The Judicial Council of California has the responsibility of crafting “standard” jury instructions recommended for use in all the trial departments in the state courts.  Since 2008, those instructions have included one for instructing the jury when the issue of a “sophisticated user” defense is posed.  Recently, the Judicial Council has presented for comment by the legal community a draft revision of this standard instruction.  The proposed revisions at first glance seem to require a more detailed showing from the defendants.  However, these proposed changes, in the author’s opinion, in practice would not reduce the ability of defendants to persuade the courts to give such an instruction.

The current instruction on sophisticated user reads (with some required information filled in) as follows:

Manufacturing Co. claims that it is not responsible for any harm to Plaintiff based on a failure to warn because Plaintiff is a sophisticated user of the product.  To succeed on this defense, Manufacturing Co. must prove that, at the time of the injury, Plaintiff, because of his particular position, training, experience, knowledge, or skill, knew or should have known of the product’s risk, harm, or danger.

The proposed revised instruction reads, with information inserted to complete the instruction, as follows:

Manufacturing Co. claims that it is not responsible for any harm to Plaintiff based on a failure to warn because Plaintiff is a sophisticated user of the product.  To succeed on this defense, Manufacturing Co. must prove that, at the time of the injury, Plaintiff, because of his particular position, training, experience, knowledge, or skill, knew or should have known all of the following:

  1. That [describe the risk posed by the product] breathing dust from the product could cause lung disease;
  2. That [describe the severity of the potential consequences] the lung disease could be disabling or fatal; and
  3. Any ways to use the product to reduce or avoid the risks that were known to the Manufacturing Co.

The “Sources and Authorities” relied upon are Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56;Johnson v. Honeywell International, Inc. (2009) 179 Cal.App.4th 549; Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 28; Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270; and Buckner v. Milwaukee Electric Tool Corp. (2013) 222 Cal.App.4th522.

The existing instruction is quite simple, nonspecific, and even vague.  If that original instruction is given, a defendant has a fair amount of latitude to argue a variety of facts.  But courts have been reluctant to give the instruction when plaintiffs argue that the necessary foundational facts have not been demonstrated.  Perhaps the courts are concerned that the existing instruction is in fact too broad and are thus reluctant to give the instruction, as the court can anticipate some defense counsel arguing that it is applicable even in those cases when not truly supported by the facts.

The proposed revision seems to require a more specific showing from the defendant.  And no doubt exactly how the brackets are completed in each case will be vigorously argued.  For No. 1, for example, plaintiffs’ counsel will no doubt argue that the bracket should include not just reference to lung disease, but either asbestosis, lung cancer or mesothelioma depending on the facts of each case.  Certainly it will be harder for a defendant to show that a sailor or shipyard worker knew about mesothelioma than to show that he knew that breathing lots of dust could be harmful.  No. 3 may be contested as well.  Defendants will argue that everyone knows the ways to avoid lots of dust (wet down the material, use a mask, have good ventilation, do not use compressed air), while plaintiffs will argue that more needs to be shown regarding specific precautions for asbestos dust.

With the proper questioning of a plaintiff at deposition, and perhaps using other evidence of what was known in the Navy and the shipyards at the relevant time, a defendant could present facts adequate to support each of the requirements whether using the old instruction or the new.  The question is whether the new version makes the task harder, easier, or does not change it.  My sense is that the relative burden on the defendant really does not change that much regardless of which version of the instruction is used.  It is also my sense that defense counsel will have a better chance of persuading a judge to give an instruction if the new version is approved and the defendant can make a showing that evidence has been produced to satisfy the three elements.  It just sounds more persuasive if one can argue that he or she has fulfilled the obligations of each of the enumerated subparts, rather than simply generally arguing that a showing has been made.

After allowing for a comment period, which ends Aug. 29 at 5 p.m., the Judicial Council will make its recommendations as to whether the proposed revisions should be adopted (the Council has indicated that the preferred way of receiving comments is in a Word file attached to an e-mail sent to civiljuryinstructions@jud.ca.gov).  Concerned practitioners will be monitoring whether the instruction is to be modified, and if so, what impact the modifications may have in the trial courts