orders this case presents the next natural question after your decision in the callus case and that's in a case that involves only risk utility evidence involving a complex product used in says whether in that circumstance it is reversed where requiring a new trial where the court gave the jury instructions under the consumer expectations test consumer expectations  test ask the jury questions that have nothing to do with the risk utility evidence and we submit your honour's that the answer is that a new trial is required it is fair to use risk to use consumer expectation instructions in the risk utility case we asked the court  reverse for two related but independent reasons first the jury instructions here did not match the evidence i'm certain i match the law they did not accurately state the law for strict liability design defect cases involving complex products in unfamiliar circumstances whose court's decision callus in blue showed the court has moved away from the section four o two a consumer expectations test in most cases and instead has evolved to section two of the restatement third in most cases which involve complex products such as the safety enhanced yielding seat which was involved in a massive rear end collision in this case callous and blue make clear the consumer expectations testing the consumer expectations instructions are reserved for cases involving simple products used in everyday life where a consumer or everyday experiences can lead it to in strict liability cases with blue and callous to as they were fined that decision atlanta to make clear when each test is appropriate so no way to blue and callous over rule and can what they do is they make clear that consistent with the restatement third in the criticism from prosser in keeton in other courts other commentators that the consumer expectation test is inappropriate in most cases in most cases involving designed effects involves complex products use known for mil your circumstances such as we have here is our position your honor is that lampkin hansen all of the cases leading up to blue and callous are consistently blue and callous blue and callous do not create any new law or new rules they only clarify when those two tests can properly be applied  expectations prong or test is part of a proper risk utility analysis so when you have a complex products such as the c t twenty you see if you had see here consumer expectations can be part of that inquiry the problem with the consumer expectations as an independent test is that with products like that with complex products which consumers don't have everyday experience with consumers don't have expectations it but that test provides no guidance and as the restatement authors themselves noted that creates a very difficult issue for position for manufacturers like ford results in something close to absolute liability because ford cannot design a seat safe in all the ranges of accidents all it can do is a risk utility analysis so to answer your question directly no we believe that the consumer expectations analysis is part of the risk utility test so our instructions civil instructions are incorrect yes your honor to just so that we are very clear we believe that the i p i instructions on consumer expectations when given in a risk utility case are there they do not properly state the law they don't provide guidance to the jury let me explain here what happened here here we had a jury that heard two weeks only of risk utility evidence nine expert witnesses testifying about very complex issues about safety seat design forces that  the jury you need to find out decide whether this seat is on recently dangerous in an original and recently dangerous was decided to find just as unsafe when put to a foreseeable use and we submit that that allowed the jury here to the jury could have found for ford under the risk utility test but still delivered a verdict for the plaintiff here because we'll never know this but the jury could have said well ford you've proven that the benefits of the c t twenty using seat outweigh the risks and you also proven that there's no four there was no feasible alternative which was which would have prevented or reduce the harm but under the instructions they were given us the jury the sea was unsafe for mr michael a check because he wasn't he wasn't saved in this accident he was killed why couldn't the jury use the risk utility evidence to valuate the case under the instructions that were given well it's possible they could have they just had no understanding of what to do with that happens the instructions provided them with no guidance they the jury was left untethered to any will of law the jury was just instead left to decide was it unsafe and all of the evidence it heard was about risk in utilities and benefits but the duty the jury was just told was it on set and unsafe here could lead the jury just as well really your argument hinges on this court believing that the risky tillet was the only appropriate to use under the law is their right in this case your honor yes the risk you totally test was the only proper test yet if we disagree with it and think that lamp can hold that the plaintiff can choose will then your argument as to the jury instruction with them well no your honor it would not because although if you were to hold the lamp in let's say plaintiffs choose here there are two problems with that argument first of all land can makes clear the plate of chooses by the evidence he or she introduces in here the only evidence that was introduced was a risk utility that's the first problem the second even if the plaintiff could choose and even if the player could choose consumer expectations even though all or evidence was risk utility for its defense was risk utility all of its evidence was risk utility in it wasn't titled under the decisions of this court to an instruction  instructed the jury on its theory of defense so either the instructions were wrong or even if they were wrong we were told to our instruction now we submit that land can makes clear and tell us makes clear to tell us says case it sets consumer expectations are reserved that's the word the reserved for the cases where consumers have every day experiences about the products and also goes on to say that risk utility must be use must be used in all other cases in here the plaintiff could not show that any consumer would have any ever any expectation everyday experience