Schultz v. Ford Motor Co.

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE ATTORNEYS FOR AMICI CURIAE
Roger L. Pardieck Kevin C. Schiferl Raymond L. Faust
Seymour, Indiana Nelson D. Alexander Nelson A. Nettles
Julia Blackwell Gelinas James D. Johnson
Bruce D. Aukerman Robert B. Thornburg Defense Trial Counsel of Indiana
Terre Haute, Indiana Indianapolis, Indiana
J. Joseph Tanner
Craig R. McClellan M. Kristin Glazner
John H. Gomez Thomas C. Kus
San Diego, California Indiana Manufacturers Association and
Alliance of Automobile Manufacturers, Inc.

Hugh F. Young, Jr.
L. Alan Whaley
Bonnie L. Gallivan
Myra C. Selby
Brian J. Paul
Product Liability Advisory Council, Inc.

J. Alexander Tanford
Pro se

David V. Scott
Indiana Trial Lawyers Association
______________________________________________________________________________

In the
Indiana Supreme Court
_________________________________

No. 49S02-0508-CV-376

RICHARD SCHULTZ and
GAIL SCHULTZ,

Appellants (Plaintiffs below),

v.

FORD MOTOR COMPANY,

Appellee (Defendant below).
_________________________________

Appeal from the Marion Superior Court, No. 49D02-0002-CT-156
The Honorable Kenneth H. Johnson, Judge
_________________________________
 On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0309-CV-749
_________________________________

December 5, 2006

Sullivan, Justice.

A jury rendered a defense verdict on plaintiffs’ product liability and negligence claims re-
lating to the collapse of the roof of a Ford Explorer in a rollover accident. The Court of Appeals
found the trial court’s giving of a jury instruction on a presumption to have been reversible error.
We hold that Indiana Evidence Rule 301, which authorizes presumptions to be given “continuing
effect even though contrary evidence is received,” operated to authorize the jury instruction
given here.

Background

In December, 1997, Richard Schultz lost control of his 1995 Ford Explorer when it hit a
patch of black ice on Indiana State Road 2. The Explorer slid off the road into a ditch, hit a
sloped embankment, and rolled over, eventually coming to rest upright. Schultz was wearing
his seatbelt, and experts testified that when the Explorer first left skid marks, it was traveling be-
tween 26 and 32 miles per hour.

During the accident, the roof on the Explorer collapsed on top of Schultz, snapping his
neck and rendering him a quadriplegic. Schultz and Gail Schultz (the “Schultzes”) sued Ford
Motor Company, alleging defective roof design and negligence and seeking compensatory and
punitive damages.

The jury returned a verdict in favor of Ford.

The Court of Appeals reversed and remanded for a new trial. Schultz v. Ford Motor Co.,
822 N.E.2d 645 (Ind. Ct. App. 2005). It found that the trial court had committed reversible error
when it gave the jury the following instruction:

2
 Ford Motor Company has alleged that the Plaintiffs’ 1995 Ford Explorer
complied with the Federal Motor Vehicle Safety Standard 216.[ 1 ] Ford Motor
Company has the burden of proving this allegation.

If you find Ford Motor Company has proved by a preponderance of the
evidence that before the 1995 Ford Explorer was sold by Ford Motor Company
that it complied with Federal Motor Vehicle Standard 216 then you may presume
that Ford Motor Company was not negligent in its design of the 1995 Ford Ex-
plorer and that the 1995 Ford Explorer was not defective.

However, the Plaintiffs may rebut this presumption if they introduced evi-
dence tending to show that the 1995 Ford Explorer was defective.

Appellants’ App. at 54. 2

We granted transfer. Schultz v. Ford Motor Co., 841 N.E.2d 182 (Ind. 2005) (table).

Discussion

I

A

Effective January 1, 1994, this Court adopted Rules of Evidence to govern proceedings in
Indiana courts. We first appointed a Rules of Evidence Drafting Committee, which proposed a
draft of the Rules. After a public comment period, we promulgated a final version of the Rules.

