may please the court i had the pleasure of seeing my friend jeff wright who we've had many cases over the year in reminded him of the  enjoyable professional experience we had together and suggested to him that he tell you that i'm the best lawyer he's ever been against and how much he'd enjoy retrying this case but i think he's going to decline that button in all seriousness we were in complete agreement in the trial regarding instruction fourteen in the need for it in this case without instruction for teen two facts are clear on the record ms was represented as a miscible design defect case and the court refused to instruct the jury on her design defect claim i was civil jury instruction one thousand and two from the pattern instructions was the basis of our instruction fourteen its intitled design defect essential of recovery it's the only instruction submitted containing the essential elements of a design defect claim proposed instruction fourteen was based on that pattern instruction now here's what mr wright said at the instruction conference when judge wally told us that he was declining to give instruction fourteen but did plan to give instruction fifteen which was an instruction putting forward the defenses to a design defect claim in regard to feasibility utility etc as laid out in the supreme court of i was right case here's what mr wright said jeffery i think really think that instruction number fourteen has to be there to explain to the jury what it effectively design product is there is no way to know what is instruction fourteen in large measure serves as the definition as adopted by io of what a defectively designed product is i'm standing here is sure as i am that fourteen and fifteen have to be there for the jury to understand what defectively designed product means or defectively designed gaskin means and he was right he was right judge willy declined to give the instruction and the only rationale that he gave either of us was that the right case which was a case the judge bennett had before him and had given certified questions to the i was supreme court which asked what test should be applied in design defect case was a tobacco case and therefore was going to put a bill here he never explained his rationale beyond that because the the case although it arose in the context of a tobacco a liability issue was really directed at a straight question of law to that i was supreme court about what are the elements of a design defect claim what i want to know is how the instruction contract conference seem to get off track because and one point you both seem to agree that instruction fourteen should be given then as i understand it you were very insistent that there be two instructions one this specifically use the phrase strict liability and judgment he said it isn't strict liability it's negligence and you said you didn't want the instruction of a didn't say strict liability well i think that that did you're right in character as a judge malloy that that got us off track but i mean as the as the  think that that's i'm sorry i'm sorry i think that that's out of context i think that the issue was somewhat of confusion the instruction that we gave to the court fourteen which we submitted and he said we preserve our objection to not giving that instruction didn't contain strict liability or or the designation negligence it's a design defect as one thousand and two did and judge would be changed the instruction to read strict liability based upon what mr wright had submitted in regard to the entire package i thought that i thought that it had to be designated one or the other we submitted the elements of what a design defect was and the instruction laid out what we were claiming the defect was in number three of our submitted instruction and we said the product was in a defective condition at the time it left defendant's control and one of more of the following ways we said that the gasoline container was not equipped with flame arrestors on all openings that the gasoline container was not c the question is is that you are allowed to argue all these things and the judge instructed on design defect essentially said that that was something that the jury could find and what's the magic of failing to point out what you already argued judged the instructions this ruction scary much more weight than the argument of counsel in the jury's told that and the instruction is patterned after one or two because it's important that the jury understand that the court submittable case has been made on these points and he ruled that it had been that those are in fact the facts based on the evidence that we presented instruction twelve i think that the drafting committee in in iowa was following the direction of the supreme court in the right decision that i gave you that you must include all the elements of a design defect in order to submit such a case and they say that they said that it doesn't matter what nomenclature you use as long as the elements are stated and that's found in right and so that's why one thousand and two point one is drafted in this way to meet those requirements now yes or they can move to something else for just a second i think that it's plain that what you're arguing here is that is that there are specific elements they weren't laid out it's not sufficient it's a design defect and even though we argue would argue those specific elements in our closing arguments if you judge had said these are the elements it's really air and it's compound by the fact that they gave the last part of it as the defenses without saying here's what we had to prove that's right i got that but what i'm a little bit maybe perhaps more concerned about is that it looks to me like an reasonable assumption of the risk is is a species of fault which could be considered in comparative fault which frankly most states that's kind of how it's viewed since we've adopted comparative fault statutes but apparently not going around somewhere and i was in theory that unreasonable assumption of the risk is also a defense and so there's a key body of law that says if you give both  instructions that you're really given somebody two bites of the apple yes now it looks like if you were to take out the words that refer to this defense in the second instruction that actually all you've got is it's listed as bites at the apple directing them towards fault of the of the plaintiff which kolker says is a no no you can't do that because it gives