Opinion
1:03-cv-1567-JDT-TAB.
June 20, 2005
AMENDED ENTRY ON GOVERNMENTAL-COMPLIANCE AND STATE-OF-THE-ART INSTRUCTION
This entry replicates a ruling originally issued on June 3, 2005. (Docket No. 172.) The original entry is amended to reflect the jury instruction on the subject issue that was given at trial. See footnote 4 infra.
Now before the court is Plaintiffs' objection to Defendants' Proposed Jury Instruction B24 regarding compliance with governmental standards and the generally recognized state of the art. Plaintiffs acknowledge that the proposed instruction is based on an Indiana Pattern Jury Instruction, but they maintain that it conflicts with a recent development in Indiana case law.
I. BACKGROUND
This case arises out of a single vehicle rollover accident that occurred on the morning of February 8, 2002. On that date, Plaintiff Jane Flis lost control of her 1998 Kia Sportage sport utility vehicle ("SUV") while driving north on a rural stretch of Interstate 65 between Indianapolis and Chicago. The vehicle entered the median where it tripped and rolled approximately two times. Mrs. Flis was rendered quadriplegic in the accident. The present action followed.
When the time came for the parties to submit proposed jury instructions, Defendants included one based on Indiana Code § 34-20-5-1 and Indiana Pattern Jury Instruction 7.05(D), both of which speak to the creation of a rebuttable presumption of non-negligence upon proof of compliance with a state or federal governmental safety standard or upon proof of conformity with the generally recognized state of the art applicable to the safety of the product at issue. Plaintiffs' oppose the giving of this instruction — Defendants' Proposed Instruction B24 (hereinafter "Instruction B24") — arguing that it conflicts with the recently decided case of Schultz v. Ford Motor Co., 822 N.E.2d 645 (Ind.Ct.App. 2005).
II. DISCUSSION
Whether a certain jury instruction will be given remains within the discretion of the court. See Spiller v. Brady, 169 F.3d 1064, 1066 (7th Cir. 1999) (citation omitted). Because this case invokes the court's diversity jurisdiction, any questions regarding jury instructions must be resolved under Indiana state law. Gorlikowski v. Tolbert, 52 F.3d 1439, 1446 (7th Cir. 1995). The Indiana Supreme Court instructs that "[t]he purpose of instructions is to guide the jury in the application of correct principles of law to the facts of the case before them." Peak v. Campbell, 578 N.E.2d 360, 361 (Ind. 1991). Therefore, "[a] party is entitled to have his theory of the case and the applicable law properly presented to the jury in the instructions." Id.
In this case, Defendants' Instruction B24 was apparently drawn from either Indiana Code § 34-20-5-1 or Indiana Civil Pattern Jury Instruction 7.05(D), or both. Section 34-20-5-1 provides that:
In a product liability action, there is a rebuttable presumption that the product that caused the physical harm was not defective and that the manufacturer or seller of the product was not negligent if, before the sale by the manufacturer, the product:
(1) was in conformity with the generally recognized state of the art applicable to the safety of the product at the time the product was designed, manufactured, packaged, and labeled; or
(2) complied with applicable codes, standards, regulations, or specifications established, adopted, promulgated, or approved by the United States or by Indiana, or by an agency of the United States or Indiana.
Ind. Code § 34-20-5-1. Relying upon this statutory language, Indiana Pattern Jury Instruction 7.05(D) states as follows:
The defendant has alleged the product was manufactured in conformity with the state of the art [or complied with applicable codes]. The defendant has the burden of proving this allegation.
If you find the defendant has proved by a preponderance of the evidence that before the product was sold by the manufacturer, the product:
1. was in conformity with the generally recognized state of the art applicable to the safety of the product at the time the product was designed, manufactured, packaged, and labeled; or
2. complied with applicable codes, standards, regulations, or specifications established, adopted, promulgated, or approved by the United States or by Indiana, or by an agency of the United States or Indiana.
then you may presume the product was not defective [or the defendant was not negligent] and find for the defendant.
However, if the plaintiff has introduced evidence tending to disprove either of the above propositions, then you may, but are not required to, find the product was defective.
Indiana Pattern Jury Instruction (Civil) 7.05(D) (2d ed.).
