Update On California Civil Jury Instructions Concerning Products Liability Litigation

As reported in our June 2011 Newsletter, the Judicial Council of California in 2011 proposed revisions to California Civil Jury Instructions (known as CACI) related to the element of the foreseeability and effect of product misuse. The proposed instructions contravened well-settled public policy and precedential limitations on manufacturer liability, including, importantly, an essential element of a plaintiff's products liability case—proof of reasonably foreseeable use. In our prior report, we explained that the proposed revisions, if adopted, would significantly impact litigation of product liability claims in California.

The Advisory Committee on Civil Jury Instructions (Advisory Committee) recommended approval of the proposed revisions in a report dated May 17, 2011.1 Despite objections from at least a dozen commentators, including Drinker Biddle & Reath LLP, the proposed revisions were approved by the Judicial Council on June 24, 2011.2

The revisions include changes to four strict products liability instructions3 by removing or minimizing the long-standing California requirement that the plaintiff prove he or she was injured while using or misusing the product in a reasonably foreseeable way.4 For example, see revised CACI No. 1205 which lays out the essential elements of a strict liability-failure to warn claim.5

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 defendants] [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 persons using or misusing the [product] in an intended or reasonably foreseeable way;

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 [name of plaintiff] was harmed while using the [product] in a reasonably foreseeable way; and

7. That the lack of sufficient [instructions] [or] [warnings] was a substantial factor in causing [name of plaintiff]'s harm.

In the documents posted on the Judicial Council website seeking comment on the proposed revisions, the Advisory Committee repeatedly cited Perez v. V.A.S., 188 Cal. App.4th 658 (2010), and this recent court of appeal case appeared to be the Advisory Committee's primary motivation for proposing changes. Indeed, those commenting on the proposed revisions focused their comments in large measure on Perez.

In a May 17, 2011, Report to the Judicial Council, the Advisory Committee's stated rationale for proposing the changes...