Post on 14-Nov-2021
State Bar Association of North Dakota High School Mock Trial Competition
Ali Zora, Administrator of the Estate of
Lorik Zora, Deceased
v.
Apex, Inc. _______________________________________
SBAND LAW RELATED EDUCATION Changing How Students Think Case Problem for 2017-2018
Adopted from the Virginia High School Mock Trial Program
With much appreciation to the author of this problem
Catherine E. Donnelly, Esq. Mock Trial Chair, Virginia Law Related Education
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Statement of the Case
Life can be a real grind! On July 26, 2017, Lorik Zora, a Thessian national living and working in the United States on an H-2B Temporary Working Visa, was injured while working at a restaurant called Grinderz in North Dakota. He was injured while using the Apex 4600 Industrial Meat Grinder (the “Meat Grinder”), a machine designed to grind large quantities of meat and vegetables. Lorik’s hand got caught in the blades of the machine and paramedics had to free him. He was rushed to the hospital, but because Lorik Zora had a rare blood condition called hemophilia he died as a result of his injuries. It is not clear how the accident happened. Lorik’s closest living relative, Ali Zora, sued Apex, Inc., claiming the meat grinder was defective. Ali alleges that the machine’s safety features were too easy to bypass and that the warning labels were inadequate. Apex, on the other hand, asserts that Lorik deliberately ignored the safety features and used the grinder in a way that they couldn’t predict. Who is right and who will prevail? The plaintiff’s legal team must decide whether to base its legal theory on defective design, inadequate warning labels, or both. The defense’s legal team must decide how to respond and must consider whether someone else’s actions may have been the real culprit. Below are the available witnesses. Each side must call all three witnesses, but may do so in any order. All witnesses have unisex names and may be played by either gender.
Plaintiff Witnesses Ali Zora
Sam Myers Madison Lambert
Defense Witnesses Dani Winters
Loren Michaels Sydney Applegate
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Special Instructions
The following instructions provide important information and guidelines for the teams. These
instructions are NOT an exhibit and may NOT be entered into evidence nor referenced during
competition rounds. However, the teams are bound by these instructions and any act that
contravenes these instructions during a round will be deemed a violation of the mock trial rules
and may be grounds for a post-trial deduction of points. A dispute that arises under these
instructions is the only time a copy of these instructions may be provided to the presiding
judge.
1. Because the true plaintiff in this case, Lorik Zora, is deceased, each plaintiff’s team may
utilize a photograph of Lorik Zora. The photograph must comply with the following
guidelines and may NOT be offered into evidence (it may be used for demonstrative
purposes only):
a. The photo must depict ONLY Lorik Zora and no other individual.
b. Lorik Zora must be male and appear to be approximately 18 years old.
c. The photo may not be larger than 8 ½ inches by 11 inches (the size of a regular
sheet of paper). It may, however, be smaller.
d. Only one photo may be used.
e. A sponsors/coaches meeting will be held at the beginning of the tournament. At
the end of that meeting sponsors/coaches will be asked to submit the photo of
the plaintiff that their teams wish to use. The Tournament Director will examine
each photo. The Tournament Director may reject a photo if it does not comply
with these rules or is otherwise unfairly prejudicial. The Tournament Director
has the sole authority to accept or reject a photo. Teams may bring multiple
options in case one is rejected.
f. If the photo is acceptable, the Tournament Director will place a special stamp on
the back of the photo. Any photo not bearing this stamp cannot be used during
the tournament. The plaintiff team should show the defense team the photo
before the start of each round to demonstrate that it bears the stamp of
approval. The defense team may also ask to see the photo in order to verify the
stamp. The plaintiff team may not refuse to show the photo prior to the round
and then surprise the defense with it during the round.
2. Thessia is a fictional country that has been created for this case. Thessian is the official
language of the country. The plaintiff team is permitted to invent a culture and
geographical location for Thessia that may be referenced by their witnesses and all
subsequent witnesses. As always, these inventions of fact may not be material to the
case.
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3. The plaintiff may only argue a theory of strict liability based on defective design and/or
inadequate warning labels. The law as stated in the jury instructions is binding and
should be used to guide the parties. The plaintiff may argue defective design or
inadequate warning labels or both.
4. The affidavits have been signed by the person listed in the title of the affidavit (and
undersigned at the bottom) and properly notarized. No witness may state that his or
her signature does not appear at the end of his or her affidavit, and he or she must
agree that they gave the statement and signed it if asked.
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Stipulation of Facts
The parties have stipulated to the following facts in this case. A copy of this document may be submitted into evidence by any party at any time.
1. Lorik Zora was pronounced dead at 7:48pm on July 26, 2017, at St. Mary’s Hospital. The cause of death was blood loss from multiple lacerations on his right hand and forearm. Lorik Zora had severe hemophilia – a rare condition that prevents blood clotting and can result in the body not being able to stop bleeding.
2. The parties agree that all of the exhibits in this case are what they purport to be. The parties waive all objections to authenticity. However, the parties reserve any other objections that may apply.
3. Pursuant to the agreement of the parties and by court order, this case has been bifurcated. The initial trial will be on liability only and a separate trial on damages will be held only if the plaintiff prevails.
4. The meat grinder involved in the incident was an Apex 4600 Industrial Meat Grinder. The meat grinder was manufactured and sold in 1967 by Apex, Inc. Although Grinderz was not the original purchaser of the meat grinder, the parties stipulate that the original purchasers did not alter the machine in any way.
5. The Exhibit labelled “Apex 4600 Industrial Meat Grinder Factory Model” is a photograph of what the meat grinder would have looked like when it shipped from the factory. It is not a photograph of the actual meat grinder involved in the incident. There is no photograph of the actual machine because the machine was destroyed by paramedics. If the photo is admitted into evidence, then either party may request a limiting instruction to the jury that the photo is not of the actual machine involved in the incident and is merely for illustrative purposes.
6. The parties have conferred and agreed on the jury instructions provided in this case. The parties agree that the jury instructions are an accurate statement of the law. A copy of the jury instructions may be provided to the judge and may be referenced during closing statements or during objections.
