The Court of Appeals for the Ninth Circuit, holding that Rule 407 was procedural, applied it in order to exclude a warning issue by defendant subsequent to the decedants death. In Rosa v. Taser Intern., Inc., 684 F.3d 941 (9th Cir. 2012) in August, 2004 Michael Rosa was repeatedly tasered by police officers in order to subdue him during an arrest. Michael died and his death was subsequently linked to metabolic acidosis, a condition which makes sudden cardiac arrest more likely. Michael’s parents brought suit against Taser, the manufacturer, asserting that Michael died because Taser had provided an inadequate warning of the dangers of the product to the officers who used it. There was no admissible evidence that Taser had knowledge of this danger prior to Michael’s death. However, in 2009 such a warning was issued. The district court entered summary judgment for Taser and this was affirmed on appeal.
In reviewing the decision of the trial court the Court of Appeals concluded that there was no admissible evidence prior to Michael’s death that Taser could cause metabolic acidosis. With respect to the subsequent warning issued by Taser the court said:
“The Rosas attempt to avoid this outcome by pointing to a warning TASER issued in 2009 that explicitly discusses the risk of metabolic acidosis. [fn6] In examining whether summary judgment is appropriate, we “consider only alleged facts that would be admissible in evidence.” Filco v. Amana Refrigeration, Inc., 709 F.2d 1257, 1260 (9th Cir. 1983) (citing FED. R. CIV. P. 56(e)). Because the fact of this 2009 warning is not admissible to establish what was knowable in December 2003, it cannot aid the Rosas in avoiding summary judgment. FED. R. EVID. 407; see also Gauthier v. AMF, Inc., 788 F.2d 634, 636 (9th Cir. 1986) (applying Rule 407 in a products liability case under Montana law); Flaminio v. Honda Motor Co., 733 F.2d 463, 471 (7th Cir. 1984) (explaining that Rule 407 was sufficiently procedural in nature to apply in diversity cases under Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938)).[fn7] (p. 948-9).”