Death to Personalty: Indiana s New Pattern Jury Instructions in Products Liability Cases

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1 IN THE NEWS DEATH TO PERSONALTY: Indiana s New Pattern Jury Instructions in Products Liability Cases was first published in the Defense Trial Counsel of Indiana s section of the Indiana Lawyer (Nov ).. Reprinted with permission of the Defense Trial Counsel of Indiana. The article was written by Indianapolis attorneys Keith Hays and B.J. Brinkerhoff. PRACTICE SPOTLIGHT Learn more about our Trucking and Railroad Practice and our upcoming speaking engagement with ACI (see page 7). Death to Personalty: Indiana s New Pattern Jury Instructions in Products Liability Cases 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 offi ces 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 ten 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). Jury Instructions...continued on page 3

2 Insuring The Future of Open Source This is an overview of the white paper that is available on our web site at Open source software s future rests as much in the hands of insurance companies as it does in the hands of software programmers. The recent decision in Jacobsen v Katzer 535 F.3d 1373 (2008) held that an action for infringement of copyright was applicable for the violation of an open source license. This results in an extremely substantial risk in both the development and distribution of software containing open source, a risk that can only be offset by specialized open source software insurance. Open source software initiatives allow computer programmers to use and modify software in a communal rather proprietary, hierarchical setting. This communal setting permits the programming to advance software faster and at a lower cost. In exchange and in consideration for these economic and creative benefi ts, the programmer who adds to the collective permits users to copy, modify and distribute the software code subject to conditions set forth in the open source license. The case of Jacobsen v Katzer has been heralded by some and bemoaned by others as the fi rst court decision to recognize a copyright infringement claim for violation of an open source license. While the holding in this case focuses on several clauses in the Artistic License at issue, it appears that it will be applicable to most if not all open source licenses. As such, violators of open source licenses may be subject to the substantial damages available under the Copyright Act. Due to the Jacobson case and the numerous cases currently being fi led, the risk for violations of an open source license have greatly increased, both to direct violators and downstream violators. Some argue that the risk can be managed. To this end, there are several risk management options a company can utilize in its business practices. These include: a) adopting an open source use policy, b) implementing open source education and training, c) conducting business wide audits of all software, d) implementing record keeping and code management procedures, e) internal restructuring, and f) monitoring commercial software. These practices, however, are not fool proof. There are clearly times when a business would simply fail to recognize an open source risk or question the actual viability of an open source license. That is where open source insurance comes into play. In 2004, given the potential risks that open source software could result in monetary loss to a company, experts in the fi eld of open source recognized a need for insurance coverage. Therefore, long before Jacobsen, companies such as DAX Technologies Corporation and Open Source Risk Management, through Lloyd s of London, began introducing specialized open source risk insurance. When the insurance was introduced, many scoffed at the idea since it was felt there was no real need for the insurance due to the lack of any successful lawsuits. Further, it was felt that the cost/benefi t analysis was very thin. However, given the new higher potential for damages since Jacobsen, this insurance may well now play a vital role in risk management of open source software. ABOUT THE AUTHOR: Cheryl Ronk is an associate in our Farmington Hills, Michigan office. Her practice encompasses contracts, business, intellectual property and insurance defense law. She has handled more than 20 trials acting as lead trial attorney. She has also written and argued more than 30 successful appeals in both the Michigan Court of Appeals and the Michigan Supreme Court. Cheryl is currently pursuing her LLM degree in intellectual property law at Michigan State University with an emphasis in internet law. The intellectual property program has been ranked by U.S. News and World report as one of the top, cutting edge such programs in the nation.

3 Jury Instructions...continued from page 1 Any lawyer can admit that some of the defi nitions used in Indiana s Products Liability Act are confusing and outdated. For example: Old Instruction No (D): Product-Defi nition: 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 defi nition tracks the statute verbatim. However, the term personalty is so antiquated it does not appear in modern spell-checks. Webster s Dictionary defi nes personalty as a noun describing personal estate or property and then notes it is a sixteenth century term. Black s Law Dictionary defi nes personalty as personal property; moveable property; chattels; property that is not attached to real estate. Establishing something is a product is the fi rst element in the entire cause of action. Given these simple defi nitions of an archaic term, it would seem logical to change the defi nition in the Model Jury Instructions. The IJA appears to have looked at the dictionary defi nitions and put together a much clearer defi nition of property. New Instruction: 2107 Product Defi nition: 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 defi nition itself may require some further refi ning as to what is personal property in some cases. However, the new instruction eliminates the term personalty as the lynchpin in the defi nition of product. Essentially, the old instruction automatically requires clarifi cation, 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 signifi cant 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 Instruction 2101 lays out the new defi nition 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 defi nition 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 One glaring change is use of term responsible cause of physical harm. The defi nition 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 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 Jury Instructions...continued on page 4