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Affidavit of Ali Zora
My name is Ali Zora and I am the closest living relative of Lorik Zora. Lorik’s mother was 1
my sister, and Lorik was my nephew. Although I was born and raised in Thessia, I came to the 2
United States for college. After completing college, I decided to immigrate to the United States 3
permanently and have lived here ever since. I am the only person in my family to live outside of 4
Thessia. Although Thessian is my native language, I am completely fluent in English. 5
Lorik was a wonderful person and I loved him like a son. He was born and lived most of 6
his life in Thessia. I would see him whenever I went back to visit family, and I would often speak 7
with him on the phone or via Skype. Lorik’s parents passed away in a tragic car accident when 8
he was 18 years old. He was devastated, and I could tell that he was feeling lost without them. 9
Coming to America when I was 18 was the best thing to ever happen to me, so I suggested that 10
Lorik come stay with me. I thought it would be a chance from him to start a new life. 11
Lorik and I worked together to obtain a work visa for Lorik, and once all the paperwork 12
was complete he came to live with me in the United States. To my knowledge, Lorik had never 13
been outside of Thessia before coming to live with me. Coming to America was both exciting and 14
scary for Lorik, and it definitely was a culture shock. He did not speak English very well. Like 15
most children in Thessia, he had taken English as a course in school but never became proficient. 16
He also knew a few phrases from TV shows or movies or music from America. The language 17
barrier made it hard for him, but Lorik was eager to learn and I was giving him English lessons at 18
home. Most of the time we would speak Thessian at home, but I would try to mix in English and 19
get him used to the language. Lorik seemed to struggle with stringing sentences together, but 20
he had a pretty good vocabulary. I definitely think he would have recognized the words 21
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“warning,” “caution,” and “danger” if he saw them; at the very least he would have known the 22
words have to do with safety, and he probably would have asked someone to explain the 23
meaning to him. 24
When Lorik came to live with me, our ultimate hope was that he would assimilate into 25
American culture, become proficient in English, and eventually apply to college. Lorik really 26
believed in the American dream. He wanted to put his parents’ deaths behind him and create a 27
new and better life for himself. He wanted to start a family and raise his children here. It tears 28
my heart out that he will never get that chance now. 29
To help Lorik get used to America and to try to improve his English, I helped him get a job 30
at Grinderz. It is well known in the community that Grinderz hires a lot of Thessian immigrants. 31
I figured it would be the perfect job for Lorik because there would be plenty of people who spoke 32
Thessian who could help him out, the job didn’t require any special skills, and he could start 33
saving money for his education. Lorik began working in the kitchen and worked at Grinderz for 34
about three months before the accident. I don’t really know anything about what Lorik did on a 35
daily basis at work or anything else that went on at Grinderz. 36
On July 26, 2017, I received a phone call that would change my life forever. I got a call 37
from Dani Winters, the manager at Grinderz. Winters told me that there had been an accident 38
at the restaurant and that Lorik was hurt. I asked Winters what that meant. Winters said 39
something vague about Lorik’s hand or arm getting caught in a machine. Then Winters told me 40
that paramedics had taken Lorik to St. Mary’s Hospital. After saying that I should probably go to 41
the hospital, Winters hung up. 42
I immediately hopped into my car and drove to the hospital. I was terrified – especially 43
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because I didn’t know what to expect. I also knew that Lorik had severe hemophilia. He took 44
medication to keep it under control. When I got to the hospital, I rushed inside and explained 45
that I was looking for my nephew. I also told the receptionist about his hemophilia so that he 46
could tell the doctors. I discovered that Lorik had been taken to the intensive care unit and I was 47
told to wait. I waited for twenty minutes. It was the longest twenty minutes of my life. Then a 48
doctor came out and told me the worst thing I could possibly hear: that Lorik had died from blood 49
loss. 50
When I asked what happened, the doctor told me that, according to the paramedics, 51
Lorik’s hand and arm had been trapped in a meat grinder at Grinderz. They had to dismantle the 52
machine to free him, which took time, and then had to transport him to the hospital. They didn’t 53
know about the hemophilia until I arrived, but by then it was too late. Lorik had lost too much 54
blood, and he died before they could save him. 55
I feel so guilty about what happened. I keep thinking that if I hadn’t encouraged Lorik to 56
come to America, if I hadn’t gotten him that job, then he might still be alive. Not only did I lose 57
my sister, but then I lost her son when I should have been taking care of him. 58
But I also blame Apex, and I blame Grinderz too. Apex made the machine that killed Lorik 59
and they should have designed it so that something like this could never happen and included 60
better warnings. Grinderz should have trained Lorik better, and they should have been watching 61
out for him. I want to hold Apex and Grinderz responsible for what they did. I want them to pay 62
for what they did to Lorik and what they did to me so that someone else’s son or nephew does 63
not get injured or killed.64
(signature on following page)
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Subscribed and sworn before me this 23rd day of August, 2017
__________/s__________
Ali Zora
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Affidavit of Sam Myers
My name is Sam Myers. I used to work at Grinderz, and I worked with Lorik Zora. I quit 1
because after seeing what happened to Lorik I just couldn’t stay there anymore. 2
I am still in high school and worked at Grinderz part-time as a server. I was born in 3
America but my mom is Thessian. My parents met when my dad studied abroad in Thessia and 4
eventually they got married and settled down in America. We speak Thessian a lot at home so I 5
am fluent in both Thessian and English. That really came in handy at Grinderz because they hire 6
a lot of Thessian immigrants. When I was waiting tables I mostly spoke English with the 7
customers, but back in the kitchen people pretty much only spoke Thessian. 8
Lorik started working at Grinderz sometime in the Spring of 2017. He worked in the 9
kitchen doing odd jobs: dishwashing, cleaning, basic food prep – pretty much whatever needed 10
to be done. I really liked Lorik. He was a little shy, which I always assumed was because he had 11
not been in America long, but he was really nice. He would always ask me how I was doing, and 12
he would often ask my advice about American culture. It was kind of cool being able to show 13
him the ropes even though I was a little bit younger than he was. He never treated me like a kid. 14
New employees are usually trained by Dani Winters, the manager at Grinderz. I didn’t 15
see Dani train Lorik, but if it was anything like my training, then it wasn’t that thorough. You 16
basically had to learn by doing at Grinderz. I think Dani spent like half an hour, tops, on my 17
training. The other employees had to pick up the slack and show me what to do. From what I 18
saw, that was how it was for everyone who started working there. 19
Anyway, I’d been around long enough by the time Lorik started that I knew I would need 20
to help him out. Even though I’m a server, I often helped out in the kitchen during the slow hours. 21
