Sample Instructions 2 Medical Device Products Liability Case

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Jury Instruction

An inference that a product is unreasonably dangerous may not be drawn only from evidence that an injury occurred.

Defendant's No. 19

Non-IPI (modified)

A legal inference of defectiveness may not be drawn merely from evidence that an injury occurred.

Faithful performance by you of your duties is vital to the administration of justice.

The law applicable to this case is contained in these instructions and it is your duty to follow them. You must consider these instructions as a whole, not picking out one instruction and disregarding others.

It is your duty to determine the facts, and to determine them from the evidence produced in open court. You are to apply the law to the facts and in this way decide the case. Neither sympathy nor prejudice should influence you. Your verdict must be based on evidence and not upon speculation, guess or conjecture.

The evidence which you are to consider consists of testimony of the witnesses and the exhibits offered and received. The production of evidence in court is governed by rules of law. From time to time it has been my duty as judge to rule on the admissibility of evidence. You must not concern yourselves with the reasons for these rulings. And you are not to consider exhibits to which an objection was sustained or testimony or exhibits which were ordered stricken.

Arguments, statements and remarks of counsel are intended to help you in understanding the evidence and applying the law, but are not evidence. If any argument, statement or remark has no basis in the evidence, then you should disregard that argument, statement or remark. However, there is one exception to this rule: an admission of a fact by counsel is binding on his client.

The corporate defendant, BAXTER HEALTH CARE CORPORATION, in this case is entitled to the same fair and unprejudiced treatment as an individual would be under like circumstances, and you should decide the case with the same impartiality you would use in deciding a case between individuals.

Neither by these instructions nor by any ruling or remark which I have made do I or have I meant to indicate any opinion as to the facts.

Plaintiff's No. 1

I.P.I. No. 1.01

In determining whether any proposition has been proved, you should consider all of the evidence bearing on the question without regard to which party produced it.

Plaintiff's No. 2

I.P.I. No. 1.02

A fact may be proved by circumstantial evidence. Circumstantial evidence consists of proof of facts or circumstances which give rise to a reasonable inference of the truth of the facts sought to be proved.

Plaintiff's No. 3

I.P.I. No. 1.03

In considering the evidence in this case you are not required to set aside your own observation and experience in the affairs of life but you have a right to consider all the evidence in the light of your own observation and experience in the affairs of life.

Plaintiff's No. 4

I.P.I. No. 1.04

You are the sole judges of the credibility of the witnesses and of the weight to be given to the testimony of each of them. In determining the credit to be given any witness you may take into account his ability and opportunity to observe, his memory, his manner while testifying, any interest, bias or prejudice he may have, and the reasonableness of his testimony considered in the light of all the evidence in the case.

Plaintiff's No. 5

I.P.I. No. 2.01

In deciding whether any fact has been proved, it is proper to consider the number of witnesses testifying on one side or the other as to that fact, but the number of witnesses alone is not conclusive if the testimony of the lesser number is more convincing.

Plaintiff's No. 6

I.P.I. No. 2.07

The credibility of a witness may be attacked by introducing evidence that on some former occasion the witness made a statement inconsistent with the testimony of the witness in this case on a matter material to the issues. Evidence of this kind may be considered by you in connection with all the other facts and circumstances in evidence in deciding the weight to be given to the testimony of that witness.

Plaintiff's No. 7

I.P.I. No. 3.01

The plaintiff claims that the decedent, ANDRINA HANSEN, was injured as a result of the use of a friction fit I.V. set and that there existed in the product at the time it left the control of the defendant a condition which made it unreasonably dangerous in one or more of the following respects:

(a)it was designed, manufactured, distributed and sold without a luer lock locking connection, which allowed the I.V. set to disconnect unintentionally when used in a reasonably foreseeable manner;

(b)it was designed, manufactured, distributed and sold with a friction fit connection that could disconnect unintentionally when used in a reasonably foreseeable manner; and

(c)it was distributed and sold without proper and adequate warnings as to the likelihood of the I.V. set to disconnect unintentionally and the need to use I.V. sets equipped with luer lock devices to avoid injury to the patient when used in a reasonably foreseeable manner.

The plaintiff further claims that one or more of the foregoing was a proximate cause of ANDRINA HANSEN's injuries and death.

The defendant denies that any claimed condition of the I.V. set or any lack of warning made it unreasonably dangerous; and denies that any claimed condition of the I.V. set was a proximate cause of ANDRINA HANSEN's injuries and death.

