Hon. Tu M. Pham · U.S. District Court for the Western District of Tennessee
=== Standard Voir Dire Questions ===
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION STANDARD VOIR DIRE QUESTIONS - CIVIL CASE MAGISTRATE JUDGE TU M. PHAM General Voir Dire Questions (court asks the entire panel) 1. 2. 3. 4. The case that will be tried today is titled [case name]. As I stated before, the case is expected to take ___ days to try. Does this fact present any special problem to any member of the panel? [The court will read a statement of the case to the panel]. Have any of you read or heard anything about this case before coming here today? The plaintiff is [name] [and appearing on behalf of the company is ___]. Plaintiff is represented by [name of attorney], who is an attorney with the law firm of [name of firm]. I ask that plaintiff and counsel please stand at this time. Do any of you know the plaintiff, his/her attorney, or anyone who works for the law firm of [name of firm]? Have any of you, your family members, or your close friends ever been represented by or had any dealings whatsoever with [name of attorney] or anyone who works for [name of firm]? The defendant is [name] [and appearing on behalf of the company is ___]. Defendant is represented by [name of attorney], who is an attorney with the law firm of [name of firm]. I ask that defendant and counsel please stand at this time. Do any of you know the defendant, his/her attorney, or anyone who works for the law firm of [name of firm]? Have any of you, your family members, or your close friends ever been represented by or had any dealings whatsoever with [name of attorney] or anyone who works for [name of firm]? 5. I am going to read you a list of names of individuals who may be called as witnesses or whose names may come up during this trial. Please raise your hand if you recognize any of these names. 6. Have any of you, your family members, or your close friends ever filed a lawsuit or been named in a lawsuit? 7. Are any of you aware of any potential claim that might be 8. 9. 10. 11. 12. 13. 14. brought by or against you, your family members, or your close friends, even if a lawsuit has not yet been filed? You have heard a brief description of the nature of this case. Have any of you, your family members, or your close friends ever experienced any events similar to the events that allegedly happened in this case? Have any of you ever served on a civil or criminal jury, or grand jury before? Do each of you understand that this is a civil case, which is to be decided by a preponderance of the evidence? Do you understand that this is different from a criminal case where the government would have to prove a defendant guilty beyond a reasonable doubt? Do each of you understand that you must wait until after all the evidence has been presented and after the court instructs you on the law that applies before making up your minds as to any fact or issue in this case? Do any of you feel that because of past experiences, or because there is something about the nature of this case, or for any other reason, that you cannot be fair and impartial to each party in considering the case? Do any of you hold philosophical, religious, or other beliefs that would prevent you from sitting and passing judgment on another person? Do any of you believe that you would not or could not follow the law as I will later explain it to you, apply that law to the facts that you find in this case, and render a verdict required by the law? 15. Do any of you have any other reason, such as a health problem or home problem, that might interfere with your serving as a fair and impartial juror in this case? 1. 2. 3. Individual Voir Dire Questions (court asks each member of the panel) Full name and age. City of residence (if Memphis, the area of Memphis). Marital status. -2- 4. 5. 6. 7. 8. Number and age of any children. Extent of formal education. Any legal training or experience. Present occupation and any other employment going back 10 years, including name of employer(s), nature of work, and length of time with each employer. Present occupation (and prior employment going back 10 years) for spouse, other adults in the household, and any adult children not living in the household. 9. Interests and hobbies. 10. Whether there is any reason why you could not or would not be a fair and impartial juror in this case. Attorney Voir Dire Questions At this time, the attorneys will have an opportunity to ask you additional questions. Please raise your hand if you need to respond to a question. -3-
=== Thomas C. Barnett et al. v. Angelina Barnett (standard jury instructions) ===
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION THOMAS C. BARNETT, JR., SHARON B. TYSON, and DAVID ALAN HARRIS, In their Capacities as Trustees of THE THOMAS O. BARNETT TRUST and as Executors of THE ESTATE OF T.O. BARNETT, deceased, Plaintiffs, v. Civil No. 06-2171-P ANGELINA VIRGINIA BARNETT, Defendant. JURY INSTRUCTIONS Jury Instruction No. 1 You have now heard all of the evidence in the case, as well as the final arguments of the lawyers for the parties. My duty at this point is to instruct you as to the law. It is your duty to accept these instructions of law and apply them to the facts as you determine them, just as it has been my duty to preside over the trial and decide what testimony and evidence is relevant under the law for your consideration. On these legal matters, you must take the law as I give it to you. If any attorney has stated a legal principle different from any that I state to you in my instructions, it is my instructions that you must follow. You should not single out any instruction as alone stating the law, but you should consider my instructions as a whole when you retire to deliberate in the jury room. You should not, any of you, be concerned about the wisdom of any rule that I state. Regardless of any opinion that you may have as to that the law may be – or ought to be – it would violate your sworn duty to base a verdict upon any other view of the law than that which I give you. 2 Jury Instruction No. 2 As members of the jury, you are the sole and exclusive judges of the facts. You pass upon the evidence. You determine the credibility of the witnesses. You resolve such conflicts as there may be in the testimony. You draw whatever reasonable inferences you decide to draw from the facts as you have determined them, and you determine the weight of the evidence. Since you are the sole and exclusive judges of the facts, I do not mean to indicate any opinion as to the facts or what your verdict should be. The rulings I have made during the trial are not any indication of my views of what your decision should be as to whether or not the plaintiffs have proven their case. As to the facts, ladies and gentlemen, you are the exclusive judges. You are to perform the duty of finding the facts without bias or prejudice to any party. 3 Jury Instruction No. 3 In determining the facts, you are reminded that you took an oath to render judgment impartially and fairly, without prejudice or sympathy and without fear, solely upon the evidence in the case and the applicable law. 4 Jury Instruction No. 4 Your authority must be exercised with sincere judgment, sound discretion, and in accordance with the rules of law which I give you. In making your determination of the facts in this case, your judgment must be applied only to that which is properly in evidence. Arguments of counsel are not in evidence, although you may give consideration to those arguments in making up your mind on what inferences to draw from the facts which are in evidence. From time to time the court has been called upon to pass upon the admissibility of certain evidence, although I have tried to do so, insofar as it was practicable, out of your hearing. You have no concern with the reasons for any such rulings and you are not to draw any inferences from them. Whether offered evidence is admissible is purely a question of law in the province of the court and outside the province of the jury. In admitting evidence to which objection has been made, the court does not determine what weight should be given to such evidence, nor does it pass on the credibility of the evidence. Of course, you will dismiss from your mind completely, entirely any evidence which has been ruled out of the case by the court, and you will refrain from speculation or conjecture or any guesswork about the nature or effect of any discussion between court and counsel held out of your hearing or sight. 5 Jury Instruction No. 5 It is the duty of the attorney on each side of a case to object when the other side offers testimony or other evidence which the attorney believes is not properly admissible. Counsel also have the right and duty to ask the court to make rulings of law and to request conferences at the side bar out of the hearing of the jury. All those questions of law must be decided by me, the court. You should not show any prejudice against an attorney or his client because the attorney objected to the admissibility of evidence, or asked for a conference out of the hearing of the jury or asked the court for a ruling on the law. As I already indicated, my rulings on the admissibility of evidence do not, unless expressly stated by me, indicate any opinion as to the weight or effect of such evidence. You are the sole judges of the credibility of all witnesses and the weight and effect of all evidence. 6 Jury Instruction No. 6 Your verdict must be based solely upon the evidence developed at this trial, or the lack of evidence. It would be improper for you to consider any personal feelings you may have about any of the parties' race, religion, national origin, sex or age. It would be equally improper for you to allow any feelings you might have about the nature of the claim against the defendant to influence you in any way. The parties in this case are entitled to a trial free from prejudice. Our judicial system cannot work unless you reach your verdict through a fair and impartial consideration of the evidence. 7 Jury Instruction No. 7 Under your oath as jurors you are not to be swayed by sympathy. You should be guided solely by the evidence presented during the trial, without regard to the consequences of your decision. You have been chosen to try the issues of fact and reach a verdict on the basis of the evidence or lack of evidence. If you let sympathy interfere with your clear thinking, there is a risk that you will not arrive at a just verdict. All parties to a civil lawsuit are entitled to a fair trial. You must make a fair and impartial decision to that you will arrive at a just verdict. 8 Jury Instruction No. 8 Your verdict must be based solely on the evidence presented in this courtroom in accordance with my instructions. You must completely disregard any report which you have read in the press, seen on television, or heard on the radio. Indeed, it would be unfair to consider such reports, since they are not evidence and the parties have no opportunity of contradicting their accuracy or otherwise explaining them away. In short, it would be a violation of your oath as jurors to allow yourselves to be influenced in any manner by such publicity. 9 Jury Instruction No. 9 The evidence in this case is the sworn testimony of the witnesses. By contrast, the question of a lawyer is not to be considered by you as evidence. It is the witnesses' answers that are evidence, not the questions. Testimony that has been stricken or excluded is not evidence and may not be considered by you in rendering your verdict. Arguments by lawyers are not evidence, because the lawyers are not witnesses. What they have said to you in their opening statements and in their summations is intended to help you understand the evidence to reach your verdict. However, if your recollection of the facts differs from the lawyers' statements, it is your recollection which controls. Finally, statements which I may have made concerning the quality of the evidence do not constitute evidence. It is for you alone to decide the weight, if any, to be given to the testimony you have heard and the exhibits you have seen. 10 Jury Instruction No. 10 You are to decide this case only from the evidence which was presented at this trial. The evidence consists of: 1. The sworn testimony of the witnesses who have testified, both in person and by deposition; 2. The exhibits that were received and marked as evidence; and 3. Any facts to which all the lawyers have agreed or stipulated. 4. Any other matters that I have instructed you to consider as evidence. 11 Jury Instruction No. 11 There are two kinds of evidence; direct and circumstantial. Direct evidence is direct proof of a fact, such as testimony of a witness about what the witness personally observed. Circumstantial evidence is indirect evidence that gives you clues about what happened. Circumstantial evidence is proof of a fact, or a group of facts, that causes you to conclude that another fact exists. It is for you to decide whether a fact has been proved by circumstantial evidence. For example, if a witness testified that the witness saw it raining outside, that would be direct evidence that it was raining. If a witness testified that the witness saw someone enter a room wearing a raincoat covered with drops of water and carrying a wet umbrella, that would be circumstantial evidence from which you could conclude that it was raining. You are to consider both direct and circumstantial evidence. The law permits you to give equal weight to both, but it is for you to decide how much weight to give to any evidence. In making your decision, you must consider all the evidence in light of reason, experience and common sense. 12 Jury Instruction No. 12 Although you must consider all of the evidence, you are not required to accept all of the evidence as true or accurate. You should not decide an issue by the simple process of counting the number of witnesses who have testified on each side. You must consider all the evidence in the case. You may decide that the testimony of fewer witnesses on one side is more convincing than the testimony of more witnesses on the other side. 13 Jury Instruction No. 13 Certain testimony has been presented by deposition. A deposition is testimony taken under oath before the trial and preserved in writing. You are to consider that testimony as if it had been given in court. 14 Jury Instruction No. 14 A verdict or finding may be based on inferences fairly drawn from the facts in evidence. An inference cannot be based on surmise or speculation, and is without probative force if inconsistent with undisputed or clearly established facts. The facts on which an inference may legitimately rest must be established by direct evidence as if they were the very facts in issue. An inference cannot flow from the nonexistence of a fact, or from a complete absence of evidence as to the particular fact. 15 Jury Instruction No. 15 You are the sole and exclusive judges of the credibility or believability of the witnesses who have testified in this case. You must decide which witnesses you believe and how important you think their testimony is. You are not required to accept or reject everything a witness says. You are free to believe all, none, or part of any person's testimony. In deciding which testimony you believe, you should rely on your own common sense and everyday experience. There is no fixed set of rules to use in deciding whether you believe a witness, but it may help you to think about the following questions: 1. Was the witness able to see, hear, or be aware of the things about which the witness testified? 2. How well was the witness able to recall and describe 3. 4. 5. 6. 7. those things? How long was the witness watching or listening? Was the witness distracted in any way? Did the witness have a good memory? How did the witness look and act while testifying? Was the witness making an honest effort to tell the truth, or did the witness evade questions? 8. Did the witness have any interest in the outcome of the case? 16 9. Did the witness have any motive, bias or prejudice that would influence the witness' testimony? 10. How reasonable was the witness' testimony when you consider all of the evidence in the case? 11. Was the witness' testimony contradicted by what that witness has said or done at another time, by the testimony of other witnesses, or by other evidence? 12. Has there been evidence regarding the witness' intelligence, respectability, or reputation for truthfulness? 13. Did the witness admit that any part of the witness' testimony was not true? 17 Jury Instruction No. 16 There may be discrepancies or differences within a witness' testimony or between the testimony of different witnesses. This does not necessarily mean that a witness should be disbelieved. Sometimes when two people observe an event they will see or hear it differently. Sometimes a witness may have an innocent lapse of memory. Witnesses may testify honestly but simply may be wrong about what they thought they saw or remembered. You should consider whether a discrepancy relates to an important fact or only to an unimportant detail. 