one party an advantage over the other and after all we lost this case by five percentage points it's it certainly does appear to be  two bites at the apple as kolker prohibits and judge you're right if he had just used that as a definition without the verdict directing tale two to eighteen perhaps the argument would be better place in and it consistent with but it says if you find this you know it bars the bars his recovery and so i think it directly contradicts the direction of coke or that you ought not do that that if you get contribut instance and so i think that that's that is a fatal flaw one which we caution the court and asked him not to do but he included it at mr wright's suggestion because i mean you know one of the things one of the things that judge  of the same test there still is a difference between strict liability and negligence and you point that out in regard to state of the art and the defense that it can be used against strict liability but not against negligence and the same principle applies here in that assumption of the risk if he was if he really was talking about negligence as mr wright says he was in this instance then assumption of the risk shouldn't come into play in this way in the way that he instructed on it ok well maybe i mean i judge you have a better you know you have a better understanding of law than then than most people and most jurors well except that they assigned him more fault than they did and they got two instructions that told him to do that and you can't discount that under the kolker decision which says if you get contributory negligence you don't get assumption of the risk you see i believe had the court given fourteen as a state as a product defect instruction and properly then given assumption  risk instructions separately from a contributory negligence instruction that could have worked but by mashing them all together calling it negligence then saying that contributory negligence is has a component of  rest just makes a mess of this and the jury found even despite all of these problems that they failed to warn but ascribe to him more fall than tootie p g i think that that's really a problem and i think i point to it as the reason we lost and that's how we thank you george well maybe perhaps except that the facts of the case are no one knew what happened here there was no fire in the burn barrel nobody understood what had occurred in these circumstances but these cans explode for all kinds of reasons independent of using them around fire if there are sparks if it's hot outside   one more minute my first half of the argument is that what i still have in the total in the michael argument ok your honor that i'll save my last minute for  perspective of instruction number fourteen we did state and i said exactly as he quoted that we wanted fourteen but for markedly different reasons than the plaintiff has articulated here today important to instruction number fourteen that was left out and why we had asked for and why we're in this unique situation we presently find ourselves is instruction fourteen actually included language about point of sale and what the knowledge was at the time of the sale of this gas can as far as whether the design was defective or jurors were needed that was left out entirely in instruction twelve and so the plaintiff actually benefit from instruction number fourteen not being there it broadens the ability of the plaintiff to make the arguments that they made honor i'm actually referring to instruction fourteen which would be a done them seventeen which was the instruction ultimately in our view was adopted by the plaintiff in insisting upon strict liability  and paragraph three is a particular paragraph that is of importance as is paragraph four the gas can did not comply with the state of the art at the time of its manufacture the court ultimate proposed instruction fourteen that the court then ultimately elected not to give we were interested in instruction fourteen which is a denim seventeen apologize for the confusion because it points out it pointed out that the plaintiff had to prove knowledge of certain things and and so forth at the time left to control the gas can leaving control those were not present when struction fourteen was not given and it was only instruction eleven twelve and fifteen as the instructions that truly mattered  conveying the plaintiff's case through mister mclean's argument the court hit on a couple of items that this is the three part test was the proposed instructions correct statement of law and did the scope of the instructions even without that proposed instruction cover everything that needed to be covered our position as we submitted in our briefs is eleven twelve and fifteen took care of any  that may have existed by not giving instruction fourteen particularly true as it relates to what the plaintiff had to prove in this case the plaintiff got design defect the introductory paragraph of the or the necessary alternative design that would have reduced the or avoided the first feeble risks the right case mr mclean is correct right case as we don't necessarily care about labels as long as everything is there in does it is it not true that under iowa law you have to protect against forseeable misuse of the product that's true and is not directly pouring gas to start a burn barrel something that is that probably half the farmers in iowa do and it would be a foreseeable risk than the farmers going to use a gas can or gas directly on a burn barrel to get it going that's all absolutely correct and what deals with that word is where does that and where do you word you tell the jury that the misuse of the product can be a first seeable risk it talks about misuse of the product as being compared to fault but it never argue misuse in the plaintiffs did argue if that is the use and it's deemed to misuse that that that is still something that needs to be dealt with the plaintiff argues that length that instruction number fourteen should have been given for that purpose instruction number fourteen that was the only argument that they made as it related to the instructions that said miss you should have the instruction fourteen should have been given to deal with forseeable misuse instruction number case and the kinkel excuse me case but all of those issues are dealt with actually by the instructions and in the compared fault act because misuse of a issues that the plaintiff needed or cared about relative to