Products Liability in “Plain English” – The New CACI Jury Instructions

June 22, 2007

Introduction   

 In 2003 the Judicial Council of California set forth the new California Civil Jury Instructions (CACI, pronounced “Casey”) which affect virtually all areas of civil practice — including products liability.  The “Preface” to the new instructions indicates that the intent was “to write instructions that are legally accurate and understandable to the average juror.”  With respect specifically to products liability, the new “plain language” instructions contain several important changes when compared to their BAJI predecessors.  As such, even though the new instructions are intended to simply restate the same old law, the “plain English” CACI instructions merit careful analysis. 

 To begin with, as a general proposition, CACI number 200 sets forth a new definition of the Burden of Proof (also now known as the “Obligation to Prove”)  that must be met in any civil case, products liability included.  The newly defined “burden of proof” pursuant to CACI 200 is that a party must persuade the jury that what he/she is trying to prove is “more likely to be true than not true.”  (CACI 200) This replaces the former BAJI 2.60 language defining the “preponderance of the evidence” standard — which required proof that one’s evidence “has more convincing force than that opposed to it.”  In considering the substantive law of products liability which follows, it is always necessary to consider whether a party can meet this “more likely to be true than not true” standard of proof.  Further, although the changes in this instruction may not seem to make much of a difference at first glance; it will be interesting to see how lawyers for both plaintiff and defense put the new language to use in formulating arguments and putting on evidence.

 Traditionally, products liability Defendant’s are “strictly” liable for harm caused by a product with (1) a manufacturing defect; (2) a design defect; or (3) no warning/inadequate warning of a hazard which arises with the foreseeable use of the product.  The “essential elements” of each of these theories of liability are outlined in the new CACI instructions at CACI No. 1200, et seq., and formerly in BAJI 9.00 et seq.  The changed language in the new CACI instructions in this area, (albeit intended to state the same old law), contains certain nuances that must be carefully considered in every aspect of products liability litigation.

Manufacturing Defect

 CACI Numbers 1201 and 1202 set forth the essential factual elements needed to prove a manufacturing defect.  CACI 1201 reads as follows:

  1201 Strict Liability–Manufacturing Defect–Essential Factual Elements

[Name of plaintiff] claims that the [product] contained a manufacturing defect. To establish this claim, [name of plaintiff] must prove all of the following:

  1. That [name of defendant] [manufactured/distributed/sold] the [product];
  2. That the [product] contained a manufacturing defect when it left [name of defendant]’s possession;
  3. That the [product] was used [or misused] in a way that was reasonably foreseeable to [name of defendant];
  4. That [name of plaintiff] was harmed; and
  5. That the [product]’s defect was a substantial factor in causing [name of plaintiff]’s harm. it

CACI 1202 read as follows:

  1202 Strict Liability–”Manufacturing Defect”–Explained

A product contains a manufacturing defect if the product differs from the manufacturer’s design or specifications or from other typical units of the same product line.

CACI 1201 and 1202 together replace BAJI 9.00.3.  Notably, BAJI 9.00.3 provided that a defect in the manufacture of a product exists “if the product differs from the manufacturer’s intended result or if the product differs from apparently identical products from the same manufacturer.”  Whether the new language of CACI 1202 defining a “manufacturing defect” is more simple for the average juror to understand than the definition in BAJI 9.00.3 is certainly a topic that can be debated.  What is clear, however, is that the new language arguably represents a more specific standard — namely that the product differed from the specific design or specifications of the manufacturer, or from other typical units of the same product line.  The Plaintiff should therefore be certain to conduct discovery targeted to prove what the defendant’s actual design and specifications were, and then show that the allegedly defective product differed from that specific design/specification.  By contrast, under the previous BAJI 9.00.3, the manufacturers “intended result” was a more ambiguous term; and proving that the subject product differed from the manufacturer’s “intended result” could arguably be accomplished by merely demonstrating that the occurrence of the product failure was not the “intended result,” regardless of manufacturer specifications.  For example, a manufacturing defect in a tire with tread and belt separation could arguably be proved under former BAJI 9.00.3 by simply demonstrating that the tire failed, and then arguing to the jury that such failure evidenced a deviation from the manufacturer’s “intended result”.  Under the new CACI language, the fact of the product failure alone might no longer suffice to prove that the product differed from the manufacturer’s design and/or specifications.  The plaintiff may now have to demonstrate (usually with scientific evidence and expert testimony) what the manufacturer’s design and/or specifications actually were, and then also prove how the subject product in fact differed from that design/specification.  This would appear to make it more potentially difficult for the plaintiff to meet his/her burden to prove that the existence of a manufacturing defect is “more likely true than not true.”  On the other hand, where Plaintiff can show that the subject product in fact differed from the defendant’s actual design/specifications, then the new instructions will prevent manufacturers from defending themselves by claiming nonetheless that they made the product they “intended” to make (despite that the product deviated from their specifications). 