While not mandatory, pattern instructions often provide great assistance to the parties and the court. Such instructions may be used so long as the evidence at trial supports their use and they do not misstate the law. In a recent opinion, however, the Indiana Court of Appeals held that a trial court's decision to give an instruction modeled after Indiana Pattern Jury Instruction 7.05(D) constituted reversible error. Schultz, 822 N.E.2d at 655.
The Schultz case features facts that are quite similar to those in the case at hand. The plaintiff brought suit against Ford for negligence and defective roof design following injuries he sustained during a rollover accident. Ford proposed an instruction premised on Indiana Pattern Jury Instruction 7.05(D) and § 34-20-5-1 regarding governmental compliance, which the trial court proceeded to give over the plaintiffs' objection in the following manner:
Ford Motor Company has alleged that the Plaintiffs' 1995 Ford Explorer complied with the Federal Motor Vehicle Safety Standard 216. Ford Motor Company has the burden of proving this allegation.
If you find Ford Motor Company has proved by a preponderance of the evidence that before the 1995 Ford Explorer was sold by Ford Motor Company that it complied with Federal Motor Vehicle Safety Standard 216 then you may presume that Ford Motor Company was not negligent in its design of the 1995 Ford Explorer and that the Ford Explorer was not defective.
However, the Plaintiffs may rebut this presumption if they introduced evidence tending to show that the 1995 Ford Explorer was defective.Id. at 652. Following an eight-week trial, a verdict was rendered in Ford's favor. The plaintiffs then appealed on the grounds that the governmental compliance presumption in § 34-20-5-1 (on which the above-referenced instruction was based) has no evidentiary value, and that the only purpose of the statutory provision is to impose a burden upon the plaintiff to produce evidence to rebut the presumption and, once that burden is met, the presumption serves no further purpose and drops from the case. Id. Ford responded by asserting that the presumption of non-negligence under § 34-20-5-1 was analogous to a statutorily recognized inference and, as such, was appropriate for use as a jury instruction. Id. at 653. Ultimately, however, the Indiana Court of Appeals agreed with the plaintiffs and reversed.
In doing so, the Schultz court first engaged in a historical analysis of the difference between "presumptions" and "inferences" as those terms are used in the law. Based on its analysis the court determined that "`a presumption is a deduction that the law requires the trier of fact to make if it finds a certain set of facts,'" whereas an inference amounts to a finding that the trier of fact " may or may not make according to his own conclusions drawn from the facts adduced at trial." Id. (citation omitted) (emphasis added). The court went on to state that "[a] presumption is mandatory, while an inference is permissive." Id. Keeping that framework in mind, the court turned to the language in § 34-20-5-1 that states "there is a rebuttable presumption" and concluded that the statute creates a mandatory presumption and not a permissive inference. Id. at 654 (emphasis added). As such, the court found that Indiana Pattern Jury Instruction 7.05(D) conflicted with the statute because the former uses the non-mandatory language " may presume," which the court viewed as creating simply a permissive inference. Id. at 654 n. 7 (emphasis added).
The court next cited its decisions in McClain v. Chem-Lube Corp., 759 N.E.2d 1096 (Ind.Ct.App. 2001) and Cansler v. Mills, 765 N.E.2d 698 (Ind.Ct.App. 2002). McClain held that "a presumption of law is not evidence nor should it be weighed by the factfinder as though it had evidentiary value," and further that "[w]hen the opponent of the presumption has met the burden of production . . . the office of the presumption has been performed; the presumption is of no further effect and drops from the case." 759 N.E.2d at 1101. Similarly, the court stated in Cansler that the "rebuttable presumption under [Indiana Code §] 34-20-5-1 does not shift the burden of proof but it does impose upon the opposing party a burden of producing evidence. If the opponent produces evidence that rebuts the presumption, it serves no further purpose." 765 N.E.2d at 705. Finally, Schultz quoted at length from Professor J. Alexander Tanford's Indiana Trial Evidence Manual and found that while "the governmental compliance presumption helps Ford on a motion for summary judgment or a directed verdict," it "has no evidentiary value and no practical effect at trial." 822 N.E.2d at 655.
The foregoing analytical discussion ultimately led the Schultz court to conclude that the permissive inference created by both the pattern instruction and the instruction given at the trial below amounted to a misstatement of the law by not properly reflecting the mandatory presumption found in § 34-20-5-1 and its lack of evidentiary value. Id. Thus, to the Indiana Court of Appeals, the decision to give the governmental compliance instruction at issue in Schultz amounted to reversible error.
