Risk Utility – Missing Evid

Jury Instructions-IL > Product Liability > Risk Utility – Missing Evid

John Franco v Federal Signal Corporation NO. 00 L 6486,87,89,90,93,95

(“Track #5”)

Product – Modified Risk Utility Instruction – 5.01 Missing Evidence

This was the fourth trial in a mass tort suit for noise induced high frequency hearing loss due

to noise exposure to sirens which allegedly emitted “back noise” rearward into the passenger compartment

of fire engines injuring the firefighters over a long period of time. A modified Risk Utility/Benefit

instruction was forged in order to submit individual factors for the jury to consider.

A “missing evidence” instruction was given when it was alleged that defendant’s test notes on an

alternative product were either discarded or misplaced. The assumption of risk instruction was given.

Verdict for defendant.

IPI 1.01 Preliminary Cautionary Instructions

Now that the evidence has concluded, I will further instruct you as to the law and your duties. The law regarding this case is contained in the instructions I will give to you. You must consider the Court’s instructions as a whole, not picking out some instructions and disregarding others.

It is your duty to resolve this case by determining the facts and following the law given in the instructions. Your verdict must not be based upon speculation, prejudice, or sympathy. Each party, whether a company, a corporation, a partnership or an individual, should receive your same fair consideration.

I have not meant to indicate any opinion as to the facts of this case by any of my rulings, remarks, or instructions.

You will decide what facts have been proven. Facts may be proven by evidence or reasonable inferences drawn from the evidence. Evidence consists of the testimony of witnesses and of exhibits admitted by the court. You should consider all the evidence without regard to which party produced it. You may use common sense gained from your experiences in life in evaluating what you see and hear during trial.

You are the only judges of the credibility of the witnesses. You will decide the weight to be given to the testimony of each one presented. In evaluating the credibility of a witness, you may consider that witness’ ability and opportunity to observe and remember as well as the witness’ manner, interest, bias, qualifications, and experience. Lastly, you may also consider any previous inconsistent statement or act by the witness concerning an issue important to the case.

The use of cell phones for text messaging, posting to the internet, and accessing the internet in connection with your deliberations violates the rules of evidence and you are prohibited from using them.

You must make your decision based on what you recall of the evidence. You will not receive a written transcript of the testimony when you retire to the jury room.

An opening statement is what an attorney expects the evidence will be. A closing argument is given at the conclusion of the case and is a summary of what an attorney contends the evidence has shown. If any statement or argument of an attorney is not supported by the law or the evidence you should disregard that statement.

Non-IPI – Non-Parties and Corporate Entities

You have heard evidence as to various people and entities who are not parties in this case:

The Chicago Fire Department is not a party in this case.

The emergency vehicle manufacturers are not parties in this case.

The parties in this case are:

Plaintiff: John Franco

Defendant: Federal Signal Corporation

3.03 Liability Insurance

Whether a party is insured has no bearing whatever on any issue that you must decide. You must refrain from any inference, speculation, or discussion about insurance.

If you find the plaintiff, you shall not speculate about or consider any possible sources of benefits the plaintiff may have received or might receive. After you have returned your verdict, the court will make whatever adjustments are necessary in this regard.

IPI 3.04 Circumstantial Evidence

A fact or a group of facts, may, based on logic and common sense, lead you to a conclusion as to other facts. This is known as circumstantial evidence. A fact may be proved by circumstantial evidence. For example, if you are in a building and a person enters who is wet and is holding an umbrella, you might conclude that it was raining outside. Circumstantial evidence is entitled to the same consideration as any other type of evidence.

IPI 5.01 Failure to Produce Witness [or Evidence]

If Federal Signal failed to offer evidence—specifically Joseph Bader’s notes, polar plots or other documentation about the test of a shroud—which was within its power to produce, you may infer that the evidence would be adverse to the defendant if you believe each of the following elements:

Joseph Bader’s notes, polar plots or other documentation about the test of a shroud was under the control of Federal Signal and could have been produced by the exercise of reasonable diligence.
Joseph Bader’s notes, polar plots or other documentation about the test of a shroud was not equally available to an adverse party.
A reasonably prudent person under the same or similar circumstances would have offered the evidence if it were to be favorable to him.
No reasonable excuse for the failure has been shown.

