opponent david mystery i'd like to reserve five minutes for a bottle do i keep track of that or do please be a bad time showing is your total remaining time or any so what i thought  interesting about this case was that up until about a week ago i thought that the the strategy of pulling a comparative fault defense right before it submitted to the jury was pretty it was a pretty daring one and it was one that was probably a one off kind of a situation i didn't think that there was going to be a lot of examples of this going on because it seemed to kind of get at the very fabric of how substantive laws applied in california under comparable regime and sure enough wanted to research to prepare the briefing in california and in the ninth circuit the federal circuit's i didn't find any examples of the court dealing with this sort of a context where you let it get a case all the way up until you're talking about instructions right before it goes to jury and then you pull your defense and i was surprised about a week ago when i received the letter notifying the court of additional authority is from from defense counsel to see an example of just this out of i think was the tenth circuit the eleventh circuit and it kind of coming off guard not so much the case is opposed to what i was arguing but because the defendant in that case is the exact same defendant in this case and it was clear to me looking at that this is not the first time ford has tried this and then doing research in florida in missouri missouri and in new york it became clear to me that there are certain categories of claims that certain defendants litigate in the product liability context where this particular strategy pays dividends apparently and it tends to come up in the context for you have conduct by the plaintiff that implicates a certain kind of social objection ability like personal risk responsibility moral culpability so i understand your argument but i'm having a difficult time trying to determine whether what the harmless didn't even get there if they decided to causing an issue why would they even get to the comparative fault and well they got to the comparative fault issue because it was an appropriately put first but neither the causation benefit question but first i apologize i misspoke in its assessment of liability you know as the court described it the jury looked at this and first encountered the risk benefit analysis which should have been second but lances instructions are harmless where the verdict demonstrates that the jury found all elements legally necessary to support the verdict so i'm guess i have seen question as well because of the question on the verdict form that would have given the jury the opportunity to express itself with respect the culpability of the plaintiff bear with me a walk through this wasn't there so there was no way for the jury to state hate that if the plaintiff was fifty five percent or eighty percent liable his calculates eighty percent of the liability in this case there's no way for the jury to do that so an income of the verdict if that's what they had decided there was no way for them to express that other than to find on behalf of floor by one of the two questions that it was looking at and neither of those questions was framed in terms of the causation is related to plaintiff's conduct both of those questions were explained expressly and explicitly framed in terms of the cond causation and the respect if an analysis as it related to determination and if there was no lab bill of the determination by the jury regardless of the order of the questions maybe perhaps the court should have prudently flipped the order but in any at the end if there was a finding by the jury of nomad bill of the on the part a form how do we get to the comparative file are in because you can't take what the jury did in that verdict form as meaning as a meaningful statement of the liability as it pertains to this case as it should have been instructed as the court should have instructed the jury on whatever the jury did there was necessarily tainted by its inability to express anything other than what was on the verdict form so if the verdict form was a you know a general verdict form and there  no no discussion of comparative fault no instruction as was the case here and there was no way to assign fault comparatively that general bird form that they signed off reflects what it was and split the jury was instructed with and how it was instructed to resolve the issues in the case it was instructed to resolve the issues in the case as it pertained to ford's conduct so there's no way for the jury to look at that verdict form and express anything other than a binary decision about ford's liability and i agree with you from a kind of tell you logic standpoint you look at this thing and it seems to say to you hey they found liability that means that there's no harm but there's only one of the only one of two options available to the jury and if for instance they had thought the david mystery was eighty percent liable the only way that they could express that is by a no liability finding for fort and that's kind of the end of the case otherwise they have to like like write in on the verdict form ahead we've decided that david mistry is eighty percent of forth but there were no this from the standpoint of the jury they were never instructed that they could consider david missionaries you know proportionate fault they were never instructed that there was a way to kind of assign fault to david mistreat they were just given a single piece of paper with three questions on it none of which address david mystery but they understood that to mean this is their way of resolving liability in this case so if they are talking amongst themselves during deliberations and they say they say ok we've decided that david mystery bears the overwhelming majority of jury that work could still be helped liable if the design was not the sole cause of the injury sustained that's true however that structure was reading in connection with the products liability instruction which lays out the three prima fashion elements of what it is that makes up products liability you have use of the product plaintiff being injured and then a causal connection between the use the product it's design and the injury so they're looking at dissolve in that factual issue in the context of the causation entry that existed on the verdict form they're not looking at it in a more kind of in compassing sense maybe this includes misconduct by defendant maybe it doesn't in the same is sort of true it's actually explicitly true of the best benefit analysis that particular issue implicates how the accident occurred and there's no way for that because of this or can i can read them to you but there in the city instruction the factors discuss how the instruction how the action occurred the risk of the danger or the risk of the harm  gravity of the harm and so those things necessarily look at what's going on in the accident and so when the jury