Hearing Loss Mass Tort

Jury Instructions-IL > Product Liability > Hearing Loss Mass Tort

Three Product Liability Trials/Mass Tort: Firefighters claimed hearing loss from siren exposure.

Over 2000 firefighters filed hearing loss products cases against an Illinois siren manufacturer. These instructions reflect 3 trials heard over several years. Although repetitive, the risk utility instructions are important.

Instructions in 1^st Trial: Finding for defendant against 27 plaintiffs.

Instruction in 2^nd Trial: Finding for 9 plaintiffs against defendant.

Instructions in 3^rd Trial: Finding for defendant against 7 plaintiffs.

INSTRUCTIONS IN 1^ST TRIAL/27 Plaintiffs

IPI 1.01 Preliminary Cautionary Instructions

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 corporation or an individual, should receive your same fair consideration.

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 of them. In evaluating the credibility of a witness you may consider that witness’ ability and opportunity to observe, memory, manner, interest, bias, qualifications, experience, and any previous inconsistent statement or act by the witness concerning an issue important to the case.

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.

IPI 2.01 – Evidence Deposition

The testimony of Captain Randy Tubbs and Dr. Jack Clemis was presented by a video tape of their testimony. You should give their testimony the same consideration you would give it had the witness personally appeared in court.

IPI 3.01 Rulings and Remarks of the Court

Now that the evidence has concluded, I will further instruct you as to the law and your duties. I have not meant to indicate any opinion as to the facts of this case by any of my rulings, remarks, or instructions.

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.

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 Families of the Plaintiffs are not parties in this case.

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

The Chicago Firefighters Union is not a party in this case

Emergency-One is not a party in this case.

The parties in this case are:

Plaintiffs:

Achilles Costanza Jeffrey M. Denis

Robert C. Fernandez Robert A. Hain

Steve D. Hanson Kevin M. Hicks

Thomas M. Jaslowski Michael R. Kappel

Edward J. Keating James P. Kelly

Thomas M. Kirkpatrick James (Kevin P) Kleinick

Jerome P. Koch David A. Koziol

Kevin F. Krahn Arthur L. Lewis

Thomas A. Maliska Terrence M. Martin

Richard J. Molitor, Jr. Lawrence O’Brien, Jr.

Connell P. O’Connor William M. Pallister

Frank Perez Joseph Pesce

Robert A. Polo Donald A. Prazuch

Anthony J. Richards

Defendant:

Federal Signal Corporation

3.03 Liability Insurance/Collateral Source

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 for 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 you verdict, the court will make whatever adjustments are necessary in this regard.

IPI 12.04 Concurrent Negligence Other Than Defendant’s/ Modified under Dugan v. Sears,

Roebuck & Co., 113 Ill. App. 3d 740, 454 N.E.2d 64 (1983)

More than one person may be to blame for causing an injury. If you decide that Federal Signal sirens were unreasonably dangerous and that the condition of the sirens that the plaintiffs contend is unreasonably dangerous was a proximate cause of injury to a plaintiff, it is not a defense that some third person or entity who is not a party to the suit may also have been to blame.

However, if you decide that the sole proximate cause of injury to any plaintiff was the conduct of a person or entity other than Federal Signal, and that such conduct by another person or entity was not reasonably anticipated by Federal Signal, then your verdict should be for Federal Signal.

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 injury complained of. 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—Definition of “Unreasonably Dangerous”—Personal Injury

When I use the expression “unreasonably dangerous” in these instructions, I mean unsafe when put to a use that is reasonably foreseeable considering the nature and function of Federal Signal’s siren.

400.07C Strict Product Liability—Non–Delegable Duty

Defendant, Federal Signal Corporation, has a duty to manufacture and sell a product that is not in an unreasonably dangerous condition. That duty cannot be delegated to another.

It is not a defense for the Defendant-Federal Signal Corporation, that another person or entity, including the plaintiffs’ employer, the Chicago Fire Department, failed to make the product free from unreasonably dangerous conditions. When I use the phrase “cannot be delegated,” I mean that the duty must be performed by defendant, Federal Signal Corporation and cannot be left to some other person or entity.