design defect or he explained that the plaintiff was able to argue that the forseeable risk existed in the nature of flashback explosions from people pouring gas on mentioned a moment ago says as long as everything is there we don't care about the label but we don't want strict liability to be the label we all we want is that all of the elements are there and we submit that these instructions include all the elements explain reasonable m explained to the jury and advise a jury about forseeable risk and the seminal question that really is the answer shows up in instruction fifteen the first sentence of it explains to the jury that a reasonable alternative design could have made the product safe and it's omission made the gas can unsafe that's the real question that they had to answer are you aware of any cases one way or the other that nasa is the instructions  dealt with and i would submit that the instruction twelve is the marshaling instruction it says design or negligent if the gas can was defectively design which is essentially i'm not getting it exactly right but twelve dealt with it and made a design of the can a negligent act and then instruction fifteen tells the jury how to figure out if the can was negligently designed because remember  products case in the case law and i were dating back to one thousand nine hundred eighty nine has said that assumption of the risk is a part of the comparative fault analysis and it's there for the purpose of products liability whether submitted a strict liability fault and so if you're going to compare fault you can figure it in there it can be argued that when you undertake to engage in conduct that faces an open obvious risk and when you go forward that that's some fault is attributable as and that seems to me clearly in a rony a statement of the law that it's no longer a defense what it is it's just part of the body of comparative fault law and so in kolker they say we can't give them two bites at the apple and try to figure out how do we it is the only way that we can distinguish cokers to say yeah this is a products case well it's not the only way and so there's to produce to part two and parts to my answer to your question first of all coker isn't any products case and since the time of coke or the leaf versus good your case five ninety northwest second five twenty five and one nine hundred ninety nine decision was a defective design of a tire case assumption of the risk was apparently instructed and approved by the i was supreme court and so since the time of coker assumption of the risk has been a defense now as it relates to the court's question regarding if they've proven this defense first of all the instruction is go to the comparative fault analysis the second part of it  dealing with if the defense is proven at the risk of not giving jurors enough credit they're just instructed to go to the same place that they're supposed to go to to make a comparative fault analysis i can appreciate as we're sitting here and say the nomenclature of defense versus this defense versus that defense and it's an extra defense defense you know as lawyers we all draw back and say hold on wait a minute it's not an absolute defense the jury undoubtedly doesn't know what the differences between comparative fault and an absolute defense in any event all they know is what we tell and i think that's accurate and it doesn't say dear jury if you find this it's an absolute defense fine for the find for the defendant it only says go to the comparative fault act and  allocate fault as you deem appropriate you made the comment that the jury only knows as much as we tell them and i think that's important as it relates to instruction eighteen assumption of the risk is a bit of a loaded term in the law and they need to know what that meant and i appreciate judge eric's irish i think it was your question is like well this for the if this defense is proven and it gives it highlight something and my comment back to that is but i don't think it does for the primary reason that it just sends the jury to the place but they've got to go to assign comparative fault it doesn't do anything to create anything  compared to four cases under chapter six sixty eight but then goes on to say it is a defense in strict liability but strict liability is under six sixty eight strict liability is under six sixty eight it seems to me to be a c utility and reasonable standard test and that's and that permeates throughout all of this and all of the arguments both on the design defect instruction and on the assumption of the risk construction all of these cases talk about products liability strict liability products liability being both negligence and and and strict liability we're now to a point where it's evolved to just being negligent and the statute hasn't changed and the case law hasn't changed to say that those should not be the assumption of the risk shouldn't be given or the the instructions that were given in this case were insufficient relative to design defect and i see my time is up thank you all for your time which is in instruction fourteen numbers five and six if you look at leaf that he just quoted you leaf says and this is this is quoting leif versus goodyear leaf says the issue is not whether there was misused by running it flat or on inflated but whether such misuse was reasonably foreseeable to goodyear this foreseeability inquiry should rarely be determined as a matter of law it goes on but it cites then another case smith versus air feeds which says that a manufacturer must anticipate the nature of the environment in which the product will be used and designed against the foreseeable risk attending the product use in that in that setting thus if an alteration can be anticipated or controlled by the manufacturer or the particular use of the product is foreseeable liability may be imposed and so those two elements of fourteen and the pattern instruction the citations are that's what they're for so we did not submit a separate instruction we thought the pattern instruction was the safest way to go to submit such an issue to the jury and that's why fourteen is necessary  fifteen does not make that clear and it will yes it's possible to argue anything but the reality is that as a trial lawyer is that the instructions guide the jury home and and arguments are never as persuasive as instructions in my view not including fourteen was an error in this instance and we think we deserve a new trial thank you