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Motion 12 - product liability motion in opposition of remittitur - Part 2

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The committee that drafted the Restatement 3rd reiterated that their work had nothing to do with jury instructions:

In most instances, judicial references to consumer expectations are fully consistent with the rules of thisRestatement governing defective design. For example, jury instructions often are couched in language that asks the jury to determine whether the product is not reasonably safe, is unreasonably dangerous, or fails to meet reasonable consumer expectations. The requirement that proof of a reasonable alternative design be introduced as a necessary predicate for reaching the jury in a design defect case is a rule of law for the court. Once a court finds that sufficient evidence of a reasonable alternative design ha been introduced, this Restatement leaves the formulation of the jury instruction to the local law applicable in trial courts in the various states. Many states require proof of a reasonable alternative design as a prerequisite to reaching the jury, yet couch their jury instructions in more general language that often includes consumer expectations. The practice of these jurisdictions is fully compatible with the rule stated in this section [2]. Restatement 3rd of Torts, Section 2, p. 74.

These statements of the committee show that the trial court here correctly instructed our jury, even if Illinois chooses to follow the new Restatement, which is a large leap of faith. A good number of states do as Illinois does: they use consumer expectation instructions, but consider evidence of feasible alternative designs - e.g., Pennsylvania, Connecticut and Iowa. Restatement 3rd of Torts, pp. 57-59, 71-73. A number of additional courts have expresslyrejected the proposed product liability standards in the Restatement 3rd of Torts. Green v. Smith & Nephew AHP, Inc. , 629 N.W.2d 727 (Wis. 2001); Vautour v. Body Masters Sports Industries, Inc. , 784 A.2d 1178 (N.H. 2001) ; Delaney v. Deere and Company , 999 P.2d 930 (Ks. 2000) ; Newman v. Ford Motor Company , 975 S.W.2d 147 (Mo. 1998) (the Restatement 3rd is “agnostic” on the subject of jury instructions).

In its discussion of states that follow the consumer expectation standard, the risk-utility standard, or both, the committee that wrote the Restatement was wrong when it discussed Illinois law. The committee put Illinois in the group of states that requires proof of a reasonable alternative design to prevail in a products case. To support this incorrect conclusion, the committee cited only a repealed statute, the part of HB 20 that required plaintiff to prove a reasonable alternative, 735 ILCS 5/2-2104. Best v. Taylor Machine Works , 179 Ill. 2d 367 (1997), invalidated that provision and the rest of HB 20. The committee failed to cite Lamkin v. Towner, supra, which establishes that plaintiff may present her case either as consumer expectation or risk-utility. The committee also did not mention the IPI series on product liability that has uniformly been upheld. Restatement 3rd Torts, Section 2, pp. 48-49.

The Restatement 3rd has many detractors besides this plaintiff. The Wisconsin Supreme Court made this observation:

We note that there has been considerable controversy over the Restatement Third of Torts, Section 2(b) . See, e.g. , Marshall S. Shapo, A New Legislation: Remarks on the Draft Restatement of Products Liability . 30 U. Mich. J.L. Reform 215, 218 (1997) (stating that the Restatement (Third) of Torts is not a description of the existing law, but rather is the creation of drafters who acted as “a sounding board for essentially political discussion”); Frank J. Vandall, Constructing a Roof Before the Foundation is Prepared: The Restatement (Third) of Torts: Products Liability Section 2(b) Design Defect , 30 U. Mich. J.L. Reform 261. 261-65 (1997) (characterizing § 2(b) as “a wish list from manufacturing America” in which “[m]essy and awkward concepts such as precedent, policy, and case accuracy have been brushed aside for the purpose of tort reform”); Symposium, A Critical Analysis of the Proposed Restatement (Third) of Torts: Products Liability , 21 Wm. Mitchell L.Rev. 411. 412-13, 419-20 (1995) (criticizing § 2(b) as being “a vehicle for social reform” rather than a restatement of the existing law, and citing numerous articles with similar observations). Green v. Smith & Nephew AHP, supra at 751 fn. 16.

Despite the impressive title, the Restatement 3rd of Torts is simply not law in this state and does not remotely suggest that our jury was improperly instructed.

3. Illinois permits strict product liability cases to be tried with the same instructions used in this case. No error whatsoever occurred in how the court chose to instruct our jury.

