ILNews

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

Back to TopCommentsE-mailPrintBookmark and Share
hayes-keith-mug Hays
brinkerhoff-bj-mugmug Brinkerhoff


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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

  3. The story that you have shared is quite interesting and also the information is very helpful. Thanks for sharing the article. For more info: http://www.treasurecoastbailbonds.com/

  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  5. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

ADVERTISEMENT