the Rule states, the policy underlying the Rule is to promote measures that will lead to safer products even when a defendant believes he or she is not guilty of culpable conduct. As noted in Weinstein’s Evidence:
[bjeeause the controlling ground for excluding [subsequent remedial] evidence has been the promotion of the policy of encouraging people to take safety precautions, remedial measures carried out by persons not party to the suit are not covered [by Rule 407]. Since the person taking the remedial measures is not affected by having the evidence admitted as an admission of fault, the admissibility of the evidence should be governed by the general relevancy requirements of Rules 401-403 rather than Rule 407.
2 Jack B. Weinstein, et al., Weinstein’s Evidence § 407[01] at 407-11 (1992).
The court cites O’Dell v. Hercules. Inc., 904 F.2d 1194, 1204 (8th Cir.1990) for the proposition that subsequent measures by a third party are an exception to the exclusionary force of Rule 407. O’Dell, if not in error on the point, is wholly inapposite to this case. First, since the evidence at issue in O’Dell was excluded and not admitted under an exception to Rule 407, the statement from O’Dell is pure obiter dictum. Id. at 1203. Second, the statement, citing as its source Farner v. Paccar, Inc., 562 F.2d 518 (8th Cir.1977), is an incorrect analysis of the holding in Famer. While the Famer court parrots (and overstates) Robbins, the essential holding was that Rule 407 was inapplicable to a determination of the admissibility of this type of evidence. The court correctly held that the third-party modification “was not barred by Fed.R.Evid. 407.” Farner 562 F.2d at 528. But, as pointed out in Wein-stein, the evidence was admissible because it was relevant to one or more of the issues in the litigation not because Famer was a products liability case unaffected by exclusions contained in Rule 407. Id. (‘We ... conclude that the evidence of ... [third party’s] subsequent installation of safety chains, was relevant to the issue of [Paccar’s] defective design.”) Id. Relevance under Rule 402 (not admissibility under Rule 407) is the question to be considered in this appeal.
Thus, the post-1992 modification of the saw by Bassett was not made admissible by Rule 407. Evidence of Bassett’s alteration should have been admissible only if it provided relevant proof of a defect in Diehl’s 1968. design. It did not and the evidence should have been excluded. Accordingly, I dissent.
. Only the Tenth Circuit has embraced the reasoning in Robbins and then only partially. Nine other circuits have squarely rejected Robbins and exclude proof of subsequent remedial measures when offered as substantive evidence of a defect in a product. See Raymond v. Raymond Corp., 938 F.2d 1518, 1522 (1st Cir.1991); In re Joint Eastern Dist. and Southern Dist. Asbestos Litig., 995 F.2d 343, 345-46 (2d Cir.1993); Cann v. Ford Motor Co., 658 F.2d 54, 60 (2d Cir.1981), cert. denied, 456 U.S. 960, 102 S.Ct. 2036, 72 L.Ed.2d 484 (1982); Kelly v. Crown Equip. Co., 970 F.2d 1273, 1275 (3d Cir.1992); Werner v. Upjohn Co., 628 F.2d 848, 856-58 (4th Cir.1980), cert. denied, 449 U.S. 1080, 101 S.Ct. 862, 66 L.Ed.2d 804 (1981); Grenada Steel Indus. v. Alabama Oxygen Co., 695 F.2d 883, 886-89 (5th Cir.1983); Bauman v. Volkswagenwerk Aktiengesellschaft, 621 F.2d 230, 232-33 (6th Cir.1980); Flaminio v. Honda Motor Co., 733 F.2d 463, 468-70 (7th Cir.1984); Gauthier v. AMF, Inc., 788 F.2d 634, 636-37, modified, 805 F.2d 337 (9th Cir.1986); Wood v. Morbark Indus., 70 F.3d 1201, 1206-07 (11th Cir.1995). Further, the Judicial Conference of the United States has now recommended to the Supreme Court that Rule 407 be amended to specifically extend the exclusionary effect of the Rule to proof of "a defect in a product, a defect in a product's design, or a need for a warning or instruction," thus, directly overruling Robbins when and if the change is ultimately adopted by the Court and Congress. Report of the Judicial Conference Committee on *373Rules of Practice and Procedure, September 1996.