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DTCI: Indiana's New Pattern Jury Instructions in Products Liability Cases

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By Keith Hays
By B.J. Brinkerhoff


There has been great debate in the Indiana legal community about the recent changes to Indiana’s Model Jury Instructions that were revised to be written in plain English. Lawyers have huddled in offices and conference rooms challenging each other about analogies to “animals running through snow” and “inferences v. deductions.” While there are tidal shifts in the New Model Jury Instructions for those who practice in criminal law or litigate estate planning cases, a trial involving product liability will likely be made easier by the new model instructions. This article will detail some of the more interesting changes to the model instructions from the old Indiana Pattern Jury Instructions and provide a guide for navigating the new model instructions.

A few things must be emphasized initially. The Indiana Model Civil Jury Instructions are created by an independent organization, the Indiana Judges Association (IJA). They are neither written, reviewed, revised, nor preapproved by the Indiana Supreme Court. The use of the model instructions is discretionary. Until an instruction is reviewed and upheld in an appellate opinion, it is merely advisory. That said, most judges encourage and demand use of the model instructions as a baseline for instructions used in their court. In fact, judges have already begun using these instructions at trial.

The IJA has held a series of seminars on the new instructions, where they have indicated that the shift to plain English instructions was necessary to eliminate juror confusion with old, archaic legalese contained in the Indiana Pattern Jury Instructions. The common example given was a jury study that showed most jurors believed a “preponderance of the evidence” meant a “slow, careful pondering” of the evidence. The IJA has emphasized at these seminars that concerted effort was made to ensure that the plain English instructions did not represent a change in the law but rather a change in how the law was communicated.

A Change in Terminology

The new instructions present an interesting situation in products liability practice. In Indiana, product liability is strictly a creature of statute. The statute was written in relatively modern times using relatively modern language. The statute says what it says. There should be little room for debate, nuance, or confusion. Admittedly, we did spend more than 10 years appealing and arguing whether “and” meant “or” in the asbestos Product Liability Statute of Repose. Ott v. Allied Signal, Inc., 827 N.E.2d 1144 (Ind. Ct. App. 2005).

Any lawyer can admit that some of the definitions used in Indiana’s Products Liability Act are confusing and outdated. For example:

Old Instruction No. 7.10 (D): Product-Definition:

“Product” means any item or good that is personalty at the time that it is conveyed by the seller to another party. It does not apply to a transaction that, by its nature, involves wholly or predominately the sale of a service rather than a product.

This definition tracks the statute verbatim. However, the term personalty is so antiquated it does not appear in modern spell-checks. Webster’s Dictionary defines personalty as a noun describing “personal estate or property” and then notes it is a sixteenth century term. Black’s Law Dictionary defines personalty as “personal property; moveable property; chattels; property that is not attached to real estate.” Establishing something is a product is the first element in the entire cause of action. Given these simple definitions of an archaic term, it would seem logical to change the definition in the Model Jury Instructions.

The IJA appears to have looked at the dictionary definitions and put together a much clearer definition of property.

New Instruction: 2107 Product Definition:

A “product” is a physical object that is personal property at the time it is [sold][transferred] by the seller to another person or entity.

The term “product” does not apply where a transaction mainly involves the sale of a service.

The definition itself may require some further refining as to what is “personal property” in some cases. However, the new instruction eliminates the term personalty as the lynchpin in the definition of product. Essentially, the old instruction automatically requires clarification, while the new instruction is much more manageable. It is easy to anticipate that jurors will know the term personal property as soon as the court reads this instruction.

Another significant language change involves the old Instruction Number 7.03, Product Liability against Manufacturer: Elements Instructions: Burdens of Proof. Instruction 7.03 was quite lengthy beginning with an introduction that stated the “Plaintiff must prove each of the following propositions by a preponderance of the evidence” and ending with a statement that “Plaintiff must prove these propositions; the Defendant has no burden of disproving them.”

Under the new model instructions, the old 7.03 is broken up into two new instructions, 2101 and 2103. Instruction 2101 lays out the new definition of preponderance of the evidence found throughout the plain English jury instructions.

[Plaintiff] claims that [Defendant] [insert claimed actions]. [Plaintiff] must prove (these) claims by the greater weight of evidence.

Instruction 2101 also details the new definition of burden of proof:

[Defendant] denies [Plaintiff’s] claims. [Defendant] is not required to disprove [Plaintiff’s] claims.

Practitioners should note these instructions can all be trumped by Jury Rule 20 and Trial Rule 51 (A) and Trial Rule 16(J), if you have drafted a proper pretrial order. Most complaints, answers, and other pleadings often rely on the type of legal terms from which the model instructions and the plain English movement are trying to shift. The committee comments indicate that all efforts should be made to instruct the jury based on the pretrial order rather than regurgitating the allegations in the pleadings that are often “rigidly and pointlessly applied.” See Vlach v. Goode, 515 N.E.2d 569 (Ind. Ct. App. 1982; 62 Am. Jur. 2d PreTrial Conference § 29 at 661 (1972).