Design Defect

 As to the theory of  “Design Defect”, CACI numbers 1203 and 1204 replace BAJI 9.00.5.  CACI 1203 covers the situation when the Plaintiff claims that the defendant’s product “did not perform as safely as an ordinary consumer would have expected at the time of use,” (the so-called “consumer expectation” test).  CACI 1204 outlines the situation when plaintiff claims the risks of the product’s design outweigh the benefits of such design (the so-called “risk-benefit” test).  BAJI 9.00.5 covered both theories with a single instruction, which was arguably far more complicated for jurors to follow.

 A review of CACI 1203 reveals that its recitation of the “consumer expectation” test is in fact virtually identical in its pertinent language to BAJI 9.00.5.  Thus, the “consumer expectations test” has simply been reformatted into its own separate instruction with no significant changes in language.  Furthermore, the new instruction conveniently provides optional language for situations where the subject product had been foreseeably altered after it left the manufacturer’s possession, or where the product was “misused” in a way that was foreseeable to the manufacturer — such that liability for the defective product would still be imposed.  CACI 1203 thus reads as follows:

1203 Strict Liability–Design Defect–Consumer Expectation Test–Essential Factual Elements

 [Name of plaintiff] claims the [product]’s design was defective because the [product] did not perform as safely as an ordinary consumer would have expected it to perform. To establish this claim, [name of plaintiff] must prove all of the following:

  1. That [name of defendant] [manufactured/distributed/sold] the [product];
  2. [That, at the time of the use, the [product] was substantially the same as when it left [name of defendant]’s possession;]
    [or]
    [That any changes made to the [product] after it left [name of defendant]’s possession were reasonably foreseeable to [name of defendant];]
  3. That the [product] did not perform as safely as an ordinary consumer would have expected at the time of use;
  4. That the [product] was used [or misused] in a way that was reasonably foreseeable to [name of defendant];
  5. That [name of plaintiff] was harmed; and
  6. That the [product]’s design was a substantial factor in causing [name of plaintiff]’s harm.

 By contrast, CACI 1204 contains a variety of modifications to the “risk-benefit” test that merit careful analysis.  First and foremost, CACI 1204 improves upon the former BAJI instruction by more conspicuously pointing out that it is defendant’s burden to prove that the benefits of the subject design outweigh the risks.  The plaintiff need merely prove that (1) the Defendant manufactured the product; (2) the product was substantially the same as when it left the possession of the manufacturer, (or that any changes were reasonably foreseeable); (3) that the product was used (or misused) in a way that was reasonably foreseeable; and (4) the design was a substantial factor in causing plaintiff’s harm.  The burden then shifts to the defendant to prove the benefits of the design outweigh the risks (“more likely true then not true?”) Failure by the defendant to meet this burden means the plaintiff automatically must win.  The instruction states that if plaintiff has proved facts number 1 – 4 above, “then your decision must be for plaintiff unless defendant proves the benefits of the design outweigh the risks of the design.”  (CACI 1204) The fact that the burden shifting requirement is so conspicuously set forth to the jury is a vast improvement over the way BAJI addressed the issue.  BAJI 9.00.5 always had to be awkwardly accompanied by BAJI 2.60 (regarding the shifting burden of proof between of the respective parties) — which frequently confused jurors or de-emphasized the importance of the burden-shifting requirement.  By contrast the new CACI 1204 allows Plaintiff’s counsel to effectively call attention to the burden-shifting requirement; (giving defense lawyers — who always go to great lengths to point out that Plaintiff has the burden of proof in virtually every other type of case — a dose of their own medicine.)