about how someone would design a safety enhance seat to deal with a massive rear end collision when the manufacturer also has to deal with a massive front end collision has to deal with a rollover has to deal with all types of bodies all body types as do a belted and unbelted passengers test your high speeds and low speeds the design decisions that go into what makes up a seat are complex and difficult and they're beyond the ken of any ordinary they require engineering experts and those experts came and testify here now after hearing nine experts the jury was left completely without any guidance of what to do with any of that there were instructions made i'm sorry they were closing arguments in which you argued the risk you took yes there were just a speech there were there once there were closing arguments and both sides argued risk utility but then the jury got instructions which pretty much threw out the three threw the argument out out the window at least as far as the lawyers try to try to guide the jury this court's been clear that closing organs by lawyers are just arguments are not evidence and the jury has to fall the instructions it's the purpose of the instructions to guide the jury on the law the jury looks to the judge not the lawyers to tell it what it needs to do with the evidence and here the jury was given instructions that left it up left it to its own device about what it wanted to do even though it heard all about the risks in the benefits and the possibility of alternative designs it was left only to decide was this car unsafe when put to a reasonably foreseeable use and unfortunately in our society drunk driving or in collisions are foreseeable and wasn't unsafe well the jury was given no guidance on how to determine it was unsafe the judge just gave instructions that unsafe was the inquiry for unreasonable danger unreasonable danger and clearly a jury could decide it was unsafe here because mr made that seat did not prevent injuries to mr mitchell but that's not the standard the law requires the standard wall requires is that the plaintiff's prove that ford erred in its risk utility analysis and is the plaintiff suggested that there were alternative fusible design and we believe that the plaintiff failed in that burden as well but clearly the jury although it heard arguments reuters received no guidance whatsoever there's nothing in the instructions they gave the jury any idea what it was supposed to do with th as the callous court makes clear the law like nature has evolved and the instruction should evolve with the law callus i think very clearly decided the issue of what circumstances consumer expectations can be used and which circumstances risk utility can be used the question for this court now is why would it be appropriate under what circumstances would be appropriate to mix and match instructions and the court house wasn't all of the evidence here is risk utility the plaintiff objected to the only consumer expectation evidence that was offered and it was stricken from the record so the case was always risk utility from the beginning to the end everyone argued risk utility yet it if the jury instruction conference the plaintiff says i have a consumer expectation case that's manifestly unfair and there's no basis for an equity or a law and the instructions are guided by the evidence instructions have to be guided by the law on the evidence not by the whim of the plaintiff at the end of her case deciding that she wants instructions that in her mind lower her burden she did not proceed under consumer expectations she was unable to hear because that test is in applicable as made clear  callous and prior cases so the failure to approach the case or try to prove her case through consumer expectations forecloses her right or ability to ask for consumer expectations struction for propose risk utility instructions that accurately set forth the law and risk utility they provided the jury with all the guidance it would have needed to have made its determination under the law and the facts that were presented to it but the jury did not get instructions the consumer expectations instruction that the jury did receive effectively imposed absolute liability on ford because ford now faces the dilemma of how it can design a car seat they can be safe for collisions and in front of collisions that's directly from the mcmichael a check decision by the first district so ford could now be sued by someone claiming that the seat wasn't rigid enough if you're injured in one of those accidents the thrust behind the risky toadie test as set forth in the restatement and in the cases that have adopted it is that allows the law to arrive at one reasonable result and that's  it also serves the function of sort of serving social welfare because risk utility test and with instructions to match it provide the jury with guidance in determining what optimal safety should be achieved the consumer expectations test with the instructions that were submitted were given to the jury they would require the manufacture to try to guarantee absolute safety which is both impossible to quoted the language to richardson that it will not lightly substitute its judgment of the judge for the jury's judgment that is the exact same language that was cited by the plaintiff's brief to the court and then the court carefully looked at the evidence presented by the plaintiff and applied that deferential standard found that the award could not withstand judicial scrutiny now not only to apply the correct stant standard of review but also clearly applied the correct standard  the plaintiff has submitted that the richardson test doesn't mean what it says when it has a three part test but richardson does say what it means in every case that the plaintiff cites in the supplies that seem three part test and the plaintiff would suggest that the fair and reasonable compensation component does not exist but provides no basis for that in fact or in law were from any of the court's opinions and also doesn't suggest why that shouldn't be the standard why should a court ignore awards that are not fair and just compensation the remaining arguments regarding the remainder are completely without merit the trial the appellate record was fully complete and like the case that if that is correct or if the worst utility argument is if you find that your instructions were we believe the case would go back to the to the trial