4 Jury Instructions...continued from page 3 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 fi rst 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 defi nition 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 defi nition 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 signifi cant 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 signifi cant 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) Defi nition 2107 and 2315 Product Defi nition 2109 and 2317 User or Consumer Defi nition 2111 and 2319 Physical Harm-- Defi nition 2113 and 2321 Seller Defi nition 2115 and 2323 Manufacturer Defi nition 2117 and 2325 Unreasonably Dangerous Defi nition 2131 and 2333 Defense Misuse of Product 2133 and 2335 Defense Known Defect and Danger 2135 and 2337 Defense Modifi cation/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) Jury Instructions...continued on page 5

5 Jury Instructions...continued from page 4 Finally, gone are the days we have to lug to court a bulky three-ring binder that is only half fi lled with paper. The New Model Civil Jury Instructions are now bound as a book. The book can be ordered through Lexis at or by calling 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. ABOUT THE AUTHORS: Keith Hays is a partner with Kopka Pinkus Dolin & Eads in Indianapolis, Indiana. B.J. Brinkerhoff is an associate in the fi rm and a member of the Defense Trial Counsel of Indiana. The opinions expressed in this article are those of the authors. Keith Hays B.J. Brinkerhoff Illinois Legal Corner In October, Chicago trial attorney ANDREW BOROS defended two personal injury lawsuits at jury trial in Illinois state courts. In the fi rst matter in Will County, IL., the plaintiff sustained injuries to her right hand requiring two surgeries as a result of a motor vehicle accident with our client as both vehicles were attempting to enter a left turn lane at a controlled intersection. An independent witness testifi ed our client was exceeding the speed limit and failing to keep a proper lookout as he entered the lane. The plaintiff testifi ed she also entered the left turn lane and was struck by our client without warning. The photos of the plaintiff s vehicle refuted the speeding allegation and our client testifi ed consistently that the plaintiff cut into his lane of traffi c. Plaintiff s lowest demand was $75,000. The jury deliberated over 35 minutes including lunch in fi nding entirely for our client and against the plaintiff. Plaintiff was represented by one of the premier plaintiff s fi rms in Illinois, Corboy & Demetrio. This was Mr. Boros 9th civil jury trial verdict in which the jury found for his client on all counts and awarded the plaintiff nothing. In the second matter tried by ANDREW BOROS in October, in a trial held in Cook County, IL., the plaintiff claimed soft tissue injuries as a result of a rear-end motor vehicle accident near a toll booth on Interstate 90. Plaintiff testifi ed to a moderate impact while our client maintained it was a minor impact. Over the plaintiff s counsel s objections and following extensive argument, the trial judge allowed the photographs of the plaintiff s vehicle to be admitted in evidence and displayed to the jury although no biomechanical expert was retained. The plaintiff produced at trial two medical witnesses who both tied the claimed injuries to the accident as well as a lay witness who testifi ed to plaintiff s loss of normal life after the accident. Plaintiff received physical therapy, chiropractic treatment, x-rays, an EMG and an MRI with medical bills of approximately $12,500 admitted in evidence. The jury returned a verdict of the medical bills only with nothing for pain and suffering and nothing for loss of normal life. Plaintiff is not appealing the verdict.