 CACI 1204 also contains a variety of changes in the language used to define the risk-benefit test, and to describe what factors jurors should consider in applying the test.  To begin with, the CACI 1204 instruction states that defendant must prove: “that the benefits of the design outweigh the risk of the design.”  (CACI 1204) By contrast, BAJI 9.00.5 provided that a design defect exists “if there is a risk of danger inherent in the design which outweighs the benefit of that design.”  (BAJI 9.00.5) Thus, the new language no longer requires jurors to find a “risk of danger inherent in the design which outweighs the benefit of that design.”  (BAJI 9.00.5), but rather to merely find the design had “risks.”  The more ominous words “danger” and “inherent” are deleted, so as to arguably simplify the analysis (and the plaintiff’s burden.)  Likewise, the language of CACI 1204 goes on to state the factors jurors are to consider in applying the risk-benefit test:

“In deciding whether the benefits outweigh the risks, you should consider the following:

  1. The gravity of the potential harm resulting from the use of the [product];
  2. The likelihood that such harm would occur;
  3. The feasibility of an alternative design;
  4. The cost of an alternative design;
  5. The disadvantages of an alternative design;

This language is substantially different from the “same” provisions of BAJI 9.00.5 which state:

 [In determining whether the benefits of the design outweigh its risks, you should consider, among other things, the gravity of the danger posed by the design, the likelihood that the danger would cause damage, the mechanical feasibility of a safer alternate design at the time of manufacture, the financial cost of an improved design, and the adverse consequences to the product and the consumer that would result from an alternate design.]   

 In analysis of the new CACI treatment of these factors, versus the old BAJI language, one cannot dispute that both versions accurately state “the law.”  Nonetheless, the words used in CACI 1204 again delete the words “danger posed by the design” (and insert therefore “gravity of the harm resulting from use of the product.”  It would seem that Plaintiff’s counsel will have an easier time arguing about the “gravity of harm” posed by the mere “use of the product” versus the “gravity of danger inherent in the design.”  The CACI language, in its use of more “mild” terminology, may therefore represent an advantageous change for Plaintiff’s counsel.

 Additionally, the CACI language states more simply the last three factors in the risk-benefit test:  “(c) feasibility of an alternative design, (d) the cost of an alternative design and (e) the disadvantages of an alternative design.”  The former BAJI 9.00.5 treatment of these factors required consideration of “mechanical” feasibility of a “safer” alternative design, the cost of an “improved” design, and the “adverse consequences to the product and consumer” of an alternative design.  The new CACI treatment of each of these factors theoretically appears to lessen the jury’s perception that Plaintiff has the burden to come up with a “mechanically feasible safer design” to defeat defendant’s argument that the design benefits outweigh their risks.

Failure to Warn

 As to the third theory of products liability, Failure to Warn, the new CACI 1205 replaces BAJI 9.00.7.  Again, certain nuances in the new CACI language merit careful analysis.  First and foremost, CACI 1205 contains 8 (arguably straight forward) elements to prove Failure to Warn.  By contrast, BAJI 9.00.7 only contained four (arguably more complicated) elements.  The change from only 4 to 8 elements may create a perception for jurors that proof of failure to warn is more difficult; but in reality the content of the instruction has not been altered (with the exception of nuances in language discussed below.)  The instruction is now, however, undisputably easier to follow.

 As to the language of CACI 1205, it reads as follows

1205 Strict Liability–Failure to Warn–Essential Factual Elements

  Name of plaintiff] claims that the [product] lacked sufficient [instructions] [or] [warning of potential [risks/side effects/allergic reactions]]. To establish this claim, [name of plaintiff] must prove all of the following:

  1. That [name of defendant] [manufactured/distributed/sold] the [product];
  2. That the [product] had potential [risks/side effects/allergic reactions] that were [known] [or] [knowable by the use of scientific knowledge available] at the time of [manufacture/distribution/sale];
  3. That the potential [risks/side effects/allergic reactions] presented a substantial danger to users of the [product];
  4. That ordinary consumers would not have recognized the potential [risks/side effects/allergic reactions];
  5. That [name of defendant] failed to adequately warn [or instruct] of the potential [risks/side effects/allergic reactions];
  6. That the [product] was used [or misused] in a way that was reasonably foreseeable to [name of defendant];
  7. That [name of plaintiff] was harmed; and
  8. That lack of sufficient [instructions] [or] [warnings] was a substantial factor in causing [name of plaintiff]’s harm.

