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.