18 Jury Instruction No. 17 Usually witnesses are not permitted to testify as to opinions or conclusions. However, a witness who has scientific, technical, or other specialized knowledge, skill, experience, training, or education may be permitted to give testimony in the form of an opinion. Those witnesses are often referred to as “expert witnesses.” You should determine the weight that should be given to an expert's opinion. You should consider: 1. The education, qualifications, and experience of the 2. 3. witness; and The credibility of the witness; and The facts relied upon by the witness to support the opinion; and 4. The reasoning used by the witness to arrive at the opinion. You should consider the expert’s opinion and give it the weight, if any, that you think it deserves. You are not required to accept the opinion of any expert. 19 Jury Instruction No. 18 In some cases, the plaintiff has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove his case. The term “preponderance of the evidence” means that amount of evidence that causes you to conclude that an allegation is probably true. To prove an allegation by a preponderance of the evidence, a party must convince you that the allegation is more likely true than not true. 20 Jury Instruction No. 19 In this case, however, the plaintiffs must prove their case by clear and convincing evidence. Clear and convincing evidence is a different and higher standard than preponderance of the evidence. To prove an issue by clear and convincing evidence, the party having that burden of proof must show that the proposed conclusion is highly probable and that there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. 21 Jury Instruction No. 20 All of the instructions are equally important. The order in which these instructions are given has no significance. You must follow all of the instructions and not single out some and ignore others. 22 Jury Instruction No. 21 In reaching your verdict you may consider only the evidence that was admitted. Remember that any questions, objections, statements or arguments made by the attorneys during the trial are not evidence. If the attorneys have stipulated or agreed to any fact, however, you will regard that fact as having been proved. Testimony that you have been instructed to disregard is not evidence and must not be considered. If evidence has been received only for a limited purpose, you must follow the limiting instructions I have given you. You are to decide the case solely on the evidence received at trial. 23 Jury Instruction No. 22 Although you must only consider the evidence in this case in reaching your verdict, you are not required to set aside your common knowledge. You are permitted to weigh the evidence in light of your common sense, observations and experience. 24 Jury Instruction No. 23 The verdict you return to the Court must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree to that verdict. Your verdict must be unanimous. It is your duty to consult with one another and to reach an agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and to change your opinion if you are convinced that it is not correct. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. 25 Jury Instruction No. 24 You are about to go into the jury room and begin your deliberations. Any communication with the court -- should always be made to me in writing, signed by your foreperson, and given to one of the marshals. Do not tell me or anyone else how the jury stands on any issue until after the unanimous verdict is reached. 26 Jury Instruction No. 25 You will now retire to decide the case. In order to prevail, the plaintiffs must sustain the burden of proof as I have explained to you. If you find that the plaintiffs have succeeded, you should return a verdict in their favor. It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement. Each of you must decide the case for himself, but you should do so only after a consideration of the case with your fellow jurors, and you should not hesitate to change an opinion when convinced that it is erroneous. Your verdict must be unanimous, but you are not bound to surrender your honest convictions concerning the effect or weight of the evidence for the mere purpose of returning a verdict or solely because of the opinion of other jurors. Discuss and weigh your respective opinions dispassionately, without regard to sympathy, without regard to prejudice or favor for either party, and adopt that conclusion which in your good conscience appears to be in accordance with the truth. Some of you may have taken notes during the trial. Once you retire to the jury room you may refer to your notes, but only to refresh your own memory of the witnesses’ testimony. You are free to discuss the testimony of the witnesses with your fellow jurors, but each of you must rely upon your own individual memory as to what a witness did or did not say. 27 In discussing the testimony, you may not read your notes to your fellow jurors or otherwise tell them what you have written. You should never use your notes to persuade or influence other jurors. Your notes are not evidence. Your notes should carry no more weight than the unrecorded recollection of another juror. Again, each of you must make your own decision about the proper outcome of this case based on your consideration of the evidence and your discussions with your fellow jurors. No juror should surrender his conscientious beliefs solely for the purpose of returning a unanimous verdict. 28 Jury Instruction No. 26 When you retire, you should elect one member of the jury as your foreperson. That person will preside over the deliberations and speak for you here in open court. 29 Jury Instruction No. 27 After you have reached a verdict, your foreperson will fill in the verdict form that has been given to you, sign and date it and advise the marshal outside your door that you are ready to return to the courtroom. Each juror will also sign the verdict form. 30
=== Kumar v. Hilton Hotels (Title VII employment discrimination) ===
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION MANOJ KUMAR, Plaintiff, vs. HILTON HOTELS CORP., Defendant. Case No. 2:08-cv-2689-BBD-tmp JURY INSTRUCTIONS Members of the Jury: You have now heard all of the evidence in the case. I will now instruct you on the law, after which you will hear closing arguments of the parties. It becomes my duty, therefore, to instruct you on the rules of law that you must follow and apply in arriving at your decision in the case. In any jury trial there are, in effect, two judges. I am one of the judges; the other is the jury. It is my duty to preside over the trial and to determine what testimony and evidence is relevant under the law for your consideration. It is also my duty at the end of the trial to instruct you on the law applicable to the case. You, as jurors, are the judges of the facts. But in determining what actually happened in this case -- that is, in reaching your decision as to the facts -- it is your sworn duty to follow the law I am now in the process of defining for you. You must not be influenced by sympathy, bias, prejudice or passion. You are not to single out any particular part of the instructions and ignore the rest, but you are to consider all the instructions as a whole and regard each in the light of all the others. Now let me outline for you the parts of the charge so that you can follow it more easily. First, I will instruct you as to the burden of proof and upon which party the law places that burden in the case, and I will give you some rules to help you as you consider the evidence. Second, I will outline for you the law to apply in determining the legal issues with respect to liability. Third, I will instruct you on the law with respect to damages. Finally, I will explain to you about the form of your verdict. In this case, the Plaintiff, Manoj Kumar, (“Plaintiff” or “Mr. Kumar”) brings claims of national origin and alienage discrimination and retaliation against Defendant Hilton Hotels Corporation (“Defendant” or “Hilton”). Mr. Kumar claims that Hilton intentionally discriminated against him because of his national origin and citizenship status and retaliated against him for engaging in protected activities by refusing to allow him to interview for the position of Director of 2 Development, issuing him repeated written warnings, and, ultimately, terminating his employment. Hilton denies these claims. Hilton contends that its decision to refuse to allow Mr. Kumar to apply for the position and to terminate his employment was based on his poor performance. According to Hilton the decision had nothing to do with Mr. Kumar’s national origin or citizenship status or Mr. Kumar’s alleged protected activities. Burden of Proof Where, as in this case, Defendant explains its employment decision concerning Plaintiff in nondiscriminatory terms, Mr. Kumar must prove by a preponderance of the evidence that the motivating factor for Hilton’s alleged adverse actions was based on national origin or citizenship. Mere disbelief of the reasons Hilton offers in support of its decision does not compel a judgment in Mr. Kumar’s favor. For example, you must believe Mr. Kumar’s explanation that national origin or alienage was a motivating factor not to allow him to apply for the Director of Development position. You may, for instance, not believe that Hilton failed to offer him the Director of Development position for the reasons stated (Mr. Kumar was not qualified) and still conclude that it was not motivated by Mr. Kumar’s national origin or alienage or any other unlawful motive. For another example, you must believe that Mr. Kumar’s alleged protected activities caused 3 Hilton to retaliate against him by failing to promote him, by demoting him, by disciplining him, and ultimately, by terminating his employment. You may, for instance, not believe that Hilton terminated Mr. Kumar’s employment for the reasons stated (unsatisfactory performance) and still conclude that there is no causal relationship between Mr. Kumar’s alleged protected activities and any adverse actions he may have suffered. Preponderance of the Evidence The burden is on the plaintiff in a civil action, such as this, to prove every essential element of his claim by a preponderance of the evidence. If the proof should fail to establish any essential element of Plaintiff's claim by a preponderance of the evidence in the case, the jury should find for Defendant as to that claim. To “establish by a preponderance of the evidence” means to prove that something is more likely so than not so. In other words, a preponderance of the evidence in the case means such evidence as, when considered and compared with that opposed to it, has more convincing force, and produces in your minds a belief that what is sought to be proved is more likely true than not true. This rule does not, of course, require proof to an absolute certainty, since proof to an absolute certainty is seldom possible in any case. 4 In this case the burden is on Plaintiff to prove every essential part of his claim by a preponderance of the evidence. A preponderance of the evidence simply means evidence that, when it is considered with and compared to opposing evidence, persuades you that Plaintiff’s claim is more likely true than not true. In deciding whether any fact has been proved by a preponderance of the evidence, you may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them. Plaintiff bears the burden of proof on all claims, elements of his claims, and damages that flow therefrom. The burden of proving that Mr. Kumar was discriminated or retaliated against remains with Plaintiff throughout the case. In deciding whether Defendant intentionally discriminated or retaliated against Plaintiff because of impermissible factors, your job is to determine what motivated the person or persons who decided 5 against promoting him or who decided to terminate Mr. Kumar, or to otherwise treat Mr. Kumar adversely. When a corporation is involved, of course, it may act only through natural persons as its agents or employees. In general, an agent or employee of the corporation may bind the corporation by his or her acts and declarations made while acting within the scope of authority delegated by the corporation, or within the scope of his or her duties as an employee of the corporation. Credibility of Witnesses You, as members of the jury, are judges of the facts concerning the controversy involved in this lawsuit. In order for you to determine what the true facts are, you are called upon to weigh the testimony of every witness who has appeared before you, and to give the testimony of the witnesses the weight, faith, credit and value to which you think it is entitled. You will note the manner and demeanor of witnesses while on the stand. You must consider whether the witness impressed you as one who was telling the truth or one who was telling a falsehood and whether or not the witness was a frank witness. You should consider the reasonableness or unreasonableness of the testimony of the witness; the opportunity or lack of opportunity of the witness to know the facts about which he testified; the intelligence or lack of intelligence of 6 the witness; the interest of the witness in the result of the lawsuit; if any; the relationship of the witness to any of the parties to the lawsuit, if any; and whether the witness testified inconsistently while on the witness stand, or if the witness said or did something or failed to say or do something at any other time that is inconsistent with what the witness said while testifying. These are the rules that should guide you, along with your common judgment, your common experience and your common observations gained by you in your various walks in life, in weighing the testimony of the witnesses who have appeared before you in this case. If there is a conflict in the testimony of the witnesses, it is your duty to reconcile that conflict if you can, because the law presumes that every witness has attempted to and has testified to the truth. But if there is a conflict in the testimony of the witnesses which you are not able to reconcile, in accordance with these instructions, then it is with you absolutely to determine which ones of the witnesses you believe have testified to the truth and which ones you believe have testified to a falsehood. Immaterial discrepancies do not affect a witness’ testimony, but material discrepancies do. The greater weight or preponderance of the evidence in a case is not determined by the number of witnesses testifying to a particular fact or a particular 7 state of facts. Rather, it depends on the weight, credit and value of the total evidence on either side of the issue, and of this you, as jurors, are the exclusive judges. If in your deliberations you come to a point where the evidence is evenly balanced and you are unable to determine which way the scales should turn on a particular issue, then the jury must find against that party upon whom the burden of proof has been cast in accordance with these instructions. All Available Evidence Need Not Be Produced The law does not require any party to call as witnesses all persons who may have been present at any time or place involved in the case, or who may appear to have some knowledge of the matters in issue at this trial. Nor does the law require any party to produce as exhibits all papers and things mentioned in the evidence in the case. 8 Evidence in the Case – Stipulations – Judicial Notice – Inferences Permitted Statements and arguments of counsel are not evidence in the case. When, however, the Plaintiff’s and Defendant’s attorneys stipulate or agree as to the existence of a fact, you must, unless otherwise instructed, accept the stipulation and regard that fact as proved. The Court may take judicial notice of certain facts or events. When the Court declares it will take judicial notice of some fact or event, you must, unless otherwise instructed, accept the Court’s declaration as evidence, and regard as proved the fact or event which has been judicially noticed. Unless you are otherwise instructed, the evidence in the case always consists of the sworn testimony of the witnesses, regardless of who may have called them; and all exhibits received in evidence, regardless of who may have produced them; and all facts which may have been admitted or stipulated; and all facts and events which may have been judicially noticed. Any evidence as to which an objection was sustained by the Court, and any evidence ordered stricken by the Court, must be entirely disregarded. Also remember that what the attorneys say is not evidence. 