1
Federal Motor Vehicle Safety Standard (“FMVSS”) 216 is a federal government standard specifying
minimum strength requirements for passenger compartment roofs. The purpose of the standard is to re-
duce deaths and injuries that result from roofs collapsing into passenger compartments during rollover
accidents. The standard requires that a vehicle’s roof not move more than 127 millimeters when a force
equal to 1.5 times the unloaded vehicle weight is applied to the roof. Appellants’ App. at 55 (quoting 49
C.F.R. § 571.216 (1997)).
2
This instruction, with appropriate modifications for the facts of this case, is Indiana Civil Pattern Jury
Instruction 7.05(D). Indiana Pattern Jury Instructions are prepared by the Criminal and Civil Instruction
Committees of the Indiana Judicial Conference and published by the Indiana Judges Association. Al-
though we have not formally approved them for use, we have recognized their existence and given them
some preferential status. See Ind. Trial Rule 51(E) (relieving parties in litigation of certain requirements
applicable to proposed jury instructions when they are Indiana Pattern Jury Instructions); see also
Winegeart v. State, 665 N.E.2d 893, 901 n.1 (Ind. 1996).

3
In doing so, we made a number of changes from the draft. One rule that we changed from the
draft is Indiana Evidence Rule 301, which, as adopted, provides:

In all civil actions and proceedings not otherwise provided for by constitu-
tion, statute, judicial decision or by these rules, a presumption imposes on the
party against whom it is directed the burden of going forward with evidence to re-
but or meet the presumption, but does not shift to such party the burden of proof
in the sense of the risk of nonpersuasion, which remains throughout the trial upon
the party on whom it was originally cast. A presumption shall have continuing ef-
fect even though contrary evidence is received.

The change was the addition of a second sentence: “A presumption shall have continuing effect
even though contrary evidence is received.” The rule proposed by our Drafting Committee con-
sisted only of the first sentence, language that was consistent with prior Indiana law. Presump-
tions were now to have “continuing effect.” Although commentators at the time viewed the
addition of this sentence as a significant change, neither this Court nor the Court of Appeals has
been called upon to apply it in the intervening 12 years. See Ivan E. Bodensteiner, Indiana Rules
of Evidence, 27 Ind. L. Rev. 1063, 1069 (1994).

In the year following that in which our Evidence Rules took effect, the Legislature
amended the Indiana Product Liability Act (the “Act”), now codified at Indiana Code sections
34-20-1-1 to -9-1, 3 to provide:

In a product liability action, there is a rebuttable presumption that the
product that caused the physical harm was not defective and that the manufacturer
or seller of the product was not negligent if, before the sale by the manufacturer,
the product . . . complied with applicable codes, standards, regulations, or specifi-
cations established, adopted, promulgated, or approved by the United States or by
Indiana, or by an agency of the United States or Indiana.

Ind. Code § 34-20-5-1 (1998).

3
The Legislature enacted the Act as Indiana Code sections 33-1-1.5-1 to -8 in 1978. Substantive amend-
ments were made to the Act most recently in 1995. As part of its ongoing recodification project applica-
ble to the entire Indiana Code, the Legislature recodified the Act to its present location, effective July 1,
1998. For a discussion of the effect of such recodifications generally, see State v. Wilson, 836 N.E.2d
407, 411-14 (Ind. 2005).

4
 The claims brought by the Schultzes against Ford in this case – defective design of the
roof of the Explorer and negligence – are governed by the Act. 4 The disputed instruction ad-
vised the jury of the “rebuttable presumption” articulated in Indiana Code section 34-20-5-1.
And so our decision as to whether the disputed instruction was properly given turns on the inter-
relationship of this statute that recognizes a “rebuttable presumption” with Indiana Evidence
Rule 301 that gives presumptions “continuing effect.”

B

The Schultzes argue on appeal that it was improper for the trial court to instruct the jury
on Indiana Code section 34-20-5-1 because the statute “is a presumption that imposes a burden
of production – not proof – and hence, is an improper subject of jury instruction altogether.”
Appellants’ Br. at 11.

Ford’s response is that the presumption created by the Legislature here is not a rule of
law that shifts the burden of proof from the party that has it to the one that does not. Rather,
“because I.C. § 34-20-5-1(2) lacks any procedural consequences, it is more accurately viewed as
an inference rather than a true presumption.” Pet. for Trans. at 6 (citations omitted). And it was
proper, Ford argues, for the trial court to instruct the jury on what Ford deems a statutorily-
recognized inference:

While not conclusive, compliance with Federal Motor Vehicle Safety Standards is
highly probative of whether a manufacturer has exercised reasonable care and
whether the vehicle possesses a defect. Ford repeatedly submitted evidence of the
Explorer’s compliance with FMVSS 216, the applicable federal roof strength
standard. It was entitled to the instruction on I.C. 34-20-5-1(2).