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I would usually pitch in before the hectic dinner shift so that things would go more smoothly 22
when I was actually serving. I knew how to operate all of the appliances in the kitchen. I showed 23
Lorik how to use the industrial washing machine and how to do basic food prep. A lot of food 24
prep is really gross. For example, we make our own ranch dressing in-house and it requires using 25
these commercial-sized drums of mayonnaise. It’s disgusting. Or de-veining and de-pooping 26
shrimp; ugh, I’ll never eat shrimp again. 27
One job managed to combine being gross with also being really boring: meat prep. 28
Grinderz had this huge meat grinder from Apex, Inc., and we would grind our own meat in-house. 29
The restaurant specializes in gourmet sandwiches so we’d always be grinding meats for that. It 30
was basically like a box with a hole at the top. The hole was maybe six inches across. You drop 31
meat into the hole, it gets ground up inside the box, and then comes out a chute on the side. You 32
can’t really see what’s inside the box when you look down into the hole, but I always assumed 33
there had to be blades and stuff in there because something had to be grinding up the food. 34
Anyway, sounds simple, right? Well, no. There was also this metal grate that normally was 35
supposed to sit over the hole at the top. The grate looked almost like a large shower drain. There 36
were spaces just wide enough for you to put small chunks through. 37
We also used the grinder to grind up vegetables, and that was never a problem. The 38
vegetables were either already a good size or could easily be cut to fit inside the grate. We always 39
kept the grate on the machine when we were grinding vegetables. The problem was grinding 40
meat. If you were trying to grind a flank of beef or a whole breast of chicken or something, you 41
would have to first cut the meat into chunks that would fit through the grate. Of course, this 42
made no sense. Meat is a lot harder to cut than vegetables and takes a long time (especially 43
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when you’re doing it at such a large volume). The whole point of the meat grinder was to make 44
the work easier, not harder. 45
Normally if you took the grate off the machine, then it wouldn’t run. That was great for 46
when it needed to be washed and stuff so that nobody would get hurt. However, if you were 47
grinding up meat, you could put the bowl on top of this switch, which was right next to the 48
opening at the top and was accessible with the grate removed. With the bowl pressing down on 49
the switch, the grinder would work even with the grate off. So, everyone at Grinderz would just 50
do that whenever they had to grind meat. We would just place the bowl or a tray on the switch 51
and then stand there and drop the meat into the unobstructed opening. This was way faster 52
than trying to cut the meat into small pieces to fit through the grate and way easier. 53
I remember teaching Lorik how to use the Apex meat grinder. I explained that he should 54
keep the grate on for vegetables but take it off for meat. That’s just what everyone did. I never 55
saw a manual for the machine, and there definitely weren’t any warning labels on it telling you 56
not to do that. I even remember one time I was trying to use the meat grinder with the grate on 57
and Dani Winters yelled at me to do it the usual way instead to speed things up. I just did it the 58
way everyone else did after that. 59
I was working at Grinderz on July 26, 2017. I was working the dinner shift. Lorik was there 60
too. I chatted with him before things got busy and everything seemed normal. After the dinner 61
rush began, I only saw Lorik from time to time when I would go into the kitchen to fetch food. At 62
one point, I remember seeing him by the Apex meat grinder. He had a bunch of chicken breasts 63
and had taken off the grate and put a bowl on the switch. I saw him start to drop chicken into 64
the machine. Lorik was pretty tall, so the top of the grinder came up to about his waist. 65
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I stopped paying attention to it because it seemed pretty normal. I had to focus on getting 66
my food out. I remember talking to the cook, making sure my order was all ready to go, when 67
suddenly I heard a horrible scream. I turned and saw Lorik sort of hunched over the meat grinder. 68
He was panicking and struggling. I was really confused at first – it felt like time was moving in 69
slow-motion, like I couldn’t really process what was happening. Then I realized that Lorik’s right 70
arm was in the meat grinder. He must have accidentally tripped or something because his arm 71
was in the opening up to his elbow. All at once everyone in the kitchen rushed to help him. We 72
tried to pull him back but his arm was caught in the blades. Luckily someone had the idea to pull 73
the plug and stop the machine, but we still couldn’t get Lorik free. 74
I pulled out my cellphone and immediately dialed 911. I told them what had happened 75
and to send an ambulance right away. It must have only been a few minutes, but it seemed like 76
forever for the ambulance to arrive. Lorik looked really bad. There was blood everywhere and 77
he looked really drained and pale. He kept asking what was going to happen. Nobody had an 78
answer. 79
When the paramedics finally arrived they had to unscrew the bolts on the machine and 80
tear it apart to get Lorik free. When I saw Lorik’s arm caught in the blades I nearly threw up. I 81
had to step out of the room. I was pretty shaken up and so much was going on; I don’t really 82
remember what all happened after that. I know the paramedics took Lorik away, and I found out 83
later that he died at the hospital. 84
I’ve thought about what happened to Lorik a lot since then. The more I think about it the 85
madder I get that there were no warnings on the meat grinder. I mean, the name of the company 86
– Apex – was bolted to the side in big, bold letters. I’ll never forget it. Would it have killed them 87
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to put a warning about the grate? 88
Anyway, I’m really sorry about what happened to Lorik. I really miss him and wish it had 89
never happened. I quit working at Grinderz the next day. I just couldn’t go back after that.90
Subscribed and sworn before me this 4th day of October, 2017
__________/s__________
Sam Myers
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Export Report of Madison Lambert
Issue:
To determine whether the design of the Apex 4600 Industrial Meat Grinder
(the “Meat Grinder”) was dangerously defective.
Findings:
The Meat Grinder is dangerously defective in two ways: (1) the design is
defective, and (2) the warning labels were inadequate. I have divided my report
to discuss each of these two defects.
Part I, Defective Design, identifies the following design defects: (1)
the feed cylinder’s diameter is too wide and allows a human hand to pass
through it; (2) the safety guard (or grate) covering the feed can easily be
removed; and (3) the safety interlock is too easily bypassed.
Part II, Inadequate Warning Labels, identifies the following label
defects: (1) the warning label is not clearly worded; (2) the warning label is
not conspicuously placed on the machine; and (3) the warning label is not made
to continue for the life of the machine.
Resources Used and Time Spent on Report:
To create this report I have consulted the following documents: (1) the
affidavit of Sam Myers, (2) the affidavit of Dani Winters, (3) the affidavit of
Sydney Applegate, (4) the Installation Diagram for the Apex 4600, (5) the
Chopper Unit Diagram for the Apex 4600, (6) the Apex 4600 Industrial Meat
Grinder Factory Model photograph, and (7) and the Standard Warning Label for
the Apex 4600 Industrial Meat Grinder photograph. I also gained access to the
same model meat grinder and used it to take measurements and deconstruct for
further inspection. I spent 40 hours on this case.