IPI 12.05 Negligence—Intervention of Outside Agency

If you decide that Federal Signal sirens were unreasonably dangerous, and that the condition of the sirens that the plaintiff contends are unreasonably dangerous were a proximate cause of injury to a plaintiff, it is not a defense that something else may have also been a cause of injury.

However, if you decide that the sole proximate cause of injury due to the exposure to siren noise to plaintiff was something other than defendant’s sirens, then your verdict should be for the defendant.

IPI 21.01 – BURDEN OF PROOF

When I say that a party has the burden of proof on any proposition or use the expressions, “if you find” or “if you decide,” I mean you must be persuaded, considering all the evidence in the case, that the proposition on which that party has the burden of proof is more probably true than not true.

IPI 30.01 et seq Damage Instructions, Measure of Damages

If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damages experienced, the damages that were proved by the evidence to have resulted from the exposure or use of the unreasonably dangerous product, taking into consideration the nature, extent, and duration of the injury.

The Pain and Suffering experienced and reasonably certain to be experienced in the future as a result of any injury that occurred prior to June 2, 2000.
The Loss of Normal Life experienced and reasonably certain to be experienced in the future as a result of any injury that occurred prior to June 2, 2000.
IPI 30.04.02 Loss of a Normal Life—Definition

When I use the expression “loss of a normal life”, I mean the temporary or permanent diminished ability to enjoy life. This includes a person’s inability to pursue the pleasurable aspects of life.

Whether any of these elements of damages has been proved by the evidence is for you to determine.

IPI 36.01 No Liability – No Damages, Absence of Liability – No Occasion to Consider Damages

If you decide for the defendant, Federal Signal, on the question of liability, you will have

no occasion to consider the question of damages.

IPI 400.01 Strict Product Liability—Issues Made by Pleadings—Personal Injury/Modified

The plaintiff, John Franco, claims that he was injured as a result of the use of the sirens made by the defendant, Federal Signal Corporation, and that there existed in the siren at the time it left the control of Federal Signal a condition which made the siren unreasonably dangerous in one or more of the following respects:

The BP100 sirens were defective in design by exposing users (firefighters) to excessive rearward noise; or
The sirens were defective in design since Federal Signal could have and should have significantly reduced or eliminated the hazardous rearward noise by use of feasible available sound focusing technology; or
The sirens were defective in design since Federal Signal failed to provide an adequate noise guard, shroud, or other sound focusing devices to reduce rearward noise levels.

The plaintiff, John Franco, further claims that one or more of the foregoing was a proximate cause of his injuries and damages.

The defendant, Federal Signal Corporation, denies that any claimed condition of the siren made it unreasonably dangerous and denies that any claimed condition of the siren was a proximate cause of plaintiff’s injuries.

Federal Signal denies that the plaintiff sustained damages to the extent claimed.

* * *

The defendant, Federal Signal Corporation, also claims that the plaintiff, John Franco, assumed the risk of injury in the following respect:

That John Franco knew, understood, and appreciated at the time of his exposure to siren noise that sirens emit loud noise and that exposure to loud noise over time can cause hearing loss, and that the plaintiff nevertheless exposed himself to siren noise without using hearing protection or taking other steps to limit his exposure.

The defendant, Federal Signal Corporation, also claims that the foregoing was a proximate cause of the plaintiff’s own injuries.

The plaintiff, John Franco, denies that he assumed the risk of injury and also denies that any assumption of the risk on his part was a proximate cause of his injuries.

IPI B400.02.01 Strict Product Liability—Burden of Proof on the Issues—Personal Injury—Assumption of Risk

In the complaint brought by the plaintiff, he has the burden of proving each of the following propositions:

First, that the condition claimed by the plaintiff, as stated to you earlier in these instructions, existed in Federal Signal sirens;

Second, that the condition made the sirens unreasonably dangerous;

Third, that the condition existed at the time the sirens left the control of

Federal Signal;

Fourth, that the plaintiff was injured; and

Fifth, that the condition of the Federal Signal sirens were a proximate cause of injury to the plaintiff.