400.07D Strict Product Liability—Duty to Warn—General [reworded]

In this case there is a claim of a failure to issue adequate warnings. A manufacturer has a duty to adequately warn and instruct the user of its products about the dangers of its product of which it knew, or, in the exercise of ordinary care, should have known, at the time the product left the manufacturer’s control.

[Defendant’s Proposed Instructions #1, #26 and #48, as modified]

5.07 Benders: § 5.07 Risk-utility/Consumer Expectation – (“two-prong” defective design test) Calles v. Scripto-Tokai Corp, 224 Ill. 2d 247 (S. Ct. – 2007), Blue v. Environmental Engineering, 215 Ill. 2d 78 (2005), Lamkin v. Towner, 138 Ill 2d 510 (1990) and Wortel v. Somerset, 331 Ill. App. 3d 895 (2002 – 1st)

In this case there is a claim of a defective product design. A product is unreasonably dangerous

by its defective design if:

The product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner; or
The product’s design proximately caused injury and the defendant fails to prove, in light of the relevant factors, that on balance the benefits of the challenged design outweigh the risk of danger inherent in such design.

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.

30.01 et seq Damage Instructions, Measure of Damages

If you decide for any 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 proved by the evidence to have resulted from any exposure or use of the unreasonably dangerous product, taking into consideration the nature, extent, and duration of the injury and the aggravation of any pre-existing ailment or condition.

Loss of Normal Life experienced or reasonably certain to be experienced in the future.
Pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries
The reasonable expense of necessary medical care, treatment and services received.

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

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.

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.

41.01 Two or More Plaintiffs

The rights of the party-plaintiffs are separate and distinct. Each is entitled to a fair consideration of his own case and you will decide each plaintiff’s case as if it were a separate lawsuit. Each plaintiff’s case must be governed by the instructions applicable to that case.

41.02 Assess Plaintiffs’ Damages Separately

If you find that any of the plaintiffs is entitled to recover, you will assess the damages of each separately and return a verdict in a separate amount for each.

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

The plaintiffs claim that each of them 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 the defendant a condition which made the siren unreasonably dangerous in one or more of the following respects:

That Federal Signal failed to design its sirens to reduce the risk of

hearing loss from continued exposure to siren noise it produced; or

That Federal Signal failed to issue proper warnings or instructions

that continued exposure to siren noise produces hearing loss.

Each of the plaintiffs further claims that one or more of the foregoing was a proximate cause of each plaintiffs’ respective injuries and damages.

Federal Signal denies that any claimed condition of the siren made the siren unreasonably

dangerous and denies that any claimed condition of the siren was a proximate cause of plaintiff’s

injuries.

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

* * *

The defendant, Federal Signal, also claims that the plaintiff assumed the risk of injury in

the following respect:

That each plaintiff 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 such noise without using hearing protection.

Federal Signal also claims that the foregoing was a proximate cause of the plaintiffs’ own injuries.

The plaintiffs deny that they assumed the risk of injury and also deny that any assumption of the risk on their part was a proximate cause of their injuries.

IPI 21.01 – BURDEN OF PROOF

When I say that a party has the burden of proof on any proposition, or use the expression “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.

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

Each plaintiff 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’s sirens;

Second, that the condition made the siren unreasonably dangerous;

Third, that the condition existed at the time the siren left the control of the defendant;

Fourth, that the plaintiff was injured; and

Fifth, that the condition of the siren was 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’s claim that the plaintiff assumed the risk of injury.

As to that claim, the defendant has the burden of proving each of the following propositions:

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

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

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

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

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

If you find from your consideration of all the evidence that the plaintiff has proved all of the propositions required of the plaintiff, and that the defendant has proved all of the propositions required of the defendant, and if you find that the plaintiff’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.

