12-687

12-687. Reasonable remedial measures; cause of
action; punitive damages

If a person or entity conducts a product safety analysis or review and, as a result,
takes reasonable remedial measures, the following shall apply to a product liability
action brought against the person or entity:

1. The plaintiff may not use the product safety analysis or review or the
reasonable remedial measures to prove negligence, that the product was defective or
unreasonably dangerous, or other culpable conduct in a product liability
action. However, the plaintiff may use the product safety analysis or review or
reasonable remedial measures for other purposes, such as proving feasibility of
precautionary measures, impeachment or to controvert any position taken by a defendant in
litigation which is inconsistent with the contents of the product safety analysis or
review or reasonable remedial measures.

2. This subsection does not prevent a plaintiff in a product liability action from
proving negligence, that the product was defective or unreasonably dangerous, or other
culpable conduct by other independent evidence or sources, even if such evidence or
sources are mentioned or included in the product safety analysis or review or reasonable
remedial measures.

3. The plaintiff may not use the product safety analysis or review or the
reasonable remedial measures to prove conduct that would subject the person or entity
that caused the product safety analysis or review to be performed to punitive or
exemplary damages, unless the plaintiff establishes that the analysis or review, or the
reasonable remedial measures, were undertaken in bad faith or solely for the purpose of
affecting the litigation instituted by the plaintiff.

4. The existence and contents of a product safety analysis or review and any
resulting reasonable remedial measures are discoverable and subject to disclosure in a
product liability action unless otherwise privileged. However, a portion of a product
safety analysis or review may be designated and maintained as confidential and protected
from public disclosure pursuant to applicable rules of civil procedures if the portion
involves trade secrets as defined in section 44-401, proprietary material or
competitively sensitive information. Any dispute as to confidentiality shall be
determined by a court following an in camera review of the portion of the analysis or
review in question.