In conclusion on this point, the law set forth in Lamkin that plaintiff has the option to proceed under consumer expectation or risk-utility remains good law. It was most recently affirmed three years ago in Hansen, and the Supreme Court did nothing to diminish that holding in its Blue dicta. Connie Mikolajczyk was permitted to present her case as a consumer expectation case, and was permitted to introduce evidence of alternative feasible designs to reduce the danger that killed her husband to help prove that the product was unreasonably dangerous. See, Mele v. Howmedica, supra; Kerns v. Engelke, supra; Anderson v. Hyster Corp., supra; and Carrillo v. Ford Motor Co., supra. The IPI instructions on product liability are accurate statements of Illinois law and this court was right to give them. No additional instructions on the product liability issues were warranted.


Ford's 18 was objectionable for reasons beyond the obvious objection that it is non-IPI and there is an accurate IPI on point:

• Per Ford, plaintiff must prove the front seats had a “design defect” and that the vehicle was “unreasonably dangerous.” “Design defect” is undefined in the refused instruction. Illinois law does not require plaintiff to prove a “design defect.” Plaintiff is required to prove the product was “unreasonably dangerous.” Under Ford's proposed instruction, if the jury found the vehicle was unreasonably dangerous but did not have a design defect, plaintiff would lose the case. That is not the law in Illinois;' there is no separate burden to prove that a product had a design defect as well as well as being unreasonably dangerous.

• Per Ford's 18, the jury would be told that Ford asserts that the benefits of the design outweigh the risks of danger in the design. That aspect of this instruction and later Ford instructions is not warranted. As stated in Mele v. Howmedica, infra, evidence of risks and benefits of a design can be received in a case prosecuted under consumer expectations. The jury need not be instructed about risks and benefits.

• The issue of sole proximate cause was not properly before the jury in light of the claim that the sole cause was the co-defendant. The jury was adequately instructed on causation and was told on two occasions that a finding for Ford meant 0% on the verdict form.

The court properly refused Ford's 18 and gave plaintiffs 11A. (3/11 p.m., pp. 50-7).


Ford cites no case that says IPI 400.02 is an incorrect statement of the law in Illinois. Plaintiff listed above some of the Illinois cases that support the giving of this instruction. Plaintiff is unaware of any Illinois products case going to the jury without using IPI 400.02. It would have been error to refuse plaintiff's 13B.

Plaintiff objected to Ford's 19 on a number of grounds in addition to those raised above:

• It imposes on plaintiff the burden to prove the product was both “unreasonably dangerous” and that it had a “design defect,” which term is undefined. No Illinois court has imposed those dual burdens.

• It instructs that if plaintiff proves the vehicle was unreasonably dangerous and had a design defect, plaintiff still loses if Ford can show the benefits of the design outweigh the risk of danger. No Illinois court has so held. Under Illinois law, if the product is unreasonably dangerous and a proximate cause of the injury, liability attaches. Ford's 19 adds to plaintiff's burden in a way contrary to Illinois law.

• Ford's 19 embodies its view of risk-utility. Ford argued that the consumer expectation test could not go to the jury because the product was complex, not simple. No Illinois case supports that view. Under Illinois law, plaintiff chooses what theory goes to the jury.


Ford did not cite any case authority in support of this non-IPI instruction. There is none. Ford wanted to shield the jury from the word “unsafe,” replacing it with the phrase “not reasonably safe.” The IPI committee and the Illinois Supreme Court reject this very suggestion. IPI, Civil 2005 Edition, pp. 551-552.

Ford overreaches in its memorandum when it says that IPI 400.06 erroneously told the jury that Ford was required to produce a product that had to be “absolutely safe.” Memorandum, p. 15. The instruction does not say that. No court has rejected IPI 400.06 as an incorrect statement of law.


Ford tendered this same instruction in Carrillo v. Ford Motor Co., supra. That instruction was then an IPI instruction, number 400.07. Plaintiff objected because a manufacturer's duty should not be the subject of a jury instruction. In strict product liability , the focus is on the product and its condition, not the actions of a manufacturer. The trial court sustained the objection in Carrillo. Ford appealed the judgment entered against it. The judgment was affirmed. The Appellate Court specifically held that it was proper to refuse Ford's proposed instruction. The 400.07 instruction was subsequently deleted from the book with this comment:

The Committee recommends that no instruction concerning the duty of strict product liability defendants be given, except in cases where 400.07B [duty to warn-learned intermediary], 400.07C [non-dele gable duty], or 400.07D [duty to warngeneral] are applicable.