If you find from your consideration of all the evidence that the plaintiff has proved all the propositions required of the plaintiff and that the defendant has proved all of the propositions required of the defendant, and if you find that the plaintiff’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 and the plaintiff’s damages will then be reduced by the percentage of the plaintiff’s fault in assuming the risk.

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.

The Plaintiffs in this case are: Achilles Costanza, Jeffrey M. Denis, Robert C. Fernandez, Robert A. Hain, Steve D. Hanson, Kevin M. Hicks, Thomas M. Jaslowski, Michael R. Kappel,

Edward J. Keating, James P. Kelly, Thomas M. Kirkpatrick, James (Kevin P) Kleinick, Jerome P. Koch, David A. Koziol, Kevin F. Krahn, Arthur L. Lewis, Thomas A. Maliska, Terrence M. Martin, Richard J. Molitor, Jr., Lawrence O’Brien, Jr., Connell P. O’Connor, William M. Pallister, Frank Perez, Joseph Pesce, Robert A. Polo, Donald A. Prazuch, and Anthony J. Richards

The Defendant in this case is: Federal Signal Corporation

There are 27 Verdict Forms for each plaintiff and the defendant. As to each one of the 27 Verdict Forms you have three choices: Paragraph A, Paragraph B, or Paragraph C. You may only select one of the three choices by marking an “X” beside the appropriate paragraph.

If you find for a particular plaintiff and against the defendant, Federal Signal, and if you further find that the plaintiff did not assume the risk, then you should mark an “X” on the space beside Paragraph “A” of that Verdict Form and fill in the appropriate amount of your verdict in Paragraph “A”.

If you find for a particular plaintiff and against the defendant, Federal Signal, and if you further find that that plaintiff’s injuries were proximately caused by a combination of an unreasonably dangerous condition of the defendant’s siren and the plaintiff’s fault in assuming the risk, and that that plaintiff’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 mark an “X” on the space beside Paragraph “B” of that Verdict Form, and then determine the amount of damages to be awarded by you as in Paragraph “B” as follows:

First, determine the total amount of damages to which the plaintiff would be entitled under the court’s instructions if the plaintiff had not assumed the risk;

Second, determine what portion or percentage is attributable solely to the plaintiff’s fault in assuming the risk, considering the extent to which the plaintiff’s assumption of risk and the unreasonably dangerous condition of the siren each proximately contributed to the plaintiff’s injury;

Third, reduce the total amount of the plaintiff’s damages by the proportion or percentage of plaintiff’s assumption of the risk.

The resulting amount, after making such reduction, will be the amount of your verdict.

If you find for Defendant, Federal Signal, and against a particular Plaintiff, or if you find that Plaintiff’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 mark an “X” on the space beside Paragraph “C” of that Verdict Form.

IPI B45.01.A – VERDICT FORM [EXAMPLAR]

VERDICT FORM #1

Achilles Costanza vs. Federal Signal Corporation

______ A. We, the jury find for the Plaintiff, Achilles Costanza, and against the

Defendant, Federal Signal in the amount of $ _________________________.

______ B. We, the jury find for the Plaintiff, Achilles Costanza, and against the

Defendant, Federal Signal in the amount of $ _________________________.

We further find the following:

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 recoverable damages in the sum of $____________________.

==================

______C. We, the jury, find for the defendant, Federal Signal and against the plaintiff,

Achilles Costanza.

=======================================================================================

