N.C.P.I.—Civil 744.13

NOTE WELL: Use this instruction only with causes of

action arising on or after January 1, 1996.

ALSO NOTE WELL: The availability of this defense to a

manufacturer or a seller of prescription drugs is

predicated on two circumstances, both of which must

be determined as matters of law: first, that the drug

in question is a prescription drug;2 second, that the

United States Food and Drug Administration does not

require direct consumer warnings or instructions to

accompany the prescription drug.3

The (state number) issue reads:

"Did the defendant provide an adequate warning or instruction for

the (name prescription drug) to the [physician] [name other legally

authorized prescriber or dispenser] who [prescribed] [dispensed] it for the

plaintiff?"

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,

that the defendant provided an adequate warning or instruction for the

(name prescription drug) to the [physician] [name other legally

authorized prescriber or dispenser] who [prescribed] [dispensed] it for the

plaintiff. (Instructions or warnings are "adequate" if they are sufficient in

content to inform foreseeable [prescribers] [dispensers] how to

[prescribe] [dispense] the (name prescription drug) safely, and if they are

communicated so that they are reasonably likely to reach such

[prescribers] [dispensers] and be understood by them.)

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

defendant provided an adequate warning or instruction for the (name

prescription drug) to the [physician] [name other legally authorized

prescriber or dispenser] who [prescribed] [dispensed] it for the plaintiff,

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.