Beware Jury Instructions (or At Least, Pay Attention to Them)

I have a really long list of really important things that no one taught me in law school. One lesson that always finds itself at or near the top is this: PAY ATTENTION TO JURY INSTRUCTIONS. The smallest error or inconsistency can provide the basis for an appeal, or in some cases an entirely new trial. Never mind whether the jury actually listens to them or not.

Jury instructions served as the basis for appeal in Kokins v. Teleflex, Inc., 621 F.3d 1290 (10th Cir. 2010) (PDF). This suit arose out of an accident involving a city park ranger, who was thrown from a boat after the boat’s steering cable snapped and sustained a permanent injury to her ankle. She sued the manufacturer of the steering cable, alleging that it was defectively designed and unreasonably dangerous. During discovery, the parties determined and agreed that the reason the cable snapped was because water had somehow entered the core of the cable and caused it to rust. The parties could not agree on how the water got there. The plaintiff alleged that the cable was defectively designed and that a simple fix to the design could have prevented the water from entering into the cable’s core. Teleflex, however, provided evidence at trial that the cable was improperly installed, and had not undergone routine maintenance.

The jury entered a verdict for Teleflex, and the plaintiff appealed, taking issue with two aspects of the jury charges. First, as the Court points out:

Colorado law provides two different tests. Under the “consumer expectation” test, the jury is instructed to find defectiveness if the plaintiff proves that a product is dangerous “to an extent beyond that which would be contemplated by the ordinary consumer who purchases it.” Under the “risk-benefit” test, the jury is instructed to conclude that a product is unreasonably dangerous if the plaintiff proves that the risks of a challenged design outweigh its benefits. Appellants submitted instructions proposing that the district court instruct the jury under both tests, but the district court gave only the risk-benefit instruction.

The second dispute focused on Colorado Revised Statute 13-21-403(2), which creates a presumption that a product is not defective once it has been on the market for ten years. Over the plaintiff’s objection that the statute was procedural, not substantive, the Court instructed the jury on the statute.

The Tenth Circuit affirmed the verdict for Teleflex. First, it held that there was no error by the trial court in providing only the “risk-benefit” test to the jury because the case involved primarily technical and scientific information, rejecting the plaintiff’s argument that the jury should also have been instructed on the consumer expectation test because “rust is not rocket science.”

Second, the Court held that the trial court did not err by instructing the jury about the statutory presumption, because the presumption was substantive, rather than procedural, state law.

Although the plaintiff ultimately failed to persuade the Tenth Circuit to reverse the trial court, she successfully convinced the appellate court to consider her arguments, solely on the basis of jury instructions. It’s a good lesson to learn and, as I pointed out, not one you’ll necessarily learn sitting in the typical law school class.

Test for a New Trial Based on Alleged Erroneous Jury Instructions Analyzed by the District Court of Massachusetts

The District Court of Massachusetts was recently asked to grant a new trial under Federal Rule of Civil Procedure 59(a)(1)(A) on the ground that the jury instructions delivered to the jury were erroneous. O’Neil v. Electrolux Home Prods., Inc., No. 06-10433-DPW, 2010 WL 3504191 (D. Mass. Sept. 7, 2010). What makes this case of interest is the fact that Plaintiffs, who base their motion for a new trial on the alleged erroneous jury instructions given, submitted the identical instructions to the court and did not object to the oral recitation of these instructions to the jury prior to deliberation. It was only after the jury requested a typed copy of the instructions that Plaintiffs objected.

This is a products liability action involving an accident in which Plaintiff backed over his young son with a lawn mower. Plaintiffs filed suit against the manufacturer, asserting among other claims, breach of warranty by design defect. At the trial of this action, the following jury instructions were given:
To determine whether there was a design defect you should consider whether the product has a potential, sometimes referred to as a propensity, resulting from the manufacturer’s conscious design choice that rendered the product unreasonably dangerous to foreseeable users and, therefore, unfit for its ordinary foreseeable uses . . .

The phrase at issue is italicized above — “unreasonably dangerous to foreseeable users.” As stated above, the instructions requested by Plaintiffs included this very language and Plaintiffs made no objections when orally given by the Court. Hours into deliberation, the jury asked for criteria to determine when a product is “unreasonably dangerous.” The Court proposed sending a typed copy of the prior instructions to the jury. Plaintiffs objected to the phrase above and suggested the following phrase as a replacement — “unreasonably dangerous to foreseeable users or foreseeable bystanders.” The Court declined Plaintiffs’ suggestion and submitted the original instructions to the jury. Shortly thereafter, the jury found in favor of Defendants.

