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108 Ky. L.J. 239 (2019-2020)
Res Ipsa Loquitur: Reducing Confusion or Creating Bias?

handle is hein.journals/kentlj108 and id is 259 raw text is: RES IPSA LoQuiTuR: REDUCING CONFUSION OR CREATING BIAS? Jeffrey H. Kahn' & John E. Lopatka' ABSTRACT The so-called doctrine of res ipsa loquitur has been a mystery since its birth more than a century ago. This Article helps solve the mystery. In practical effect, res ipsa loquitur, though usually thought of as a tort doctrine, functions as a rule of trial practice that allows jurors to rely upon circumstantial evidence surrounding an accident to find the defendant liable. Standardjury instructions in negligence cases, however, inform jurors that they are permitted to rely upon circumstantial evidence in reaching a verdict. Why, then, is another, more specific circumstantial evidence charge necessary or desirable? We describe and evaluate the arguments that have been made in support of and in opposition to the res ipsa instruction. One theory is that jurors are confused in performing their task when given only standard instructions; the charge, therefore, clarifies their task, thereby improving the quality of their decisionmaking. A competing theory is that the instruction biases jurors in favor ofplaintiffs, thereby degrading the quality of decisionmaking. Our theoretical analysis concludes that the bias explanation is stronger. We reach this conclusion by applying for the first-time modern learning on cognition to the res ipsa instruction. To support our theoretical conclusion, we report the results of experiments designed to determine the effects of the instruction. All these experiments were intended first to confirm that the res ipsa instruction has an effect and second to confirm or refute our theoretical conclusion that the instruction biases rather than clarifies. While the empirical results did not demonstrate bias, they also failed to show the absence of bias. Moreover, we found no evidence that the instruction reduces confusion. Our conclusion is that the charge has no positive effect, and either may create a bias or, at best, is meaningless. Harry W. Walborsky Professor of Law, Florida State University, College of Law A. Robert Noll Distinguished Professor of Law, Penn State Law, Pennsylvania State University, University Park. The authors would like to thank Mary McCormick and Sarah Carter for their helpful research on this Article and Professor Justin Sevier for his insightful comments and suggestions on prior drafts.

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