Plaintiff's No. 8

I.P.I. No. 400.01

The plaintiff claims that the decedent, ANDRINA HANSEN, was injured as a result of the use of a friction fit I.V. set and that there existed in the product at the time it left the control of the defendant a condition which made it unreasonably dangerous in one or more of the following respects:

(a)it was designed, manufactured, distributed and sold without a luer lock locking connection, which allowed the I.V. set to disconnect unintentionally when used in a reasonably foreseeable manner;

(b)it was designed, manufactured, distributed and sold with a friction fit connection that could disconnect unintentionally when used in a reasonably foreseeable manner; and

(c)it was distributed and sold without proper and adequate warnings as to the likelihood of the I. V. set to disconnect unintentionally and the need to use I. V. sets equipped with luer lock devices to avoid injury to the patient when used in a reasonably foreseeable manner.

The plaintiff further claims that one or more of the foregoing was a proximate cause of ANDRINA HANSEN's injuries and death.

The defendant denies that any claimed condition of the I. V. set or any lack of warning made it unreasonably dangerous; and denies that any claimed condition of the I. V. set was a proximate cause of ANDRINA HANSEN's injuries and death.

Plaintiff's No. 8

I.P.I. No. 400.01

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.

Plaintiff's No. 9

I.P.I. No. 15.01

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 they have the burden of proof is more probably true than not true.

Plaintiff's No. 10

I.P.I. No. 21.01

The plaintiff has the burden of proving each of the following propositions:

First, that any one of the conditions claimed by the plaintiff as stated to you in these instructions existed in the product.

Second, that any one of the conditions existed at the time the product left the control of the defendant.

Third, that any one of the conditions made the product unreasonably dangerous.

Fourth, that ANDRINA HANSEN was injured.

Fifth, that any one of the conditions of the product was a proximate cause of ANDRINA HANSEN's injuries and death.

If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiff. But if, on the other hand, 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.

Plaintiff's No. 11

I.P.I. No. 400.02

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 the product.

Plaintiff's No. 12

I.P.I. No. 400.06

More than one person may be to blame for causing an injury. If you decide that the defendant's product was unreasonably dangerous and that its product was a proximate cause of injury to ANDRINA HANSEN, it is not a defense that some third person who is not a party to the suit may also have been to blame.

Plaintiff's No. 13

I.P.I. No. 12.04

If you decide that the defendant's product was unreasonably dangerous and that its product was a proximate cause of injury to ANDRINA HANSEN, it is not a defense that something else may also have been a cause of the injury.

Plaintiff's No. 14

I.P.I. No. 12.05

It is the duty of a manufacturer to furnish a product which is in a reasonably safe condition when put to a use that was reasonably foreseeable considering its nature and intended function.

The manufacturer has a duty to adequately warn the user about the dangers of its product of which it knew, or in the exercise of ordinary care should have known.

The product involved in this case can only be used with a prescription from a health provider. For this reason, the manufacturer has a duty to adequately warn only the health provider of the dangers of the product and only of the dangers or adverse consequences of which it knew, or in the exercise of ordinary care should have known, at the time the product left the manufacturer's control. The manufacturer has no duty to warn the patient directly.

Plaintiff's No. 15

I.P.I. No. 400.07

Baxter/Hansen
Defendant's Proposed Jury Instruction
No. 21

You are instructed that under the law the defendants owed no duty under any circumstances to provide any warnings directly to Andrina Hansen. Because I. V. tubing and extension sets are available only upon a physician's prescription, the physician serves as a ”“learned intermediary‘’ between the manufacturers and the physician's patient.

GRANTED PLAINTIFF OBJ

DENIED W/D

MODIFIED

Kirk v Michael Reese Hospital, 117 Ill. 2d 507, 515, 513 N.E. 2d 387, 395 (1987); Wooten v. Johnson & Johnson Products , 635 F. Supp. 799, 803 (N. D. Ill. 1986) ; Tongate v. Wyeth Laboratories, 220 Ill. App. 3d 952, 962-63, 580 N.E. 2d 1220, 1228 (1st Dist. 1991)

The defendant is a corporation and can act only through its officers and employees. Any act or omission of an officer or employee within the scope of his or her employment is the action or omission of the defendant corporation.

Plaintiff's No. 16

I.P.I. No. 50.11

If you decide that the plaintiff has proved all the propositions of his case, then it is not a defense that care was used in the manufacture of the product.