VERDICT FORM #2

Jeffrey M. Denis vs. Federal Signal Corporation

VERDICT FORM #3

Robert C. Fernandez vs. Federal Signal Corporation

VERDICT FORM #4

Robert A. Hain vs. Federal Signal Corporation

VERDICT FORM #5

Steve D. Hanson vs. Federal Signal Corporation

VERDICT FORM #6

Kevin M. Hicks vs. Federal Signal Corporation

VERDICT FORM #7

Thomas M. Jaslowski vs. Federal Signal Corporation

VERDICT FORM #8

Michael R. Kappel vs. Federal Signal Corporation

VERDICT FORM #9

Edward J. Keating vs. Federal Signal Corporation

VERDICT FORM #10

James P. Kelly vs. Federal Signal Corporation

VERDICT FORM #11

Thomas M. Kirkpatrick vs. Federal Signal Corporation

VERDICT FORM #12

James (Kevin P.) Kleinick vs. Federal Signal Corporation

VERDICT FORM #13

Joseph P. Koch vs. Federal Signal Corporation

VERDICT FORM #14

David A. Koziol vs. Federal Signal Corporation

VERDICT FORM #15

Kevin F. Krahn vs. Federal Signal Corporation

VERDICT FORM #16

Arthur L. Lewis vs. Federal Signal Corporation

VERDICT FORM #17

Thomas A. Maliska vs. Federal Signal Corporation

VERDICT FORM #18

Terrence M. Martin vs. Federal Signal Corporation

VERDICT FORM #19

Richard J. Molitor, Jr. vs. Federal Signal Corporation

VERDICT FORM #20

Lawrence O’Brien, Jr. vs. Federal Signal Corporation

VERDICT FORM #21

Connell P. O’Connor vs. Federal Signal Corporation

VERDICT FORM #22

William M. Pallister vs. Federal Signal Corporation

VERDICT FORM #23

Frank Perez vs. Federal Signal Corporation

VERDICT FORM #24

Joseph Pesce vs. Federal Signal Corporation

VERDICT FORM #25

Robert A. Polo vs. Federal Signal Corporation

VERDICT FORM #26

Donald A. Prazuch vs. Federal Signal Corporation

VERDICT FORM #27

Anthony J. Richards vs. Federal Signal Corporation

______ A. We, the jury find for the Plaintiff, Anthony J. Richards, and against the

Defendant, Federal Signal in the amount of $ _________________________.

______ B. We, the jury find for the Plaintiff, Anthony J. Richards, and against the

Defendant, Federal Signal in the amount of $ _________________________.

We further find the following:

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 recoverable damages in the sum of $____________________.

==================

______C. We, the jury, find for the defendant, Federal Signal and against the plaintiff,

Anthony J. Richards.

[Signature Lines ]

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(Foreperson)

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INSTRUCTIONS IN 2^nd TRIAL/9 Plaintiffs

IPI 1.01 Preliminary Cautionary Instructions

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.

IPI 2.01 – Evidence Deposition

The testimony Dr. Jack Clemis was presented by a video tape of his testimony. You should give this testimony the same consideration you would give it had the witness personally appeared in court.

IPI 3.01 Rulings and Remarks of the Court

IPI 3.04 Circumstantial Evidence

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 Families of the Plaintiffs are not parties in this case.

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

The Chicago Firefighters Union is not a party in this case.

The Emergency vehicle manufacturers are not parties in this case.

The parties in this case are:

Plaintiffs:

Thomas E. Baley

Earl E. Bybee

Edward J. Doherty

Donald J. Freza

Thomas J. Hosty

Robert J. O’Toole

Richard I. Reimer

Mauricio Rodriquez

James P. Voris

Defendant:

Federal Signal Corporation

3.03 Liability (Collateral Source)

If you find for any 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 you verdict, the court will make whatever adjustments are necessary in this regard.

IPI 12.04 Modified – Concurrent Fault

However, if you decide that the sole proximate cause of injury to any plaintiff was the conduct of some person or entity other than Federal Signal, and that such conduct by another person or entity was not reasonably anticipated by Federal Signal, then your verdict should be for Federal Signal.

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 plaintiffs contend is unreasonably dangerous was 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 to the plaintiff was something other than the Federal Signal sirens, then your verdict should be for Federal Signal.

400.04 Strict Product Liability—Proximate Cause—Definition

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.

In considering whether a product is “unreasonably dangerous”, you may consider any relevant factors shown 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 by the plaintiffs if it would also have introduced into the product other dangers of equal or greater magnitude.
Whether the siren was unreasonably dangerous considering whether the product design deviated from design standards of the industry.
Whether the siren was unreasonably dangerous in light of safety risks: The likelihood that product use 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 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.