N.C.P.I.—Civil 743.08

NOTE WELL: Use this instruction only with causes of

action arising before January 1, 1996. For causes of

action arising on or after January 1, 1996, use N.C.P.I.-

Civil 744.08.

The (state number) issue reads:

"Was the plaintiff's [injury] [death] [damage] caused by his using

the (name product) in a manner contrary to any express and adequate

instructions or warnings which he knew or should have known were

[delivered with] [appearing on] [attached to] [on the original container or

wrapping of] the (name product)?"

You will answer this issue only if you have answered the (state

number) issue "Yes" in favor of the plaintiff.

On this issue the burden of proof is on the defendant. This means

that the defendant must prove, by the greater weight of the evidence,

four things:

First, that the plaintiff used the (name product) contrary to

instructions or warnings [delivered with]4 [appearing on] [attached to]

[on the original container or wrapping of] the (name product).

Second, that such instructions or warnings were express and

adequate. Instructions or warnings are "express" if they are stated5

affirmatively and definitely. Instructions or warnings are "adequate" if

they are sufficient in content to inform foreseeable users how to use the

(name product) safely, and if they are communicated so that they are

reasonably likely to reach such users and be understood by them.6 (In

the case of prescription drugs or devices, a manufacturer's warning is

adequate if it is communicated to a health care practitioner in such a way

that the health care practitioner can understand that the type of use

which caused the plaintiff's [injury] [death] [damage] is contrary to the

warning.7)

Third, that the plaintiff knew or, in the exercise of ordinary care

should have known, of the existence of such instructions or warnings. A

person "knows" something when he has actual knowledge of it. However,

it is not necessary for a person to have read the instructions or warnings

to be responsible for knowing of their existence. A person "should have

known" of something when, in the exercise of reasonable and diligent8

care, he should have acquired knowledge of it under all the circumstances

existing at the time.

Fourth, that the plaintiff's [injury] [death] [damage] was caused by

his use of the (name product) contrary to the instructions or warnings.

Cause is a real cause-a cause which in a natural and continuous sequence

produces a person's [injury] [death] [damage].9 There may be more than

one cause of [an injury] [a death] [damage]. Therefore, the defendant

need not prove that the plaintiff's contrary use of the (name product) was

the sole cause of the [injury] [death] [damage]. The plaintiff must

prove, by the greater weight of the evidence, only that the plaintiff's

contrary use of the (name product) was a cause.

Finally, as to this issue on which the defendant has the burden of

proof, if you find by the greater weight of the evidence that the plaintiff's

[injury] [death] [damage] was caused by his using the (name product) in

a manner contrary to any express and adequate instructions or warnings

which he knew or should have known were [delivered with] [appearing on]

[attached to] [on the original container or wrapping of] the (name

product),

then it would be your duty to answer this issue "Yes" in favor of the

defendant.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue "No" in favor of the plaintiff.