Pattern Jury Instructions get validation from federal judge

By Chris Dickerson | Feb 9, 2017

DAVIS – West Virginia Supreme Court Justice Menis Ketchum and Court Clerk Rory Perry recently spoke at a legal education seminar about the court’s Pattern Jury Instructions that were published last year.

Ketchum and Perry spoke Feb. 11 at Canaan Valley Resort. It was part of a session sponsored by West Virginia Continuing Legal Education. Advance registration is required.

Ketchum spent five years compiling the Pattern Jury Instructions for use in civil cases in West Virginia’s courts. It went on sale last February.

Ketchum has said he believes it is important for trial lawyers and judges to have at their disposal legally correct instructions that are understandable to a lay jury.

In December, a federal judge validated the Pattern Jury Instructions in a Memorandum Opinion and order in a Multi-District Litigation case against Ethicon and Johnson & Johnson regarding a medical product.

Judge Joseph Goodwin, of the Southern District of West Virginia, recognized the PJI after Ethicon mentioned them in a court filing, essentially citing them as precedent in West Virginia courts, including federal courts, and as an authoritative source of law in the state.

In his order, Goodwin wrote that he had entered another Memorandum Opinion & Order in August 2015 saying “there is no West Virginia authority requiring plaintiffs to prove … proposed safer alternative design would have reduced an individual plaintiff’s specific injuries” and that “plaintiff-specific information is not required to develop or defend against state-of-the-art evidence of a safer alternative design.”

But he says, subsequent to that ruling, “the Supreme Court of Appeals of West Virginia published its West Virginia Pattern Jury Instructions for Civil Cases: Instructions on the Law in Plainer Language. … The PJI contains an entire section dedicated to products liability law in West Virginia, and Ethicon now argues that the PJI contravenes my August 4, 2015, ruling.”

Ethicon had based its motion on the PJI statement of law regarding the necessity of “establishing the existence and remedial efficacy of an alternative, feasible design in a strict liability design defect products liability case.”

Specifically, the PJI said “there are many designs which, although they may eliminate a particular risk, are not practicable to produce. To prove that a design is defective, [name of plaintiff] must prove that there was an alternative, feasible design that eliminated the risk that injured [him/her].”

Ethicon argued that this demonstrates that the state Supreme Court understands the law of the state to require a plaintiff to prove that (1) there was an alternative, feasible design and that (2) such an alternative design would have eliminated the very risk that injured the plaintiff.

“At best, the plaintiffs ask me to simply ignore 411 because it is not binding, and at worst, the plaintiffs ask me to find that 411 is an incorrect statement of West Virginia law,” Goodwin wrote. “I will do neither.

“The PJI was written by lawyers, judges and a justice of the West Virginia Supreme Court and was adopted after extensive research, editing and committee review. The Chief Justice of West Virginia is the official reporter of the PJI, and the official seal of the West Virginia Supreme Court is emblazoned on the PJI’s cover and title page. Moreover, the West Virginia Supreme Court owns the copyright to the PJI and charges a fee for copies.

“Thus, while the PJI is certainly not binding precedent in a way a published opinion is, the persuasive force behind the PJI in helping me predict how the West Virginia Supreme Court would rule on this issue is substantial.”

The 15 topics covered in the PJI are Preliminary Instructions to the Impaneled Jury; Complete Closing General Civil Jury Charge; Employment Law; Product Liability and Warranty; Medical Negligence; Motor Vehicles; Deliberate Intent; Personal Injury, Wrongful Death, and Property Damage; Negligence, Comparative Negligence, and Proximate Cause; Premises Liability; Contracts; Eminent Domain; Evidence and Witnesses; Tort of Spoliation; and Punitive Damages.

To purchase copies of the instructions, people can call the State Law Library at 304-340-3980 or order online at

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U.S. District Court for the Southern District of West Virginia Charleston Division West Virginia Supreme Court of Appeals

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