Description of Meat Grinder:
The Meat Grinder is constructed so that a feed pan, which resembles in
appearance a large sink, sits atop a boxed-in motor system. On one side the
feed pan contains an opening that connects to a funnel. This type of funnel is
often referred to as a cylinder by professionals in the field. The cylinder
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empties into a pipe that contains a horizontal worm (corkscrew blade) that
grinds up organic matter. The worm pushes the matter out of the pipe through
an opening. Over the top opening to the cylinder sits a guard-grate that is
intended to prevent objects that are too large from passing through. The guard-
grate sits atop an interlocking system and compresses a plunger1 that completes
an electrical circuit necessary for the grinder to operate. If the plunger is
not compressed, then the machine cannot run.
Part I: Defective Design
A. The Cylinder Diameter Is Too Small
At its narrowest point the cylinder of the Meat Grinder measures 4 inches
in diameter. This is large enough for most human hands to pass through.
The Meat Grinder should have been designed with what is known in the
industry as a “safety feed throat.” This would reduce the diameter of
the cylinder to 2.5 inches, too small for a human hand to pass through.
Although I was not able to test how a safety feed throat would affect the
efficiency of the Meat Grinder, the design is utilized in many household
appliances. When designing machines that utilize superior motor-power or
contain sharp, fast-moving implements, it is always the best practice to
ensure that human appendages cannot access the most dangerous parts of
the machine. This is best achieved by making these parts completely
inaccessible in some way.
B. The Safety Guard Is Too Easy to Remove
Apex’s one attempt to prevent human contact with the blades is the guard-
grate that sits over the interlocking system. However, this guard-grate
was far too easy to remove. It did not require any tools to disassemble
and the grate could simply be lifted off. I acknowledge that industry
standards require that the guard-grate be removable, i.e., not bolted to the feed pan, so that the machine can be washed properly. Sanitation,
after all, is an important part of design as well. Yet, Apex could have
1 Both Dani Winters and Sam Myers refer to this as a “switch” in their testimony. Although
it is clear what they are referring to in their own layman’s term, the proper industry term
for this part of the machine is “plunger.” A switch typically describes an input device that
allows a user to select between one of two positions (i.e., an on/off switch), and the switch typically stays in that position until manually altered. A plunger, like the one used by the
Meat Grinder, is an input device that alters a default setting when compressed. For example,
the Meat Grinder’s default state is not to run an electrical circuit unless the plunger is
compressed by the safety gear.
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done more to make the guard-grate harder to remove. For example, requiring
minor tool usage to remove the guard-grate does not violate industry
standards and would have deterred inadvertent removal. Another solution
might have been to design the guard-grate so that it had to be screwed
into place. While determined employees could still remove the guard-
grate, the additional effort might have given them pause and reason to
wonder whether the guard-grate was there for safety purposes.
C. Bypassing the Interlock Is Too Easy
I applaud Apex for taking the precaution of designing an interlock system.
In theory, conditioning the electrical circuit on the presence of the
guard-grate was a great design choice. However, as this case well
illustrates, the interlock system was too easy to bypass. Employees at
Grinderz were able to bypass the interlocking system by placing a bowl or
other object on top of the plunger. It would have been better to design
a system whereby the guard-grate was absolutely required to complete the
system. This could have been achieved by designing a slot which the
guard-grate fit into rather than a plunger on top of which it sat.
Essentially, the guard-grate would act as a key in a door lock. Although
this would be more expensive to manufacture than the current system, it
would have been considerably safer.
Part II: Inadequate Warning Label
When the Meat Grinder shipped from the factory in 1967 it would have had a
single warning label affixed to the side, near the control switch. This warning
label is white and yellow and contains the industry standard symbol for moving
parts capable of crushing. I have identified three problems with this label.
The label violates the three C’s of good warning label design: clear,
conspicuous, and continuing.
A. The Warning Label Is Not Clearly Worded
Throughout my career I have learned that warnings are most effective if
they contain plain language that does not go above a fifth grade level.
Simple words that clearly convey the danger are the best practice. The
Apex warning label does not clearly convey the danger, which is that
sticking one’s hand inside the cylinder could lead to contact with the
blades, resulting in personal injury or even death. The warning, as
worded, would likely not be clear to the average, native English speaker;
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it almost certainly would not be clear to a non-native English speaker.
While the word “cylinder” may be the industry-appropriate term for the
funnel on the Meat Grinder, it is not a term with which most lay people
would be familiar. As evidenced by the affidavits of Dani Winters and
Sam Myers, the employees at Grinderz tended to think of the cylinder as
just a “hole” in the machine. The term “electrical interlock” is
also far too technical. Although some employees may have reasoned that
the plunger was part of an electrical circuit, many lay people probably
would not have reached the same conclusion. Apex made the mistake of
putting too much technical jargon on the warning label and thus rendering
it ineffective. The only redeeming quality of the warning label design
is the use of the international symbol for parts capable of crushing.
Although this does not accurately convey what would happen if an appendage
came into contact with the blades, i.e., that said appendage would be cut, it does convey danger and the possibility of injury.
B. The Warning Label Is Not Conspicuously Placed
It is worth noting that there was only one warning label on the Meat
Grinder, and that label was placed next to the on/off controls. According
to the affidavit of Sam Myers, the top of the Meat Grinder came up to
Lorik Zora’s mid-torso. This would have put the label well below eye
level. Warning labels are most effective when they are placed somewhere
where they are impossible to ignore. I would have placed the label
somewhere near the top of the machine, near the feed cylinder so that an
operator would be forced to see it when he or she looked down.
C. The Warning Label Is Not Continuous
The warning label was affixed to the Meat Grinder in the form of a sticker
and therefore was not designed to be continuing. A machine like the Apex
Meat Grinder is built to last decades. A good warning label should
continue for as long as the product continues. In this case, the label
would need to withstand decades of machine use. With that in mind, I
cannot imagine why any product designer would deem a sticker to be
sufficient. It is my understanding that at the time of Lorik Zora’s
death, the warning label was no longer on the Meat Grinder. Dani Winters
supposes that it washed off, but no one appears to know when or how it
happened. It is entirely probable that Lorik Zora never saw the warning
label at all.
