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14 Trial Excellence 1 (2002)

handle is hein.journals/jurexp14 and id is 1 raw text is: Trial Excellence T Tactics, Strategies *& Samples L E I Volume 14, Number 1 Challenging Standard Jury Instructions in Products Liability Cases by Mark Young, Esq. All good trial lawyers know the importance of jury instructions. Unfortunately, due to the demands of trial preparation, counsel may fail to invest the time and resources necessary to create an optimal jury instruction strategy. The case which led to the Supreme Court of Wis- consin's decision in Green v. Smith & Nephew AHP Inc., 2001 WI 109, 629 N.W.2d 727 (2001), is an excellent illustration of how strate- gic analysis of jury instructions can play a criti- cal part in securing victory. (And, in this case, making important new law for consumers.) This case involved a dispute over non-standard jury instructions conceived by plaintiff's counsel that led to a landmark decision concerning the CONTENTS Features - Challenging Standard Jury Instructions in Products Liability Cases ............................ 1 Departments - Bell's Trial Weapons .................. 8 Samples & Forms Custom Jury Instructions (Products Liability Case) ........................... 10 Plaintiff's Brief Regarding Custom- Jury Instructions ....................... 12 January, 2002 application of the consumer expectation test and the Restatement 3d of Torts in strict product liability cases. The decision by plaintiff's coun- sel to challenge the state's longstanding instruc- tion on strict liability was the product of (1) the astute identification of what was needed to win with the jury, (2) critical assessment of the pre- cise language of the standard instructions, and This decision is a landmark, not only in Wisconsin, but on a national scale (3) careful analysis of the historical development of the applicable substantive law. When all of these factors align, trial counsel should not shy away from fighting for significant charges't6'standard iry instructions. THE FACTS OF THE GREEN CASE Green was a latex glove product liability case in which the plaintiff, Linda Green, a radiology technologist for a major Milwaukee hospital from 1978 until 1992, became disabled due to a latex allergy and occupational asthma. She was hospitalized numerous times from 1989 through 1991, including one occasion in which she had a nearly fatal episode of anaphylactic shock caused by an allergic reaction to latex. Her doctors were convinced that her allergy and asthma were caused by exposure to natural rubber latex gloves that she used in her work-almost 40 pairs a day, starting in 1986. Of note, there was no known incidence of late'x allergy prior to the expilsion-inuse ,of naibral rubber latex gloves beginning around 1987, © 2002 Esquire One Publishing

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