IPI, Civil 2005 Edition, 400.07A, p. 553 .

The Committee cited Carrillo and two other cases, all of which remain good law.

Ford should have cited this applicable body of law to this court, rather than trying to mislead it with cases that are not on point.


Ford and plaintiff each did the same dance regarding instructions on compliance with FMVSS 207 as they did inCarrillo. The same instructions were offered on either side (Ford's 25, Plaintiffs 25A). Either both or neither should have been given. In this case and in Carrillo, this court ruled that no instruction was needed on compliance. Compliance evidence was a very small part of this case. This court felt there was no reason to highlight this evidence. In Carrillo, the Appellate Court held that the jury was properly instructed on the issues of the case. There was no need for a compliance instruction.


Ford tendered a number of instructions using the phrase “design defect,” and tried to define the phrase in the first part of this instruction. It failed to give a correct instruction. But, more importantly, there is no need to define “design defect.” It is not plaintiff's burden to prove the product had a “design defect” and was “unreasonably dangerous.” Only the latter is required.

Ford cites three sources for the first paragraph in this instruction: Lamkin v. Towner, supra; Murphy v. Chestnut Mountain Lodge, Inc., 124 Ill. App. 3d 508 (1st Dist. 1984) ; and the Restatement 3rd of Torts. Neither of the cases contains this language. The cases do not define “design defect,” much less in the way that Ford does. While it might have been logical for Ford to copy the definition of “defect” from the Restatement 3rd, Section 2 , it did not. That definition is as follows:

A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller ... and the omission of the alternative design renders the product not reasonably safe. Restatement 3rd of Torts, Section 2(b).

Ford's definition in its instruction 27 is even more slanted than that of the Restatement. No Illinois case says it is appropriate to define “design defect” for the jury, much less in the inaccurate way that Ford has defined it.

Ford's 27 improperly defines “feasibility.” There was no valid dispute in this case that plaintiffs alternative designs were feasible. Ford conceded this during motions in limine, and while there was some minor wiggling on this during the trial, there was no real dispute that Ford could have built a strong seat like Dr. Saczalski proposed.

MR. PFAFF: May I inquire of my colleagues for one second?


MR. PFAFF: Are we -- are you disputing feasibility of Saczalski's fix in this case?

MR. BOYLE: Are we disputing that --

MR. PFAFF: You could make a stronger seat, et cetera, et cetera?

MR. BOYLE: No. (MIL, 2/16 p.m., pp. 91-92).

Mr. Burnett did not wish to admit it, but he ultimately conceded that Ford could have built a seat as strong as it wished. He never disputed the feasibility of the alternative design, nor did anyone else. (Burnett, 3/4 a.m., pp. 39-43). However, the court and Ford's counsel did not believe that the issue could be directed for the plaintiff. (Instruction Conference, 3/14 p.m., pp. 175-181). In light of Ford's concessions on feasibility, it would have been wrong to instruct the jury on that point.


For this instruction, Ford cites one of the lengthy fine print comments to the Restatement 3rd of Torts. Plaintiff has already explained that the Restatement does not speak to jury instruction at all. It is not authority for jury instructions. No court in Illinois has ever accepted or affirmed the proposition that Ford posits in its number 28. The cases Ford cited to support the instruction are not on point. There is no reason to give an instruction on this subject.


At trial, Ford's only authority to support its non-IPI #30 was the Restatement 3rd. In its memo, Ford states, “[I]t is, and always have been plaintiffs burden to prove an alternative feasible design in a strict liability design case.”Memorandum, p. 11. To support this incorrect statement, Ford cites to pp. 162-163 of Kerns v. Engelke , 76 Ill. 2d 154 (1979). The court never decided the point that Ford so boldly attributes to it:

Neither Lolie, Wright nor Sutkowski holds that a plaintiff must plead alternative design, as Fox River argues. Whether Lolie, which holds that a plaintiff must prove alternative design, correctly states our law is a question which does not have to be answered here. The plaintiff proved, as he must, to the satisfaction of the fact finder, the unreasonably dangerous nature of the defect in design; and here he did so by presenting pertinent evidence such as feasible alternative design. See Anderson v. Hyster Co . (1979), 74 Ill.2d 364, 368, 24 Ill.Dec. 549, 385 N.E.2d 690. Kerns v. Engelke, supra , 76 Ill.2d at 163.