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Conclusion:
The Meat Grinder is dangerously defective due to defective design and
inadequate warning labels. The design is defective due to the diameter of the
cylinder which permits a human hand to reach the worm, the ease by which the
safety guard can be removed, and the ease by which the safety interlock can be
bypassed. The warning label is inadequate because it violates the three C’s
of warning label design: it is not clear, conspicuous, and continuous. For
these reasons the Meat Grinder is dangerously defective and it is my opinion,
based upon a reasonable understanding of the case, that these defects
proximately caused the injury to Lorik Zora.
I am available for any further questions or inquiries.
Sincerely,
Madison Lambert
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Curriculum Vitae of Madison Lambert
Education
• B.S. in Mathematics, cum laude, Northwestern University (1990)
• M.S. in Mathematics, Northwestern University (1995)
Certifications and Other Qualifications
• Certified Manufacturing Engineer
• Member and Course Instructor for the American Society of Mechanical Engineers
Professional Experience
Lambert & Collins Consulting P.C., CEO, 2009 – present
Founding partner and CEO of mechanical engineering and design consulting firm.
Advises companies on how to better design and test products. Provides expertise in
products liability cases. Has testified as an expert in mechanical engineering and product
safety in over 50 court cases.
KitchenAid, Chief Design Engineer, 1999 – 2009
Led the design team for KitchenAid appliances. Involved in every stage of the design
process from concept to testing. Designed over 40 products.
U.S. Consumer Product Safety Commission, Product Safety Investigator, 1995 – 1999
Investigated injuries or deaths associated with consumer products and prepared reports of
findings. Worked with local, state, and federal agencies to implement spread of public
information and education.
Publications
• The Explosive Ford Pinto: What We’ve Learned Since Then, Mechanical Engineering
Magazine (2012)
• Current Trends in Product Safety, Mechanical Engineering Magazine (2003)
• Unplug It First! A Beginner’s Guide to Product Safety, Mechanical Engineering
Magazine (1997)
Fee Structure
$400/hour for preparation of expert report
$4,000/day to testify at trial plus any travel or lodging expenses
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Affidavit of Dani Winters
My name is Dani Winters and I am the manager of Grinderz. I’ve been the manager for 1
over 15 years. Lorik Zora was one of my employees at Grinderz and I was working on the day 2
that he had his accident. 3
Grinderz is a pretty successful business. We have a couple of locations throughout the 4
state. We’re also pretty well known for hiring a lot of Thessian immigrants. Our critics like to say 5
that we do it for cheap labor, but we really just believe in providing good jobs to that community. 6
Anyway, it means that I have to be fluent in both English and Thessian because some of our 7
employees don’t speak English that well. 8
Lorik was one of those employees who didn’t speak English very well. He knew some 9
basic stuff like greetings and how to count and stuff, but he definitely wasn’t fluent. So I assigned 10
Lorik to work in the kitchen where he wouldn’t have to interact with customers. He washed 11
dishes, helped with basic food preparation, and did some cleaning. I trained him myself. We 12
spent a whole day just on training and, of course, I supervised all of his work and would correct 13
any mistakes that I saw. Dishwashing and cleaning are pretty straight-forward, and he picked 14
those up quickly. Food prep is a little more complicated just because it varies so much and we 15
have our own internal policies about how things should be done. Even the most basic things like 16
preparing side salads has to be uniform and done the same way every time. 17
I spent the most time training Lorik on the industrial machines that we use on a regular 18
basis. In particular, I spent time training him on how to use the Apex Meat Grinder. That meat 19
grinder has been at the restaurant longer than me. I think it was built in the 1960s. Those things 20
are built to last forever and they practically never break down. They’re also really simple to use 21
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when you get right down to it. There’s a hole at the top with a guard-grate over it where you 22
drop in meat or vegetables. The food gets chopped up by the blades inside and then the chopped 23
pieces come out. 24
I showed Lorik how to use the machine. I also told him to always keep the guard-grate 25
over the feeder because it was there for safety. It prevents someone from getting their hand 26
into the meat grinder. I told him that the only time the guard-grate should come off is when he 27
was cleaning the machine (we use a high pressure hose to get inside the machine as instructed 28
in the cleaning manual). When the guard-grate is over the feeder it sits on top of a switch that 29
makes the machine run. But when you take the guard-grate off, the switch isn’t pressed down 30
so the grinder can’t run. I don’t really understand the particulars of how it works, but the basic 31
idea is simple: when the switch is pressed down the machine works and when it isn’t pressed 32
down it doesn’t work. 33
On July 26, 2017, the day started off normal. I went in and out of the kitchen throughout 34
the day to supervise, but I spent a lot of my time in my office or supervising the main floor of the 35
restaurant. I wasn’t in the kitchen when Lorik’s hand got stuck in the Apex meat grinder. I was 36
on the phone with one of our suppliers when one of the employees came running into my office 37
in a panic. He told me that there had been an accident in the kitchen and that I should come 38
right away. I ended my call and went to investigate. That’s when I saw all of our employees 39
gathered around Lorik and the meat grinder. Lorik’s right arm was in the feeder up to his elbow. 40
It was a pretty sickening sight. 41
People told me that he was stuck and that someone had called 911. I asked everyone 42
what had happened and no one really knew. Some people said that Lorik had been using the 43
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meat grinder normally and it just happened. I shouted that obviously he hadn’t been using it 44
normally because the guard-grate should have been in place and prevented this from happening. 45
The paramedics came, and they had to dismantle the meat grinder to free Lorik’s hand 46
from the blades. Lorik had passed out before they even finished freeing him. I had to shut down 47
the restaurant and send all the customers home without paying. After the paramedics took Lorik 48
away, I called the owner of Grinderz and told her what had happened. Then I pulled Lorik’s 49
employee file and found his emergency contact information. I called Ali Zora and explained what 50
had happened to Lorik. I didn’t find out until several hours later that Lorik had died at the 51
hospital. 52
What happened to Lorik was tragic, but it wasn’t my fault and it wasn’t Grinderz’s fault. 53
But Ali Zora wasted no time suing Grinderz over it. That really got me angry. I understand that 54
Ali Zora was upset and grieving, but Lorik was using the meat grinder against company policy. 55
We shouldn’t be held responsible over what he did. If the guard-grate had been over the feeder 56
like it was supposed to be, then none of this would have happened. The restaurant ended up 57
settling the case out of court. I don’t think we should have paid a dime, but at least we never 58
gave in and admitted to doing something wrong when we didn’t. I’m glad to at least have the 59
chance to set the record straight now. 60
I got asked a lot of questions about how we trained our employees. Like I said before, I 61
always trained the employees to use the meat grinder only when the guard-grate was in place. 62
It was not our practice to take it off when we were using the machine. It’s true that that rule 63
isn’t in the employee handbook or anything, but we don’t put every single rule in the handbook. 64