9 Direct and Circumstantial Evidence There are two kinds of evidence -- direct and circumstantial. Direct evidence is testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is indirect evidence, that is, it is proof of one or more facts from which one can find another fact. Direct evidence is simply evidence like the testimony of an eyewitness which, if you believe it, directly proves a fact. If a witness testified that he saw it raining outside, and you believed him, that would be direct evidence that it was raining. Circumstantial evidence is simply a chain of circumstances that indirectly proves a fact. If someone walked into the courtroom wearing a raincoat covered with drops of water and carrying a wet umbrella, that would be circumstantial evidence from which you could conclude that it was raining. It is your job to decide how much weight to give the direct and circumstantial evidence. The law makes no distinction between the weight that you should give to either one, or say that one is any better evidence than the other. You should consider all the evidence, both direct and circumstantial, and give it whatever weight you believe it deserves. 10 You may consider both direct and circumstantial evidence in deciding this case. The law permits you to give equal weight to both, but it is for you to decide how much weight to give to any evidence. Deposition Testimony Certain testimony has been read into evidence from depositions. A deposition is testimony taken under oath before the trial and preserved in writing and/or videotape. You are to consider that testimony as if it had been given in court. Witnesses with Specialized Knowledge or Expert Witnesses You have heard the testimony of Dr. Chris Ann Shrio-Geist, professor and vocational and occupational counselor, Dr. Richard Edelman, Professor of Economics, and Dr. Pia DiGirolamo, forensic economist, who all testified as expert witnesses. A witness who has special knowledge, skill, experience, training or education in a particular science, profession, or occupation may give his or her opinion as an expert as to any matter in which he or she is skilled. In determining the weight to be given such opinion and in resolving conflicts in the testimony of differing expert witnesses, you should consider qualifications and credibility of the expert or experts, as well as the reasons, the facts and any other matters upon 11 which any opinion is based. You are not bound by any expert opinion. Give it the weight, if any, to which you think it is entitled. You do not have to accept the testimony of an expert witness. In deciding how much weight to give it, you should consider the witness’s qualifications and how s/he reached his or her conclusions. Also consider the other factors discussed in these instructions for weighing the credibility of witnesses. Remember that you alone decide how much of a witness’s testimony to believe, and how much weight it deserves. The fact that Hilton Hotels is a corporation and is a party must not prejudice Corporation Not To Be Prejudiced you in your deliberations or in your verdict. You may not discriminate between corporations and natural individuals. Both are persons in the eyes of the law, and both are entitled to the same fair and impartial consideration and to justice by the same legal standards. Law Turning now to the legal theories in the case, it is my duty to tell you what the law is. If a lawyer or party has told you that the law is different from what I tell you it is, you must, of course, take the law as I give it to you. That is my duty, but it is your duty, and yours alone, to determine what the facts are and after you 12 have determined what the facts are, to apply those facts the law as I give it to you, free from any bias, prejudice or sympathy, either one way or the other. Title VII of the Civil Rights Act: Purpose The Civil Rights Act is not intended as a vehicle for judicial review of employment decisions that are not the result of discrimination. Although the Civil Rights Act requires that an employer reach employment decisions without unlawfully discriminating, it does not place an affirmative duty upon an employer to accord special treatment to an employee. An employer has the right to make business decisions, including selection decisions such as those at issue in this case, for good, bad, or no reason at all, as long as they don't constitute discrimination. The law does not expose an employer to liability merely because the employer may have misjudged an employee's job performance or made a personnel decision that was unwise or ill-advised. It is not your function in this case to second-guess the wisdom of any employment action which affected Plaintiff. Thus, even if you personally disagree with the actions that were taken or believe that they were harsh or unreasonable, if you find that discrimination was not a motivating factor for the actions, then you must return a verdict in Defendant's favor. 13 National Origin Discrimination: Relevant Provision of Title VII Mr. Kumar’s national origin discrimination claim is brought under a federal statute known as Title VII. Under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a): It shall be an unlawful employment practice for an employer: (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. Mr. Kumar’s national origin discrimination claim is also brought under a Tennessee statute known as the Tennessee Human Rights Act (“THRA”). Under Tenn. Code 4-21-401(a)(1), it is a discriminatory practice for an employer to “[f]ail or refuse to hire or discharge any person or otherwise to discriminate against an individual with respect to compensation, terms, conditions or privileges of employment because of such individual's race, creed, color, religion, sex, age or national origin.” The THRA was intended to be coextensive with federal law. Thus, THRA claims are analyzed in an identical manner to Title VII discrimination claims. 14 National Origin Discrimination: Title VII Elements In order for Plaintiff to establish his claim of intentional discrimination by Defendant, Plaintiff has the burden of proving that Defendant affected the terms, conditions, and privileges of his employment because of his national origin. In order for Plaintiff to establish his claim of intentional discrimination by Defendant, Plaintiff has the burden of proving the following essential elements by a preponderance of the evidence: 1. Plaintiff is a member of a protected class; 2. who performed his job satisfactorily (or who was qualified for a new position), 3. who suffered an adverse employment action, 4. that he suffered unlawful discrimination. Mr. Kumar need not show that national origin discrimination was the only or predominant factor that motivated Hilton. In fact, you may decide that other factors were involved as well in Hilton’s decision making process. In that event, in order for you to find for Mr. Kumar, you must find that he has proven that, although there were other factors, he would not have been refused promotion and terminated without the national origin discrimination. 15 Mr. Kumar is not required to produce direct evidence of unlawful motive. You may infer knowledge and/or motive as a matter of reason and common sense from the existence of other facts. Adverse Employment Action An “adverse employment action” is one that, standing alone, actually causes damage, tangible or intangible, to an employee. The fact that an employee is unhappy with something his or her employer did or failed to do is not enough to make that act or omission an adverse employment action. An employer takes adverse action against an employee only if it: (1) takes something of consequence away from the employee, for example by discharging or demoting the employee, reducing his or her salary, or taking away significant responsibilities; or (2) fails to give the employee something that is a customary benefit of the employment relationship, for example, by failing to follow a customary practice of considering the employee for promotion after a particular period of service. An adverse employment action by a supervisor is an action of the employer. Business Judgment It is not your role to second guess Hilton’s business judgment. Standing alone, honest errors in business judgment do not establish discrimination. Even if you were to decide that the failure to promote and termination was neither fair nor 16 wise nor professionally handled, that would not be enough. In order to succeed on the discrimination claim, Mr. Kumar must persuade you by a preponderance of the evidence that were it not for national origin discrimination, he would not have been refused promotion and terminated. An employer is entitled under the law to take employment actions against an employee based on subjective business judgments or for any non-discriminatory or non-retaliatory reason at all, so long as it is not because of Plaintiff’s national origin or alienage or Plaintiff’s protected activities. Good faith errors in an employer’s business judgment, standing alone, are not evidence of discrimination or retaliation. Good Faith Errors Plaintiff’s Subjective Belief Any generalized or conclusory testimony presented by Plaintiff regarding his subjective belief that his treatment was the result of discrimination or retaliation is insufficient to prove by a preponderance of the evidence that Plaintiff was (1) discriminated against because of his national origin or citizenship and/or (2) retaliated against for engaging in protected activity. 17 Section 1981: Purpose Plaintiff Manoj Kumar also has asserted a claim against Defendant Hilton based on Section 1981 of the Civil Rights Act (“Section 1981”). Section 1981 prohibits alienage discrimination in, among other things, the making and enforcement of contracts, including contracts of at-will employment. Section 1981 claims of discrimination based upon alienage are analyzed under the same framework as Title VII discrimination claims. Section 1981 of Title 42 of the United States Code provides in pertinent part that: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to full and equal benefits of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. Alienage/Citizenship Discrimination: Section 1981 Elements To establish a claim of alienage discrimination under Section 1981, the Plaintiff must prove the following elements of his case: 1. That he is an alien; 2. That Hilton intended to discriminate on the basis of alienage; and 3. That the discrimination interfered with the plaintiff’s right to make and enforce at-will contracts. 18 Mr. Kumar may show through circumstantial or direct evidence that he has been discriminated against to satisfy the elements of the Section 1981 claim. Retaliation: Title VII, Section 1981, and THRA Mr. Kumar has also made a claim of retaliation against Hilton in violation of Title VII, Section 1981 and the THRA. Title VII provides in pertinent part: It shall be an unlawful employment practice for an employer to discriminate against any of [its] employees . . . because [the employee] has opposed any practice made an unlawful employment practice by [Title VII], or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]. 42 U.S.C. § 2000e-3(a). The analysis of a claim of retaliation is identical under these laws. Retaliation: Title VII, Section 1981 and THRA Elements Plaintiff must satisfy a four-prong test as to each discrete act of alleged retaliation in order to prove retaliation. Plaintiff must prove by a preponderance of the evidence: (1) that Plaintiff engaged in protected activity by making an oral or written complaint of discrimination; (2) that Defendant knew of Plaintiff’s protected conduct; 19 (3) that Plaintiff suffered an adverse employment action (You will refer to the definition of adverse employment action provided earlier); and (4) that a causal connection existed between the protected activity and the adverse action, in other words, that Plaintiff’s engaging in protected activity was a motivating factor in Hilton’s adverse employment action. To establish the fourth element—that there was a causal connection between Plaintiff’s protected activity and Plaintiff’s termination—Plaintiff must establish that his protected activity was the likely reason for the adverse employment action allegedly taken against him. The fact that Plaintiff was terminated after Plaintiff engaged in protected activity is not sufficient, by itself, to establish that the protected activity was a significant factor in the termination. If you find that Plaintiff has failed to prove any one of these four elements, then you must find for Defendant. If you decide that Plaintiff has proven each of these four elements by a preponderance of the evidence and has proven unlawful retaliation, then your verdict must be for Plaintiff. Inference of a Causal Connection The proximity in time between protected activity and the decision to terminate Plaintiff may give rise to an inference of a causal connection between the protected activity and the decision to terminate the Plaintiff. 20 However, temporal proximity alone will not support an inference in the face of compelling evidence that Plaintiff would have been terminated or treated adversely regardless of whether he participated in the protected activity. Employer’s Business Decisions Title VII, the THRA, and § 1981 do not forbid Defendant from changing its expectations of employee performance or the qualifications required for a position as long as the changes are not made for discriminatory reasons or in retaliation for Plaintiff’s exercising his rights under those laws. An employer is free to set whatever performance standards it wants, provided they are not based on unlawful discrimination or retaliation. Even if Defendant may have made a mistake or misjudged the qualifications or performance of Plaintiff, this is irrelevant as long as the decision was not the result of an unlawful discrimination. Damages There is only one trial of all the issues in this case. At the end of this trial you, the jury, will have to decide, based on the facts and on the rules of law on which I am instructing you, first, whether Defendant is liable and, if so, the monetary amount of each Plaintiff’s damages. Defendant has just this opportunity 21 to present evidence upon which you may decide issues of liability and, only if you find Defendant liable, issues of damages as well. Since Defendant was required to address damages or lose the opportunity to do so, none of the evidence or discussion relating to damages presented on Defendant’s behalf should be taken or construed by the jury as an admission by Defendant that it is liable to Plaintiff. Defendant has denied Plaintiff’s charges as vigorously as Plaintiff has presented his claims. In this case, if you find for Defendant, you will not be concerned with the question of damages. But if you find in favor of Plaintiff, you will of course be concerned with the question of damages. It is my duty to instruct you as to the proper measure of damages to be applied in that circumstance. Instruction Does Not Indicate Entitlement If Plaintiff has proven any of his claims against the Defendant by a preponderance of the evidence, you must determine the damages, if any, to which Plaintiff is entitled. You should not interpret the fact that I have given instructions about damages as an indication in any way that I believe Plaintiff should or should not win this case. It is your task to first decide whether Defendant is liable on the claim presented. I am instructing you on damages only so that you will have 22 guidance in the event you decide Defendant is liable and that Plaintiff is entitled to recover money from Defendant. Title VII, Section 1981, and THRA Damages If you find that Defendant Hilton violated Title VII, Section 1981, or the THRA and discriminated against Plaintiff and/or retaliated against him, then you must award Plaintiff the actual damages that he has sustained as a result of the discriminatory actions of Defendant. The damages you may award are: Back pay and the present value of any lost employment benefits. Back pay is the sum of wages Plaintiff would have earned from the date of Defendant’s adverse employment actions through today’s date, less any money earned or which reasonably could have been earned. Remember, throughout your deliberations, you must not engage in speculation, guesswork, or conjecture, and you must not award damages under this instruction by way of punishment or through sympathy. The purpose of a back pay award is to restore the employee to the status quo he would have enjoyed if the discriminatory and/or retaliatory actions had not taken place. Back pay, therefore, is limited to actual damages. 23 Plaintiff must make every reasonable effort to minimize or reduce his damages for loss of compensation by seeking employment. This is called mitigation of damages. Mitigation If you determine that Mr. Kumar is entitled to damages, you must reduce these damages by 1) what Mr. Kumar earned or 2) what Mr. Kumar could have earned by reasonable effort during the period from his discharge until the date of trial. You must decide whether Plaintiff was reasonable in not seeking or accepting a particular job during this timeframe. However, Plaintiff must accept employment that is “of a like nature.” In determining whether employment is “of a like nature,” you may consider: 1. 