Stevens v. Deere & Company

Filing 123

ORDER signed by Judge Garland E. Burrell, Jr on 5/3/11 ORDERING the clerk to distribute the proposed closing jury instructions. (Attachments: # 1 Proposed Closing Jury Instructions)(Donati, J)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHIRLEY KNIGHT, Guardian ad
Litem for J.S., a minor; and
MARLENE FAGAN,
Plaintiffs,

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v.

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DEERE & COMPANY,

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Defendant.
_______________________________

2:08-cv-01903-GEB-EFB
PROPOSED CLOSING JURY
INSTRUCTIONS

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The attached draft closing jury instructions are provided to

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the parties for their consideration.

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be submitted as soon as practicable.

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Several

of

the

parties’

Any proposed modifications should

proposed

instructions

have

been

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modified for clarity, to eliminate unnecessary language, and to more

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closely follow the language used in the Ninth Circuit Model Civil Jury

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Instructions and Judicial Council of California Civil Jury Instructions

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upon which they are based. For example, the parties’ names have been

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removed so that the instructions now refer only “Plaintiffs” and

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“Defendant,” except in instructions that are specific to only one

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Plaintiff, such as the spoliation instruction. Additionally, the strict

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liability (design defect) and negligence instructions have eliminated

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the first element, which requires Plaintiff to prove that Defendant

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manufactured, distributed or sold the product, since the parties have

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stipulated that the product at issue was “designed and marketed” by

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Defendant. (ECF No. 53, 2:5-8.)

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The parties propose different strict liability (design defect)

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instructions. Plaintiffs request that both the “Consumer Expectation

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Test” instruction and “Risk Benefit Test” instruction be given, whereas

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Defendant argues “the consumer expectation test may not be utilized in

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the instant case” because “there is a dispute among the experts in this

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case as to how the accident occurred.” (Marlene Fagan’s Trial Brief,

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5:19-21; J.S.’s Trial Brief, 9:7-8; Def.’s Trial Brief 4:22-5:11.)

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Under California law,

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[A] product may be found defective in design, so as
to subject a manufacturer to strict liability for
resulting injuries, under either of two alternative
tests. First, a product may be found defective in
design if the plaintiff establishes that the
product failed to perform as safely as an ordinary
consumer would expect when used in an intended or
reasonably foreseeable manner. Second, a product
may alternatively be found defective in design if
the plaintiff demonstrates that the product's
design proximately caused his injury and the
defendant fails to establish, in light of the
relevant factors, that, on balance, the benefits of
the challenged design outweigh the risk of danger
inherent in such design.

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Barker v. Lull Eng’g, 20 Cal. 3d 413,432 (1978). However, “the consumer

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expectations test is reserved for cases in which the everyday experience

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of the product’s users permits a conclusion that the product’s design

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violated minimum safety assumptions, and is thus defective regardless of

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expert opinion about the merits of the design.” Soule v. General Motors

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Corp., 8 Cal. 4th 548, 567 (1994). “Unless the facts actually permit an

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inference that the product's performance did not meet the minimum safety

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expectations

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of

its

ordinary

users,
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the

jury

must

engage

in

the

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balancing of risks and benefits required by the second prong of Barker.”

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Id. at 568.

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Defendant has not provided authority supporting its argument

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that the “Consumer Expectation Test” is inapplicable in this case where

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causation

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expectations are not irrelevant simply because expert testimony is

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required to prove that . . . a condition of the product as marketed was

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a ‘substantial,’ and therefore ‘legal,’ cause of injury.” Soule, 8 Cal.

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4th at 569 n.6. Here, the parties agree that the accident occurred when

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“there was a loss of the ability to slow the vehicle by applying its

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brakes” as it was “being driven by Marlene Fagan downhill[.]” ECF No.

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53, 2:10-13.

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is

disputed.

As

indicated

in

Soule,

“ordinary

consumer

[O]rdinary consumers . . . may and do expect
that . . . vehicles will be designed so as not
to . . . experience sudden steering or brake
failure . . . . If the plaintiff in a product
liability action proved that a vehicle's
design produced such a result, the jury could
find forthwith that the [vehicle] failed to
perform as safely as its ordinary consumers
would expect, and was therefore defective.

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Soule, 8 Cal. 4th at 566 n.3. For the stated reasons, the attached

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instruction on strict liability (design defect) includes both the

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“Consumer Expectation Test” and “Risk Benefit Analysis Test.”

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The parties’ proposed joint instruction No. 21 (mitigation of

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damages) will not be given as drafted since it refers to “plaintiff”

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singularly and does not name the plaintiff to whom it refers. Further,

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this instruction is based upon a Ninth Circuit Model Jury Instruction

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without indicating why a federal damages instruction should be used to

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instruct on a state law defense. If any party requests a mitigation of

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damages

instruction

be

given,

that

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party

shall

propose

a

clear

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mitigation

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alternatively, provide authority for use of federal law.

of

damages

instruction

based

upon

California

law,

or

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Plaintiffs’ proposed contested instruction No. 40 references

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a “failure to warn” strict liability theory. No instruction will be

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provided on a this theory of liability since this claim was not

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preserved for trial in the Final Pretrial Order. (ECF No. 53, 2:20-3:4.)

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See Pierce Co. Hotel Emps. & Rest. Emps. Health Trust v. Elks Lodge,

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B.P.O.E. No. 1450, 827 F.2d 1324, 1329 (9th Cir. 1987) (“Issues not

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preserved in the pretrial order are eliminated from the action.”).

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Defendant’s proposed contested special jury instruction No. 1

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(spoliation) has been modified to more accurately reflect what the

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parties stipulated to factually at the final pretrial conference and the

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Court’s prior ruling on Defendant’s request for a spoliation of evidence

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sanction. See ECF No. 53, 3:5-5:21.

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Since the parties filed a Joint Neutral Statement of Case,

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which was read during voir dire, the parties’ proposed, contested

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“claims and defenses” jury instructions are unnecessary and will not be

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used.

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Plaintiffs’ proposed constested instructions Nos. 33, 34, 37,

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38, 39, 46, 51, and 52 will not be used since they are duplicative of

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other instructions. Further, since it is undisputed that Defendant

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manufactured

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instruction

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unnecessary and will not be used.

the
No.

product
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at

(“Seller

issue,

Plaintiffs’

Assuming

Role

of

proposed

contested

Manufacturer”)

is

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Lastly, the instructions which refer to the minor plaintiff by

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name will be modified at trial to include his full name as the minor

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plaintiff has requested through counsel, rather than initials. However,

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any copy of the jury instructions filed on the public docket will only
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utilize the minor’s initials to protect the minor’s privacy as required

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under Federal Rule of Civil Procedure 5.2(a) and Local Rule 140(a).

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Dated:

May 3, 2011

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GARLAND E. BURRELL, JR.
United States District Judge

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