The instant Plaintiffs have seized on the holding in Schultz and now object to the giving of an instruction modeled after Indiana Pattern Jury Instruction 7.05(D). To analyze this issue, the court must "use its best judgment to apply the rules of law that the Supreme Court of Indiana would apply." Dameron v. City of Scottsburg, 36 F. Supp. 2d 821, 831 (S.D. Ind. 1998) (citation omitted). "Decisions of the Indiana Court of Appeals of course are vital, often decisive indicators of Indiana law, and demand this court's careful attention." Id. (citation omitted). However, decisions of the Indiana Court of Appeals do not bind this court if "there is good reason to believe such decisions do not reliably indicate how the state's supreme court would decide the issue." Id. (citing Williams, McCarthy, Kinley, Rudy Picha v. Northwestern Nat'l Ins. Group, 750 F.2d 619, 624 (7th Cir. 1984)).
Matters are somewhat complicated at present due to the fact that a petition to transfer in the Schultz case is currently pending before the Indiana Supreme Court, which will most likely be unable to make its decision on whether to grant transfer until after this case has been concluded. Should the Indiana Supreme Court grant the petition to transfer, the opinion of the Court of Appeals automatically becomes vacated. Ind. R. App. P. 58(A).
Turning now to the case at hand, the court finds that the Indiana Supreme Court would most likely not adopt the position articulated by the Indiana Court of Appeals in Schultz on the issue of a governmental-compliance/state-of-the-art jury instruction in line with Defendants' Instruction B24. This is because even if the "rebuttable presumption" described in § 34-20-5-1 is a "true" presumption, it would still be appropriate under Indiana law for a court to give a jury instruction premised on that presumption.
After first finding that § 34-20-5-1 created a rebuttable presumption, the Schultz court held that the presumption disappears from the case as soon as the party against whom the presumption operates introduces any evidence tending to rebut the presumption. 822 N.E.2d at 654-55. This is the so-called "bursting bubble" theory of presumptions, "whereby the presumption `bursts' and vanishes once evidence to dispute the existence of the presumed fact is produced." Robert L. Miller, Jr., 12 Indiana Practice: Indiana Evidence § 301.102 (2d ed.) (hereinafter "Miller, Indiana Practice"). The "bursting bubble" theory originated with Professor Thayer and was supported by Professor Wigmore, but has since been the subject of considerable debate and criticism. See McCormick on Evidence § 344 (John W. Strong ed., 5th ed. 1999) (hereinafter "McCormick"). As Chief Judge Miller notes, the strongest criticism against the theory "is that it affords too little protection to the policies that give rise to presumptions." Miller, Indiana Practice, § 301.102 ("If the mere production of contrary evidence removes the presumption from the case entirely, the jury will never learn of the policies behind the presumption.").
Perhaps in recognition of this concern, the Indiana Rules of Evidence articulate a rule for presumptions that modifies the traditional "bursting bubble" theory. See Ind. R. Evid. 301. Rule 301 provides as follows:
In all civil actions and proceedings not otherwise provided for by constitution, statute, judicial decision or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. A presumption shall have continuing effect even though contrary evidence is received.Id. The first sentence of Rule 301 describes the "bursting bubble" theory of presumptions. Miller, Indiana Practice, § 301.102. But the rule does not end there — the second sentence modifies the theory by providing that "[a] presumption shall have continuing effect even though contrary evidence is received." Ind. R. Evid. 301 (emphasis added). Thus, through the inclusion of the second sentence in Rule 301, the Indiana Rules of Evidence appear to be responding to the "concern that the `bursting bubble' approach too often prevents juries from effecting the policies that gave rise to the presumption. . . ." Miller, Indiana Practice, § 301.102. For this reason, Chief Judge Miller concludes that the rule's second sentence was likely intended primarily to affect jury instructions. Id. The court agrees, and further finds that the Indiana Supreme Court would most likely give meaning to Rule 301's second sentence by following Chief Judge Miller's recommendation that "when evidence tending to disprove the presumed fact has been received, the court should instruct the jury that it may, but is not required to, infer the presumed fact if it finds that the prescribed set of predicate facts have been proven." Id. "This approach gives effect to the second sentence of Rule 301 without offending Indiana's long-standing prohibition against instructing the jury that the law `presumes' a fact." Id.