6 Michigan Legal Corner Partner KEVIN PLAGENS had a recent trial victory after a two week jury trial for one of our insurance carrier clients involving an occurrence from the 1980s in which the plaintiff sought no fault damages and if the jury found that our client did not act reasonably, they would have assessed attorneys fees. The jury found that our client had acted reasonably, awarded a small amount for the injury (less than the case evaluation award) and accordingly, no attorneys fees will be awarded. Associate CHRISTOPHER HILLS successfully represented a Federal Court case resulted from a motor vehicle accident in Ohio wherein the plaintiff s vehicle struck the trailer hauled by the defendant as he backed it into the street in an attempt to go down the customer s driveway. The plaintiff brought a personal injury lawsuit against the defendant (our client s policyholder) and the equipment/tractor dealership. Our client sought to rescind a bodily injury policy as the insured was a former independent insurance agent who sold himself a personal auto policy for business autos unbeknownst to our client. A summary judgment motion was granted in full based on the business use exclusion and based on the misrepresentation in the application regarding the insured s failure to disclose that his listed vehicle was in fact for business use. Our client had zero exposure from the plaintiff s lawsuit. CHRISTOPHER HILLS also prevailed by Summary Disposition and Summary Judgment, respectively, in two very complicated cases which also included the pre-suit EUO expertise of Partner Gene Pinkus. The cases, arising from a single car accident where the plaintiff was pronounced dead at the scene and the passengers in the plaintiffs car were seriously injured, encompassed a complicated set of facts involving collusion, fraud, bait and switch, insurable interest issues and misrepresentations in the application which we were trying to impute to third parties. The exposure to our client included large incurred medical bills from the hospitals, potential life long benefi ts, and wrongful death/serious injury exposure from the owner/insured. McCormick v. Carrier Webinar: The Unraveling of a Threshold - One Dictionary at a Time January 11, am PST/11 am CST/12 pm EST A webinar for insurance professionals that will discuss Michigan s McCormick v. Carrier opinion and how to develop and implement global litigation strategies to minimize its effect. KPDE Speaker: Partner Mark Dolin Registration opens Monday, December 13, 2010 Visit Deconstructing Risk Forum January 26, am - 12 pm CST Avalon Manor, Merrillville, IN A seminar for contractors focusing on the legal environment and the surety marketplace. KPDE Speakers: Partners Robert Kopka & Joseph Forte To register, visit: ACI s Defending and Managing Trucking Litigation March 31 April 1, 2011 Sutton Place Hotel Chicago, IL The essential forum that will shape the future of defense and risk management strategies for the industry s leading counsel and claims and risk management professionals KPDE Speaker: Partner James Milstone To register, visit:

7 We have handled hundreds of trucking and railroad cases in Illinois, Indiana, and Michigan representing numerous interstate and intrastate carriers, interstate and international freight forwarders, railroads, warehousemen and bailees and insurers in a variety of litigation arising out of various modes of transportation and storage of freight throughout the United States. We have handled delivery trucks, box trucks, semi-tractor trailers, dump trucks, logging trucks, rail freight and other various types of commercial transportation. Our Firm also represents over-the-road interstate and intrastate carriers in personal injury, automobile collision, workers compensation, employment law and cargo damage defense cases. Several of our attorneys concentrate their practice in the defense of trucking and railroad companies. Most are members of TIDA (Truck Industry Defense Association) and all have tried numerous, serious truck accident cases. We represent several national trucking and railroad companies on a regional basis, including Pepsi, Rail America, Inc., Ryder Logistics and Transportation, Transport America, Yellow Roadway, and specialty insurers such as Acuity Insurance, Canal Insurance, CNA Insurance KPDE Connection is prepared and published by Kopka, Pinkus, Dolin & Eads. The articles are of a general Companies, Great West Casualty Company, National Indemnity, and Northland nature and they are not intended to be Insurance. interpreted as advice on specifi c legal issues. Editors of this newsletter include: Our Firm has a Rapid Response Team (RRT), which is comprised of attorneys in each of its Illinois, Indiana and Michigan offi ces, to serve its commercial transportation clients. The attorneys on the RRT are available 24/7 via home and cell phone numbers. When an accident occurs and is reported to our RRT, an attorney will come to the scene along with a preferred independent adjuster and/or traffi c accident reconstruction expert to capture relevant evidence that is Andrew Boros - Ilinois BJ Brinkerhoff - Indiana Melissa Melshenker Ackerman - Michigan Kopka, Pinkus, Dolin & Eads is a multi-state law fi rm dedicated to the defense of litigated matters in Indiana, Illinois and Michigan. Exceeding our often lost if left to a police report. Legal counsel is then provided to your in-house clients expectations is at the core risk management for a prompt and early evaluation regarding exposure. RRT of the fi rm s practice in insurance attorneys also shield insured drivers from making ill advised statements to law defense, commercial litigation, enforcement or plaintiff attorney investigators, deal with governmental agencies workers compensation, bankruptcy and creditors rights, employment law, when spills or road damage occurs and are available to represent insured drivers mediation, municipal litigation, product in criminal and traffi c violations when necessary. For more information, including liability, professional liability, restaurant a list of our RRT attorneys and their contact information, please contact Robert Kopka at x602. and retail, trucking and railroad, and toxic tort and environmental liability. Join us at ACI s Defending and Managing Trucking Litigation Conference on March 31 - April 1, Indiana Partner James Milstone will be a panelist discussing, Punitive Damages: How to Combat the Latest Nuances Plaintiffs Are Using to Make the Case at 10:30 a.m. on Friday, April 1, We look forward to seeing you there. To register visit AmericanConference.com/ Trucking. If you have any questions on the content of this newsletter, please send us an at info@kopkalaw.com. Kopka, Pinkus, Dolin & Eads, LLC 100 Lexington Drive, Suite 100 Buffalo Grove, IL Tel: Fax: