ILNews

DTCI: What is the proper jury instruction on the state-of-the-art presumption?

Back to TopCommentsE-mailPrintBookmark and Share

This is a bait-and-switch article. It applies to instructing the jury on the continuing effect of rebuttable presumptions in all civil cases. It just so happens that one of the best examples is the presumption of no liability under Indiana’s Product Liability Act. That presumption is broader than just the state-of-the-art defense.

In a product liability action, there is a rebuttable presumption that the product that caused the physical harm was not defective and that the manufacturer or seller of it was not negligent if before its sale by the manufacturer: (1) it conformed to the generally recognized state of the art applicable to safety of the product at the time the product was designed, manufactured, packaged and labeled; or (2) it complied with applicable codes, standards, regulations or specifications established, adopted, promulgated or approved by the United States or by Indiana, or by any agency of either. Ind. Code 34-20-5-1.

lienhoop Lienhoop

As the statute indicates, the presumption is rebuttable. There has been a long-standing disagreement in the common law about a rebuttable presumption’s effect once evidence contradicting it has been introduced. See Schultz v. Ford Motor Co., 857 N.E.2d 977, 982 (Ind. 2006) (excellent discussion of this disagreement).

Schultz claimed his Ford’s defective roof left him a quadriplegic after a roll-over accident. A verdict for Ford was reversed by the Court of Appeals. The Court of Appeals found the jury instruction on the I.C. 34-20-5-1 rebuttable presumption legally incorrect because it believed the presumption should have dropped from the case once contrary evidence was introduced.

The Indiana Supreme Court granted transfer, which vacated the Court of Appeals decision, and then affirmed the defense verdict. Id. at 979. The Supreme Court held that Indiana Rule of Evidence 301 means just what it says: A presumption shall have continuing effect even though evidence contrary to the presumption is introduced. Id. at 984.

In federal civil cases, state law governs the effect of a presumption regarding a claim or defense for which state law supplies the rule of decision. F.R.E. 302. So Indiana’s state law that the rebuttable presumption has continuing effect should apply to cases based on Indiana’s Product Liability Act that are filed in federal court.

In essence, the contested instruction in Shultz told the jury that if it found Ford proved by a preponderance of the evidence that the vehicle complied with Federal Motor Vehicle Standard 216, then it may presume the vehicle was not defective and that Ford was not negligent in its design; however, the plaintiffs could rebut this presumption by evidence tending to show that the vehicle was defective. Id. at 979.

It is interesting that, even though the statute uses the word “presumption,” even though IRE 301 uses the word presumption, and even though the presumption has continuing effect, in Schultz the Indiana Supreme Court found that the jury instruction regarding this presumption should not have used the words “presume” or “presumption.”

The Indiana Supreme Court in Shultz was concerned that use of the words “presume” or “presumption” might make a jury think the presumption is conclusive. That is a little perplexing since the instruction also told the jury that the presumption could be rebutted. Id. at 986. The Shultz court did not directly indicate that the word “rebutted” was vague, ambiguous or needed to be defined. However, instructing the jury that the presumption could be rebutted obviously did not alleviate the danger the court saw in using the words “presume” or “presumption.”

Even though the jury instruction in Shultz did use the words “presume” and “presumption,” the Indiana Supreme Court found that the instruction was not reversible error. Id. at 987. This was because the words were not used in a “legal or technical sense” and because there was no language to the effect that “the law presumes … .” Id. Instead, the Shultz court thought a typical juror would find use of presume and presumption in this instruction synonymous with “infer” or “assume.” Id. Also, the court found that the instruction was substantively “balanced, i.e. fair to both sides.” Id. As such, the instruction gave continuing effect to the statutory presumption in I.C. 34-20-5-1 and did not unfairly prejudice the plaintiffs. Id.

Even though the Indiana Supreme Court upheld the defense verdict in Shultz, there should be no mistake that Schultz gave a warning against using the words “presume” and “presumption” in a jury instruction on a rebuttable presumption. Schultz specifically held that “a presumption is properly given ‘continuing effect’ under the last sentence of Indiana Evidence Rule 301 by the trial court instructing the jury that when a basic fact is proven, the jury may infer the existence of a presumed fact.” Id. at 985 (emphasis added). In fact, it started the very next section with “As a general matter then, Indiana Evidence Rule 301 authorizes a court to instruct a jury on permissible inferences that may be drawn from the basic facts that give rise to presumptions … .”