The layout of Model Instruction 2103: Burden of Proof is similar to that contained in old 7.03. One glaring change is use of term responsible cause of physical harm. The definition of responsible cause contained in 2105 eliminates the use of proximate cause.

A person’s conduct is legally responsible for causing [an injury] if:

(1) the [injury] would not have occurred without the conduct, and

(2) the [injury] was a natural, probable, and foreseeable result of the conduct.

This is called the “responsible cause.”

It is interesting to review the comments issued by the Committee in Model Instruction 2105. This section carefully lays out all the ways the Committee loathed the term proximate cause and tried to remove it from anything the jury may hear. The comments reveal the thought process of the Committee and the Indiana Supreme Court precedent on the issue. See, e.g., the language cited by the IJA in Comments from Paragon Family Rest. v. Bartolini, 7999 N.E.2d 1048, 1054 (Ind. 2003) (quoting Bader v. Johnson, 732 N.E.2d 1212, 1218 (Ind. 2000). The Comments to Model Instruction 2105 say:

Prosser and Keaton say that proximate cause is “an unfortunate word, which places entirely the wrong emphasis on the factor of physical or mechanical closeness.” Prosser & Keeton, The Law of Torts § 42. They even imply that it was a sin to have coined the term “proximate cause” in the first place. Prosser & Keeton, The Law of Torts § 42 (“The word ‘proximate’ is a legacy of Lord Chancellor Bacon, who in his time committed other sins.”) The Committee has determined that the use of a term so likely to be misunderstood is against the policy behind clear jury instructions.

The IJA endeavored to establish a definition that covers “causation in fact” and “but-for causation.” Under Indiana law, the proximate cause instruction is not required in cases that involve “but for” causation “so long as the instructions as a whole adequately convey the law in the area.” Clay City Consol. Sch. Corp. v. Timberman, 918 N.E.2d 292, 301 (Ind. 2009). The IJA worked to ensure that the instruction as a whole did adequately convey Indiana precedent in both causation in fact (Section 1) and proximate cause (Section 2). However, you should note that the definition of responsible cause refers to conduct, implying an action. There is no reference to an omission or failure to act contained in the pattern instructions.

The language changes detailed above are just a few examples of the most significant textual changes that are found in the Model Civil Jury Instructions. It would be prudent to review each new instruction and their comments to analyze where the IJA determined the language of the statute was confusing and attempted to clarify the situation. These changes can be significant in some fact-sensitive cases.

A Change in Layout

The new model instructions contain a strict liability section, a negligence section and a warranty section. Under the old Pattern Jury Instructions, a judge or lawyer was required to bounce from the products liability section 7 to other sections to obtain standard instructions for different aspects of the case. The model instructions on strict liability provide all-encompassing instructions for a strict liability case within sections 2100 et seq. The Model Instructions Negligence section 2300 et seq. now give succinct instructions for all elements in a products liability case without requiring reference to other chapters on negligence, comparative fault, and the like.

The following instructions are the same through the strict liability and negligence sections:

2127 and 2311 “Reasonable Care- Definition”

2105 and 2313 “Responsible Cause (Proximate Cause)–Definition”

2107 and 2315 “Product–Definition”

2109 and 2317 “User or Consumer–Definition”

2111 and 2319 “Physical Harm–Definition”

2113 and 2321 “Seller–Definition”

2115 and 2323 “Manufacturer–Definition”

2117 and 2325 “Unreasonably Dangerous–Definition”

2131 and 2333 “Defense–Misuse of Product”

2133 and 2335 “Defense–Known Defect and Danger”

2135 and 2337 “Defense–Modification/Alteration of Product”

The following instructions have been completely eliminated:

7.32(Duty to Provide Product Reasonably Safe for Its Intended Use)

7.33(No Duty to Produce Accident Proof Products)

7.35(B) (Liability for Hidden Defects)

7.36(Seller Holding Self Out as Manufacturer)

7.38(Duty to Inspect for Dangers)

7.39(Duty of Care in Providing Products for Doing Work)

Finally, gone are the days we have to lug to court a bulky three-ring binder that is only half filled with paper. The New Model Civil Jury Instructions are now bound as a book. The book can be ordered through Lexis at www.lexis.com/store or by calling 1(800)223-1940.

Overall, the IJA did an exemplary job cleaning up the old instructions as they relate to a products liability case. The new book with comprehensive sections that repeat instructions will be a useful tool for lawyers on both sides of the “v” and judges alike. As Chief Justice Randall Shepard said in his January 2010 State of the Judiciary Speech, “Trial by a jury of our peers is one of the most precious rights we possess as Americans. Giving the citizens who serve on juries the clearest possible instructions about the law that applies to individual cases is crucial to helping them do justice.” The death of personalty and other confusing legalese in the Model Civil Jury Instructions is a step in the right direction.•

____________

Keith Hays is a partner with Kopka Pinkus Dolin & Eads in Indianapolis. B.J. Brinkerhoff is an associate in the firm and a member of the Defense Trial Counsel of Indiana. The opinions expressed in this article are those of the authors.

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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