delivered the Opinion of the Court.
T1 This case requires us to determine whether the doctrine of res ipsa loquitur shifts the burden of proof to the defendant, as we held in Weiss v. Axler,
I. Facts and Procedural History
[ 2 Several hours after receiving an angio-gram performed by Defendant-Petitioner Dr. James B. Chapman ("Petitioner"), Dr. Lynn Harner died. Dr. Harner's wife, Plaintiff-Respondent Carolyn K. Harner ("Respondent"), subsequently sued Petitioner for medical malpractice. In order to receive the benefit of a rebuttable presumption of negligence under res ipsa loquitur, Respondent argued via expert testimony that her husband's aortic arch was punctured during the procedure, that such a puncture would not ordinarily occur absent negligence, and that it was more likely than not that the negli-genee of Petitioner (or someone whom he was responsible for) caused the injury. As is pertinent to this appeal, the trial court instructed the jury regarding res ipsa loquitur but refused to instruct the jury that if it found that res ipsa loquitur applied, it must find for Respondent unless Petitioner proved by a preponderance of the evidence that he was not negligent. The trial court acknowledged Weiss, in which this Court declared that "[the doctrine of res ipsa loquitur ere-ates a compulsive presumption of negligence which continues to exist until the defendant has satisfied the [fact-finder] by a preponderance of the evidence that he was not negligent."
In all civil actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes upon the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of non-persuasion, which remains throughout the trial upon the party on whom it was originally cast.
The trial court therefore instructed the jury that it must consider the presumption of
T3 Respondent appealed, and the court of appeals reversed. It held that the trial court erred by "refusing to instruct the jury, pursuant to still binding Colorado Supreme Court precedent, that the res ipsa loquitur doctrine shifts to the defendant the burden of proving by a preponderance of the evidence that he was not negligent," and that the error was not harmless. Harner, 18. But despite remanding the case to the trial court for a new trial, id. at 1 5, the court of appeals recognized the inconsistency "between CRE 301 and the court's long-standing precedent that the res ipsa loquitur doctrine shifts the burden of proof to the defendant" and urged us to examine and resolve this tension, id. at 18. Because the court of appeals sided with Respondent regarding the res ipsa loquitur burden-shifting instruction, it declined to consider her additional arguments concerning the trial court's jury instructions on informed consent and assumption of the risk. Petitioner subsequently petitioned this Court for certiorari, which we granted.
II. Standard of Review
14 We review a trial court's decision to give a particular jury instruction for an abuse of discretion, but we review de novo whether a given jury instruction correctly states the law. Day v. Johnson,
III. Analysis
15 Res ipsa loquitur is a common-law evidentiary rule that creates a rebuttable presumption that the defendant was negligent. Kendrick v. Pippin,
A. Existing Case Law Does Not Resolve the Tension Between CRE 301 and Weiss
T 6 Our decades-old precedent set in Weiss and the more recently adopted CRE 301 are clearly in tension. We held in Weiss that "[the doctrine of res ipsa loquitur creates a compulsive presumption of negligence which continues to exist until the defendant has satisfied the [fact-finder] by a preponderance of the evidence that he was not negligent."
7 Nor does our existing case law regarding the proper allocation of the burden of proof under res ipsa loquitur resolve this tension. Although the parties each cite several cases decided after the adoption of CRE 301 in support of their respective positions, our examination of Colorado case law merely highlights the confusion surrounding the
T8 Respondent supports her position that Weiss still controls the burden of proof under res ipsa loquitur chiefly through a footnote in Stone's Farm, a concurrence in Kendrick, and the court of appeals' opinion in Ochoa v. Vered,
T9 Stone's Farm provides the best support for Respondent's position. In that case, we considered primarily whether the trial court had jurisdiction over one of the defendants in an action by farmers against distributors of harmful potato fertilizer.
{10 In Kendrick, we upheld the trial court's rejection of the plaintiffs proposed res ipsa loquitur instruction.
{11 Finally, Respondent cites Ochoo as binding court of appeals precedent instruct ing trial courts to follow Weiss by issuing the burden-shifting instruction. As is pertinent here, the court of appeals in Ochoa rejected the defendant's argument that the trial court had improperly shifted the burden of proof onto him through a res ipsa loquitur instruetion.
{12 Petitioner's proffered cases similarly do little but convince us of the ongoing tension between Weiss and CRE 801. Petitioner relies principally on three Colorado cases-Montgomery Elevator Co. v. Gordon,
{13 In Montgomery Elevator, we described the effect of res ipsa loquitur as follows: "If the elements are established, a jury is permitted to presume that the defendant was negligent. This presumption may be rebutted by evidence showing that the event resulting in the plaintiff's injuries was not due to any negligence on [the] defendant's part."
{14 Petitioner also relies on Hartford Fire. Although this case most clearly endorses Petitioner's position by opining that jury instructions on res ipsa loquitur should conform to CRE 801, this statement was likely dicta given that the judgment resulted from the trial court's failure to give a res ipsa loquitur instruction. See Hartford Fire,
{15 Finally, Petitioner relies on Krueger. While Krueger supplies a description of the general effect of rebuttable presumptions, it is not about res ipsa loquitur but instead considers the presumptions of undue influence and unfairness, 205 P.Bd at 1154. Since Respondent's central premise is that res ipsa loquitur is (or should be) unique among rebuttable presumptions, Krueger is of little value at this point in the analysis.
{ 16 After considering the few cases decided after the adoption of CRE 801 that arguably considered the burden of proof under res ipsa loquitur, we find no sufficiently controlling precedent upon which we may hang our decision. We must therefore choose which path to follow.