If I ever saw an employee using the meat grinder without the guard-grate on, I would have yelled 65
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at them to use the guard-grate. We don’t take safety lightly. 66
I also got asked a lot of questions about warning labels on the machine. I am sure there 67
was a warning label on the machine when I first started at Grinderz back in the early 2000s. I 68
don’t remember exactly when, but at some point the warning label must have fallen off when 69
the meat grinder was washed. I know it wasn’t there the day of the incident because after the 70
paramedics tore the machine apart nobody found the warning label. I don’t know if Lorik ever 71
saw it. But even if he had, his English was so poor that I doubt he would have understood it. 72
I remember the warning label was a sticker and that it was right next to the on/off switch 73
on the side of the machine. You couldn’t use the meat grinder without seeing the label right 74
there. Like I said, the machine was pretty old, and I guess enough washes with a high-pressure 75
hose finally took the label off. I’ve seen the picture of the warning label called “Standard Warning 76
Label for the Apex 4600 Industrial Meat Grinder,” and that picture accurately reflects what the 77
warning label looked like.78
Subscribed and sworn before me this 20th day of December, 2017
__________/s__________
Dani Winters
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Affidavit of Loren Michaels
My name is Loren Michaels, and I am the Chief Design Engineer for Apex, Inc. Although I 1
didn’t personally design the Apex 4600 Industrial Meat Grinder (because it was designed back in 2
the 1950s, before I worked for Apex), I have worked on the entire series of Apex Meat Grinders 3
throughout my career at Apex and am very familiar with their design and how that design has 4
changed over the years. I am the proper custodian of all design records associated with the Apex 5
4600 Industrial Meat Grinder and any other machine in that series. 6
I have worked for Apex for about 20 years. I worked my way up from Tester all the way 7
to Chief Engineer. I have my B.S. in Engineering from North Dakota Tech and my M.S. in 8
Mechanical Engineering from MIT. I am a certified Mechanical Engineer. 9
The Apex 4600 is elegant in its simplicity of design. In fact, it works so well that the design 10
has barely changed in over 50 years. On the outside it looks like a large box with a sink-like pan 11
sitting on top and a tube jutting out of the side. What most people probably don’t realize is that 12
the box portion of the machine entirely houses the motor. All of the magic actually happens in 13
the cylinder leading down from the feeding pan to the tube, where a worm gear (a corkscrew-14
like blade) grinds up meat. The only human input needed is an operator to feed meat into the 15
cylinder. 16
I’ve reviewed a number of documents in this case, namely (1) the Installation Diagram for 17
the Apex 4600, (2) the Chopper Unit Diagram for the Apex 4600, (3) the Apex 4600 Industrial 18
Meat Grinder Factory Model photograph, and (4) and the Standard Warning Label for the Apex 19
4600 Industrial Meat Grinder photograph. I have also read the affidavits of Sam Myers, Dani 20
Winters, and Sydney Applegate. Finally, I read the Export Report submitted by Madison Lambert. 21
26 | P a g e
I used the information contained in those documents to reach my own expert opinion about what 22
happened in this case. 23
First, Madison Lambert opined that the Apex 4600 should have been designed with a 24
safety feed throat, i.e., a much smaller funnel or cylinder. Lambert’s suggestion overlooks the 25
practicality and financial feasibility of such a design. The Apex 4600 is designed to be used on an 26
industrial scale. It is not some household appliance you put in your kitchen to chop up some 27
veggies for a salad. It must be able to process a large quantity of food within a matter of minutes. 28
The Apex 4600 was tested with cylinders of various sizes, and the current dimensions provided 29
the smallest cylinder that could still perform at the industry-level standards. Following Lambert’s 30
advice would have rendered the Apex 4600 useless. 31
Second, Madison Lambert opined that the safety guard was too easy to remove. As 32
Lambert concedes, industry regulations require that the guard-grate be easy to remove for 33
sanitation purposes. The Apex 4600 is used to process food, and it is important that it be easy 34
and efficient to clean in order to satisfy food safety standards. The current design is in accord 35
with industry standards. Lambert suggests a different design, which would have cost much more 36
to manufacture. That cost would have had to be passed on to consumers, thereby raising the 37
cost of the machine. It would not have made financial sense to design the safety guard in the 38
way that Lambert suggests, especially when the Apex 4600 already conformed to industry 39
standards. 40
Third, Madison Lambert opined that the interlocking system should have been even 41
harder to bypass. This is absolutely baffling to me. The interlock system was designed to ensure 42
that the meat grinder could not run without the guard-grate in place. It is one of the most 43
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efficient and ingenious features of the Apex 4600. Lambert even acknowledged that the interlock 44
system was a good design choice and applauded Apex for including it in the first place (Apex went 45
above and beyond the industry standard here). 46
After reading the affidavit of Sam Myers, it seems clear to me that the employees at 47
Grinderz understood perfectly well that the interlock system was designed to prevent use of the 48
machine when the guard-grate was not in place. Employees apparently went out of their way to 49
concoct a work-around to cheat the system. Clearly, nothing about the Apex 4600’s design would 50
suggest that a user was supposed to put a bowl of chicken on top of the plunger. They came up 51
with this workaround to make their work easier with little regard for their own safety. There is 52
no way Apex could have foreseen this unconventional work-around. 53
I don’t see how Apex could have designed the machine any safer. Lambert suggests 54
designing the interlock system so that it functions more like a key-insertion mechanism; this 55
would be much more expensive to manufacture, as the parts would become more specialized. 56
In fact, I know from the design records that I have reviewed that alternate designs were 57
considered but found to be too expensive. 58
Finally, Madison Lambert opined that the warning label was inadequate. I couldn’t 59
disagree more. The label incorporates a bright yellow color and clearly says “WARNING” at the 60
top. It contains the international symbol for moving parts capable of crushing – which is a hand 61
being crushed between two rotating circles. I’ll admit that maybe the language could be simpler, 62
but it’s not as if children would be using the meat grinder. This is a large piece of industrial 63
machinery; the danger should be perfectly obvious to an operator even without a warning label. 64
In fact, based on my review of the employee affidavits, the employees at Grinderz were aware of 65
28 | P a g e
the danger associated with the Apex 4600 and understood how the machine worked. 66
Lambert also opines that the label should be located at the top of the machine, 67
somewhere on top of the feed pan. This is impractical because the feed pan routinely holds 68
organic material, and the label would have easily been damaged if it was inside the feed pan. It 69
also would not have been sanitary. The warning label was placed adjacent to the on/off switch 70
so that an operator would have to look at it before turning on the machine. It is the ideal location 71
for the warning. It’s not like toy packaging, which routinely puts warning labels in small print on 72
the back of boxes. Apex didn’t try to hide it from anyone. 73
As for the method of adhesion, Lambert makes a big deal about how the warning label 74
was a “sticker.” I think Lambert’s report is misleading. The warning label isn’t like a sticker you 75