Then, Plaintiffs sought a new trial on the ground of erroneous jury instructions. The District Court of Massachusetts first stated that the test was a two-part test: 1) whether the objection was waived and 2) whether the instruction was erroneous.

The Court’s analysis of the first part of the test is most interesting. Defendants claimed that since Plaintiffs did not object to these instructions orally given, they cannot now object to the same exact language being given to the jury in hard copy. The Court disagreed with Defendants on this point, stating that Plaintiffs only “waived any challenge to that instruction at that time,” but not the supplemental instructions, even if they had the same content. Under the second prong of the test, Plaintiffs argued that failure to include “foreseeable bystander” in the instruction was “misleading and gave an inadequate understanding of the law.” The Court now disagreed with Plaintiffs, finding that the instructions as written were in line with Massachusetts law and the jury was fully aware that Defendants could be liable for injury to Plaintiffs’ son as a bystander from both parties’ opening and closing arguments and through the testimony at trial. Therefore, the Court found no error and denied Plaintiffs’ motion for a new trial.

We thought that the Court’s finding no waiver was interesting: it is a “second bite at the apple” for Plaintiffs. Therefore, practitioners should be aware of how this Court analyzed this issue if faced with a similar argument on a motion for a new trial.

Foreseeable Misuse in Pennsylvania

Does foreseeable misuse have a place in determining liability in a products liability action? In Pennsylvania, it doesn’t. Recently, the Third Circuit, applying Pennsylvania law, rejected a consumer’s argument that the meaning of “intended use” included all uses “reasonably foreseeable” by the manufacturer. Jacobson v. BMW of North America, LLC, No. 08-4322, 2010 WL 1499809 (3d Cir. Mar. 23, 2010).

In 1999, Robert Jacobson (“Jacobson”) went to do errands with his two sons, Ryan and Christopher, in his BMW 325i. Jacobson stopped at a convenience store, parked, placed the gear shift in park, turned off the engine, engaged the emergency brake, removed the keys from the ignition, and exited the vehicle, leaving his sons inside. Ryan, playing with the gear shift, placed the vehicle in reverse or neutral and the vehicle began to roll. Christopher exited the vehicle without injury. However, Ryan sustained severe injuries as a result of his exit from the vehicle. Thereafter, Jacobson filed a action against BMW alleging that it should have had a device in place that would have prevented the car from shifting out of park.

At trial, the jury returned a verdict in favor of BMW. Jacobson filed a motion for a new trial, which was denied, and filed the present appeal. Jacobson raised four errors on appeal, including an argument that the court gave an erroneous jury instruction on the definition of “design defect.”

Under Pennsylvania law, “a manufacturer can be deemed liable only for harm that occurs in connection with a product’s intended use by an intended user.” On appeal Jacobson cited to two Third Circuit opinions, Pacheco v. The Coats Co., 26 F.3d 418, 422 (3d Cir. 1994) and Sheldon v. West Bend Equipment Corp., 718 F.2d 603, 608 (3d Cir. 1983) for the proposition that “intended use” under Pennsylvania law includes all uses “reasonably foreseeable by the manufacturer.” The Court disagreed and held that this proposition had been expressly rejected by the Pennsylvania Supreme Court in Pa. Dep’t of Gen. Servs. v. U.S. Mineral Prods. Co., 898 A.2d 590 (Pa. 2006). The Court found no error in the underlying court’s decision to omit “foreseeability” from its jury instruction on “intended use.”

This case seems to represent the current state of Pennsylvania law; however, practitioners and courts alike recognize the potential for change. As recognized by the Eastern District of Pennsylvania in July 2009, McGonigal v. Sears Roebuck and Co., No. 07-CV-4115, 2009 WL 2137210 (E.D. Pa. Jul. 16, 2009), Pennsylvania courts note that “negligence concepts should not be imported into strict liability law.” However, the McGonigal court also stated that “[t]he role of negligence concepts in strict liability doctrine in Pennsylvania features numerous unsettled issue of law.” The Supreme Court of Pennsylvania was recently afforded the opportunity to clarify strict liability law in Bugosh v. I.U. N. Am., Inc., 971 A.2d 1228 (Pa. 2009) — as recognized by Drug and Device Law blog back in April 2009 — however, the appeal was dismissed as been “improvidently granted.” As a result, Pennsylvania law still contains inconsistencies with the hope for clarification someday.