Id. at 8 (footnote omitted).

4
See Indiana Code section 34-20-1-1, the Act governs and controls all actions brought by users or con-
sumers against manufacturers or sellers for physical harm caused by a product, “regardless of the substan-
tive legal theory or theories upon which the action is brought.”

5
 The Schultzes vigorously oppose the notion that the statute creates an inference. “Given
the Legislature’s use of the term ‘rebuttable presumption’ its plain, ordinary and usual meaning
leads to the conclusion that it intended the Rebuttable Presumption Statute to be a ‘presumption’
– not simply an ‘evidentiary inference.’ . . . [The statute] does not suggest that the presumption
plays any part in a jury trial and nowhere uses the words ‘evidence’ or ‘inference.’” Br. in Resp.
to Pet. to Trans. at 8-9.

The Court of Appeals adopted the Schultzes’ analysis, and held that when the opponent
of the presumption has met the burden of production, the purpose of the presumption has been
fulfilled and the presumption should be dropped from the case. Schultz, 822 N.E.2d at 654
(quoting McClain v. Chem-Lube Corp., 759 N.E.2d 1096 (Ind. Ct. App. 2001), trans. denied,
774 N.E.2d 514 (Ind. 2002) (table)). It held that the instruction, by using the language “may pre-
sume,” created “a permissive inference” for the jury about the evidence in the case. Id. at 654
n.7. However, the court said, this was an incorrect statement of law because the plain language
of the statute created “a mandatory presumption of substantive law.” Id. at 655. “The rebuttable
presumption of IC 34-20-5-1 is not evidence; instead, it should be used as guidance for the court
and not as evidence for the jury.” Id.

C

We find both of these to be respectable arguments. But we think the answer is dictated
by Indiana Evidence Rule 301.

As alluded to supra, prior to the adoption of the Rules of Evidence, the law of Indiana
had been that:

[A] presumption is not evidence and is not to be weighed by the trier of fact as
though it had evidentiary value. When the party against whom the presumption
operates introduces evidence that disputes the presumed fact, the presumption
ceases to operate, disappears from the case, and no longer remains to assist any
party.

6
12 Robert Lowell Miller, Indiana Practice § 301.102 at 188-89 (2d ed. 1995) (“Miller”) (citing
cases).

This approach to presumptions has a century-old provenance in the work of Professor
James Bradley Thayer, who taught evidence at Harvard in the late 19th century. 1 Jack B.
Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 301App.100[2][a] at 301App.-
13 (Joseph M. McLaughlin, ed., Matthew Bender 2d ed. 1997) (“Weinstein”) (citing Thayer, A
Preliminary Treatise on Evidence at the Common Law 337 (1898) (“Thayer”)); 2 Kenneth S.
Broun et al., McCormick on Evidence § 344 at 508 & n.7 (6th ed. 2006) (“McCormick”) (citing
Thayer). Thayer’s theory is popularly referred to as the “bursting bubble” theory because its sole
effect is to force the opponent of the presumption to rebut it by producing enough evidence to
avoid a directed verdict. It does not, in other words, shift the burden of persuasion, only the bur-
den of production. Weinstein § 301.App.100[2][a] at 301App.-13; McCormick § 344 at 508;
Miller § 301.102 at 186 & n.6 (citing authorities including Thayer & McCormick).

A different approach was taken a generation later by another Harvard professor, Edmund
Morgan. Weinstein § 301App.100[2][b] at 301App.-15; McCormick § 344 at 517. Under his
view, a presumption should shift not only the burden of producing evidence, but also the burden
of persuasion. Weinstein § 301App.100[2][b] at 301App.-15. That is, the finder of fact would
be required to find the presumed fact once the basic fact is established, unless the opponent of
the presumption persuaded the factfinder of the nonexistence of the presumed fact. Id.