So, just what is a proper jury instruction on the rebuttable presumption in Indiana’s Product Liability Act? There appears to be no Indiana Model Civil Instruction on it – or on presumptions in general.

The closest Indiana Model Civil Instruction may be the one for res ipsa loquitur. It uses the new phrase common in the Model Instructions of “the greater weight of the evidence” instead of “by a preponderance of the evidence.” While its comments do not refer to Shultz, it does follow its holding in four ways: (1) to the extent it uses “infer” instead of “presume;” (2) to the extent it does not use the word “presumption;” (3) to the extent it implies that the inference is not conclusive; and (4) to the extent it implies that the inference is continuing despite the introduction of contrary evidence.

The Indiana Model Civil Instruction on res ipsa locquitur provides:

There are certain situations in which the nature of an incident and the circumstances surrounding it lead to the reasonable belief that it would not have occurred unless someone did not use reasonable care.

If [plaintiff] proves all of the following by the greater weight of the evidence:

(1) [plaintiff] was [injured][harmed][damaged][as a result of][when] [here insert event which plaintiff claims was a responsible cause of injury/damage/harm];

(2) only the [defendant][defendant’s agent] controlled [insert name of instrumentality]; and

(3) under normal circumstances the [event]would not have occurred unless the [defendant][defendant’s agent] was negligent,

then you may infer that the incident resulted from [defendant]’s negligence. You may consider this inference with all of the other evidence in arriving at your verdict.

Indiana Model Civil Jury Instruction 325 (emphasis added).

The last line of the Model res ipsa locquitur instruction is a simple and elegant way to say the presumption can be rebutted but has continuing effect. At least it would let counsel advocate such when going over the instruction with the jury in closing arguments. Spelling that out in greater detail will make it wordier but might lessen the chance of an incorrect interpretation by the jury.

For example, using Shultz and the Model res ipsa loquitur instruction as guides, a proper instruction on the state-of-the-art defense might be something like this:

If you find by the greater weight of the evidence that before the [H.I. product] was sold by [H.I. the manufacturer], the [H.I. product] conformed with the generally recognized state of the art applicable to the safety of the [H.I. product] at the time it was designed, manufactured, packaged, or labeled, then you may infer that the [H.I. product] was not defective and that [H.I. manufacturer and/or seller] [was/were] not negligent.

Evidence has been introduced that the [H.I. product] was defective [and/or] that the [H.I. manufacturer/seller] [was/were] negligent. You must decide if plaintiff has proved by a greater weight of the evidence that such evidence of defect or negligence overcomes the inference of no defect [and/or] no negligence.

A similar instruction should apply to all Indiana rebuttable presumptions. Of course, the particular wording of the instruction depends on the substantive law regarding what in particular is presumed and what in particular is required to rebut it.

Here is one used in a recent case regarding a plaintiff whose first language was not English. The plaintiff had signed documents in his workers’ compensation case that gave a version of the accident significantly different from the version he was asserting in his tort case. The basic presumption is that a person is presumed to understand and know the contents of a document he signs. The instruction was:

A person should read and understand a document before signing it. If [plaintiff] could not read it, he should have had it read to him. If [plaintiff] could not understand it, he should have it explained to him. If you find by the greater weight of the evidence that [H.I. plaintiff ] signed the [H.I. documents], then you may infer that [H.I. plaintiff ] understood those documents.

Evidence has been introduced to excuse or justify [plaintiff’s] failure to understand those documents. You must decide if [plaintiff] has proved by a greater weight of the evidence that the evidence of excuse or justification overcomes the inference that [plaintiff] understood the documents he signed.

The lesson in this article is that all Indiana rebuttable presumptions remain in the case after contrary evidence is introduced, and that instead of “presume” or “presumption,” a jury instruction regarding a rebuttable instruction should use the words infer or inference.•

Mark A. Lienhoop is a managing partner of Newby Lewis Kaminski & Jones LLP in La Porte, Ind. His email is MALienhoop@nlkj.com. The views expressed in this article are those of the author and not necessarily those of the Defense Trial Counsel of Indiana.

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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  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.

ADVERTISEMENT