Illinois House Bill 4426 & “Blindfolding the Jury”: Addressing Juror Bias in Comparative Fault
Illinois State Representative Ron Sandack recently introduced House Bill 4426, which proposes to modify 735 ILCS 5/2-1107.1, the Illinois Code of Civil Procedure section dealing with jury instructions in tort actions. If passed, HB 4426 would remove the requirement in Section 2-1107.1 that juries be instructed that “the defendant shall be found not liable if the jury finds that contributory fault of the plaintiff is more than 50% of the proximate cause of the injury or damage for which recovery is sought.” As amended, 735 ILCS 5/2-1107.1 would expressly provide that the jury shall not be instructed about the consequences of any findings of fault against any party. This practice has often been referred to as “blindfolding the jury” as to the consequences of their findings. The current instruction model is alternatively (and a bit tongue-in-cheek) referred to as the “sunshine” model.
Support for the bill is likely to be strongly split between the two sides of the trial bar. The plaintiffs’ trial bar may argue that the current statute provides the jury with a greater understanding of the consequences of their decision, and that transparent jury instructions have historically been associated with more equitable verdicts. The defense bar will offer that the current statute taints the jury’s role as the fact finder, as a sympathetic juror is less likely to find a plaintiff 51% or more contributorily negligent when he or she knows that such a finding will result in the plaintiff receiving nothing. Illinois Pattern Jury Instruction 36.01 makes it clear that a juror has no cause to consider a plaintiff’s damages unless there is a finding of liability against the defendant. Consequently, a juror should make a determination of the plaintiff’s comparative liability fault based on the evidence alone, and without the specter of the legal consequences or damages informing his or her decision.
However, is there any support for the perception that jurors’ decisions can be tainted by the current contributory fault instruction? In short, yes. Studies comparing a jury’s inconsistent findings in pure comparative negligence jurisdictions (i.e. jurisdictions in which a plaintiff may recover a pro rata percentage of their damages even if they are found 51% or more comparatively negligent) to Illinois’ current modified comparative negligence model, revealed that jurors instructed on the consequences of their comparative negligence determinations were more likely to manipulate their findings to avoid what they perceived to be a “harsh” result. “[A]s expected, juries in modified comparative negligence jurisdictions are significantly less likely to find that a plaintiff was more than 50 percent negligent and significantly less likely to find that a plaintiff was exactly 50 percent negligent or slightly less than 50 percent negligent.”
That said, a contrary empirical study (focused specifically on the net economic impact of a former Illinois “blindfolding” tort reform statute) found that the “net economic impact of adopting either a sunshine or a blindfold rule for a jurisdiction appears to be statistically insignificant.” Notably, the study also acknowledged that the empirical data indicated that “civil juries respond to sunshine rules by lowering the percentage of fault attributable to plaintiffs” while “also appear[ing] to temper this generosity by making smaller awards.” “The mean verdict data strongly support[s] the proposition that jurors who are aware of a percentage bar to recovery will react in ways generally perceived to be more favorable to the plaintiff than will jurors who are not privy to that information.” Thus, the findings remain clear – informing the jury of the consequences of a comparative fault finding against a plaintiff taints the jury’s fact finding process.
House Bill 4426 was referred to the Rules Committee for the Illinois House of Representatives on January 15, 2016. It has not been set for hearing before the Rules Committee as of the date of this post.
 A history of the two approaches in Wisconsin can be found at the website for the Wisconsin State Bar Journal: Robert Kinney, Jordana Thomadsen, Examining Wisconsin Jury Instructions, Wisconsin Lawyer (August 2003).
 Eli K. Best, John J. Donohue, Jury Nullification in Modified Comparative Negligence Regimes, University of Chicago Law Review, 79 U Chi L Rev 945, 967 (2012).
 Jordan Leibman et. al., The Effect of Lifting the Blindfold from Civil Juries Charged with Apportioning Damages in Modified Comparative Fault Cases: An Empirical Study of the Alternatives, 36 Am. Bus. L.J. 349 (1998).