Both rules, it has been noted, have in common giving the benefit of a “presumed fact” to
a party who triggers a presumption by proving a “basic fact.” 5 In this respect, both approaches
impose the same burden on the opponent to come forward with some evidence, or the presump-
tion governs. American Bar Association, Emerging Problems Under the Federal Rules of Evi-
dence 33 (West 2d ed. 1991). The difference is in the rules’ operation following the introduction
of rebuttal evidence. Under Thayer’s approach, once rebuttal evidence is produced by the oppo-
nent of the presumption, the presumption disappears and the case proceeds on the basis of evi-

5
A “basic fact” in this context is also sometimes referred to as a “predicate fact” or a “subsidiary fact.”

7
dence actually produced. 6 Id. But under Morgan’s approach, the presumption shifts to the op-
ponent of the presumption the burden of disproving the presumed fact. Id. at 34.

Over time, both positions have attracted support. Wigmore is said to have sanctioned
Thayer’s bursting bubble theory, the Model Code of Evidence to have adopted it, and Federal
Rule of Evidence 301 to embody it. McCormick § 344 at 508 & nn.8-10. Professor Morgan’s
burden-of-persuasion-shifting theory is said to have been endorsed by McCormick, included in
the Uniform Rules of Evidence, and recommended by the Advisory Committee on the original
Federal Rules of Evidence (though rejected by Congress in favor of the Thayer rule). McCor-
mick § 344 at 517; Weinstein § 301App.100[2][b] at 301App.-15 & n.8.

The rationale, it should be apparent, for choosing between Thayer’s and Morgan’s ap-
proaches will depend on one’s view of how strong a role a presumption should play in dictating
the course of litigation. Thayer’s view gives presumptions relatively light weight; Morgan’s
heavy. 7 Of course, one’s view of whether presumptions should be given relatively light or rela-
tively heavy weight will depend in turn on one’s view of the significance of the policies giving
rise to presumptions in the first place. Judge Miller makes this point as follows:

6
There are several poetic expressions of this point: “Presumptions . . . may be looked on as the bats of the
law, flitting in the twilight but disappearing in the sunshine of actual facts,” Mackowik v. Kansas City, 94
S.W. 256, 262 (Mo. 1906) (quoted in McCormick § 344 at 508); and “[P]resumptions . . . abide until facts
proved to the contrary make them take flight,” Hitt v. Carr, 77 Ind. App. 488, 130 N.E. 1, 8 (1921)
(quoted in Miller § 301.102 at 186).
7
This distinction was captured by the Committee on the Judiciary of the U.S. House of Representatives
when it was considering the proposed Federal Rules in 1973:

With respect to the weight to be given a presumption in a civil case, the [House Judici-
ary] Committee agreed with the judgment implicit in the [Supreme] Court’s version that
the so-called “bursting bubble” theory of presumptions, whereby a presumption vanishes
upon the appearance of any contradicting evidence by the other party, gives to presump-
tions too slight an effect. On the other hand, the Committee believed that the Rule pro-
posed by the Court, whereby a presumption permanently alters the burden of persuasion,
no matter how much contradicting evidence is introduced . . . lends too great a force to
presumptions.

H.R. Rep. No. 93-650, at 7 (1973), reprinted in 1974 U.S.C.C.A.N. 7075, 7080-81 (quoted in Weinstein §
301App.01[3] at 301App.-5).

8
 The strongest criticism against the “bursting bubble” theory of presump-
tions is that it affords too little protection to the policies that give rise to presump-
tions. A presumption may have been created, for example, because the party it
favors otherwise would be handicapped by lack of access to proof, or because the
law favors a particular result. If the mere production of contrary evidence re-
moves the presumption from the case entirely, the jury never will learn of the
policies behind the presumption.

Miller § 301.102 at 189-90. 8

Adding particular complexity to the subject is the obvious fact that policies of differing
significance give rise to different presumptions. The original Uniform Rules of Evidence, for
example, made a distinction between presumptions that were based on probability and presump-
tions that were based on social policy. McCormick § 344 at 517. But making such distinctions
requires a hybrid approach somewhere between Thayer and Morgan, thereby eliminating one
great advantage that both have in common: simplicity in their application.

Returning to our Indiana Evidence Rule 301, the first sentence clearly adopts the Thayer
approach of allocating only the burden of production, not burden of persuasion, “which remains
throughout the trial upon the party on whom it was originally cast.” But Rule 301 clearly re-
jected a pure Thayer “bursting bubble” approach and changed prior Indiana law when we added
the new second sentence: “A presumption shall have continuing effect even though contrary evi-
dence is received.”

8
To the same effect, see McCormick §344 at 509 (footnotes omitted):

The “bursting bubble” theory has been criticized as giving to presumptions an ef-
fect that is too “slight and evanescent” when viewed in the light of the reasons for the
creation of the rules. Presumptions . . . have been created for policy reasons that are
similar to and may be just as strong as those that govern the allocation of the burdens of
proof prior to the introduction of evidence. These policy considerations may persist de-
spite the existence of proof rebutting the presumed fact. They may be completely frus-
trated by the Thayer rule when the basic facts of the presumption do not give rise to an
inference that is naturally sufficient to take the case to the jury. Similarly, even if the
natural inference is sufficient to present a jury question, it may be so weak that the jury is
unlikely to consider it in its decision unless specifically told to do so. If the policy behind
certain presumptions is not to be thwarted, some instruction to the jury may be needed
despite any theoretical prohibition against a charge of this kind.

9
 As discussed supra (in the quotes from Judge Miller in the text accompanying footnote 8
and McCormick in footnote 8), the problem with the Thayer “bursting bubble” rule is that it can
operate to prevent juries from effectuating the policies that gave rise to the presumption. 9 It is to
overcome this problem that this Court modified the Thayer rule by adding the new “continuing
effect” language when we adopted Indiana Evidence Rule 301. 10 Judge Miller has well captured
the intent of this Court:

Because the rule’s second sentence appears to be a response to the com-
mentators’ concern that the “bursting bubble” approach too often prevents juries
from effectuating the policies that gave rise to the presumption, it seems most
likely that the rule’s second sentence is intended primarily to affect the instruc-
tions given to the jury.

Miller § 301.102 at 190. 11

9
We note with interest that even under the “bursting bubble” approach of the Federal Rules of Evidence,
courts may comment on permissible inferences:

Because under [Federal Evidence] Rule 301, the presumption disappears from
the case on presentation of evidence sufficient to rebut, there is no need to mention the
word “presumption.” Moreover, because the jury may mistakenly attribute effects to the
term other than those described by the judge and prescribed by the rule, the judge should
avoid the word. . . . The jury simply will weigh the evidence. Furthermore, the judge is
free to exercise his or her common-law discretion to comment on the evidence, including
discussing with the jury the probative force, or the normal inferential value, of the basic
fact, to assist the jury in deciding whether it is persuaded of the existence of the presumed
fact.

Weinstein § 301.04 at 301-23 (footnotes omitted).
10
After our Drafting Committee submitted its recommendation (which, as discussed supra consisted of
only the first sentence of the Rule as finally adopted), we received comments from a number of individu-
als and entities. The Indiana Trial Lawyers Association (“ITLA”) recommended adding a second sen-
tence to Rule 301, to read: “A presumption shall have a continuing effect even though contrary evidence
is received.” ITLA’s rationale for this change was: “Rule 301 as presently proposed should be interpreted
as following the ‘bursting bubble’ rule as to presumptions, i.e. that once any evidence has been produced
contrary to the presumption, the presumption completely disappears. This rule allows the opponent to
destroy the effect of the presumption by offering any evidence, even though the evidence is dubious and
minimal. The better rule is to allow the presumption to be considered along with the opposing evidence.”
This Court adopted the ITLA recommendation.
11
Judge Miller continues, in language with which we agree:
Earlier Indiana law suggests caution in instructing juries with respect to presump-
tions. . . . Because presumptions are not evidence and are not to be weighed as evidence,

10
 We hold that a presumption is properly given “continuing effect” under the last sentence
of Indiana Evidence Rule 301 by the trial court instructing the jury that when a basic fact is
proven, the jury may infer the existence of a presumed fact. Accord Flis v. Kia Motors Corp.,
No. 1:03CV1567-JDT-TAB, 2005 WL 1528227 (S.D. Ind. June 20, 2005) (holding the “continu-
ing effect” language of Indiana Evidence Rule 301 authorizes a jury instruction on Indiana Code
section 34-20-5-1).

D

As a general matter, then, Indiana Evidence Rule 301 authorizes a court to instruct the
jury on permissible inferences that may be drawn from the basic facts that give rise to presump-
tions, notwithstanding the traditional prohibition on instructing juries about presumptions. But
several questions remain to be answered before we are able to conclude that there was no re-
versible error in giving the instruction disputed in this case.

First, the Schultzes maintain and Ford acknowledges that the presumption recognized in
the statute is not a conventional presumption at all. A presumption, as discussed at length in this
opinion, relieves the party with the burden of proof on a presumed fact from having to produce
evidence of the presumed fact once that party has proved a basic fact. Unless the opponent of
the presumption presents evidence tending to disprove the presumed fact, the party in whose fa-
vor the presumption operates is entitled to judgment on that issue. But under the statutory pre-
sumption at issue here, the presumed fact is the presence or absence of defect and negligence.
And the plaintiffs (the Schultzes), not the defendant (Ford), have the burden to prove defect and
negligence in a product liability action.

earlier Indiana law deemed it error to instruct a jury that the law presumes a fact. . . . [But
e]ven before the adoption of Rule 301, Indiana law held that a court may instruct the jury
on permissible inferences: that if fact A is proven, fact B may be inferred from it, even
when an instruction that the law “presumes” fact B would be error. Such an instruction is
allowed even if improper use of the term “presumption” is made, as long as it is clear that
an inference is described, though the court may not state the weight to be ascribed to the
inference. A similar approach with respect to presumptions appears warranted in light of
the second sentence of Rule 301.

Miller § 301.102 at 190-92 (footnotes omitted).

11
 The Schultzes explain this anomaly by arguing that the statute should be seen as operat-
ing only at summary judgment where the “presumption” serves to impose upon plaintiffs the ob-
ligation to come forward with evidence that it would not otherwise be required to produce. 12
Appellants’ Br. at 11 (quoting J. Alexander Tanford, Indiana Trial Evidence Manual, § 7.03 (4th
ed. 1998) (“Tanford”)); Br. of Amicus Curiae J. Alexander Tanford at 3. 13 Is another implica-
tion of this anomaly that, except at the summary judgment stage, there simply is no presumption
to be given continuing effect under Indiana Evidence Rule 301? We think not. The point of giv-
ing “continuing effect” to a presumption through a jury instruction is to further the policies that
give rise to the presumption in the first place. By authorizing the instruction here, we recognize
the policy embodied by the Legislature in Indiana Code section 34-20-5-1, regardless of whether
the provision conforms to the conventional definition of a legal “presumption.”

Second, Indiana Evidence Rule 301 carves out from its application “civil actions and pro-
ceedings not otherwise provided for by constitution, statute, judicial decision or by these rules.”
The Schultzes argue that several decisions of the Court of Appeals provide the procedural rules
applicable to the statutory presumption such that Indiana Evidence Rule 301 does not apply.
Appellants’ Br. at 12-13 (quoting Tanford). The cases they cite are Rogers v. Cosco, Inc., 737
N.E.2d 1158 (Ind. Ct. App. 2000), trans. denied, 761 N.E.2d 419 (Ind. 2001) (table); McClain v.
Chem-Lube Corp., 759 N.E.2d 1096 (Ind. Ct. App. 2001), trans. denied, 774 N.E.2d 514 (Ind.
2002) (table); and Cansler v. Mills, 765 N.E.2d 698 (Ind. Ct. App. 2002), trans. denied, 783
N.E.2d 695 (Ind. 2002) (table). Appellants’ Reply Br. at 12. The “judicial decision” exception
in Rule 301 does not authorize a court to make an evidentiary rule contrary to the Rule. In any
event, these cases do not address whether it is improper to give a jury instruction regarding the
statutory presumption after that presumption is rebutted. Each dealt instead with whether the
plaintiff at the summary judgment stage designated evidence to rebut the statutory presumption
found in Indiana Code section 34-20-5-1. See Rogers, 737 N.E.2d at 1166; McClain, 759 N.E.2d

12
For a discussion of the burden of proof at summary judgment in a design defect claim, see Joseph R.
Alberts et al., Survey of Recent Developments in Indiana Product Liability Law, 39 Ind. L. Rev. 1145,
1158-60 (2006).
13
Professor J. Alexander Tanford filed an Amicus Curiae brief pro se in this matter. He subsequently
argued before our Court aligned with the Schultzes.

