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Ninth Circuit October 2019 civil instruction revisions

The Ninth Circuit has published October 2019 revisions to its Manual of Model Civil Jury Instructions. Some of these are simply the addition of new case authority. The substantive changes are described below:

  • Instruction 1.19 has been renamed "Questions to Witnesses by Jurors During Trial," and is now broken into two options, depending on whether the trial judge wishes to permit questions. The Comment has been rewritten accordingly, and the entire treatment reduced somewhat in size.
  • The Comment to Instruction 7.8 (Jones Act Negligence or Unseaworthiness—Damages—Proof) notes a change in case law; punitive damages are not available in unseaworthiness or Jones Act cases.
  • A new Jones Act instruction, "7.13 Integrated Product Manufacturer's Duty to Warn," apparently occasioned by Air & Liquid Systems Corp. v. Devries, 139 S.Ct. 986, 996 (2019).
  • Two new § 1983 instructions, "9.17A Particular Rights—Fourth Amendment—Unreasonable Search—Judicial Deception," and "9.33BParticular Rights—Fourteenth Amendment—Due Process—State Created Danger."
  • The Comment to Instruction 9.27 ("Particular Rights—Eighth Amendment—Convicted Prisoner's Claim re Conditions of Confinement/Medical Care") has been rewritten, apparently in reaction to Disability Rights Montana v. Batista, 930 F.3d 1090, 1097 (9th Cir. 2019).
  • The Comment to 9.34 ("Qualified Immunity") now briefly references Lane v. Franks, 573 U.S. 228, 243 (2014).
  • The Introductory Comment to Chapter 12. Americans With Disabilities Act, has been rewritten to note the unavailability of compensatory and punitive damages for retaliation.
  • The Comment to 12.1A ("ADA Employment Actions—Actual Disability—Elements") now recognizes an issue regarding whether obesity without an underlying physiological cause is an impairment under the ADA, and the causation section now notes that an "ADA discrimination plaintiff bringing a claim under 42 U.S.C. § 12112 must show that the adverse employment action would not have occurred but for the disability," citing Murray v. Mayo Clinic, 934 F.3d 1101, 1105 (9th Cir. 2019).
  • The Elements list in 12.7 ("ADA—Reasonable Accommodation") has been rewritten.
  • Instruction 12.8 ("ADA—Undue Hardship") now emphasizes that undue hardship is an affirmative defense.
  • Instruction 12.9 ("ADA—Retaliation") has been withdrawn.

A redline/strikeout document showing these changes is posted here.


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