is embracing this particular issue and trying to address it they're necessarily factoring those considerations improperly  the jury never sent out a note indicating problems along the line you're talking about now but they were instructed that that was what instruction did you ask for what specific instruction to jewish for on this subject that the court refused to give there was a stipulated instruction for comparative fault and when this issue came up defense counsel said hey in this very kind of amicable way i'm going to withdraw compared to fall because i want to make lives easier for the jury and for the court and at that point defense or plaintiff's counsel's position was well that means that they're only going to address causation directly they're not going to blame plaintiff during closing argument are human now this is a stage in the case where all the evidence to come in and arguably plaintiff may have been able to move from this trial because all of this evidence of plaintiff's misconduct was irrelevant and prejudicial but in any event the good you're ready for a mistrial no because we directly go into recess and during recess please counsel goes and talks to defense counsel is my understanding from the transcript he comes back on the record and immediately says you know what judge i have a problem with this instruction because my understanding when he withdrew the firman of defense was that he wasn't going to argue the plaintiff was a instead he told me that he's actually going to argue that i don't think that you can do that i don't think you can argue that it's plaintiff fault the x and his plaintiff failed and not have a comparative fault instruction and so i mean he doesn't use the magic phrase i you can fall a judge for not giving an instruction that you never expressly say judge i want now in light of these developments for you to give this instruction you say well it's  the design defect and causation yes ok and so if they did decide comparative fault like like you know you won which wasn't there and they still didn't find a design defect we are still in same position are we the presupposes that the way that they answered the first question on the verdict form wasn't affected by their inability to address the comparative fault in this case this is exactly what ford was trying to do they put all this evidence about how he wasn't wearing a seatbelt they put on a bunch of evidence about how he did he was a terrible driver isn't that very speculative at this point i mean you can like because you've devoted all the majority of your time on this that the cause that wasn't presented the way he wanted it to be presented that would have made all the you know you can know is that they were operating under a misconception of the law and so that necessarily infects the process that makes it an unfair process and that's why it's presumed it's the nature of the review and on an appeal to your down the one that because the because for wanted to focus the jury on the question of defect and defect was truly the central focus of ford's case that ford had proved that the one thousand nine hundred nine expedition was reasonably safe and one of the jury to answer that question first the discussion following this model construction site several california cases are very clear that the order of the instruction was purposeful and meant to guide the jury to address the proper burdens so if this instruction was deliberately drawn then why isn't it an abuse of discretion for the order of the verdict had to be contradicted the jury was properly instructed using the standard form and the standard the standard for jury instruction contains two separate inquiries you're not answering my question on the verdict well it makes no difference because verdict form didn't in any way impact of the burden of proof for it still had the burden to prove the benefits outweigh the risk and it really ends up giving the plaintiff the benefit of the doubt that they could have established causation and it's not and ultimately the question of defect very purposeful the order in which they put the instruction and so i'm not quite sure the verdict form comes out different seems like you did for tactical advantage so that the jury wouldn't have to see the second  prong of that it's so that the jury doesn't have to bother with the causation issues given the strength of ford's case on the question of defect on which for for the burden of proof it doesn't make a difference you know the substantial factor section of the causation instruction that comes first under the casey says that plaintiff's only burden is to prove that the alleged design defect contributed to his injury here that would be plaintiff's theory that vehicle crash contributed to his injury and then the burden flips to for to show that regardless of whether you know that was true the vehicle was reasonably safe as designed so it doesn't matter ultimately whether the jury the order in which the jury answers those questions because ford still bears the burden to p reason was because he wanted to put the central issue in the case first there's no nicer case and since you can't do that as you're absolutely correct your honor it's the judge has a lot of discretion over the verdict point or was there something wrong with this vehicle and then move on to the question of whatever it was that was wrong to cause plaintiff's injury and then damages that's a logical way to try the case and there's everything about the jury instructions and sure of that the jury was still applying the proper burdens of proof on each element that had to be answered favorably for a plaintiff in order for a plaintiff to prevail counsel why did four withdraw compared to fault defense in the middle four with roots comparative fault offense at the close of the evidence because for believe the evidence did not show that there was any basis for allocating any fault to ford so that ford wanted to make sure the jury was if the jury were to ever reach the question of causation which for its not believe it would do that it would be focused on the  proper question of substantial factor causation and not risk the sort of compromise verdict that plaintiff might argue for if comparative fault remained in the case ultimately it was up to four whether it wanted to proceed with an affirmative defense of comparative fault and plaintiff never gave the district court the opportunity to know that he was requesting it in the face of for its withdrawal simply objecting to what ford is going to argue in its closing argument is not the same thing as affirmatively requesting a jury instruction the issue of causation is necessarily separate from the issue of comparative fault that might come into play down the line just because certain facts would be relevant to both the issue of causation maybe some of the factors that the risk benefit test and comparative fault were the jury to reach that issue down the line doesn't mean that the to increase are the same the evidence is relevant to several different