12
at 1101-03; Cansler, 765 N.E.2d at 707. To the extent that Rogers, McClain, and Cansler may be
read to hold that it is improper to give a jury instruction regarding the statutory presumption after
that presumption is rebutted, they are disapproved. 14

Third, even though the “continuing effect” language of Rule 301 authorizes giving a jury
instruction on permissible inferences that may be drawn from the basic facts that give rise to pre-
sumptions, commentators cited in this opinion express reservations about the prejudicial effect
that the use of the word “presumption” can have on juries. “The jury, unless a further explana-
tion is made, may suppose that the presumption is a conclusive one, especially if the judge uses
the expression, ‘the law presumes.’” McCormick § 344 at 513. “Most commentators, although
espousing different theories on the effect a presumption should be given, agree that presumptions
should not be mentioned to the jury.” Weinstein at § 301.04 at 301-22 (footnotes omitted). “The
leading commentators agree that jurors should not be told what the law presumes, because they
will not understand that this is merely a procedural device related to the burden of proof.” Br. of
Amicus Curiae J. Alexander Tanford at 9 (footnote omitted).

We acknowledge that the instruction given here uses the verb “presume” and the noun
“presumption” but do not find their inclusion in the instruction sufficient to render its having
been given reversible error.

Viewed as a linguistic matter, the verb “presume” is not used in a legal or technical
sense; there is no language to the effect that “the law presumes . . . .” Because of this, we think a
typical juror would find it to have been synonymous with “infer” or, perhaps, “assume,” the
word Weinstein suggests be used in such circumstances. See Weinstein § 301.04 at 301-24 (hy-
pothetical proper instruction that does not mention “presumption” but uses the verb “assume”).
The noun “presumption” follows the verb “presume” somewhat later in the instruction and be-
cause of this, we think a typical juror would not think of it as a legal or technical term but simply

14
The Schultzes also rely on the statement of the Court of Appeals in McClain that “[i]f the opponent
produces evidence that rebuts the presumption, [the presumption] serves no further purpose.” McClain,
759 N.E.2d at 1101. To support that proposition, the court in McClain cited Sumpter v. State, 261 Ind.
471, 306 N.E.2d 95 (1974). Sumpter, however, is inapplicable here as it was decided in 1974, long before
the current Indiana Evidence Rule 301 was adopted effective January 1, 1994.

13
a reference to the earlier-mentioned act of presuming (or inferring or assuming). Although it
might have been better if the instruction had used words like “infer” or “assume,” the use of
“presume” and “presumption” did not constitute reversible error.

Viewed as a substantive matter, we find the instruction to have been balanced, i.e., fair to
both sides. To be sure, it told the jury that it could find Ford not to have been negligent in its de-
sign of the 1995 Ford Explorer and that the Ford Explorer was not defective if it found that Ford
had proved its compliance with FMVSS 216. This undoubtedly benefited Ford. But the instruc-
tion went on to conclude by telling the jury that it could find this proposition to be rebutted so
long as the Schultzes “introduced evidence tending to show that the 1995 Ford Explorer was de-
fective.” We believe this language was of comparable benefit to the Schultzes. So phrased, the
instruction gave continuing effect to the statutory presumption in Indiana Code section 34-20-5-1
and did not unfairly prejudice the Schultzes.

II

The Schultzes point out that the National Traffic and Motor Vehicle Safety Act (“Federal
Safety Act”) provides that “compliance with a motor vehicle safety standard . . . does not exempt
a person from liability at common law.” 49 U.S.C. § 30103(e) (2000). They argue that giving
continuing effect to the rebuttable presumption in Indiana Code section 34-20-5-1 “allow[s]
manufacturers to effectively immunize themselves from liability upon a showing that their prod-
ucts comply with FMVSS minimum standards . . . .” Appellants’ Br. at 24. This, they maintain,
conflicts with what they deem to be the Federal Safety Act’s imposition of common law liability
on manufacturers and so violates the Supremacy Clause’s prohibition on state courts applying a
federal standard contrary to federal law. Id. at 15-16 (citing U.S. Const. art. VI, § 2).

We do not find the Supremacy Clause implicated here. The heart of the Schultzes’ Su-
premacy Clause argument is that the Federal Safety Act, by operation of 49 U.S.C. § 30103(e)
(the “compliance . . . does not exempt a person from liability at common law” clause), subjects
manufacturers to liability at common law in a way that cannot be modified by state legislatures

14
or state judicial decisions. We reject this construction on what we view as a simple saving clause
in the federal statute.

