THE NEW CACI JURY INSTRUCTIONS - A VIEW FROM THE TRENCHES

By Mark V. Berry and Jenny A. Covington

The Judicial Council Civil Jury Instructions ("CACI") became effective on September 1, 2003. According to the Honorable James Ward, Associate Justice of the Court of Appeals and Vice Chair of the Judicial Council Task Force on Jury Instructions: "The task force was charged with coming up with instructions that were more easily understood but remained legally accurate." (Blaine Corren, New Jury Instructions Aim to Simplify Legalese , COURT NEWS, p. 1 (July-August 2000) at http://www.courtinfo.ca.gov/courtnews/julaug00-1.pdf

During our experiences with three product liability trials in which we were required to wrestle with the new CACIs, it became clear that the CACI Jury Instructions related to Products Liability are seriously flawed. In particular, the new instructions on product liability defect, the associated causation instructions, and the special verdict forms applicable to product liability, incorporate substantive changes that do not accurately reflect the State of California law. On the other hand, the Book of Approved Jury Instructions ("BAJI") instructions as to product liability enjoy judicial ratification and are very familiar to lawyers practicing in the field.

The CACIs are not mandatory. In view of the serious problems, practitioners in product liability cases should urge the trial courts to continue to use the BAJIs, particularly in design defect cases.

The Dilution of Design Defect

The current California standard for "strict liability" design defect was defined by the California Supreme Court in 1978 in Barker v. Lull Engineering Company, Inc. (Barker v. Lull Engineering Company, Inc., 20 Cal.3d 413 (1978).) The Barker case rejected the application of the "unreasonably dangerous" standard from the Restatement Second of Torts, section 402A, and established for design defect cases a two-pronged standard. The first prong for judging design defect was the "ordinary consumer expectations" standard. (Id. at 429-430.) However, the Court acknowledged that for some cases "the expectations of the ordinary consumer cannot be viewed as the exclusive yardstick for evaluating design defectiveness," and set up an alternative test for design defect where the jury concluded that "the product's design embodied 'excessive preventable danger,' or, in other words, if . . . the risk of danger inherent in the challenged design outweighs the benefits of such design." (Id . at 430.) This second prong in shorthand version is called "the risk-benefit" standard. (Id. at 446.) An unusual feature of the Barker second prong was the incorporation of "burden shifting." The Barker court instructed that if the plaintiff "makes a prima facie showing that the injury was proximately caused by the product's design," the burden shifted to the defendant to prove "in light of the relevant factors" that the product was not defective. The Barker court set out five "relevant factors," gleaned from past cases, for this weighing process embodied in the second "risk-benefit" prong of the design defect definition. The Court pointed out, however, that these factors were "non-exclusive." (Id . at 455. [There are few cases since Barker discussing what might be "other relevant factors." One interesting case is Hansen v. Sunnyside Products Inc., 55 Cal.App.4th 1497 (1997) allowing consideration of on-products warnings in deciding design defect under the Risk-Benefit test. See also, McLaughlin v. Sikorsky Aircraft, 148 Cal.App.3d 203, 205 (1983), where the Court of Appeals found that evidence that the helicopter was designed and constructed in accord with the existing state of the art was "relevant to a proper determination of such cost and feasibility factors [in a risk-benefit product liability analysis.]"])

Finally, the Court held that a product could be found defective under either of the two alternative tests. (Barker, 20 Cal.3d at 455. [In this regard, subsequent Supreme Court decisions have upheld the proposition set out in Barker that some types of cases, due to their complexity, are not suitable for determination under the Consumer Expectations test and hence are to be decided exclusively under the Risk-Benefit test. Soule v. General Motors Corp., 8 Cal.4th 548 (1994).])

The Barker two-prong analysis of design defect was incorporated into BAJI instruction 9.00.5, in particular the listing of the five "non-exclusive relevant factors." In fact, 9.00.5 set out almost verbatim the language of the Barker opinion with respect to those factors.

Under the BAJI regime, while the substantive definition of design defect was in the 9.00.5 instruction, the burden of proof issues were dealt with elsewhere, in BAJI 2.60. That instruction provided a single place where burden of proof issues could be assigned among the parties on the various claims and defenses. The use note for BAJI 9.00.5 explained the interplay between 2.60 and the design defect standard, and set out specific language on burden of proof for use in 2.60 in a design defect case. In addition, the BAJI special verdict forms for product liability (BAJI 16.10 - 16.12) included separate questions on defect in design, as well as the other elements of a cause of action, including "reasonable foreseeability" and "causation." The definition of causation in turn was treated in BAJI 3.76. In a phrase that harkens back to law school, the causation instruction intoned that "The law defines cause in its own peculiar way." Under BAJI 3.76, cause was equated with "substantial factor."

Despite years of experience with BAJI, now in its Ninth Edition since its original publication in 1938, the Judicial Council's Task Force elected to adopt some significant changes in the approach to product liability design defect instructions, both as to the substantive definition, and in the associated instructions on causation and burden of proof.

On July 16, 2003 the CACIs were first adopted by the Judicial Council. During a comprehensive six-year project, the Council's Task Force, appointed in 1997, reportedly spent hundreds of hours drafting "plain English jury instructions." (Judicial Council of California, New Plain-English Jury Instructions Adopted to Assist Jurors in California Courts, News, Release Number 42 (July 16, 2003) at http://www.courtinfo.ca.gov/presscenter/newsreleases/NR42-03.HTM

These instructions became available for use in trial beginning September 1, 2003. The CACI instructions were not revisions to the BAJIs; the Task Force undertook to create instructions anew. Their stated purpose was to express and explain California law in a legally accurate, yet easy to understand fashion. (Ibid.; see also Corren, supra, at 1.) It was a massive and far ranging undertaking. We focus only on the instructions relating to product liability.

As to design defect, the new instructions separated the consumer expectations test (CACI 1203) from the risk-benefit test (CACI 1204). In the new version of the consumer expectations test, the Task Force adopted a subtle change from its predecessor. In 9.00.5, the consumer expectations test was stated verbatim from the Barker opinion. Yet in CACI 1203, the Task Force elected to omit the phrase "when used in an intended or reasonably foreseeable manner" in favor of "at the time of use." It is difficult to accept the premise that the Supreme Court's exact phrasing of the test needed to be changed in the interest of comprehension.

More significantly, the new risk-benefit instruction 1204, while superficially tracking the analysis provided in Barker, worked material changes in the plain language of the five non-exclusive factors enunciated in Barker and incorporated into BAJI 9.00.5. These changes cannot be justified based on some argument that they represent mere "plain language" repetition of the Supreme Court's carefully crafted factors, as illustrated by the table above.

Notable in the changes to the five factors are shift from focus on the danger to "potential harm" and the omission of the concept that the alternative design be "safer" and "improved." The new language seems far distant from the conception of the Barker court that a defective product is one that embodies "excessive preventable danger." Given that the original phrasing of BAJI 9.00.5 on these two factors is directly from Barker, the choice to deviate from the directives of the Supreme Court is suspect.

Perhaps even more troubling than the decision to significantly change the language of BAJI 9.00.5, the CACIs also completely eliminated the requirement that the jury expressly find a "defect" in reaching its verdict. The CACI special verdict form for product liability under the Risk-Benefit test (VF1202) never even mentions the word "defect" in the questions posed to the jury. Indeed, the questions are framed such that a "yes" answer to the question on benefits versus risks represents a finding of "no defect." Thus, defense counsel arguing for a finding of no defect have to explain to the jury that they need to answer "yes" to mean "no."

Moreover, under the CACI regime, no longer is there any equivalent to BAJI 2.60, where the various burdens of proof for the case are set out in one place. Instead, CACI attempts to handle the burden shifting in the substantive instruction and the verdict form itself. This is particularly confusing where the plaintiff elects to proceed both on the consumer expectation and risk-benefit prongs, the former not involving burden shifting, whereas the latter does. Unfortunately, CACI provided no verdict form for such a case, where the plaintiff elects to proceed under both prongs and the court allows it.

Finally, the already diluted design defect instruction under CACI also incorporates by reference another significant change in the law attempted by CACI - a watering down of the concept of "causation," as discussed below.

The Trivialization of Causation

The BAJI instruction on causation, 3.76, was not only time-tested but expressly approved by the California Supreme Court, in Mitchell v. Gonzales. (Mitchell v. Gonzales , 54 Cal.3d 1041 (1991).) BAJI 3.76 defined causation as "substantial factor" and left it to counsel to argue, and the jury to decide, what was a "substantial factor" under the facts of the case. The new CACI instruction, 430, essentially replaces "causation" with the concept of "substantial factor," and purports to further define that phrase as "more than a trivial and remote factor."

The fundamental problem with CACI 430 is that it flies in the face of the writings of the California Supreme Court as recently as 1997, in Rutherford v. Owens-Illinois, Inc. (Rutherford v. Owens-Illinois, Inc.,16 Cal.4th 953 (1997).) where the Court considered and disavowed such an attempt to define "substantial factor" in a manner that diminishes causation to "infinitesimal" or "theoretical" cause.

The term "substantial factor" has not been judicially defined with specificity, and indeed it has been observed that it is "neither possible nor desirable to reduce it to any lower term." (Prosser & Keeton on Torts , supra, §41, p. 267.)

(Id. at 969.) As the Rutherford decision warns, instructions such as attempted in CACI 430 effectively diminish causation to such a degree that true causation is no longer an element plaintiff has the burden to establish.

And this effort to further define causation is particularly ill-advised given that BAJI No. 3.76 had been reviewed and approved by the California Supreme Court as both an accurate instruction of law and of plain, understandable language.

[T]he "substantial factor" test, incorporated in BAJI No. 3.76 and developed by the Restatement Second of Torts, section 431 (com. to BAJI No. 3.76) has been comparatively free of criticism and has even received praise. 'As an instruction submitting the question of causation in fact to the jury in intelligible form, it appears impossible to improve on the Restatement's substantial factor [test.]' (Prosser, Proximate Cause in California , supra, 38 Cal.L.Rev. 369, 421.) It is 'sufficiently intelligible to any layman to furnish an adequate guide to the jury, and it is neither possible nor desirable to reduce it to lower terms.

(Mitchell, 54 Cal.3d at 1052 (emphasis added).) The CACI approach essentially abandons the whole concept of legal causation ("defined in its own particular way") as distinct from cause in fact. Basically, California lawyers need not study the Palsgraf case in the future if the CACI instructions become law. (Palsgraf v. Long Island Railroad Company, 248 N.Y. 339, 162 N.E. 99 (1928).)

As noted above, this shift to a defined "substantial factor" test operates not just in the context of the causation instruction. The phrase "substantial factor" is incorporated into all the substantive product liability defect instructions and hence the cause and fact concept carried into all of them.

In addition, under the CACI regime, the separate finding of causation as an element of a product liability cause of action, required under the BAJI special verdict form, is abandoned under the CACI approach to the second prong of Barker. The CACI instruction assumes that the plaintiff's prima facie showing that the design is a proximate cause of injury, for the purposes of burden shifting, is also the decision on causation, such that the jury is told expressly in CACI 1204 that its decision "must be" for plaintiff in the event the design benefits do not outweigh its risks. Under the BAJI regime, the jury still had to find "causation" apart from "defect." We are aware of no case that says that this "prima facie showing" set up in Barker acts to relieve plaintiff of proving causation as an element of the cause of action if the plaintiff elects to proceed under the risk-benefit test. Yet CACI VF 1202 completely omits the still necessary element of causation.

Lack of Judicial Imprimatur

To date there is no published California opinion discussing the use of the new CACI instructions on product liability and substantial factor. One unpublished opinion has considered the issue.

In Perez v. John Deere, plaintiff Perez was working as a mechanic's assistant servicing harvesting equipment. (Perez v. John Deere, No. F043593, 2005 WL 1529762 (Cal. Ct. App. 5th Dist. June 30, 2005).) He was injured by a cotton picker when his pants leg became caught and his entire leg thereby became engaged in the machine. He alleged that the design should have protected him from being pulled into the machine and that there should have been an automatic shut-off switch for such emergencies. He also alleged that the warning label on the machine was insufficient.

The trial court ruled that the consumer expectation test was inapplicable and the jury would only be instructed as to the risk-benefit test. BAJI 9.00.5 was given along with BAJI 2.60 as to the defendant's burden of proof. The verdict form simply asked "was there a defect in the design of the defendant's involved cotton picker?" The jury returned its verdict for the defendant. The jury did not ask for any clarification during deliberations, and the appellate court found no reason that they would have misunderstood the instructions based on closing arguments. On appeal, the plaintiff argued that the CACIs should have been used because they more clearly place the burden on defendant to prove the risk-benefit test. The plaintiff also argued that CACI VF-1202 changed the law regarding design defect.

The appellate court held that: "With respect to plaintiff's argument that a change of law occurred after the trial was completed, we conclude that CACI VF-1202 did not change the law, but represents one acceptable method of presenting a design defect claim to the jury." (Id. at 26.) It also rejected the plaintiff's argument that the BAJI special verdict form was confusing or misleading:

The special verdict asked in a straightforward manner whether there was a defect in design of the cotton picker. The fact that this question subsumes, rather than particularizes, the essential elements of a claim for a defect in design does not render it confusing or misleading. Moreover, the phrasing of the question was so innocuous [(was there a defect in the design of the defendant's involved cotton picker?)] that it is difficult to interpret it in a way that negates, or even conflicts with, the jury instruction regarding the burden of proof on Deere to establish that the benefits of the design outweighed the risks.

(Ibid.)

In addition to the lack of judicial endorsement, there are on-going efforts to amend the CACI instructions. Since the CACIs were published, the Litigation Section of the State of California Bar has been involved in gathering comments and suggestions from attorneys and submitting proposed changes to the Judicial Council. In March of 2004, the Litigation Section submitted a proposal that CACI 430 be revised to include the "but for" test of causation within the instruction itself rather than only within the direction for use.

The authors have been involved in three product liability design defect trials since the publication of the CACIs. In two of those cases the trial judges readily agreed that the BAJI instructions as to product liability and BAJI verdict form were preferable to the CACIs. In the third trial, the trial judge opted for the CACI instructions and verdict form; the trial resulted in a hung jury after several questions from the jury relating to the "substantial factor" question (CACI 430). The authors are aware of two other trials where juries deadlocked using the CACI instructions and verdict form. In one case the parties had to develop a verdict form combining the consumer expectations and risk-benefit tests, as plaintiff elected to submit both issues to the jury. The verdict form was very awkward and confusing. The trial resulted in yet another hung jury. Admittedly these anecdotal experiences are proof of nothing other than to support our conclusions that the CACIs do not represent an improvement over the BAJI regime.

Conclusion

In the area of product liability defect, the Task Force that created the CACI instructions has exceeded its charter and is seeking to work a substantial change in California law. The promulgations of the Judicial Council are not law and are subject to legal challenge. For example, in Nacht and Lewis Architects v. Superior Court , 54 Cal.Rptr.2d 575 (1996), the court held that the Judicial Council form interrogatories were not immune from objection. Additionally, the CACI instructions have not yet withstood the rigors of use and time. As one practice guide cautions:

The CACI instructions, while carefully crafted and reviewed by a select Judicial Council advisory committee, are relatively new and there may be some errors … [T]he purpose of the instructions is to restate the law in terms understandable by lay persons, not to make new law.

(CALIFORNIA PRACTICE GUIDE: CIVIL TRIALS AND EVIDENCE ch. 12-18, 14:58.6 (The Rutter Group 2003).)

CACIs are not law, and courts have discretion not to use them under the California Rules of Court. (CAL. CT. R. 855(e).) Practitioners are urged to stick to the "tried and true" BAJIs for substantive issues in product liability cases.