court for a new trial in both liability and damages made please the court and bruce half and i represent the estate of james michael i check your honour's it was three years and eight days ago that judge james flannery had to make the call as to what the proper jury instructions were in this case it was shortly before the case was to have been argued there was no women as to plaintiff's choice to try this case under the i p i four hundred zero six which was exactly what was done that was pre that was brief pretrial there were memoranda of law given to judge flannery before a jury was ever picked this was a dispute that began before this trial and the court was fully aware of it as was forward and most of their both defendants in this case those defendants were not surprised when plaintiff wanted the i four hundred of six before trial why did plaintiff want that instruction number one plaintiff tendered it because it's in the i p i this court's rule to thirty nine and mandates that that instruction be used unless it's clearly basis of strict liability is selling an unreasonably dangerous product some states define that term illinois does illinois has had that as part of the i p i since the one nine hundred eighty s that definition unsafe when put to use that's reasonably forseeable considering the nature and function of the product has been accepted in every case that has analyzed it sitting as the trial judge judge flannery had that record in front of him those appellate cases what else to judge flannery had he had the decision in carrillo versus ford motor company same lawyers same judge same courtroom same rear impact same horrible injury and in that case it was paralysis same charging their use in very specific language at nine sixty six of carrillo the instructions the jury was given in this case fully fairly and comprehensibly informed the jury of the relevant legal principles sitting as the trial court made clear that the four hundred series instructions were appropriate to use in that case when this court analyzed hansen this court looked at the case under the risk utility test and under the consumer expectation test and found that the evidence was sufficient under both tests the appellate court had said that the i p i instruction four hundred zero six was appropriate for use in that case it is our position in this case your honor that four hundred zero six is definition of unreasonably dangerous doesn't fact cover cases where there is evidence of risk utility and it covers cases where there consumer expectations evidence this case included both types of evidence and it's not unusual plain ff put on expert testimony that the product was unsafe plaintive put on expert testimony that the this occurrence was reasonably forseeable to the defendant's ford rebutted that they put on their own evidence that said this was a safe  product that they conceded for c ability but for did rebut the consumer expectation evidence that we had that this product was unsafe the next thing that happens in most trials when a plaintiff is putting on an expert and products case is mr engineer why is this product on say and the engineer will typically describe as was done in this case what the risks of danger are from the product so inexorably there are both types of evidence in the case and lampkin holds and the cases that have followed it through callis hold that that type of evidence is appropriate for the determination of whether a product is unreasonably dangerous both evidence of consumer expectations and evidence of risk utility when counsel references the school case from california there's a problem with that because california's standard of product liability is somewhat different from illinois and their jury instruction is dissimilar from four hundred zero six four hundred zero six requires the plaintiff to prove more than the california test which is the product is defective they use different language and actually has some different meaning as well product is defective in california when it fails to perform a safely as a consumer would expect that's a lower burden than we have in illinois and i believe the i p i more than twenty years ago correctly stated what unreasonably dangerous means as unsafe when put to use that's reasonably forseeable people defending these cases put on evidence to show why their product performs in a safe manner why it's reasonably say that setter plaintiff has to go all the way to get the jury to believe it's unsafe which is a high burden and i think  effectively encompasses the evidence in this case judge flannery also had no evidence on the other side to favor the argument that four hundred zero six was improper no court had ever held that that definition of unreasonably dangerous was improper the i p i committee over the past twenty years has made some substantial changes to the four hundred series but as we pointed out nerve appellate court brief never once has there been a change to the instructions used here four hundred zero one zero two and zero six the i p i committee is well aware of lampton the i p i committee's aware of callus and the cases that come between but has elected not to change the four hundred zero six instruction the jury in this case decided for the plaintiff because the evidence was overwhelming the jury found in this case that mr mickel life would have suffered only minor injuries in a safe that in a seat that was not unsafe that was  proof and that is something that ford takes issue with in their reply that i must dispute ford says that all seats are unsafe when in a car in a crash like this that frankly is disrespectful to the record in this case the record in this case shows that jamaica like had he been in a safe seat would have essentially been a walk away he would have been fine he might it would have suffered some minor injuries his daughter in the back seat who was far closer to the impact forces and who was in a very strong seat had some fractures of her lower extremities and she's fine that would have been the outcome for jim he would have been fine but for this unsafe seat necessarily the jury had to find that we put on test evidence in the case to show that a severe or fatal injury was ten more than ten times more likely in an escort c then in feasible alternative seats more than ten times those crash data were never challenged successfully ford wishes to say that their seat performs better in low speed collisions but our