2. 3. 4. 5. 6. The type of work; The hours worked; The compensation; The job security; The working conditions; and Other conditions of employment. 24 Defendant must prove that Plaintiff failed to mitigate his damages for loss of compensation. If you determine that Plaintiff did not make reasonable efforts to obtain another similar job, you must decide whether any damages resulted from his failure to do so. In calculating back pay, you must not compensate Plaintiff for any portion of his damages that resulted from his failure to make reasonable efforts to reduce his damages. Plaintiff’s diligence must be evaluated in light of the individual characteristics of the claimant and the job market. A claimant is only required to make reasonable efforts to mitigate his damages, and is not held to the highest standard of diligence. Front Pay Under Title VII, Section 1981, and THRA If Plaintiff persuades you that Defendant violated Title VII, Section 1981, or the THRA by discriminating or retaliating against Plaintiff, Plaintiff may be entitled to prospective damages, sometimes called front pay. In the event your award is for Plaintiff, you must not consider damages for front pay; the Court will 25 calculate front pay. Therefore, any award you make should not consider front pay, as this amount is for the Court to decide, if applicable. If you find for Plaintiff, you should also not be concerned with attorney fees. Attorney Fees This is a matter for the Court. Compensatory Damages under Title VII, Section 1981, and THRA If you find that Defendant discriminated or retaliated against Plaintiff, then you must determine an amount that is fair compensation for him These damages are called compensatory damages. The purpose of compensatory damages is to make Mr. Kumar whole—that is to compensate him for the damages he has suffered—other than back pay. Compensatory damages can include medical expenses Mr. Kumar may have incurred because of any adverse employment action taken against him by Defendant. In addition, compensatory damages can include compensation for pain and suffering, mental anguish, shock, embarrassment, humiliation, discomfort, and inconvenience that he proves he has suffered because of the conduct of Defendant. 26 You may award compensatory damages only for injuries Mr. Kumar proves were proximately caused by Defendant’s wrongful conduct. The damages that you award must be fair compensation for all of Mr. Kumar’s damages, no more and no less. If you decide to award compensatory damages, you should be guided by dispassionate common sense. Computing damages may be difficult, but you must not let that difficulty lead you to engage in arbitrary guesswork. On the other hand, the law does not require Mr. Kumar to prove the amount of losses with mathematical precision, but only with as much definiteness and accuracy as the circumstances permit. In particular, in regard to pain and suffering and mental and emotional distress, you may award damages to Mr. Kumar for any alleged humiliation, emotional distress, mental anguish, and suffering that he experienced as a result of Defendant’s adverse actions. No evidence of monetary value of such intangible things as pain and suffering has been, or need be, introduced into evidence. There is no exact standard for fixing the compensation to be awarded for these elements of damages. Any award you make must be fair in light of the evidence presented at trial. 27 The fact that I have instructed you as to the proper measure of damages should not be considered as intimating any view of mine as to which party is entitled to your verdict in this case. Instructions as to the measure of damages are given for your guidance, in the event you should find in favor of Plaintiff from a preponderance of the evidence in the case in accordance with the other instructions. Finally, ladies and gentlemen, we come to the point where we will discuss the form of your verdict and the process of your deliberations. You will be taking with you to the jury room a verdict form that will reflect your findings. The verdict form reads as follows: [READ VERDICT FORM] You will be selecting a foreperson after you retire to the jury room. That person will preside over your deliberations and be your spokesperson here in court. When you have completed your deliberations, your foreperson will fill in and sign the verdict form. 28 Your verdict must represent the considered judgment of each of you. In order to return a verdict, it is necessary that each of your agree to that verdict. That is, your verdict must be unanimous. It is your duty as jurors, to consult with one another, and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. We will be sending with you to the jury room all of the exhibits in the case. You may have not seen all of these previously and they will be there for your review and consideration. You may take a break before you begin the case. However, you may not deliberate at any time unless all eight of you are present together in the jury room. Some of you have taken notes. I remind you that these are for your own individual use only and are to be used by you only to refresh your 29 recollection about the case. They are not to be shown to others or otherwise used as a basis for your discussion about the case. You will take the verdict form to the jury room and when you have reached a unanimous agreement as to your verdict, you will have your foreperson fill it in, date and sign it, and then return to the courtroom. If, during your deliberations, you should desire to communicate with the Court, please reduce your message or question to writing signed by the foreperson, and pass the note to the clerk who will bring it to my attention. I will then respond as promptly as possible, either in writing or by having you returned to the courtroom so that I can address you orally. I caution you, however, with regard to any message or question you might send, that you should never state or specify the vote of the jury at the time. 30
=== Fabery v. Mid-South OB-GYN (Medical Malpractice) ===
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION MICHELE R. FABERY, RN, BSN, and CHARLES FABERY, Plaintiffs, v. MID-SOUTH OB-GYN, P.L.L.C., Defendant. JURY INSTRUCTIONS No. 06-2136 Members of the Jury: You have now heard all of the evidence in the case, as well as the final arguments of the lawyers for the parties. It becomes my duty, therefore, to instruct you on the rules of law that you must follow and apply in arriving at your decision in the case. In any jury trial there are, in effect, two judges. I am one of the judges; the other is the jury. It is my duty to preside over the trial and to determine what testimony and evidence is relevant under the law for your consideration. It is also my duty at the end 1 of the trial to instruct you on the law applicable to the case. You, as jurors, are the judges of the facts. But in determining what actually happened in this case -- that is, in reaching your decision as to the facts -- it is your sworn duty to follow the law I am now in the process of defining for you. You must not be influenced by sympathy, bias, prejudice or passion. You are not to single out any particular part of the instructions and ignore the rest, but you are to consider all the instructions as a whole and regard each in the light of all the others. Now let me outline for you the parts of the charge so that you can follow it more easily. First, I will instruct you as to the burden of proof and upon which party the law places that burden in the case, and I will give you some rules to help you as you consider the evidence. Second, I will outline for you the law to apply in determining the legal issues with respect to liability. Third, I will instruct you on the law with respect to damages. Finally, I will explain to you about the form of your verdict. The burden is on the Plaintiffs in a civil action, such as this, to prove every Burden of Proof 2 essential element of her claim by a preponderance of the evidence. If the proof should fail to establish any essential element of the Plaintiffs’ claim by a preponderance of the evidence in the case, the jury should find for the Defendant as to that claim. To "establish by a preponderance of the evidence" means to prove that something is more likely than not to have occurred. In other words, a preponderance of the evidence in the case means such evidence as, when considered and compared with that opposed to it, has more convincing force, and produces in your mind the belief that what is sought to be proved is more likely true than not true. This rule does not, of course, require proof to an absolute certainty, since proof to an absolute certainty is seldom possible in any case. In determining whether any fact in issue has been proven by a preponderance of the evidence in the case, the jury may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them. Evidence You are to decide this case only from the evidence which was presented at this trial. The evidence consists of: 1. The sworn testimony of the witnesses who have testified, both in person and by deposition; 2. The exhibits that were received and marked as evidence; 3 3. Any facts to which all the lawyers have agreed or stipulated; 4. Any other matters that I have instructed you to consider as evidence. Ordinary Observations and Experiences Although you must only consider the evidence in this case in reaching your verdict, you are not required to set aside your common knowledge. You are permitted to weigh the evidence in light of your common sense, observations and experience. Hypothetical Question An expert witness was asked to assume that certain facts were true and to give an opinion based upon that assumption. This is called a hypothetical question. You must determine if any fact assumed by the witness has not been established by the evidence and the effect of that omission, if any, upon the value of the opinion. Credibility of Witnesses You as members of the jury are judges of the facts concerning the controversy involved in this lawsuit. In order for you to determine what the true facts are, you are called upon to weigh the testimony of every witness who has appeared before you, and to give the testimony of the witnesses the weight, faith, credit and value to which you think it is entitled. You will note the manner and demeanor of witnesses while on the stand. You must consider whether the witness impressed you as one who was telling the truth or one who was telling a falsehood and whether or not the witness was a frank witness. 4 You should consider the reasonableness or unreasonableness of the testimony of the witness; the opportunity or lack of opportunity of the witness to know the facts about which he testified; the intelligence or lack of intelligence of the witness; the interest of the witness in the result of the lawsuit, if any; the relationship of the witness to any of the parties to the lawsuit, if any; and whether the witness testified inconsistently while on the witness stand, or if the witness said or did something or failed to say or do something at any other time that is inconsistent with what the witness said while testifying. These are the rules that should guide you, along with your common judgment, your common experience and your common observations gained by you in your various walks in life, in weighing the testimony of the witnesses who have appeared before you in this case. If there is a conflict in the testimony of the witnesses, it is your duty to reconcile that conflict if you can, because the law presumes that every witness has attempted to and has testified to the truth. But if there is a conflict in the testimony of the witnesses which you are not able to reconcile, in accordance with these instructions, then it is with you absolutely to determine which ones of the witnesses you believe have testified to the truth and which ones you believe have testified to a falsehood. Immaterial discrepancies do not affect a witness' testimony, but material discrepancies do. The greater weight or preponderance of the evidence in a case is not determined by the number of witnesses testifying to a particular fact or a particular state of facts. 5 Rather, it depends on the weight, credit and value of the total evidence on either side of the issue, and of this you jurors are the exclusive judges. If in your deliberations you come to a point where the evidence is evenly balanced and you are unable to determine which way the scales should turn on a particular issue, then the jury must find for the Defendant in accordance with these instructions. There are two kinds of evidence– direct and circumstantial. Direct evidence is testimony by a witness about what that witness personally saw or heard or did. Direct and Circumstantial Evidence Circumstantial evidence is indirect evidence, that is, it is proof of one or more facts from which one can find another fact. Direct evidence is simply evidence like the testimony of an eyewitness which, if you believe it, directly proves a fact. If a witness testified that he or she saw it raining outside, and you believed him or her, that would be direct evidence that it was raining. Circumstantial evidence is simply a chain of circumstances that indirectly proves a fact. If someone walked into the courtroom wearing a raincoat covered with drops of water and carrying a wet umbrella, that would be circumstantial evidence 6 from which you could conclude that it was raining. It is your job to decide how much weight to give the direct and circumstantial evidence. The law makes no distinction between the weight that you should give to either one, or say that one is any better evidence than the other. You should consider all the evidence, both direct and circumstantial, and give it whatever weight you believe it deserves. You may consider both direct and circumstantial evidence in deciding this case. The law permits you to give equal weight to both, but it is for you to decide how much weight to give to any evidence. Deposition Testimony Certain testimony has been read into evidence or presented by video from depositions. A deposition is testimony taken under oath before the trial and preserved in writing and/or videotape. You are to consider that testimony as if it had been given in court. Professional Limited Liability Company Not To Be Prejudiced The fact that a professional limited liability company is a party must not prejudice you in your deliberations or in your verdict. You may not discriminate between professional limited liability companies and natural individuals. Both are 7 persons in the eyes of the law, and both are entitled to the same fair and impartial consideration and to justice by the same legal standards. Law Turning now to the legal theories in the case, it is my duty to tell you what the law is. If a lawyer or party has told you that the law is different from what I tell you it is, you must, of course, take the law as I give it to you. That is my duty, but it is your duty, and yours alone, to determine what the facts are and after you have determined what the facts are, to apply those facts to the law as I give it to you, free from any bias, prejudice or sympathy, either one way or the other. Medical Malpractice [T.C.A. § 29-26-115] To establish the claim of Plaintiff Michele Fabery against Defendant Mid-South OB-GYN, P.L.L.C., Michele Fabery has the burden of proving by a preponderance of the evidence and by expert medical testimony all of the following: 1. The recognized standard of acceptable professional practice in the medical profession and in the specialty of obstetrics and gynecology in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred; and 8 2. That Defendant’s employees acted with less than ordinary and reasonable care or failed to act with ordinary and reasonable care in accordance with the standard of acceptable professional practice; and 3. As a proximate result of such negligent act or omission, Plaintiff Michele Fabery suffered injuries which would not otherwise have occurred. This requirement is often referred to as requiring that the Defendant’s acts be the “legal cause” of Plaintiff’s injuries. These three requirements are the only three findings you must make to determine if Defendant is liable to Plaintiff for medical malpractice. I will now give you some further information on the law to help you determine whether these three elements are met. Duty of Physician [T.P.I--Civil 6.10] A physician who undertakes to perform professional services for a patient must use reasonable care to avoid causing injury to the patient. The knowledge and care required of the physician is the same as that of other reputable physicians practicing in the same or a similar community and under similar circumstances. A physician not only must have that degree of learning and skill ordinarily possessed by other reputable physicians, but also must use the care and skill ordinarily used in like cases. In applying that skill and learning, a physician is required to use reasonable diligence and best judgment in an effort to accomplish the purpose of the employment. A 9 failure to have and use such knowledge and skill is negligence. Duty of Specialist [T.P.I--Civil 6.11] The skill, knowledge and care required of a physician who practices a particular specialty is the same as that of other reputable physicians who specialize in the same field and practice in the same or similar community and under similar circumstances. Perfection Not Required [T.P.I--Civil 6.12] By undertaking treatment a physician does not guarantee a good result. A physician is not negligent merely because of an unsuccessful result or an error in judgment. An injury alone does not raise a presumption of the physician’s negligence. It is negligence, however, if the error of judgment or lack of success is due to a failure to have and use the required knowledge, care and skill as defined in these instructions. Alternate Methods [T.P.I--Civil 6.14] When there is more than one accepted method of diagnosis or treatment, and no one of them is used exclusively and uniformly by all physicians of good standing, a physician is not negligent for selecting a method of diagnosis or treatment that is an acceptable professional practice that later turns out to be unsuccessful. This is true even if the method is one not favored by certain other physicians. 