Ford's citation to Blue on this point is likewise unavailing. It does not hold that plaintiff must prove a reasonable alternative design in a strict products case, nor does it hold the jury should be instructed on the subject. No Illinois case holds that plaintiff must prove what Ford's #30 required. It is an inaccurate statement of the law, and it would have been error to give it.


The parties shared the opinion that 600.02 incorrectly states the law and should not be given in that form. Plaintiff initially suggested that there needed to be no instruction along the lines of 600.02, consistent with the ruling in Carrillo v. Ford Motor Co. (3/8 p.m., pp. 151-153). At trial, no version of 600.02 was tendered, and that was found not to be error. The Appellate Court did say, however, that it would not have been error to give 600.02. That left this court and the parties with the rule that giving 600.02 is optional.

Ford here argued for the giving of 600.02. After length discussions on the subject, the parties, with thec's assistance, formulated an agreed version that became Plaintiffs #22A. (Instruction Conference, 3/11 p.m., pp. 63-80). Over the course of the weekend, Ford changed its mind, objected to plaintiff's #22A, and tendered its own version. The court properly refused it. (3/14 p.m., pp. 130-133). The differences between the given version of modified 600.02 and Ford's proposed modified 600.02 are miniscule and could not make any difference in the outcome of this case, particularly where Ford chose not to address the instruction or the percentage distribution between the tortfeasors in its closing argument.


No Illinois court has ever approved instructing a jury that a jointly and severally liable defendant could be required to pay 100% of a verdict. That is what Ford wanted, and this court properly refused the invitation to error. It would be equivalent to telling a jury the consequences of their answer to a special interrogatory, which is never the subject of instruction and can never be the subject of argument. Sommese v. Maling Bros., Inc. , 36 Ill. 2d 263, 267-8 (1966).

To support the giving of its #32(c), Ford cited 735 ILCS 5/2-1117 and Carollo v. Al Warren Oil Company, Inc., 355 Ill. App. 3d 172 (1st Dist. 2004). Neither support Ford's view that its instruction is proper or should be given. The statute does not say a jury should be told of the 25% joint liability rule. Jury instructions were not at issue in Carollo. The cases Ford cites in its Memorandum likewise say nothing about jury instructions.

Taken to its logical conclusion, should the jury be instructed that a defendant has low or no coverage? That a defendant's net worth is zero or fifty million dollars? Collectability has never been the subject of jury instructions in Illinois and there is no authority for doing so here.

Ford points to B45.02 to support its argument. It tells the jury that a finding of greater than 50% contributory negligence yields a defense verdict. This is so the jury does not spend the time and effort to compute damages when the plaintiff is not entitled to recover those damages by operation of law. Here, plaintiff is entitled to collect her entire verdict against either Timberlake or Ford. If either pays more than their pro rata share, that party is entitled to recoup the excess over its percentage fault from the other under the Contribution Among Joint Tortfeasors Act. If Ford does pay the entire judgment, as plaintiff would like, Ford has a contribution judgment against Mr. Timberlake. Whether or not that is collectable is not a jury question.

Ford cites to 735 ILCS 5/2-1107.1, which deals with jury instructions in tort actions. Memorandum, p. 19. That section was invalidated in 1997 by Best v. Taylor Machine Works, supra. It is not the law of this state.

Ford attaches three juror affidavits. They are not admissible and should not be considered. Plaintiff has brought a separate motion to strike these affidavits. No court may consider evidence of the method, motive or process by which a jury reached its result. Carroll v. Preston Trucking Co., Inc. , 349 Ill. App. 3d 562 (1st Dist. 2004). To hold otherwise would violate the sanctity of the jury and encourage those losing trials to exert ex parte undue influence on jurors. This cannot be tolerated in any meaningful system of justice.


IPI 12.01 deals with “intoxication as negligence.” Timberlake was determined to be negligent at the summary judgment stage. There was no issue as to his negligence to be tried by our jury. Thus, there was no reason to give IPI 12.01.

That did not deter Ford, however. It modified 12.01 to suggest that Timberlake's drunken driving should be considered on the percentage of responsibility, which the parties later agreed was related to causation, not how negligent he was.(Instruction Conference, 3/11 p.m., pp. 63-80). As to Mr. Timberlake, the only issue was his percentage causal contribution to Jim Mikolajczyk's death. On that subject, his intoxication was irrelevant.

Ford argues that the jury might have excused Timberlake's behavior because of his intoxicated state. That cannot be true. He was found liable and 60% to blame for Jim's death.