crash data which was it before the jury in visual form in a graphic form proved otherwise the strong seats that we favored were as safe as the escort low speed occurrences and far far safer and higher speed occurrences post trial judge flannery had a full opportunity to review the record in the evidence he found that there were no errors that affected this case he found that the jury's deliberations in the jury's finding on damages were reasonable he used a proper test he analyzed in fact whether or not the verdict was excessive whether it's check the judicial conscience whether it was affected by bias sympathy passion or prejudice and he answered no to all those questions respectfully judge flannery was in a position to see this entire trial judge the credibility of all the witnesses as the jurors it and that decision denying a new trial on damages and denied remitted or is entitle to substantial difference by reviewing courts we believe the in this case did not pay that deference that was due the appellate court never use the proper standard which was it had to find the judge flannery abused his discretion in saying that the verdict was within the realm and was not court has that power if it finds that the trial court abused its discretion that was never found here and so it's double description i believe it is around and with respect to three sixty six you knew the order from the appellate court here is very unusual we believe because the three justices only one had his judicial conscience shot and one of the justices felt that the verdict was only slightly excessive those justices could not form at the appellate court has the power of course to say the excessive amount of the verdict is x dollars and remit it to a specific number which it could not agree upon and could not do in this case unfortunately remaining the case to go back to the trial court to the judge who previously decided the verdict was not seven figures were going to have something like that i just described wrote that in his opinion i don't believe that it can be fairly said justice campbell or justice murphy exactly agree with that and  there therein lies the rub we have a situation where we're just describing in one case three years or four years earlier affirms eight hundred million dollars and loss of society damages but yet in this case says for reasons that are  cannot be fathom that certainly this he would he would favor seven figure war i don't know that the owner i courts should ever get to the point of comparing verdicts to decide excessiveness i don't think that even matters to what should be the outcome or issue here because if we're comparing this is not out of line with other substantial versed in settlements in the realm of loss of society damages if we're not comparing then b get back to the trial  court the trial courts discretions in findings whether or not the verdict shocks the conscience or was the result of passion and prejudice it is not your position is if you were to have to come up with a member i think it's unusual that it did not number i do want to point out the sound check case vs general motors on the issue of consumer expectations and products that could be called complex in sap check a directed verdict was entered in an auto products case on a consumer on the consumer expectation of plaintiff's case in the first district reverse that and said there was sufficient evidence for that auto products case to go to the jury on consumer expectations so the current law in illinois is the consumer expectations with auto products cases is alive and well and should be and frankly the test of four hundred zero six is a little bit broader than consumer expectations it clearly encompasses it as well as the risk utility evidence here respect to reply brief by ford i would have some dispute that i wish to point out to the court ford in its replied says that illinois cases require risk utility instructions and cites for cases when there's risk utility evidence that's actually incorrect it's in the reply patient one and two those cases all stand for the view that the court in its discretion may give an alternative feasible design instruction as was mentioned in the kearns case but alternative feasible design is different from risk utility there is no case under illinois law that requires a risk utility instruction or that even approves a specific risk utility instruction one point that should not be lost is that a party has a now has the obligation as fourteen miles to do it in this case when it's admits instructions to submit them to correctly state the law those that they submitted in this case did not correctly state law for the reasons that we cited in our brief they incorporate language of the fact which again come from california which has never been part of the only burden they put a dual burden on the plaintiff to prove design defect and unreasonably dangerous conditions and as as this court has held it believe it's in the sweeney case that unless they submit a proper instruction the trial court's refusal to give an incorrect instruction is not error and that's from sweeney versus matthews so even if th court felt that somehow the i p i was not fully adequate which we would dispute ford never submitted an adequate instruction and for that that's an alternative basis on which it's liability should be affirmed here for not only persuade this court that the trial court's instructions amounted to an abuse of discretion but this ford must also persuade the sport that its tendered instructions were proper statements of the law it do either but it must do both if that if it is to have this court's judgment i want to just to touch briefly on three cases that share the same facts as make a light check carrillo newman and potter every one of those cases was tried to explain its verdict every one of those cases had the same expert testimony the same experts every one of those head instructions on an reasonably dangerous condition just as illinois does and used in those cases those states follow the consumer expectation test in every one of those cases there was some challenge to the jury instructions in every one of those cases the instructions were affirmed and the judgments were affirmed ford has cited no case in which it's weak see design has been tried interest utility and that they come to a different result and in fact there's just no authority for the risk utility specific instructions that