If you find from your consideration of all the evidence that any one of these propositions has not been proved, then your verdict should be for the defendant.

But if, on the other hand, you find from your consideration of all the evidence that each of these propositions has been proved, then you must consider the defendant, Federal Signal Corporation’s claim that the plaintiff, John Franco, assumed the risk of injury.

As to the claim of assumption of risk, the defendant, Federal Signal, has the burden of proving each of the following propositions:

First, that the plaintiff, John Franco, had actual knowledge of the condition which the plaintiff claims made the siren unreasonably dangerous;

Second, that the plaintiff, John Franco, understood and appreciated the risk of injury from that condition and continued to use the sirens; and

Third, that the known condition was a proximate cause of the plaintiff’s claimed injury.

However, the plaintiff, John Franco’s inattentive or ignorant failure to discover or guard against the unreasonably dangerous condition of the sirens does not constitute an assumption of the risk.

* * *

If you find from your consideration of all the evidence that the plaintiff, John Franco, has proved all the propositions required of the plaintiff and that the defendant, Federal Signal Corporation, has not proved all of the propositions required of the defendant, then your verdict should be for John Franco and the plaintiff’s damages will not be reduced.

If you find from your consideration of all the evidence that the plaintiff, John Franco, has proved all the propositions required of him, and that the defendant, Federal Signal Corporation, has proved all of the propositions required of the defendant, and if you find that the plaintiff, John Franco’s fault in assuming the risk was 50% or less of the total proximate cause of the injury for which recovery is sought, then your verdict should be for the plaintiff, John Franco, and the plaintiff’s damages will then be reduced by the percentage of the plaintiff’s fault in assuming the risk.

If you find from your consideration of all the evidence that the plaintiff, John Franco, has proved all of the propositions required of him, and that the defendant, Federal Signal Corporation, has proved all of the propositions required of the defendant, and if you find that the plaintiff. John Franco’s fault in assuming the risk was greater than 50% of the total proximate cause of the injury for which recovery is sought, then your verdict should be for the defendant.

IPI 400.04 Strict Product Liability—Proximate Cause—Definition

When I use the expression “proximate cause,” I mean any cause which, in natural or probable sequence, produced the complained of injury. It need not be the only cause nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.

400.06 Strict Product Liability: Modified Version Combined w/Multi-Factorial Risk-Utility Test

When I use the expression “unreasonably dangerous,” I mean that a product is defective in its design when the foreseeable risks of harm posed by the product outweigh the benefits of the design.

When you consider whether a product is “unreasonably dangerous,” you may consider any of the following factors, or other relevant factors, proved by the evidence, including but not limited to the following:

Whether the siren was unreasonably dangerous if it failed to perform as safely as an ordinary firefighter would expect when used in an intended and reasonably foreseeable manner considering the nature and function of the siren.
Whether the siren was unreasonably dangerous in light of the usefulness and desirability of the siren to an ordinary firefighter and to the public as a whole.
Whether the siren was unreasonably dangerous in light of the firefighter’s anticipated awareness of any dangers inherent in the product and an ordinary firefighter’s ability to avoid those dangers.
Whether the siren was unreasonably dangerous in consideration of whether the risks can be avoided or reduced by the adoption of available and feasible alternative designs, if any, that would eliminate the unsafe character of the product without impairing its usefulness. When evaluating the feasibility of an alternative design, the overall safety of the product must be considered. It is not sufficient that the alternative design would have reduced or prevented the harm claimed if it would also have introduced into the product other dangers of equal or greater magnitude. The plaintiff may, but has no burden of proof, to offer a feasible alternative design.
Whether the siren was unreasonably dangerous considering if the product design deviated from design standards of the industry or government regulations.
Whether the siren was unreasonably dangerous in light of safety risks: the likelihood that use of the product will lead to serious injury.
Whether the siren was unreasonably dangerous in consideration of the manufacturer’s ability to issue warnings and instructions on the use of the product that would reduce or avoid the risk of harm from unsafe features of the product.
Whether the siren was unreasonably dangerous in light of the firefighter’s anticipated awareness of the existence of suitable warnings or instructions.