While the Schultzes cite a number of cases for the proposition that states may not act in
contravention of federal law, they cite none for the proposition that the saving clause in the Fed-
eral Safety Act in any way restricts the ability of states to assign a particular effect or value to
comply with federal motor vehicle safety standards. Ford analyzes this issue as follows:

When it enacted the [Federal] Safety Act and envisioned future federal
motor vehicle safety standards, Congress made clear that it was not creating a
federal defense to state common law tort actions. Congress did not want its ac-
tions – the creation of a federal regulatory body and federal safety standards –
viewed as altering existing common law rules. The saving clause, thus, saves
those common law actions from the potential preemptive effect of the [Federal]
Safety Act’s preemption clause: “Without the saving clause, a broad reading of
the express preemption provision arguably might preempt those actions, for . . . it
is possible to read the preemption provision, standing alone, as applying to stan-
dards imposed in common law tort actions, as well as standards contained in state
legislation or regulation.” Geier [v. American Honda Motor Co.], 120 S.Ct.
[1913,] 1918 [(2000)]. But, the saving clause does not go further; it does not ex-
press any congressional intent to restrict a state legislature or state court from pre-
scribing a particular effect or value to compliance with federal motor vehicle
safety standards.

In our federal system, the States are independent sovereigns with “historic
primacy” in “regulation of matters of health and safety.” Medtronic, Inc. [v.
Lohr], 116 S.Ct. [2240,] 2250 [(1996)]. In such a system, the federal congress’s
expression that its action should not be interpreted as affording a particular out-
come is a distinctly different inquiry from whether Congress intends to prohibit
the states’ governments from taking the same or similar action. Specifically,
Congress’s expression that its provision for federal motor vehicle safety standards
did not create a federal defense to state common law tort actions is a fundamen-
tally distinct notion from whether Congress also sought to prohibit state legisla-
tures or courts from altering their common law to reflect that compliance with
federal safety standards was a defense, or of some other value, as a matter of state
law. The Safety Act’s saving clause expresses no opinion on what effect, if any, a
state may choose or not choose to ascribe, as a matter of state law, to a manufac-
turer’s compliance with federal motor vehicle safety standards. While the saving
clause is a clear expression that Congress did not intend to create a federal de-
fense, it does not restrict a state sovereign from altering its common law to place
some particular value upon compliance with federal safety standards.

15
Appellee’s Br. at 27-28. We think this analysis is correct. We find nothing in the Federal Safety
Act’s saving clause that conflicts with Indiana Code section 34-20-5-1 or with its application in
this case.

The Schultzes go on to make a similar argument to the effect that application of Indiana
Code section 34-20-5-1 violates the preemption clause of the Federal Safety Act. 15 For these
purposes, preemption occurs when a state explicitly or implicitly imposes a motor vehicle safety
standard where the standard is not identical to the standard prescribed under the Federal Safety
Act applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment.
We do not find that Indiana Code section 34-20-5-1 explicitly or implicitly imposes any motor
vehicle safety standard within the meaning of the Federal Safety Act and so do not find the pre-
emption clause of that act implicated.

Conclusion

The judgment of the trial court is affirmed.

Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.

15
The relevant portion of the Federal Safety Act dealing with preemption provides:

(b) Preemption.
(1) When a motor vehicle safety standard is in effect under this chapter [49 U.S.C. §§
30101 et seq.], a State or a political subdivision of a State may prescribe or continue in
effect a standard applicable to the same aspect of performance of a motor vehicle or mo-
tor vehicle equipment only if the standard is identical to the standard prescribed under
this chapter [49 U.S.C. §§ 30101 et seq.]. However, the United States Government, a
State, or a political subdivision of a State may prescribe a standard for a motor vehicle or
motor vehicle equipment obtained for its own use that imposes a higher performance re-
quirement than that required by the otherwise applicable standard under this chapter [49
U.S.C. §§ 30101 et seq.].
(2) A State may enforce a standard that is identical to a standard prescribed under this
chapter [49 U.S.C. §§ 30101 et seq.].

49 U.S.C. § 30103(b).

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