they're trying to ask this court to direct the i p i committee to draft respectfully i think the current instruction is more than adequate on the subject of damages this constitutional right to trial by jury the common law allows for remit or an editor under very limited circumstances and the question is what are those circumstances in snelson this court correctly analyzed it to be disjunctive as to part test as opposed to a three part test the test from snelson was if in fact the the verdict shocks the judicial conduct conscience it's outside the range of fair and reasonable compensation that's one part of the analysis and the other part is passion and prejudice richardson says something different and frankly we believe that richardson misstated the test the two cases richardson's rely on relies on say something different than what richardson a much more recent authority from this court and should govern that test in snelson the court will remember the trial court did remit the verdict and this court found that that was improper and an abus discretion and this court reinstated the verdict respectfully that should that is exactly what should happen here this jury could have awarded more damages than it it could have awarded less damages than it did but it shows a number and it shows a number after almost three weeks of jury trial after arguments of counsel counsel got to say everything that they wish to say there is no just there is no debate that improper evidence was received on damages there is no debate that there was improper argument about damages there is no claim that improper instructions were given about damages the only complaint from the defense is well we lost and we lost too much we're not happy about it that's not the legal test they had a full opportunity to challenge damages in closing argument they elected not to bail they put their strategy into civil proximate cause and tried to blame everything on the as a motorist and it failed respectfully that is not a basis to lower court decisions in those cases it's apparent that those jury instructions were never at issue the courts don't decide issues silently those cases did not present the issue here which is in wake of callus you have a risk utility case whe you can present consumer expectation instructions to a jury and expect a jury to reach a fair and just result in the fact that the i p i committee has not changed the instructions only points the fact that the change is long overdue change should've occurred in land can after lampkin when the court announced there were two possible tests the change certainly occurred now after callus the court has made clear that risk utility is the predominant test now mr  found or what it didn't find on it had to find that what was there was unsafe and unsafe they only meant that he didn't leave the seat did not protect him so therefore the jury found that ford was liable but that's not the standard under the law the standard of the law is whether the way the utility and whether there was a fusible alternative the subject case we would submit is a very good case for this court to consider such a case the court did find the consumer expectations were appropriate with a carpet all but they case involved a situation where a person was driving a car in revving the engine the car exploded because the heat shield failed in a court quickly found that although consumers might not have expectations about the heechee old which where the product is familiar a car used in from other circumstances someone driving right in the engine consumers would have an expectation that just like climbing a ladder the ladder wouldn't collapse consumers have an expectation of driving a car the car won't explode on its own consumers don't have expectations or experiences with how to design a safety enhanced yielding car seat and the degree to which it should be flexible in a broad range of accidents that ford face have argued that proper deference was not paid to judge flannery in this decision well judge slater with all due respect is entitled to know deference on what the legal standard is that's a de novo issue for this court to review th court doesn't need to sit through the trial to determine whether he applied it doesn't need to sit through a trial hear the witnesses and judge their credibility determine whether the legal standard was incorrect that's an issue this court can decide and should decide and contrary to his argument he court of appeals did provide substantial deference on the areas where he was entitle to substantial difference that was on the issue of damages and the court applied the correct standard the snow elson decision which comes before the tri g decision of this court in which the court clearly applied the richardson standard as we suggest it should be applied the snelson decision is entirely consistent with tri g and with richardson and with the decision below which is where the court the found that the loss has to be what has to bear a reasonable relationship to the loss that's just another way of saying it has to be of her she would have been catapulted into that rigid seat and would have suffered much more serious injuries that was precisely the evidence that was a deuced in the in the trial court below that our instructions were in any way defective or incorrect their use of the term defect doesn't put any additional burden on the plaintiff no court has ever held that the court the instructions use the young recently dangerous standard the finding recently dangerous and it set forth all of the elements of risk utility in a design defect case there can be no complaint by the plaintiff if new construction uses the term design defect but it also contains all of the other elements that are necessary for a for the jury to make its final the sunni case is a case from california but this court should follow the souffle case because it's from california or not from california he doesn't have to make that decision because in the callus case it already adopted the school a case and its reasoning if you look at the decision in callus the court cited sue way and quoted its parent article for the following proposition consumer expectations test is only appropriate it must be reserved is the language for situations in which consumers have everyday experiences and in all other cases that's the language from this court's opinion sue way quoting is taken under advisement is agenda number ninety