10 Duty to Not Abandon Patient [T.P.I--Civil 6.15] When the physician begins treating a patient, there is a duty to continue treating and not abandon the patient unless and until the patient discharges the physician or the physician gives the patient notice of intent to discontinue treatment and provides an opportunity to obtain the services of another physician. Standard of Medical Care Determined by Expert Testimony [T.P.I--Civil 6.18] It is your obligation to determine the recognized standard of acceptable professional practice in defendant’s profession for this or a similar community. In making this determination, you may consider only the opinions of the physicians, including the Defendant’s physicians, who have testified concerning this standard. Consider each opinion and the reasons given for the opinion, as well as the qualifications of the witnesses, giving each opinion the weight you believe it deserves. The testimony of a physician as to what that physician personally would do or would not do or the personal opinion of a physician of what should or could not have been done does not prove the recognized standard of acceptable professional practice. Dr. Shanklin’s Testimony You have heard testimony from Dr. Shanklin, who testified as to the standard of care for gynecologists in this community. He testified that an incidental appendectomy was required in this case. The Court instructs you to disregard Dr. Shanklin’s testimony on the standard of care for gynecologists. 11 Except for the issue of standard of care, however, you may consider all other testimony by Dr. Shanklin as to all other issues about which he testified. Definition of Legal Cause [T.P.I.–CIVIL 3.20] A legal cause of any injury is a cause which, in natural and continuous sequence, produces an injury, and without which the injury would not have occurred. Superceding Cause [T.P.I.–Civil 3.22] A cause of an injury is not a legal cause when there is a superseding cause. For a cause to be a superseding cause, all of the following elements must be present: 1) The harmful effects of the superseding cause must have occurred after the original negligence; 2) The superseding cause must not have been brought about by the original negligence; 3) The superseding cause must actively work to bring about a result which would not have followed from the original negligence; and 4) The superseding cause must not have been reasonably foreseeable by the original negligent party. 12 Liability of Negligent Physicians for Subsequent Healthcare Made Necessary by Negligence of Original Physicians If one is injured by the negligence of another, and these injuries are aggravated by medical treatment (either prudent or negligent), the negligence of the wrongdoer causing the original injury is regarded as the proximate cause of the damage subsequently flowing from the medical treatment. You cannot presume negligence merely from the occurrence of any unfortunate event. The question is whether the event was caused by the Defendant’s negligence. No Presumption of Negligence Causation Based Upon Probabilities A plaintiff in a medical malpractice case must prove that it is more likely than not that the defendant’s negligence caused the plaintiff to suffer injuries which would not otherwise have occurred. The mere possibility of a causal relationship is insufficient to sustain the plaintiff’s burden of proof. Causation must be based on probabilities and not possibilities. Mid-South OB-GYN, PLLC is responsible for any injury caused by its physician employees, Dr. Donato or Dr. Stack or Dr. Hamby, for the negligent performance of their duties while acting in the scope of their employment with Mid- Vicarious Liability South OB-GYN. 13 Mid-South OB-GYN is the employer of Dr. Donato, Dr. Stack and Dr. Hamby. It is stipulated that Dr. Donato, Dr. Stack, and Dr. Hamby were acting within the course and scope of their employment at Mid-South OB-GYN when they provided medical services to Mrs. Fabery at all times pertinent to this lawsuit. Mid-South OB- GYN can only be liable for damages in this cause based upon the acts and omissions of its physician employees, Dr. Donato or Dr. Stack or Dr. Hamby. Damages If the plaintiff has proven her claim against the defendant by a preponderance of the evidence, you must determine the damages to which the plaintiff is entitled. You should not interpret the fact that I have given instructions about the plaintiff’s damages as an indication in any way that I believe that the plaintiff should, or should not, win this case. It is your task first to decide whether the defendant is liable. I am instructing you on damages only so that you will have guidance in the event you decide that the defendant is liable and that the plaintiff is entitled to recover money from the defendant. In this case, if you find for Defendant, you will not be concerned with the question of damages. But if you find in favor of Plaintiff, you will of course be concerned with the questions of damages. It is my duty to instruct you as to the proper measure of damages to be applied in that circumstance. 14 Determination of Whether Plaintiff Entitled to Recover Verdict A plaintiff is entitled to recover compensation for an injury that was legally caused by the negligent conduct of a defendant. In this case, the plaintiff has the burden of proving: 1. That the defendant was negligent; and 2. That the negligence was a legal cause of injury to the plaintiff. Compensatory Damages [T.P.I –CIVIL 14.01] If you decide a party is entitled to damages, you must fix an amount that will reasonably compensate that party for each of the following elements of claimed loss or harm, if you find it was or will be suffered by that party and was caused by the act or omission upon which you base your finding of fault. Each of these elements of damage is separate. You may not duplicate damages for any element by also including that same loss or harm in another element of damage. Personal Injury - Pain & Suffering [T.P.I.–Civil 14.10] Plaintiff Michele Fabery may be awarded the following elements of damage experienced in the past: 15 Physical pain and suffering; Mental or emotional pain and suffering; Loss of capacity for the enjoyment of life. You may also award compensation for the present cash value of the following damages reasonably certain to be experienced by Michele Fabery in the future: Physical pain and suffering; Mental or emotional pain and suffering; Loss of capacity for the enjoyment of life. Pain and suffering encompasses the physical discomfort caused by an injury. Mental or emotional pain and suffering encompasses anguish, distress, fear, humiliation, grief, shame, or worry. Damages for loss of capacity for the enjoyment of life compensate the injured person for the limitations placed on the ability to enjoy the pleasures of life. Impairment of physical function prevents a person from living life in comfort by adding inconvenience or loss of physical ability. There is no mathematical formula for computing reasonable compensation for physical pain and suffering, mental or emotional pain and suffering, loss of capacity for the enjoyment of life, nor is the opinion of any witness required as to the amount of such compensation. In making an award for such damages, you must use your best judgment and 16 establish an amount of damages that is fair and reasonable in light of the evidence before you. Loss of Earning Capacity [T.P.I.–Civil 14.13] The next element of damages that Plaintiff Michele Fabery can recover is the value of the ability to earn money that has been lost in the past and the present cash value of the ability to earn money that is reasonably certain to be lost in the future. In deciding what, if any, award should be made for loss of the ability to earn, you should consider any evidence of Michele Fabery’s earning capacity, including among other things, Michele Fabery’s health, age, character, occupation, past earnings, intelligence, skill, talents, experience and record of employment. The loss of the ability to earn money may include, but is not limited to, actual loss of income. Aggravation of Pre-Existing Condition [T.P.I.–Civil 14.14] A person who has a condition or disability at the time of an injury is entitled to recover damages only for any aggravation of the pre-existing condition. Recovery is allowed even if the pre-existing condition made Plaintiff more likely to be injured and even if a normal, healthy person would not have suffered substantial injury. 17 A plaintiff with a pre-existing condition may recover damages only for any additional injury or harm resulting from the fault you may have found in this case. If you find that Defendant’s negligence aggravated Plaintiff’s pre-existing condition you must apportion the amount of disability and pain between that caused by the pre-existing condition and that caused by the incident. If, however, you find that Defendant’s negligence aggravated Plaintiff’s pre-existing condition and you find that Plaintiff’s pre-existing condition had caused Plaintiff no harm, pain or suffering before the incident, or if you find that Defendant’s negligence makes it impossible to apportion the amount of disability or pain that pre-existed the incident, then Defendant is responsible for all harm caused by the incident even though it is greater because of the pre-existing condition than it might otherwise have been. Damages for Permanent Injuries [T.P.I.–Civil 14.16] Plaintiff Michele Fabery claims damages for permanent injury. To recover damages for permanent injury, Michele Fabery must prove the future effect of the injury with reasonable certainty. While it is not necessary that the evidence show conclusively or absolutely that the injury is permanent, you may not award damages for permanent injury based upon a mere conjecture or a possibility. Disability and Social Security Payments You have heard that Mrs. Fabery has received certain payments as a result of a long-term disability insurance policy and the Social Security Administration. I 18 instruct you that you are to totally disregard whether and, if so, what Mrs. Fabery has received as payments because of either the long-term disability insurance policy or the supplemental Social Security Administration disability payments. That is, you are to make your decisions the same as if Mrs. Fabery never received any payment from a long-term disability insurance policy or from the Social Security Administration for supplemental social security benefits. Negligent Infliction of Severe or Serious Emotional Injury [T.P.I.–Civil 14.17] Plaintiff Michele Fabery claims damages for serious or severe emotional injury. A serious or severe emotional injury occurs when a reasonable person, normally constituted, would be unable to adequately cope with the mental stress caused and brought about by the circumstances of the case. Such serious or severe emotional injury must be supported by medical or scientific proof. There is no mathematical formula for computing reasonable compensation for negligent infliction of serious or severe emotional injury, nor is the opinion of any witness required as to the amount of such compensation. In making an award for such damages, you must use your best judgment and establish an amount of damages that is fair and reasonable in light of the evidence before you. 19 Spouse’s Claim for Loss of Consortium If you determine that Plaintiff Michele Fabery is entitled to recover damages, then you may also determine whether Plaintiff Charles Fabery is entitled to damages for loss of consortium. In determining damages for Michele Fabery, you should also determine the damages for her husband, Charles Fabery. Under the law of Tennessee, a husband would be entitled to recover the reasonable value of the services of his wife that he has lost and the value of such services that he may reasonable lose in the future. The value of services is known by the legal term “loss of consortium.” Included within the definition of loss of consortium is the affection, aid, assistance, companionship, comfort and society of Michele Fabery in all those matters in which the wife would have benefitted her husband if she had not been injured. Loss of consortium also includes those duties that and obligations which by marriage each partner takes on themselves towards each other in sickness and health. Examples of such services might include the ability to care for and play with the minor children, the ability to perform manual labor around the house and in the yard and to assist in household chores. Loss of consortium may also include loss of emotional support and comfort. If, in accordance with these instructions, you are to determine damages for Mrs. Fabery, you should also determine the damages for Mr. Fabery. Mr. Fabery would be 20 entitled to recover the following elements of damage if established by the evidence: 1. Expenses reasonably incurred in attending the spouse in the hospital; and 2. The reasonable value of the injured spouse’s services that Mr. Fabery has lost and the present cash value of such services plaintiff is reasonably certain to lose in the future; and 3. The reasonable value of the spouse’s acts of companionship of love and affection that Mr. Fabery has lost and the present cash value of such acts plaintiff is reasonably certain to lose in the future but would have received in the usual course of the parties’ married life. Meaning of Present Cash Value [T.P.I.–Civil 15.01] I have used the expression “present cash value” in these instructions concerning damages for future losses that may be awarded to the plaintiff. In determining the damages arising in the future, you must determine the present cash value of those damages. That is, you must adjust the award of those damages to allow for the reasonable earning power of money and the impact of inflation. 21 “Present cash value” means the sum of money needed now which, when added to what that sum may reasonably be expected to earn in the future when invested, would equal the amount of damages, expenses, or earnings at the time in the future when the damages from the injury will be suffered, or the expenses must be paid, or the earnings would have been received. You should also consider the impact of inflation, its impact on wages, and its impact on purchasing power in determining the present cash value of future damages. Life Expectancy The life expectancy read to you is not conclusive but is an average life expectancy of persons who have reached a certain age. You should be aware that many persons live longer, and many die sooner, than the average. This figure may be considered by you in connection with other evidence relating to the probable life expectancy of Michele Fabery, including evidence of Michele Fabery’s health, occupation, habits and other activities as of the date of her alleged injury. All Instructions Not Necessarily Applicable The Court has given you various rules of law to help guide you to a just and lawful verdict. Whether some of these instructions will apply will depend upon what you decide are the facts. The Court’s instructions on any subject must not be taken by you to indicate the Court’s opinion of the facts you should find or the verdict you should return. 22 Deliberations and Verdict Finally, ladies and gentlemen, we come to the point where we will discuss the form of your verdict and the process of your deliberations. You will be taking with you to the jury room a verdict form that will reflect your findings. The verdict form reads as follows: [READ VERDICT FORM] You will be selecting a foreperson after you retire to the jury room. That person will preside over your deliberations and be your spokesperson here in court. When you have completed your deliberations, your foreperson will fill in and sign the verdict form. Your verdict must represent the considered judgment of each of you. In order to return a verdict, it is necessary that each of your agree to that verdict. That is, your verdict must be unanimous. It is your duty as jurors, to consult with one another, and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the 23 weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. Requests to Review Witness Testimony You have heard the testimony of many witnesses. No transcript of witness testimony is readily available. In your deliberations, you must rely on your individual and collective recollection as to all the proof, including the testimony of witnesses. We will be sending with you to the jury room all of the exhibits in the case. You may have not seen all of these previously and they will be there for your review and consideration. You may take a break before you begin the case. However, you may not deliberate at any time unless all of you are present together in the jury room. Some of you have taken notes. I remind you that these are for your own individual use only and are to be used by you only to refresh your recollection about the case. They are not to be shown to others or otherwise used as a basis for your discussion about the case. You will take the verdict form to the jury room and when you have reached a unanimous agreement as to your verdict, you will have your foreperson fill it in, date and sign it, and then return to the courtroom. If, during your deliberations, you should desire to communicate with the Court, please reduce your message or question to writing signed by the foreperson, and pass 24 the note to the clerk who will bring it to my attention. I will then respond as promptly as possible, either in writing or by having you returned to the courtroom so that I can address you orally. I caution you, however, with regard to any message or question you might send, that you should never state or specify the vote of the jury at the time. 25