B. CRE 301 Represents a Sounder Evidentiary Rule Than Does Weiss
117 Since our precedent does not settle the issue at hand, we must choose which view of res ipsa loquitur's burden-shifting effects will best serve Colorado going forward. We first examine Weiss in detail and determine that it was wrongly decided due to improperly comingled legal principles. We then consider the policies behind the divergent views of the burden-shifting effect of res ipsa loqui-tur and decide that the approach contemplated by CRE 801 represents the better policy.
1. Weiss Resulted from Improperly Comingled Legal Principles
{18 After examining Weiss and its extensive analysis of prior authority, we determine that Weiss improperly conflated the burden-shifting analysis from arcane common-carrier cases, which shifted the burden of proof onto
1 19 We issued Weiss in 1958-seven years before the Restatement (Second) of Torts disapproved of its burden-shifting approach and twenty-one years before Colorado adopted CRE 801 in 1979. See Restatement (Second) of Torts § 328D (1965) (hereinafter "Restatement"). At that time, we determined that it was necessary to review the varied cases involving res ipsa loquitur and then "remove existing confusion and state a formulary for the use of the doctrine." Weiss,
In its inception the principle of res ipsa loquitur was merely a rule of evidence, permitting the jury to draw from the occurrence of an unusual event the conclusion that it was the defendant's fault. Shortly after its origin, however, it became confused, in cases of injuries to passengers at the hands of carriers, with the older rule which placed the burden of proof upon the carrier to show that its negligence had not caused the injury. This confusion resulted in a great deal of disagreement among the courts as to the application of the principle and its procedural effect."
Restatement, § 328D emt. a (citation omitted). In Weiss, it appears that we too fell into this trap, reading the burden-shifting in common carrier cases as the result of res ipsa loquitur's application.
120 Additionally, the defendants in most of the cases that Weiss further cited in support of its holding were also common carriers. See Weiss,
2. CRE 301 Represents the Better Approach
121 After considering extra-jurisdictional precedent and the policies behind each
122 As the Restatement points out, "the great majority of the courts ... treat res ipsa loquitur as creating nothing more than a permissible inference," while others give it "the effect of a presumption, which requires a directed verdict for the plaintiff if the defendant offers no evidence to rebut it," and "[a)n even smaller number treat [it] as imposing the burden of proof upon the defendant." § 328D emt. m. Colorado courts have repeatedly held res ipsa loquitur to be a rebuttable presumption, and we see no reason to deviate now. See, e.g., Kendrick,
123 Regarding whether the burden of proof shifts, however, our examination of the law in other jurisdictions reveals that the burden-shifting approach approved by Weiss is indeed a fringe position. In fact, the parties have directed us to only four jurisdictions in which this burden-shifting rule arguably remains entrenched, and we can find no others. See Schmidt v. Gibbs,
24 Furthermore, keeping the burden of proof on the plaintiff throughout is better public policy. First, fitting res ipsa loquitur within CRE 8301's general schema of rebutta-ble presumptions unifies the state and federal effects of the presumption, "thus achieving a desirable degree of uniformity and simplicity." CRE 301 committee emt. Second, despite Respondent's contention to the contrary, treating res ipsa loquitur as a re-buttable presumption without shifting the burden of proof does not turn it into an "illusory remedy." Medical malpractice plaintiffs have ample opportunity to perform factual discovery, both through documents and depositions, to determine what happened during a procedure even if they were unconscious at the time. See, e.g., C.R.C.P. 30, 33, 34, 36. Though they cannot discover documentation from peer reviews or quality management programs, see §§ 12-86.5-104(10), 25-3-109(8) and (4), C.R.S. (2014), they can still discover the facts underlying these internal investigations and then hire
€25 Accordingly, we hold that CRE 301 applies to the res ipsa loquitur doctrine in Colorado; thus, satisfying res ipsa loqui-tur's elements creates a rebuttable presumption that "imposes upon the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but ... the burden of proof in the sense of the risk of non-persuasion ... remains throughout the trial upon the" plaintiff, CRE 301. Like other rebuttable presumptions, res ipsa loquitur shifts to the defendant only the burden of producing legally sufficient evidence-the burden of proof | always remains on the plaintiff. See Krueger,
IV. Conclusion
126 After determining that Colorado authority was irreconcilably conflicted concerning the proper allocation of the burden of proof in rés ipsa loquitur cases, we hold that CRE 301 controls. Therefore, satisfying the elements of res ipsa loquitur initially creates a presumption of negligence and shifts the burden of production onto the defendant, but the burden of proof remains on the plaintiff throughout. Inasmuch as Weiss, Stone's Farm, or any other case ean be read as holding that the burden of proof shifts to the defendant upon a proper showing of res ipsa loquitur, these cases are hereby overruled. Accordingly, we reverse the judgment of the court of appeals and remand the case to that court for further proceedings consistent with this opinion.
Notes
. Specifically, we granted certiorari to consider: "Whether the court of appeals erred in holding, based on Weiss v. Axler, that res ipsa loquitur shifts the burden of proof to the defendant despite the adoption of C.R.E. 301, which provides that 'a presumption ... does not shift ... the burden of proof.' "
. It is worth noting that the Ochoa court erred insofar as it applied an abuse-of-discretion stan
. Respondent makes much of the court of appeals' statement that "the proper allocation of the burden of proof is a substantial right of the parties," Harner, 126, arguing that res ipsa lo-quitur provides a substantive right to have the burden of proof shift and thus that CRE 301 cannot apply. See § 13-25-128, C.R.S. (2014) (indicating that the rules of evidence "shall not be construed in such manner that such rules would fix, abridge, enlarge, modify, or diminish any substantive rights"). But "substantial" is not "substantive," and res ipsa loquitur is merely an evidentiary rule. See Stone's Farm,