N.C.P.I.—Civil 744.17

NOTE WELL: Use this instruction only with causes of

action arising on or after January 1, 1996.

The (state number) issue reads:

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

aspect of the (name prescription drug) that was unavoidably unsafe and

as to which the defendant had given adequate warning and instruction 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 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,

two things:4

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

some aspect of the (name prescription drug) that was unavoidably

unsafe. "Unavoidably unsafe" means that, in the state of technical,

scientific and medical knowledge generally prevailing at the time the

prescription drug left the control of its manufacturer, an aspect of that

prescription drug that caused the plaintiff's [injury] [death] [damage] was

not reasonably capable of being made safe.

Second, that the defendant provided an adequate warning and

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 plaintiff's

[injury] [death] [damage] was caused by some aspect of the (name

prescription drug) that was unavoidably unsafe and as to which the

defendant had given adequate warning and instruction 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.