[David L.]

See the last sentence in particular


03.12 RELEASE OF ONE OR MORE CO-TORTFEASORS OR PLAINTIFFS


For reasons that do not concern you the jury, (provide the names of co-tortfeasors or plaintiffs in the case) are no longer parties to this lawsuit. You are not permitted to speculate, or to discuss, or to consider in your deliberations for any purpose whatsoever the question of why they are no longer (a party) (parties) to this lawsuit. Their absence must not be a factor that weighs either for or against the claims of any party who is before you in this trial. Further, you are not to consider their absence in arriving at your decision as to what role, if any, they had in the facts and circumstances established by the evidence in this case.

Nonetheless, you are required to determine the percentage of fault, if any, of the absent parties named above whose fault contributed in whole or in part to the injuries claimed by the plaintiff. You will be required on the special verdict form you will be given in this case to answer certain questions about the absent parties. You are to answer these questions on the basis of the evidence presented to you in this trial and in accordance with the instructions I have given you explaining negligence, [contributory negligence] and the defenses thereto.

The absence of any party is not evidence of fault and shall not be in any way the basis of your verdict in this case.

That is, 'fault' must be determined from hard evidence. The mere fact that someone is absent from court or is not appearing in the trial should not be taken to be any indication that they must be guilty/at fault in some way.