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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

ADVERTISEMENT