In this case, the Indiana state legislature is the body that has a "constitutional prerogative" to create and implement public policy. Boehm v. Town of St. John, 675 N.E.2d 318, 322 (Ind. 1996). Through the enactment of § 34-20-5-1, that democratic body has chosen to create a rebuttable presumption that a manufacturer is not negligent and a product is not defective if that product complied with the generally recognized state of the art and/or complied with relevant governmental standards when sold. The only way to remain cognizant of or give meaning to that policy objective is to follow Rule 301's mandate that the trial court must give continuing effect to the rebuttable presumption despite contrary evidence. Thus, in sum, even if § 34-20-5-1 creates a true presumption, it would nevertheless be appropriate for a trial court to instruct the jury in the manner suggested by Indiana Pattern Jury Instruction 7.05(D) due to the policy objective at the heart of the subject statute.
The court also observes that an instruction based on § 34-20-5-1 may actually be of considerable assistance to the Plaintiffs. For instance, should the defense introduce evidence regarding compliance with governmental regulations, the jurors may become unduly confused about the import of that evidence (or unduly partial to it) if no instruction is relayed to them that properly describes how such evidence affects the rights and liabilities of the parties.
As one final note, the court wishes to stress that it is not applying the Indiana Rules of Evidence to the instant case. Those rules are discussed only to the extent that they instruct on what the Indiana Supreme Court would likely decide with respect to the question of a jury instruction premised on § 34-20-5-1 and Indiana Pattern Jury Instruction 7.05(D). Federal Rule of Evidence 301 does not contain a provision akin to the second sentence of Indiana Rule of Evidence 301 regarding the continuing effect of presumptions throughout trial. However, the Federal Rules do provide that "[i]n civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law applies the rule of decision is determined in accordance with State law." Fed.R.Evid. 302. With that rule in mind, the court holds that the strong legislative policy embodied in § 34-20-5-1 can only be given effect if an instruction based on Indiana Pattern Instruction 7.05(D) is proffered at trial.
The Defendant did tender an instruction based on Indiana Pattern Jury Instruction 7.05(D). Evidence at trial, if believed, would have supported conclusions that the subject vehicle was designed in conformity with the state of the art and complied with applicable regulations, etc. Accordingly, the jury was instructed as follows:
The Defendant, Kia Motors Corporation, has alleged that the 1998 Kia Sportage was manufactured in conformity with the state of the art and complied with applicable codes. Kia Motors Corporation has the burden of proving this allegation.
If you find that Kia Motors Corporation has proved by a preponderance of the evidence that before the 1998 Kia Sportage was sold, the product:
(1) was in conformity with the generally recognized state of the art applicable to the safety of the product at the time the product was designed or manufactured; or
(2) complied with applicable codes, standards, regulations, or specifications established, adopted, promulgated, or approved by the United States or by Indiana, or by an agency of the United States or Indiana, then you may, but are not required to, infer the presumed fact that the 1998 Kia Sportage was not defective and that Kia Motors Corporation was not negligent.
This means that if you find the 1998 Kia Sportage was in conformity with the generally recognized state of the art or complied with applicable regulations, you may either (1) determine that the vehicle was not defective and that Kia Motors Corporation was not negligent and find in favor of Kia Motors Corporation on Plaintiffs' claims; or (2) if Plaintiff Jane Flis has introduced evidence tending to show that the 1998 Kia Sportage was in a defective condition unreasonably dangerous to any user or consumer, as I have previously defined those concepts, despite that compliance or conformity, then you may find that Jane Flis has rebutted (that is, erased or overcome) the above-mentioned presumption of non-defectiveness and non-negligence.
III. CONCLUSION
The prospect of disagreeing with an Indiana Court of Appeals' decision cannot be approached lightly. However, based on the foregoing discussion, the court feels compelled to conclude that the Indiana Supreme Court would most likely disagree with the Schultz opinion regarding an instruction based on Indiana Code § 34-20-5-1 and grant transfer in that case. Plaintiffs objection to Defendants' Instruction B24 is therefore OVERRULED.
ALL OF WHICH IS ORDERED