IPI 400.07C Strict Product Liability—Non–Delegable Duty

Federal Signal has an obligation to manufacture and sell sirens that are not in an unreasonably dangerous condition. Since that obligation cannot be delegated to another, it is not a defense for Federal Signal that the Chicago Fire Department or someone else failed to make the product free from unreasonably dangerous conditions.

When I use the phrase “cannot be delegated” in these instructions, I mean that the obligation must be performed by Federal Signal and cannot be left to some other person or individual, including the plaintiff’s employer, the Chicago Fire Department, or an emergency vehicle manufacturer.

IPI 400.10 Strict Product Liability—Due Care Not a Defense—Personal Injury

If you decide that the plaintiff has proved all the propositions of his case, then it is not a defense that the condition of the product could not have been discovered by the defendant or that care was used in the manufacture of the product.

IPI B45.03/B400.03—Modified: Instruction on Use of Verdict Forms—Apportionment of Responsibility—Strict Product Liability—Personal Injury—Assumption of Risk—Reduction of Damages

When you retire to the jury room you will first select a foreperson. He or she will preside during your deliberations. Each verdict must be unanimous.

Forms of verdicts are supplied with these instructions. After you have reached your verdict, fill in and sign the verdict form and return it to the court. Your verdict must be signed by each of you. You should not write or mark upon this or any of the other instructions given to you by the court.

‘

Plaintiff: John Franco

Defendant: Federal Signal Corporation

If you find for the plaintiff, John Franco, and against the defendant, Federal Signal, and if you further find that the plaintiff did not assume the risk, then you use Verdict Form A.

If you find for the plaintiff, John Franco, and against the defendant, Federal Signal, and if you further find that that John Franco’s injuries were proximately caused by a combination of an unreasonably dangerous condition of the defendant’s siren and the John Franco’s fault in assuming the risk, and that John Franco’s fault in assuming the risk was 50% or less of the total proximate cause of the injury for which recovery is sought, then you should use Verdict Form B.

If you find for Defendant, Federal Signal, and against the Plaintiff, John Franco, or if you find that John Franco’s fault in assuming the risk was more than 50% of the total proximate cause of damages for which recovery is sought, then you should use Verdict Form C.

IPI B45.01.A – Verdict Form A / Modified

VERDICT FORM A

We, the jury, find for the Plaintiff, John Franco, and against the Defendant, Federal Signal

Corporation. We assess the damages itemized as follows:

Pain and suffering experienced: $______________________

Loss of a normal life experienced: $______________________

We assess the Plaintiff’s total damages in the sum of: $______________________.

[Signature Lines ]

B45.01.B Verdict Form B / Modified [Assumption of Risk]

VERDICT FORM B

We, the jury, find for the Plaintiff, John Franco, and against the Defendant, Federal Signal

Corporation. We assess the damages itemized as follows:

Pain and suffering experienced: $______________________

Loss of a normal life experienced: $______________________

We further find the following:

That the total amount of damages suffered by Plaintiff

as a proximate result of the occurrence is: $______________________

The percentage of the plaintiff’s fault in assuming the risk

which, in combination with the dangerous condition of the

siren, proximately contributed to the plaintiff’s injury is: ____________ (%) percent

After reducing the total amount of the plaintiff’s damages by

the proportion or percentage of plaintiff’s assumption of risk,

we assess the plaintiff’s total recoverable damages in the

sum of: $______________________.

[Signature Lines ]

IPI 45.01.C Verdict Form C

VERDICT FORM C

We, the jury, find for the Defendant, Federal Signal Corporation, and against

the Plaintiff, John Franco.

[Signature Lines ]