Plaintiff's No. 17

I.P.I. No. 400.10

If you decide for the defendant on the question of liability , you will have no occasion to consider the questions of damages.

Plaintiff's No. 25

I.P.I. No. 36.01

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 the estate of ANDRINA HANSEN for any of the following elements of damage proved by the evidence to have resulted from the unreasonably dangerous condition of the product during the period between the time of ANDRINA HANSEN's injury and the time of her death, considering the nature and extent of the injury:

1. The reasonable expense of necessary medical care and treatment and caretaking services received.

2. The value of earnings lost.

3. The pain and suffering experienced.

4. The loss of a normal life resulting from the injuries.

5. The disfigurement resulting from the injuries.

And, you must fix the amount of money which will reasonably and fairly compensate the next of kin of ANDRINA HANSEN for the pecuniary loss proved by the evidence to have resulted to the next of kin from the death of ANDRINA HANSEN ”“Pecuniary loss‘’ may include loss of money, goods, services, and society.

Where a decedent leaves a child, the law recognizes a presumption that the child has sustained some substantial pecuniary loss by reason of the loss of ANDRINA HANSEN's society. The weight to be given this presumption is for you to decide from the evidence in this case.

In determining pecuniary loss, you may consider what the evidence shows concerning the following:

1. What money, goods, and services the decedent customarily contributed in the past.

2. What money, goods, and services the decedent was likely to have contributed in the future.

3. Decedent's personal expenses and other deductions.

4. What instruction, moral training, and superintendence of education the decedent might reasonably have been expected to give her children had she lived.

5. Her age.

6. Her sex.

7. Her health.

8. Her habits of industry, sobriety and thrift.

9. Her occupational abilities.

10. The relationship between ANDRINA HANSEN and her children.

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

Plaintiff's No. 18

I.P.I. Nos. 31.10, 30.02, 30.04, 30.05, 30.06, 30.07, 30.09 and 31.04

If you find for the plaintiff, then in assessing damages you may consider how long the next of kin will be likely to sustain pecuniary losses as a result of ANDRINA HANSEN's death, considering how long ANDRINA HANSEN was likely to have lived and how long STEVEN HANSEN, PATRICK HANSEN and THOMAS HANSEN are likely to live.

According to a table of mortality in evidence, the life expectancy of a female aged 51 years is 30.4 years, a male aged 35 years is 39.6 years, a male aged 32 years is 42.3 years and a male aged 24 years is 49.6 years.

These figures are not conclusive. They are the average life expectancies of persons who have reached those ages. They may be considered by you in connection with other evidence relating to the probable life expectancies of the decedent and next of kin including evidence of the decedent's occupation, health, habits and activities, bearing in mind that some persons live longer and some persons live less than the average.

In calculating the amount of these pecuniary losses consisting of money, goods or services, you must not simply multiply the life expectancies by the annual losses. Instead, you must determine their present cash value. ”“Present cash value‘’ means the sum of money needed now which, together with what that sum may reasonably be expected to earn in the future, will equal the amounts of those pecuniary losses at the times in the future when they will be sustained.

Damages for loss of society are not to be reduced to present cash value.

Plaintiff's No. 19

I.P.I. No. 31.13

When I use the term ”“society‘’ in these instructions, I mean the mutual benefits that each family member receives from the other's continued existence, including love, affection, care, attention, companionship, comfort, guidance, and protection.

Plaintiff's No. 20

I.P.I. No. 31.11

The plaintiff, STEVEN HANSEN, brings this action in a representative capacity by reason of his being administrator of the estate of ANDRINA HANSEN, deceased. He represents STEVEN HANSEN, THOMAS HANSEN and PATRICK HANSEN, the next of kin of the deceased and the estate of the deceased. They are the real parties in interest in this lawsuit, and in that sense are the real plaintiffs whose damages you are to determine if you decide for the administrator of the estate of ANDRINA HANSEN.

Plaintiff's No. 21

I.P.I. No. 31.09

When you retire to the jury room, you will first select a foreperson. He or she will preside during your deliberations.

Your verdict must be unanimous.

Forms of verdicts are supplied with these instructions. After you have reached your verdict, fill in and sign the appropriate form of verdict 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.

If you find for the plaintiff and against the defendant, then you should use Verdict Form A.

If you find for the defendant and against the plaintiff, then you should use Verdict Form B.

Plaintiff's No. 22

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