issues and ford was focused specifically on causation throughout its closing argument was not making you know the premise of plaintiff's argument is that by withdrawing the comparative fault offense somehow ford converted this case into a case of the now defunct doctrine of contributory negligence where any fault of the plaintiff would negate ford's liability but that's simply a false premise the jury was properly instructed on the substantial factor test of causation and the burdens of proof on the elements of the design defect claim so there is no basis to speculate that the jury somehow applied a contributory negligence instruction it was never given plaintiff's argument yet really just assumes that the jury didn't actually answer the questions on the verdict form as they were written in response to any of the jury instructions as they were written and just assumes the jury applied a contributory negligence analysis even though that was not  inquire on the order of the questions the order the questions were presented on the verdict form in the way the judge thought was most logical given the way the evidence had come in well just recopy had asked if there were in the questions from the jury regarding the very to indicate confusion in opposing counsel responses they didn't even they weren't aware that they could pose those questions well that's a very speculative we don't know what the jury why the jury didn't ask any questions the jury resolve this case very quickly on the question of the fact there's no indication that the jury was confused by anything given especially the overwhelming evidence of that ford presented at trial that the risks of that the benefits of the vehicle as designed outweighed any risks only go back to the instruction and the reason for the instructions to to be in the order that they are it looks like that discussion following the model rule sides to various shift of the burden of producing evidence plaintiff to show that he was injured while using the product and then the burden of proof defendant's version burden to prove that the product should not be judged defective so again it seems that the purpose of the order of the instruction is related to the burden and so how is that not affect how was the verdict form and its order not affect that because the verdict form has to be interpreted and construed in light of the instructions that were given and the instruction was given was the standard funk c instruction that laid out who bore the burden of proof on each element made it very clear that on that question that risk benefit question that the jury answered yes to ford for that burton and pla argument closing argument repeatedly emphasized ford's burden throughout there is no confusion in the jury's mind on who bore the burden to prove that the benefits outweigh the risks for the person to produce evidence on that and to  persuade the jury and it did so there's nothing about the fact that the jury answered that question first rather than second it would impact whether the jury's jury would follow it in its instruction to ask for to  which i'm looking at the record page sixty three the judge gave the standard instruction quote if it becomes necessary during your deliberations to communicate with  you may send a new through the clerk signed by any one or more of you i will not communicate with any member of the jury or anything concerning you to six up in writing or here in open court if you send them a question i will consult with the lawyers before the risks and the structure of the instruction really out least two separate inquiries that have to be conducted separately and it doesn't matter what order they go and they will have to the plaintiff has to prove substantial factor causation for it has to prove the benefits outweigh the risk as long as ford proves the and yet the jury is presumed to follow its instructions so we cannot be speculating that the jury somehow disregarded the standard form casey told before because the verdict form asked the second asked about whether ford me that there are none of the rule for seven issues that this court has to reach because plaintiffs deafer identified any evidence that was excluded on rule for seven grounds so all of those issues are largely academic in the court does not need to address them as interesting as they might be i wanted to pick up on the order of the questions in the verdict form i do think that there was a degree of confusion that was likely injected into this and just because the jury didn't ask questions doesn't mean that the process by which the jury assessed this particular case was different than what the law requires there to quote donald rumsfeld there are known knowns there are no one and then there are unknown unknowns and if the court the jury is operating in a universe where it believes that it's applying it wasn't a member of the ny circus or not so if they're applying the law that's incorrect they micro they might believe that they are correctly applying incorrect law that doesn't make the jury verdict correct doesn't make it a viable verdict it makes a it makes it a verdict that's infected by the structural issues that are playing in this case so do you have a different response  note indicating confusion on the verdict form to the extent that they didn't send a question is not indicative of much other than that they looked at what they had been given and felt they were doing the correct thing but if you look at the instructions that were given the fact that the instructions laid out the burden shift analysis in a certain way and the fact the verdict form didn't line with that i think that it's not unfair to to to speculate that potentially the jury thought that the first question was actually plans to prove and it sort of seems like that's how the judge was looking at it he felt as though this was a liability determination it's not a liability determination it's the burden shifts to the defendant to to  push back the burden that had originally been established the prima facia told the jury that it was the defendant's burden on that on that case instructions that's true but so so you want us if i understand your argument you want us to think ok they didn't follow his instructions be they were such as you say speculative li confused and see that this all follows because he put first a question a bell what was the most contested issue in the case is do i have your argument correctly in fact its not my argument that is that is why jury instructions and special verdict forms carry a presumption of prejudice because you can't know you can't know what happened you have to you have to make assumptions that if the jury is given an incorrect statement of the law they're going to operate off of that or will in fact the process now is now incorrect statement well the verdict form is a statement of law of sorts and it was incorrectly ordered and it was in plaintiff's position and cry statement of live out there on scene that the verdict has to be in a certain form and certain order