=== McDaniel v. UT Medical Group (Medical Malpractice) ===
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________________ CHARLES MARK McDANIEL, and his wife, MELODY McDANIEL, Plaintiffs, v. UT MEDICAL GROUP, INC., Defendant. No. 2:16-cv-02895-tmp ______________________________________________________________________________ JURY INSTRUCTIONS ______________________________________________________________________________ INSTRUCTION NO. 1 RESPECTIVE DUTIES OF JUDGE AND JURY Members of the jury, now that you have heard all of the evidence and the arguments of the lawyers, it is my duty to instruct you on the law that applies to this case. You will be provided with a written copy of these jury instructions. It is your duty to find the facts from all the evidence in the case. After you determine the facts, you must apply the law that has been given to you, whether you agree with it or not. You must not be influenced by any personal likes or dislikes, prejudice or sympathy. You must decide the case solely on the evidence before you and according to the law given to you. INSTRUCTION NO. 2 CORPORATION NOT TO BE PREJUDICED The fact that a corporation is a party must not influence you in your deliberations or in your verdict. Corporations and persons are equal in the eyes of the law. Both are entitled to the same fair and impartial treatment and to justice by the same legal standards. INSTRUCTION NO. 3 EVIDENCE You are to decide this case only from the evidence which was presented at this trial. The evidence consists of: 1. The sworn testimony of the witnesses who have testified, both in person and by deposition; 2. The exhibits that were received and marked as evidence; 3. Any facts to which all the lawyers have agreed or stipulated; and 4. Any other matters that I have instructed you to consider as evidence. INSTRUCTION NO. 4 DIRECT AND CIRCUMSTANTIAL EVIDENCE There are two kinds of evidence; direct and circumstantial. Direct evidence is direct proof of a fact, such as testimony of a witness about what the witness personally observed. Circumstantial evidence is indirect evidence that gives you clues about what happened. Circumstantial evidence is proof of a fact, or a group of facts, that causes you to conclude that another fact exists. It is for you to decide whether a fact has been proved by circumstantial evidence. If you base your decision upon circumstantial evidence, you must be convinced that the conclusion you reach is more probable than any other explanation. For example, if a witness testified that the witness saw it raining outside, that would be direct evidence that it was raining. If a witness testified that the witness saw someone enter a room wearing a raincoat covered with drops of water and carrying a wet umbrella, that would be circumstantial evidence from which you could conclude that it was raining. You are to consider both direct and circumstantial evidence. The law permits you to give equal weight to both, but it is for you to decide how much weight to give to any evidence. In making your decision, you must consider all the evidence in light of reason, experience and common sense. INSTRUCTION NO. 5 WEIGHING CONFLICTING TESTIMONY Although you must consider all of the evidence, you are not required to accept all of the evidence as true or accurate. You should not decide an issue by the simple process of counting the number of witnesses who have testified on each side. You must consider all the evidence in the case. You may decide that the testimony of fewer witnesses on one side is more convincing than the testimony of more witnesses on the other side. INSTRUCTION NO. 6 DEPOSITION TESTIMONY Certain testimony has been presented by deposition. A deposition is testimony taken under oath before the trial and preserved in writing or by video. You are to consider that testimony as if it had been given in Court. INSTRUCTION NO. 7 EXPERT TESTIMONY – DETERMINATION OF WEIGHT Usually witnesses are not permitted to testify as to opinions or conclusions. However, a witness who has scientific, technical, or other specialized knowledge, skill, experience, training, or education may be permitted to give testimony in the form of an opinion. Those witnesses are often referred to as “expert witnesses.” You should determine the weight that should be given to each expert’s opinion and resolve conflicts in the testimony of different expert witnesses. You should consider: 1. The education, qualifications, and experience of the witnesses; and 2. The credibility of the witnesses; and 3. The facts relief upon by the witnesses to support the opinion; and 4. The reasoning used by witnesses to arrive at the opinion. You should consider each expert opinion and give it the weight, if any, that you think it deserves. You are not required to accept the opinion of any expert INSTRUCTION NO. 8 CREDIBILITY OF WITNESSES You are the sole and exclusive judges of the credibility or believability of the witnesses who have testified in this case. You must decide which witnesses you believe and how important you think their testimony is. You are not required to accept or reject everything a witness says. You are free to believe all, none, or part of any person's testimony. In deciding which testimony you believe, you should rely on your own common sense and everyday experience. There is no fixed set of rules to use in deciding whether you believe a witness, but it may help you to think about the following questions: 1. Was the witness able to see, hear, or be aware of the things about which the witness testified? 2. How well was the witness able to recall and describe those things? 3. How long was the witness watching or listening? 4. Was the witness distracted in any way? 5. Did the witness have a good memory? 6. How did the witness look and act while testifying? 7. Was the witness making an honest effort to tell the truth, or did the witness evade questions? 8. Did the witness have any interest in the outcome of the case? 9. Did the witness have any motive, bias or prejudice that would influence the witness' testimony? 10. How reasonable was the witness' testimony when you consider all of the evidence in the case? 11. Was the witness' testimony contradicted by what that witness has said or done at another time, by the testimony of other witnesses, or by other evidence? 12. Has there been evidence regarding the witness' intelligence, respectability, or reputation for truthfulness? 13. Has the witness' testimony been influenced by any promises, threats, or suggestions? 14. Did the witness admit that any part of the witness' testimony was not true? INSTRUCTION NO. 9 DISCREPANCIES IN TESTIMONY There may be discrepancies or differences within a witness’ testimony or between the testimony of different witnesses. This does not necessarily mean that a witness should be disbelieved. Sometimes when two people observe an event they will see or hear it differently. Sometimes a witness may have an innocent lapse of memory. Witnesses may testify honestly but simply may be wrong about what they thought they saw or remembered. You should consider whether a discrepancy relates to an important fact or only to an unimportant detail. INSTRUCTION NO. 10 WITNESS WILFULLY FALSE You may conclude that a witness deliberately lied about a fact that is important to your decision in the case. If so, you may reject everything that witness said. On the other hand, if you decide that the witness lied about some things but told the truth about others, you may accept the part you decide is true and you may reject the rest. INSTRUCTION NO. 11 IMPEACHMENT OF WITNESSES A witness may be discredited or impeached by contradictory evidence or by evidence that at some other time the witness has said or done something, or has failed to say or do something that is inconsistent with the witness’s present testimony. If you believe any witness has been impeached and thus discredited, you may give the testimony of that witness such credibility, if any, you think it deserves. If a witness is shown knowingly to have testified falsely under oath about any material matter, you have a right to distrust such witness’s other testimony and you may reject all the testimony of that witness or give it such credibility as you may think it deserves. An act or omission is “knowingly” done, if voluntarily and intentionally, and not because of mistake or accident or other innocent reason. INSTRUCTION NO. 12 HYPOTHETICAL QUESTION An expert witness was asked to assume that certain facts were true and to give an opinion based upon that assumption. This is called a hypothetical question. You must determine if any fact assumed by the witness has not been established by the evidence and the effect of that omission, if any, upon the value of the opinion. INSTRUCTION NO. 13 BURDEN OF PROOF A person who begins a lawsuit is called a plaintiff. A plaintiff always seeks some kind of relief against the other party or parties, called the defendant or defendants. In this case, the Plaintiffs, Charles Mark McDaniel and Melody McDaniel seek to recover money damages from the Defendant, UTMG. In order to be entitled to the relief they seek, the Plaintiffs are required to prove their case by the required weight of evidence known as the burden of proof. This broad, general burden continues upon the Plaintiffs, and the Plaintiffs must maintain it in order to be entitled to a verdict. The Plaintiffs have the burden of proving each of the required elements in order to recover a verdict. If you find that the credible evidence on a given issue is evenly divided between the parties – that it is equally as probable that one side is correct as it is that the other side is correct – then you must find for UTMG. INSTRUCTION NO. 14 PREPONDERANCE OF EVIDENCE It is the Plaintiffs’ burden to prove each and every element of their claim by a preponderance of the evidence. If the Plaintiffs should fail to establish any element of their claim by a preponderance of the evidence, you should find for UTMG. Establish by a “preponderance of the evidence” means to prove that something is more likely so than not so. In other words, a preponderance of the evidence means such evidence as, when considered and compared with the evidence opposed to it, has more convincing force, and produces in your minds belief that what is sought to be proved is more likely true than not true. This standard does not require proof to an absolute certainty, since proof to an absolute certainty is seldom possible in any case. In determining whether any fact in issue has been proved by a preponderance of the evidence you may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them. INSTRUCTION NO. 15 HEALTH CARE LIABILITY – TENNESSEE CODE ANNOTATED § 29-26-115 To establish Plaintiff’s claim for a health care liability action against UTMG, the Plaintiffs have the burden of proving by a preponderance of the evidence and by expert medical testimony all of the following: 1. 2. 3. The recognized standard of acceptable professional practice in the profession and specialty thereof, if any, that Dr. Behrman practices in the community in which Dr. Behrman practices or in a similar community at the time the alleged injury or wrongful action occurred; and That Dr. Behrman acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and As a proximate result of Dr. Behrman’s negligent act or omission, Plaintiffs suffered injuries which would not otherwise have occurred. These three requirements are the three findings you must make to determine if UTMG is liable to Plaintiffs for health care liability. There shall be no presumption of negligence on the part of Dr. Behrman. Additionally, injury alone does not raise a presumption that Dr. Behrman was negligent. INSTRUCTION NO. 16 CAUSATION A negligence claim requires proof of two types of causation: cause in fact and legal cause. Cause in fact and legal cause are distinct elements of a negligence claim and both must be proven by the plaintiff by a preponderance of the evidence. INSTRUCTION NO. 17 CAUSE IN FACT The defendant's negligent conduct is a cause in fact of the plaintiff's injury if, as a factual matter, it directly contributed to the plaintiff's injury and without it plaintiff's injury would not have occurred. It is not necessary that a defendant's act be the sole cause of plaintiff's injury, only that it be a cause. INSTRUCTION NO. 18 LEGAL CAUSE Once you have determined that a defendant's negligence is a cause in fact of the plaintiff's injury, you must decide whether the defendant's negligence was also a legal cause of the plaintiff's injury. The law in Tennessee sets out two requirements to determine whether an act or omission was a legal cause of the injury or damage. 