Ford cites French v. City of Springfield , 5 Ill. App. 3d 368 (4th Dist. 1972). There, an issue was raised about the intoxication of plaintiff's driver. Unlike Mr. Timberlake, that driver's fault had not been adjudicated before trial. The failure to give 12.01 in that case has nothing to do with our issue. Ford suggests that the Timberlake percentage might have gone up had they been told that drinking was no excuse, but that is wrong and speculative. Ford needs to look no further than the closing argument of its co-defendant to see that Mr. Timberlake's drinking was never proffered as an excuse:

Now, Mr. Timberlake failed to exercise ordinary care and the caution expected of a driver. This failure had horrific consequences.

He acknowledged his mistakes that evening. He has acknowledged he caused the injuries. He fessed up to the mistakes and he's ready to accept your judgment....

The evidence clearly showed

Mr. Timberlake caused injury. (Closing Argument, Mr. Ortyl, 3/15, p. 121).

There is no authority supporting the modification that Ford made to 12.01. There is no authority supporting the use of 12.01 in a case where the driver's liability has been adjudicated by summary judgment. This court properly refused to give Ford's #9. Moreover, the court did not foreclose Ford from including Mr. Timberlake's intoxication in its final argument:

THE COURT: The objection is going to be sustained.

You're certainly free to argue and to argue to the jury that they're going to compare the conduct of Timberlake with the seat, however you want to phrase it, but they're going to know that, you know, through your closing argument that they're to compare that.

Also, it's going to be covered at least to a certain extent in the issue -- the verdict form. (Instruction Conference, 3/9 p.m., p. 53).


IPI 12.04 is the concurring cause/sole proximate cause instruction. Its first paragraph makes it clear that the instruction applies when “some third person who is not a party to the suit may have been to blame.” There was no such third person in our case. The blame laid at the feet of Ford and Timberlake, both parties to the case.

The Notes on Use for the instruction are clear:

This instruction should be used only where negligence of a person who is not a party to the suit may have concurred or contributed to cause the occurrence.... The second paragraph [the sole proximate cause language] should be used only where there is evidence tending to show that the sole proximate cause of the occurrence was the conduct of a third person.

IPI, Civil 2005, p. 58 .

The court properly concluded that 12.04 does not apply in our case and should not be given.

The form of Ford's modified instruction also made it inappropriate. The first paragraph speaks of “fault,” and whether the jury found Ford “at fault.” “Fault” is a misleading concept in the context of a strict product liability case. The focus is on the condition of the product, not the fault of those who design or manufacture it. (“Strict product liability is imposed without regard to traditional questions of privity, fault, or the user's ordinary negligence.” IPI, Civil 2005, 400.00 Introduction, p. 528). Ford did not define “fault” and the jury would not have been able to reconcile that concept with plaintiff's true burden in the case, showing the product was unreasonably dangerous and a proximate cause of the death.

Ford's #10 also misstated the law in its second paragraph. It asked the jury to evaluate whether the sole proximate cause was the “ conduct of Timberlake and not that of Ford/Mazda.” It was not plaintiff's burden to prove that Ford'sconduct did anything here, so this instruction is wrong for this reason as well.

The cases Ford cited do not support the use of this instruction. Korando v. Uniroyal , 159 Ill. 2d 335, 345 (1994), deals with the admission of evidence of driving behavior by a non-party. There is no discussion of instructions or sole proximate cause in the case. Petre v. Kucich , 331 Ill. App. 3d 935, 943 (1st Dist. 2002), discussed the need to admit evidence of the conduct of non-party health care providers to help support defendant doctor's sole proximate cause argument. No question was raised about instructions. Hernandez v. Paschen Contractors, Inc . 335 Ill. App. 3d 936 (1st Dist. 2002), simply holds that a plaintiffs conduct is relevant and admissible in a Structural Work Act case to help the defendant claim it did not cause plaintiff's injuries. No question about the 12.04 instruction, or the variant of that instruction that Ford tendered, was raised. McCarthy v. Kunicki, 355 Ill. App. 3d 957 (1st Dist. 2005), does not deal with concurring cause, sole proximate cause or 12.04.

Ford's counsel had and used his opportunity to discuss causation in his argument to the jury. He suggested on multiple occasions that Mr. Timberlake was the sole proximate cause of the death. Ford was not inhibited in presenting its claim that the co-defendant was solely to blame and that Ford did not contribute to the death. The jury just did not believe it. That was not the fault of the instructions.

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