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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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Ali Zora, Administrator of the Estate of Lorik Zora ...

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Page 1: Ali Zora, Administrator of the Estate of Lorik Zora ...

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

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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

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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

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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

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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.

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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.