1. The conduct must have been a substantial factor in bringing about the harm being complained of; and 2. The harm giving rise to the action could have been reasonably foreseen or anticipated by a person of ordinary intelligence and care. To be a legal cause of an injury there is no requirement that the cause be the only cause, the last act, or the one the nearest to the injury, so long as it is a substantial factor in producing the injury or damage. The foreseeability requirement does not require the person guilty of negligence to foresee the exact manner in which the injury takes place or the exact person who would be injured. It is enough that the person guilty of negligence could foresee, or through the use of reasonable care, should have foreseen the general manner in which the injury or damage occurred. INSTRUCTION NO. 19 DUTY OF PHYSICIAN A physician who undertakes to perform professional services for a patient must use reasonable care to avoid causing injury to the patient. The knowledge and care required of the physician is the same as that of other reputable physicians practicing in the same or a similar community and under similar circumstances. A physician not only must have that degree of learning and skill ordinarily possessed by other reputable physicians but also must use the care and skill ordinarily used in like cases. In applying that skill and learning, a physician is required to use reasonable diligence and best judgment in an effort to accomplish the purpose of the employment. A failure to have and use such knowledge and skill is negligence. INSTRUCTION NO. 20 DUTY OF SPECIALIST The skill, knowledge and care required of a physician who practices a particular specialty is the same as that of other reputable physicians who specialize in the same field and practice in the same or a similar community and under similar circumstances. INSTRUCTION NO. 21 PERFECTION NOT REQUIRED By undertaking treatment a physician does not guarantee a good result. A physician is not negligent merely because of an unsuccessful result or an error in judgment. An injury alone does not raise a presumption of the physician’s negligence. It is negligence, however, if the error of judgment or lack of success is due to a failure to have and use the required knowledge, care and skill as defined in these instructions. INSTRUCTION NO. 22 STANDARD OF MEDICAL CARE DETERMINED BY EXPERT TESTIMONY It is your obligation to determine the recognized standard of acceptable professional practice in Dr. Behrman’s profession, and the specialty thereof, if any, for this or a similar community. In making this determination, you may consider only the opinions of the physicians, including Dr. Behrman, who have testified concerning this standard. Consider each opinion and the reasons given for the opinion, as well as the qualifications of the witnesses, giving each opinion the weight you believe it deserves. The testimony of a physician as to what that physician personally would do or would not do or the personal opinion of a physician of what should or could not have been done does not prove the standard of medical practice. INSTRUCTION NO. 23 PATIENT’S DUTY TO FOLLOW INSTRUCTIONS A patient must follow all reasonable instructions given by the physician regarding the patient’s care, activities and treatment. A physician is not liable for any injury caused by the patient’s failure to follow those instructions. The physician remains responsible for any injury caused by the physician’s own negligence. INSTRUCTION NO. 24 HABIT; ROUTINE PRACTICE Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness. INSTRUCTION NO. 25 PRINCIPAL AND AGENT – DEFINITION A principal can be held responsible for the acts or omissions of the principal's agent. A person who is authorized to act for another person or in place of another person is an agent of that person. For purposes of this case, the term "agent" includes an employee. The person who authorizes the agent to act is called a principal. For purposes of this case, the term “principal” includes an employer. INSTRUCTION NO. 26 DIRECTED IMPUTATION It has been established that Dr. Behrman is the agent of UTMG. Any act or omission of Dr. Behrman is in law the act or omission of UTMG. If you find that the agent is at fault, you also must find that the principal is at fault. INSTRUCTION NO. 27 COMPENSATORY DAMAGES If, under the Court’s instructions, you find that the Plaintiffs are entitled to damages then you must award the Plaintiffs damages that will reasonable compensate them for claimed loss or harm which has been proven by a preponderance of the evidence, provided you also find it was suffered by the Plaintiffs and was legally caused by the act or omission upon which you base your finding of liability. Each of these elements of damage is separate. You may not duplicate damages for any element by also including that same loss or harm in another element of damage. In determining the amount of damages, you should consider the following elements: Medical expenses. Medical expenses are the cost of medical care, services and supplies reasonably required and actually given in the treatment of the plaintiff as shown by the evidence. Pain and suffering. Pain and suffering is reasonable compensation for any physical pain and discomfort and for any mental pain and discomfort suffered by the Plaintiff. Mental discomfort includes anguish, grief, shame, or worry. Loss of enjoyment of life. Loss of the enjoyment of life takes into account the loss of the normal enjoyments and pleasures in life in the future as well as limitations on the person's lifestyle resulting from the injury. Pain and suffering and loss of enjoyment of life are separate types of losses. A plaintiff is entitled to recover for these losses if the plaintiff proves by a preponderance of the evidence that each was caused by the defendant's fault. No definite standard or method of calculation is prescribed by law by which to fix reasonable compensation for pain and suffering and loss of enjoyment of life. Nor is the opinion of any witness required as to the amount of such reasonable compensation. In making an award for pain and suffering and/or loss of enjoyment of life, you shall exercise your authority with calm and reasonable judgment and the damages you fix shall be just and reasonable in light of the evidence. INSTRUCTION NO. 28 LOSS OF CONSORTIUM - SPOUSE If, in accordance with these instructions, you are to determine damages for the Plaintiff Charles Mark McDaniel you should also determine the damages for the Plaintiff Melody McDaniel. Melody McDaniel would be entitled to recover the reasonable value of her spouse’s companionship and acts of love and affection she has lost if established by the evidence. INSTRUCTION NO. 29 PERSONAL INJURY – DUTY TO MITIGATE A person who has been injured has the duty to mitigate damages by using reasonable diligence in caring for an injury and employing reasonable means to accomplish healing. When one does not use reasonable diligence to care for injuries and they are aggravated as a result of that failure, the damages you determine must be limited to the amount of damage that would have been suffered had the injured person used the diligence required. INSTRUCTION NO. 30 INSTRUCTIONS TO BE CONSIDERED AS A WHOLE All of the instructions are equally important. The order in which these instructions are given has no significance. You must follow all of the instructions and not single out some and ignore others. INSTRUCTION NO. 31 STATEMENTS OF COUNSEL – EVIDENCE STRICKEN OUT – INSINUATIONS OF QUESTIONS In reaching your verdict you may consider only the evidence that was admitted. Remember that any questions, objections, statements or arguments made by the attorneys during the trial not evidence. If the attorneys have stipulated or agreed to any fact, however, you will regard that fact as having been proved. Testimony that you have been instructed to disregard is not evidence and must not be considered. If evidence has been received only for a limited purpose, you must follow the limiting instructions I have given you. You are to decide the case solely on the evidence received at trial. INSTRUCTION NO. 32 ORDINARY OBSERVATIONS AND EXPERIENCES Although you must only consider the evidence in this case in reaching your verdict, you are not required to set aside your common knowledge. You are permitted to weigh the evidence in the light of your common sense, observations and experience. INSTRUCTION NO. 33 ALL INSTRUCTIONS NOT NECESSARILY APPLICABLE The Court has given you various rules of law to help guide you to a just and lawful verdict. Whether some of these instructions will apply will depend upon what you decide are the facts. The Court’s instructions on any subject, including instructions on damages, must not be taken by you to indicate that the Court’s opinion of the facts you should find or the verdict you should return. INSTRUCTION NO. 34 USE OF JUROR NOTES Some of you have taken notes during the trial. Once you retire to the jury room you may refer to your notes, but only to refresh you own memory of the witnesses’ testimony. You are free to discuss the testimony of the witnesses with your fellow jurors, but each of you must rely upon your own individual memory as to what a witness did or did not say. In discussing the testimony, you may not read your notes to your fellow jurors or otherwise tell them what you have written. You should never use your notes to persuade or influence other jurors. Your notes are not evidence. Your notes should carry no more weight than the unrecorded recollection of another juror. INSTRUCTION NO. 35 HOW JURORS SHOULD APPROACH THEIR TASK Your attitude and conduct at the beginning of your deliberations are very important. It is rarely productive for any juror to immediately announce a determination to hold firm for a certain verdict before any deliberations or discussions take place. Taking that position might make it difficult for you to consider the opinions of your fellow jurors or change your mind, even if you later decide that you might be wrong. Please remember that you are not advocates for one party or another. You are the judges of the facts in this case. INSTRUCTION NO. 36 EACH JUROR SHOULD DELIBERATE AND VOTE ON EACH ISSUE TO BE DECIDED Each of you should deliberate and vote on each issue to be decided. Before you return your verdict, however, each of you must agree on the verdict and agree on the answer to each question so that each of you will be able to state truthfully that the verdict is yours. INSTRUCTION NO. 37 INSTRUCTIONS AS TO UNANIMOUS VERDICT The verdict you return to the Court must represent that considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree to that verdict, and agree to each answer. Your verdict must be unanimous. It is your duty to consult with one another and to reach an agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and to change your opinion if you are convinced that it is not correct. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. INSTRUCTION NO. 38 CHANCE OR QUOTIENT VERDICT PROHIBITED The law forbids you to determine any issue in this case by chance. If you decide that a party is entitled to recover damages, you must not arrive at the amount of those damages by agreeing in advance: 1) to use each juror’s independent estimate of the amount to be awarded; 2) to total those amounts; 3) to divide the total by eight; and 4) to make the resulting average the amount that you award. INSTRUCTION NO. 39 QUESTIONS DURING DELIBERATIONS If a question arises during deliberations and you need further instructions, please print your question on a sheet of paper, knock on the door of the jury room, and give the question to my court officer. I will read your question and I may call you back into the courtroom to try to help you. Please understand that I may only answer questions about the law and I cannot answer questions about the evidence. I caution you, however, with regard to any message or question you might send, that you should never state or specify the vote of the jury at that time. INSTRUCTION NO. 40 PROHIBITED RESEARCH AND COMMUNICATION I remind you that you are to decide this case based only on the evidence you have heard in Court and on the law I have given you. You are prohibited from considering any other information and you are not to consult any outside sources for information. You must not communicate with or provide any information, photographs or video to anyone by any means about this case or your deliberations. You may not use any electronic device or media, such as a telephone, cell phone, smart phone or computer; the Internet, any text or instant messaging service; or any chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate with anyone or to conduct any research about this case. INSTRUCTION NO. 41 CONCLUDING INSTRUCTION You will now retire and select one of you to be the foreperson for your deliberations. As soon as all of you have agreed upon a verdict, the foreperson will complete and sign the verdict form and you will return with it to this room. You may deliberate only when all of you are present in the jury room. You may not resume your deliberations after any breaks until all of you have returned to the jury room.
=== Craftco Hardwood Floors v. Custom Kilns (Breach of Contract / Promissory Fraud) ===
IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION NO.: 06-2600-JPM-tmp MANUFACTURING VENTURES LLC, d/b/a CRAFTCO HARDWOOD FLOORS, INC., Plaintiff/Counter-Defendant, v. CUSTOM KILNS, INC., Defendant/Counter-Plaintiff, PATRICK PLASS, Defendants. CUSTOM KILNS, INC., Third-Party Plaintiff/ Counter-Defendant, v. JAMES P. PIERRON, Third-Party Defendant, ROSE MACHINE & TOOL LLC, and PAUL FREUDENBERG d/b/a 55 CORP., Third-Party Defendants/ Counter-Plaintiffs. JURY INSTRUCTIONS 1 Ladies and gentlemen of the jury, we have now come to the point in the case when it is my duty to instruct you in the law that applies to the case and you must follow the law as I state it to you. As jurors it is your exclusive duty to decide all questions of fact submitted to you and for that purpose to determine the effect and value of the evidence. You must not be influenced by sympathy, bias, prejudice or passion. 2 You are not to single out any particular part of the instructions and ignore the rest, but you are to consider all the instructions as a whole and regard each in the light of all the others. Now let me outline for you the parts of the charge so that you can follow it more easily. First, I will instruct you as to the burden of proof and upon which party the law places that burden in the case, and I will give you some rules to help you as you consider the evidence. Second, I will review with you the stipulations of the parties. Third, I will outline for you the law to apply in determining the legal issues with respect to breach of contract, fraud, negligent misrepresentation, violations of the Tennessee Consumer Protection Law, conversion, civil conspiracy, tortious interference with business relationships, and inducement to breach a contract. Fourth, I will instruct you on the law with respect to damages. Finally, I will explain to you about the form of your verdict. 3 I. GENERAL INSTRUCTIONS Corporate Defendant: All Persons Equal Before the Law In this case, Manufacturing Ventures LLC, d/b/a Craftco Hardwood Floors, Inc. (“Craftco”), Custom Kilns, Inc. (“Custom Kilns”), and Rose Machine & Tool LLC (“Rose Machine”) are corporations. The fact that a corporation is a party must not prejudice you in your deliberations or in your verdict. You may not discriminate between corporations and natural individuals. Both are persons in the eyes of the law, and both are entitled to the same fair and impartial consideration and to justice by the same legal standards. This case should be considered and decided by you as an action between persons of equal standing in the community, of equal worth, and holding the same or similar stations of life. A corporation is entitled to the same fair trial at your hands as a private individual. All persons, including corporations, partnerships, unincorporated associations, and other organizations, stand equal before the law and are to be dealt with as equals in a court of justice. 4 While corporations are parties in this case, that does not mean that only the actions of the corporation as one body can be considered by you in determining its liability in this case. A corporation acts not only through the policies and decisions that it makes, but also through its designated supervisory employees, such as its managers, supervisors, and others designated by the corporation to act on its behalf. Pay close attention to the remainder of these instructions. As you apply subsequent portions of these instructions, you will have to determine whether or not individual corporate employees were authorized to act on behalf of their corporation. 5 Separate Consideration Although there may be more than one party on each side in this case, it does not follow from that fact alone that if one is liable both are liable. Each party is entitled to fair and separate consideration of the case and is not to be prejudiced by your decision concerning the other party or parties. In our system of justice, it is your duty to separately consider the evidence as to each party and to return a separate verdict for each one. For each party, you must decide what the evidence establishes as to that particular party. Your decision as to one party, whatever that decision is, should not influence your decision as to any of the other parties. Each party is entitled to fair and separate consideration of his or its own case and is not to be prejudiced by your decision concerning the other parties. 6 Burden of Proof and Consideration of the Evidence I will now instruct you with regard to where the law places the burden of making out and supporting the facts necessary to prove the theories in the case. When, as in this case, a party denies the material allegations of the other party’s claims, the law places upon the party bringing a claim the burden of supporting and making out each element of each claim by the greater weight or preponderance of the evidence. Preponderance of the evidence means that amount of factual information presented to you in this trial which is sufficient to cause you to believe that an allegation is probably true. In order to preponderate, the evidence must have the greater convincing effect in the formation of your belief. If the evidence on a particular issue appears to be equally balanced, the party having the burden of proving that issue must fail. You must consider all the evidence pertaining to every issue, regardless of who presented it. 7 Clear and Convincing Evidence As I have indicated, the law places the burden of proof on the party asserting a claim by the greater weight or preponderance of the evidence as to each claim asserted in this case. There is, however, a different burden of proof as to the claim asserted by Custom Kilns against Mr. Freudenberg for allegedly inducing Rose Machine & Tool to breach its contract with Custom Kilns. Clear and convincing evidence is a higher standard than preponderance of the evidence. It means evidence that clearly shows there is no serious or substantial doubt about the correctness of the conclusion to be drawn from the evidence. This is the burden of proof that applies when determining whether or not Mr. Freudenberg induced a breach by Rose Machine of its contract with Custom Kilns. 