get for your kids at the store. The warning label was affixed to the side of the Apex 4600 with 76
industrial-grade acrylic polymers. The adhesive material underwent testing to ensure that it 77
could withstand the expected wear-and-tear that the machine would have to endure. Obviously, 78
I cannot say the adhesive would have been permanent – we know that the label was, in fact, 79
removed at some point – but it would have lasted a significant amount of time. Additionally, we 80
cannot rule out that the label was intentionally removed by someone. 81
I stand by the design of the Apex 4600. It was as safe as it could be while also being cost 82
effective and capable of manufacturing. 83
(signature on following page)
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Subscribed and sworn before me this 8th Day of February, 2018
__________/s__________
Loren Michaels
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Affidavit of Sydney Applegate
My name is Sydney Applegate, and I am the head chef at Grinderz. I was working on July 1
26, 2017, the day of the accident with the Apex Meat Grinder. As the head chef I oversee the 2
kitchen and work almost every dinner shift. I’ve been with Grinderz for over seven years and 3
worked my way up from a lowly line cook. 4
Although Grinderz hires a lot of Thessian immigrants, I am not Thessian nor of Thessian 5
descent. I am definitely not fluent in Thessian, but I can get by. I know enough to tell people 6
what to do in the kitchen. Besides, most people at the restaurant speak both Thessian and 7
English. 8
As part of the kitchen staff, Lorik worked under me. He wasn’t one of my line cooks so I 9
didn’t directly supervise him at all times, but if I told him to do some meal prep or wash something 10
for me, then he did what I said. Lorik was a nice guy – quiet and well-meaning – but I would get 11
frustrated with him often. He was just really bad at following instructions. I don’t know if it was 12
because his English was so weak or due to some other reason, but it seemed like I had to tell him 13
to do things multiple times before anything got done. I’d tell him to do something, like chop up 14
some vegetables for me, and then five minutes later I’d look over and see him just standing 15
around looking vacant. So, I’d have to tell him again. If he still wasn’t doing what I asked, then I 16
would often lose my temper and yell at the next server who came into the kitchen to make sure 17
Lorik did what I asked, and then I would show him what to do yet again. It was incredibly 18
frustrating. 19
Since this case started, I’ve had to answer a lot of questions about the Apex Meat Grinder 20
that was at Grinderz. That machine has been there since before I even started about seven years 21
31 | P a g e
ago. I know Dani Winters was there and still the manager back then, but I can’t really remember 22
if Dani trained me or if someone else did. Anyway, I know I was taught how to use the meat 23
grinder back when I was a line cook. I’ve seen the picture labeled “Apex 4600 Industrial Meat 24
Grinder Factory Model,” and the restaurant’s meat grinder looked pretty much just like that. I 25
even remember the warning label located next to the on/off switch. 26
Back in my day I remember being taught about keeping the safety-guard on the machine, 27
and we always kept it on when we used it. I don’t remember if someone told me or if I just 28
figured it out on my own, but I know that the safety-guard was designed to keep the operator’s 29
hand from going into the machine. It seemed pretty obvious regardless. But, anyway, I haven’t 30
used the meat grinder in years – I have more important tasks to do in the kitchen now. I’ve seen 31
some of the newer staff use it without the safety-guard on over the past few years. It definitely 32
struck me as odd and not safe, but I never said anything about it. That’s Dani Winters’ job, not 33
mine, and I didn’t know if the restaurant’s policy had changed or something. 34
I’ve been asked a lot about the warning label on the machine too. I’ve seen the picture 35
of the warning label called “Standard Warning Label for the Apex 4600 Industrial Meat Grinder,” 36
and that picture accurately reflects what the warning label looked like. I know for sure that it 37
was on the meat grinder when I started because I remember seeing it when I was learning how 38
to use the machine. I was told that it wasn’t on there when they dismantled the machine to free 39
Lorik’s hand. I don’t know exactly when the label disappeared, but I feel like it was there up until 40
about a month before the incident. I didn’t use the meat grinder myself, but I saw it used every 41
day, and I feel like I would have noticed something was different if the label had disappeared. 42
It’s hard to say really. 43
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July 26 seemed like any other day, at first. I showed up around 4:00 pm for the dinner 44
shift, spent a couple hours getting the kitchen and my line cooks in order, and then started 45
serving dinner. Lorik was in the kitchen, as usual, washing dishes and doing minor tasks. At some 46
point I asked Lorik to grind some chicken for me. The special that night was a chicken falafel 47
inspired grinder sub with my own take on tahini sauce. It was very popular, and I was running 48
low on ground chicken with which to make chicken meat-balls. Things are always busy at dinner 49
time so I went back to cooking and trusted that Lorik would do what I told him. But when I 50
checked back a little bit later, sure enough Lorik was just standing around looking lost. I grabbed 51
a bowl of chicken from the walk-in, shoved it into his hands, and pointed at the meat grinder. He 52
finally seemed to get the picture and went over to use the grinder. 53
I kept working and was too busy to keep an eye on Lorik. I remember at one point I was 54
talking with one of our servers, Sam Myers, about an order and I happened to see Lorik standing 55
over by the meat grinder. He was using it without the safety-guard and just dropping the chicken 56
into the hole at the top. I turned my back to tend to something on the stove when suddenly I 57
heard screaming. I whipped around and saw Lorik with his arm in the meat grinder. Everyone 58
started panicking and crowding around. Some people grabbed Lorik and tried to pull him free. I 59
shouted at the person standing by the wall outlet to unplug the machine, which he did. No one 60
could get Lorik’s hand free, and I told Sam to call 911 and another worker, Ryan Lockwood, to go 61
get Dani Winters, the manager. 62
Dani came in looking horrified, scared, and angry all at the same time. Dani demanded to 63
know what happened, but nobody really knew. Someone said that everything had been normal 64
and Dani just got angrier. The paramedics came pretty quickly, and they had to dismantle the 65
33 | P a g e
meat grinder to free Lorik. I’m pretty sure Lorik had already passed out by then. They took him 66
away, and we all just stood around in shock. Dani closed down the restaurant. Later I heard that 67
Lorik died from his blood loss. 68
Honestly, I don’t know what to think about the situation. I’m really sorry and sad about 69
what happened to Lorik, but I don’t know who is to blame. It seems like a tragic accident to me. 70
Subscribed and sworn before me this 14th Day of November, 2017
__________/s__________
Sydney Applegate
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Apex 4600 Industrial Meat Grinder
Factory Model
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Standard Warning Label for the Apex 4600
Industrial Meat Grinder
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH DAKOTA
ALI ZORA, ADMINISTRATOR OF THE )
ESTATE OF LORIK ZORA, DECEASED, )
)
Plaintiff, )
) Case No. ___________
v. )
)
APEX, INCORPORATED, )
)
Defendant. )
____________________________________)
Jury Instructions
Instruction No. 1
The plaintiff brings this action on the basis of strict liability. The plaintiff has alleged a
defect in the design of the Apex 4600 Industrial Meat Grinder and a failure of the defendant’s duty
to warn. The plaintiff is allowed to pursue either one of these theories or both.
