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

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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.

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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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