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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. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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