Instruction No. 2
It is the plaintiff’s burden to prove all elements by a preponderance of the evidence.
Preponderance of the evidence means that the evidence demonstrates that a fact is more probably
true than not true, sometimes referred to as the greater weight of the evidence. If you believe at
the conclusion of the trial that the plaintiff has met this burden with regard to each element of its
theory of liability, then you must conclude that the manufacturer is liable for the harm sustained
by the plaintiff under that theory of liability.
Instruction No. 3
If you find from the greater weight of the evidence (1) that the defendant manufactured and
sold the Apex 4600 Industrial Meat Grinder involved in this action; (2) that at the time of its
manufacture and sale it was defective in design and/or contained inadequate warning labels, and
for that reason unreasonably dangerous to the user; (3) that the product was expected to and did
reach the ultimate consumer without substantial change in its original condition; and (4) that such
defective design and/or inadequate warning was the proximate cause of the plaintiff’s alleged
injuries, then your verdict should be for the plaintiff.
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Instruction No. 4
“Unreasonably dangerous” means dangerous when used in an ordinary way, and dangerous
to an extent beyond that contemplated by an ordinary consumer.
Instruction No. 5
As used in these instructions, defective in design and unreasonably dangerous means that
the risks of harm posed by the product could have been reduced or avoided by the adoption of a
reasonable, alternative design and failure to use a safer, alternative design renders the product
unreasonably dangerous. You may consider whether other manufacturers in the field are using the
same design or a safer design, whether a safer design is known to be feasible, and whether testing
of the product was adequate.
Instruction No. 6
A manufacturer of a product that involves a risk of injury to the user is liable to any person
– whether the purchaser or a third person – who without fault on his/her part, sustains an injury
caused by a defect in the design, if the injury might reasonably have been anticipated. However,
the plaintiff claiming injury has the burden of proving the product was defective, i.e., unreasonably
dangerous to normal use, and that the plaintiff’s injuries were caused by the defect.
If the product is proven defective by reason of its dangerousness in normal use, the plaintiff
need not prove any particular negligence by the maker in its manufacture or processing; the
manufacturer is presumed to know of the vices in the things he/she makes, whether or not he/she
has actual knowledge of them.
Instruction No. 7
“Proximate Cause” for purposes of this case means that, but for the defective design in the
product or the inadequacy of the warning labels, the injury would not have occurred.
Instruction No. 8
The law requires a manufacturer to provide full, fair, and adequate warning of dangers that
might be encountered during the use of a product that has been put on the market. Failure to do so
constitutes a defect.
Even if you find that the product was faultlessly made, if you find from the evidence that
the defendant failed in this duty to warn, and that the defendant’s failure to warn rendered this
product unreasonably dangerous, you should find the defendant liable for any resultant harm.
40 | P a g e
Instruction No. 9
The law does not require a manufacturer of goods to warn consumers of dangers that are
plain, open, or obvious.
If you determine from the greater weight of the evidence that the risk of the injury the
plaintiff claims to have sustained was such as would be apparent to an expected user of the product,
and was widely known and readily recognizable, then you cannot find the defendant liable on the
basis of a failure to warn.
If, on the other hand, your finding is that, based on the greater weight of the evidence, the
dangers were not plain, open, and obvious, and that the injury would not have been sustained had
the plaintiff been properly warned, then your verdict should be for the plaintiff.
Instruction No. 10
“Adequate” warnings and instructions means warnings and instructions given in a form
that could reasonably be expected to catch the attention of a reasonably prudent person in the
circumstances of the product’s use, and the content which must be comprehensible to the average
user and must convey a fair indication of the nature and extent of the danger and how to avoid it
in the mind of a reasonably prudent person. Where the manufacturer could reasonably foresee that
users or consumers may be unable to read English, the duty to provide an adequate warning will
include the duty to provide that warning in multiple languages or in pictorial form.
Instruction No. 11
In this action, plaintiff seeks to establish defendant’s liability as a liability that the law
knows as “strict,” that is, without regard to any proof of negligence on the defendant’s part. In
such an action, plaintiff’s alleged negligence does not affect the defendant’s liability.
Instruction No. 12
The law provides that a person has misused a product if: first, he/she used it in a manner
neither intended nor reasonably foreseeable by the supplier; or second, he/she continued to use the
product after he/she became aware of a defect; or, third, he/she used the product inconsistent with
a legally sufficient warning.
If you find from the greater weight of the evidence that the plaintiff misused the product in
one or more of these three ways, and if you also find that this misuse was the cause of the alleged
injuries, then your verdict must be for the defendant.
Instruction No. 13
Even if you find that the plaintiff had a physical condition or disability that made him more
likely to be injured or suffer more as a result of injury, that preexisting condition does not affect
or mitigate the defendant’s liability. The defendant must take the plaintiff as he finds him.