[The warning must be given to the prescribing physician and must include the potential risks, side effects, or allergic reactions that may follow the foreseeable use of the product. [Name of defendant] had a continuing duty to warn physicians as long as the product was in use.]

This language is different than BAJI in several important ways.  For example, BAJI 9.00.7 stated that a manufacturer has a duty to warn if the product (when foreseeably used) “involves a substantial danger that would not be recognized by the ordinary user.”  CACI 1205 by contrast requires the jury to first find the product “had a potential risk/side effect/allergic reaction”; second, find that “the potential risk/side effect/allergic reaction presented a substantial danger to users”; and third, “that ordinary consumers would not recognize the potential risk/side effect/allergic reaction.”  CACI thus emphasizes a finding of the “potential risk” and that the “potential risk” would not be recognized by the ordinary consumer.  Only after first finding the “potential risk” exists does the jury then approach the finding of whether the risk presents a “substantial danger.”  It is difficult to predict whether the three steps required by the new CACI instruction will be more onerous for Plaintiffs than merely providing that the product “involves a substantial danger” when used in a “reasonably foreseeable manner.”  On the other hand, the threshold question of whether the product “had a potential risk . . .” seems less onerous, and may make it easier for plaintiffs to get their “foot in the door” and start the jury down the path toward liability. 

 Notably CACI 1205 removes the arguably more onerous language in BAJI 9.00.7 that required plaintiff to show that the danger to be warned of was “known or knowable in light of the generally recognized and prevailing best scientific [and medical] knowledge available at the time of the manufacture and distribution.”  CACI 1205 removes that language and replaces it simply with “known or knowable with the use of scientific knowledge available at the time . . .”  (Note: the prior BAJI language is still referenced in the CACI “use note” as applicable in certain cases.  The defense will certainly be attempting to argue the “old language” should be used as often as possible.)  It seems clear that if the Plaintiff does not have to prove the risk was “knowable in light of the generally recognized and prevailing best scientific knowledge,” the burden is less under the new CACI instruction.

The Foreseeable Misuse Issue

 Lastly, it is worth noting that under all three of the above theories of liability, the CACI instructions provide for the concept of “foreseeable misuse” within the jury instruction itself.  Within the “use notes” of each of the above referenced CACI instructions, there is a somewhat puzzling comment:

Some cases state that product misuse must be pleaded as an affirmative defense (see, e.g., Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 141 [229 Cal.Rptr. 605] .) However, the subcommittee feels that absence of unforeseeable misuse is an element of plaintiff’s claim and that foreseeable misuse is more properly asserted by defendant in support of a claim of contributory negligence. But see below:

– ”[P]roduct misuse [is] a defense to strict products liability only when the defendant prove[s] that an unforeseeable abuse or alteration of the product after it left the manufacturer’s hands was the sole reason that the product caused injury.” ( Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56 [148 Cal.Rptr. 596, 583 P.2d 121] , internal citations omitted.)

– ” ‘Misuse’ is a defense only when that misuse is the actual cause of the plaintiff’s injury, not when some other defect produces the harm. This causation is one of the elements of the ‘misuse’ affirmative defense and thus the burden falls on the defendant to prove it.” ( Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 831 [20 Cal.Rptr.2d 296] , internal citation omitted.)

Therefore, the plaintiff still has the burden to prove the use/misuse of the product was foreseeable.  The defense still has the burden to prove any “misuse” by plaintiff amounted to a percentage of contributory negligence.  However, it appears to be arguable that the CACI instructions have improperly removed a hurdle for the defense (namely, proving unforeseeable misuse to establish a complete affirmative defense) and placed that burden upon plaintiff instead (to prove the “absence of unforeseeable misuse” as an element of plaintiff’s case.)  In factual circumstances where the argument centers on whether the “misuse” was foreseeable or not, this new “configuration” of the burden of proof could have important implications for the outcome of the case, and could potentially be challenged as legally improper.

CONCLUSION

 As noted throughout, the new CACI products liability jury instructions merit careful analysis.  Although they are theoretically representative of the “same old law”, the new “plain language” presents some important nuances that can affect trial presentation and outcome.

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