8 Weighing the Evidence (2-12) You members of the jury are judges of the facts concerning the controversy involved in this lawsuit. In order for you to determine what the true facts are, you are called upon to weigh the testimony of every witness who has appeared before you, and to give the testimony of each witness the weight, faith, credit, and value to which you think it is entitled. You will note the manner and demeanor of each witness while on the stand. You must consider whether the witness impressed you as one who was telling the truth or one who was telling a falsehood and whether or not the witness was a frank witness. You should consider the reasonableness or unreasonableness of the testimony of the witness; the opportunity or lack of opportunity of the witness to know the facts about which he or she testified; the intelligence or lack of intelligence of the witness; the interest of the witness in the result of the lawsuit, if any; the relationship of the witness to any of the parties to the lawsuit, if any; and whether the witness testified inconsistently while on the witness stand, or if the witness said or did something or failed to say or do something at any other time that is inconsistent with what the witness said while testifying. 9 If a witness is shown to have knowingly testified falsely concerning any material matter, you have a right to distrust such witness’s testimony in other particulars, and you may reject all the testimony of that witness or give it such credibility as you may think it deserves. An act or omission is done “knowingly” if it is done voluntarily and intentionally, and not because of mistake or accident or other innocent reason. These are the rules that should guide you, along with your common judgment, your common experience, and your common observations gained by you in your various walks in life, in weighing the testimony of the witnesses who have appeared before you in this case. If there is a conflict in the testimony of the witnesses, it is your duty to reconcile that conflict if you can, because the law presumes that every witness has attempted to and has testified to the truth. But if there is a conflict in the testimony of the witnesses which you are not able to reconcile, in accordance with these instructions, then it is with you absolutely to determine which ones of the witnesses you believe have testified to the truth and which ones you believe have testified to a falsehood. Immaterial discrepancies do not affect a witness’s testimony, but material discrepancies do. In weighing the effect 10 of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from innocent error or intentional falsehood. The greater weight or preponderance of the evidence in a case is not determined by the number of witnesses testifying to a particular fact or a particular state of facts. Rather, it depends on the weight, credit, and value of the total evidence on either side of the issue, and of this you jurors are the exclusive judges. If in your deliberations you come to a point where the evidence is evenly balanced and you are unable to determine which way the scales should turn on a particular issue, then the jury must find against the party upon whom the burden of proof has been cast in accordance with these instructions. 11 Direct and Circumstantial Evidence There are two kinds of evidence - direct and circumstantial. Direct evidence is testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is indirect evidence - that is, it is proof of one or more facts from which one can find another fact. You may consider both direct and circumstantial evidence in deciding this case. The law permits you to give equal weight to both, but it is for you to decide how much weight to give to any evidence. 12 Statements of Counsel You must not consider as evidence any statements of counsel made during the trial. If, however, counsel for the parties have stipulated to any fact, or any fact has been admitted by counsel, you will regard that fact as being conclusively established. As to any questions to which an objection was sustained, you must not speculate as to what the answer might have been or as to the reason for the objection, and you must assume that the answer would be of no value to you in your deliberations. You must not consider for any purpose any offer of evidence that was rejected, or any evidence that was stricken out by the court. Such matter is to be treated as though you had never known it. You must never speculate to be true any insinuation suggested by a question asked a witness. A question is not evidence. It may be considered only as it supplies meaning to the answer. 13 Comments by the Court During the course of a trial on a few occasions, I occasionally asked questions of a witness in order to bring out facts not then fully covered in the testimony. Please do not assume that I hold any opinion on the matters to which my questions may have related. Remember that you, as jurors, are at liberty to disregard all comments of the Court in arriving at your own findings as to the facts. 14 Totality of the Evidence (2-A) The jury may consider all evidence admitted in the case. Testimony and documents that the Court allowed into evidence over a hearsay objection may be considered by you as evidence, on the same basis as all other evidence, for the purpose for which it was admitted. For example, matters and things that a decisionmaker is told may be considered for the purpose of explaining the basis upon which that person acted or made a decision. This, of course, is all for you, the jury, to decide. 15 Evidence Regarding Settlement Discussions The law encourages settlements and does not allow the introduction of proof regarding settlement discussions or negotiations for the purpose of proving that one side or the other side is liable. In this case, the parties have agreed to allow the discussion of the December 11 settlement conference because it may be relevant in understanding the sequence of events. The failure to settle or participate in settlement discussions may not be considered by you as establishing any fact in this case. Information regarding settlement discussions is to be used by you for the limited purpose of determining the sequence of events and for no other purpose. 16 II. STIPULATED FACTS Before the trial of this case, the parties agreed to the truth of certain facts in this action. As a result of this agreement, the parties entered into certain stipulations in which they agreed that the stipulated facts could be taken as true without any party presenting further proof on the matter. This procedure is often followed to save time in establishing facts which are undisputed. Facts stipulated to by the parties in this case include the following: 1. In January 2006, Craftco Hardwood Floors, Inc. and Custom Kilns entered into the Craftco Contract for the sale and installation of wood drying Kilns. 2. The Craftco Contract states “Craftco Hardwood Floors, Inc. promises to pay the Contract balance in 3 installments as follows: 70% of the Contract price upon execution of the Contract and order of equipment[;] 20% of Contract price upon initial shipment of equipment[;] 10% balance of Contract price on completion of installation not to exceed 60 days from shipment.” 17 3. Craftco made the initial installment. 4. In mid-July 2006, Custom Kilns began making shipments to Craftco Hardwood Floors, Inc. 5. On August 15, 2006, Custom Kilns faxed Craftco an invoice for the second installment. 6. After receiving several shipments, and the invoice for the second installment, Craftco attempted to modify the payment terms of the Craftco Contract and Custom Kilns rejected the modification. 7. Craftco made no further payments to Custom Kilns. 8. Custom Kilns made no more shipments, nor did it authorize further shipments after August 17, 2006. 9. For the Craftco project, Custom Kilns entered into a contract with Phoenix Metals for the purchase of raw materials. 10. For the Craftco project, Custom Kilns entered into the Freudenberg Contract with Mr. Freudenberg for the purchase 18 of raw materials. Mr. Freudenberg delivered all of the raw materials that Custom Kilns had requested to the delivery location on or before July 20, 2006. 11. Custom Kilns also entered into the Rose Machine Contract with Rose Machine for the fabrication of the raw materials provided by Phoenix Metals and Mr. Freudenberg. 12. At Custom Kilns request, Mr. Freudenberg had delivered the raw materials to Rose Machine for fabrication. 13. Rose Machine performed in accordance with the terms of the Rose Machine Contract until it was instructed to stop performing by Keith Paluso of Custom Kilns on August 30, 2006. 14. Custom Kilns did not pay Mr. Freudenberg for the raw materials that he had provided pursuant to the Freudenberg Contract. 15. Custom Kilns did not pay Rose Machine for the services it rendered pursuant to the Rose Machine Contract. 19 16. After a period of time had passed and Mr. Freudenberg still had not been paid, Mr. Freudenberg contacted Rose Machine to determine who the ultimate purchaser of the kilns was. 17. Rose Machine did not provide a name but stated the kilns were to be shipped to Portsmouth, Ohio. 18. Mr. Freudenberg made contact with Craftco Hardwood Floors, Inc. to determine if it was the ultimate purchaser of the materials he had delivered to Rose Machine’s property. 19. Jim Pierron of Craftco Hardwood Floors, Inc. told Mr. Freudenberg that Craftco was the ultimate purchaser. 20. Mr. Freudenberg requested payment in the amount of $103,213.14 for the raw materials that he had provided. 21. Thereafter, an agreement was entered into between Craftco and Mr. Freudenberg in which Mr. Freudenberg agreed to provide Craftco with the materials he had provided Custom Kilns pursuant to the Freudenberg Contract. 22. On December 19, 2006, Rose Machine and Mr. Freudenberg entered into a written agreement in which Rose Machine 20 agreed to allow Mr. Freudenberg to remove the materials he had provided pursuant to the Freudenberg Contract and that were still present on Rose Machine’s premises. 23. Mr. Freudenberg received a total amount of $90,000.00 from Craftco Hardwood Floors, Inc. in exchange for the materials he had provided pursuant to the Freudenberg Contract. 24. Rose Machine and Mr. Freudenberg also agreed that Mr. Freudenberg would pay Rose Machine for the fabrication of the materials pursuant to the Rose Machine Contract. 25. Mr. Freudenberg further agreed to pay Phoenix Metals for the materials that it furnished since those materials had been combined with the materials that Mr. Freudenberg had provided during the fabrication process at Rose Machine’s facility. 21 III. CLAIMS OF THE PARTIES AND THE LAW REGARDING LIABILITY Turning now to the law in the case, it is my duty to tell you what the law is. If any lawyer has told you that the law is different from what I tell you it is, you must, of course, take the law as I give it to you. That is my duty. However, it is your duty, and yours alone, to determine what the facts are, and after you have determined what the facts are, to apply those facts to the law as I give it to you, free from any bias, prejudice, or sympathy, either one way or the other. I will first instruct you regarding the elements that must be established by a preponderance of the evidence as to the breach of contract claims. I will then instruct you regarding the elements that must be established by a preponderance of the evidence as to the tort claims: (1) fraud, (2) negligent misrepresentation, (3) violations of Tennessee Consumer Protection Law, (4) conversion, (5) civil conspiracy, and (6) tortious interference with business relationships. Lastly, I will instruct you regarding the elements that must be established by clear and convincing evidence as to the claim of inducement to breach a contract. 22 A. CONTRACT ISSUES The Court will now instruct you regarding the parties’ first theory of relief - Breach of Contract. Custom Kilns asserts breach of contract claims against Craftco, Mr. Pierron, and Rose Machine. Mr. Freudenberg asserts a breach of contract claim against Custom Kilns. Rose Machine asserts a breach of contract claim against Custom Kilns. You must decide the contract issues according to the instructions that I will give to you. There are three contracts that are the subject of some of the claims that you must decide in this case. The contracts are: 1. An agreement entered into between Craftco and Custom Kilns for the sale and installation of four kilns and a steamer; 2. An agreement entered into between Custom Kilns and Mr. Freudenberg to supply raw materials for the Craftco project; and 3. An agreement entered into between Custom Kilns and Rose Machine for the fabrication of materials for the Craftco project. 23 1. Contracts Generally Instruction Regarding Certain Contract Claims The Court has made certain legal findings concerning the contracts between Craftco and Custom Kilns and between Mr. Freudenberg and Custom Kilns. The Court has determined that, when Craftco sent the facsimile on August 16, 2006, regarding modifications to the payment terms of the contract between Craftco and Custom Kilns, Craftco provided Custom Kilns with a basis for reasonable concern regarding Craftco’s willingness to perform under the contract. In response, Custom Kilns sent Craftco a written request for adequate assurances that Craftco would perform under the contract. Craftco was required to provide Custom Kilns with such adequate assurances within thirty days of this request, and it failed to do so. This conduct by Craftco as a matter of law constitutes a breach - an unexcused non-performance - of its contract with Custom Kilns. In addition, there is no dispute among the parties that, by failing to meet its obligations to pay under its contract with Mr. Freudenberg, Custom Kilns breached that contract. While the Court has determined that, under the law, material breaches have been established as a matter of law, it remains the 24 jury’s duty, and yours alone, to determine all of the remaining disputed issues in this case. 25 Rose Machine’s Duties as Bailee of Custom Kilns The Court has made certain legal determinations regarding the contract between Rose Machine and Custom Kilns. Because the parties contracted for Rose Machine to fabricate materials for Custom Kilns to use on the Craftco project, which required delivery of raw materials to Rose Machine in order to perform the fabrication work, two independent contractual agreements were established: (1) the contract for the fabrication services to be performed by Rose Machine, and (2) a bailment for mutual benefit. A bailment for mutual benefit is where one party holds the property of another to perform services on the property, receiving compensation for the services. The bailment arises as an incident to the services, and it is not required for the parties to arrange for compensation for the bailment as such. Here, the delivery of raw materials to Rose Machine to fabricate into parts for the Craftco project created a bailment for mutual benefit. As bailee of Custom Kilns’s materials, Rose acquired a bailee’s lien on the materials. Although this lien gave Rose the right to retain possession of the goods until it received payment from Custom Kilns, Rose could not lawfully sell the goods without conforming to certain written notice requirements under the law. The parties do not dispute that Rose 26 Machine did not meet these requirements. The Court has determined, therefore, that Rose Machine’s sale of the goods was a breach of its contractual duties as bailee of Custom Kilns. 27 Contract - Definition A contract is an agreement or exchange of promises between two or more persons to do or not to do certain things. This agreement or exchange of promises can be oral or in writing and must be supported by something of value. The requirements for a valid contract are an offer, an acceptance, and consideration. 28 Offer An offer occurs when one party communicates to the other a willingness to enter into a contract. The communication must be made under circumstances that would justify the other party in understanding that an agreement would result if the offer were accepted. 29 Acceptance An acceptance occurs when a party communicates by words or actions an agreement to an offer. It must be made before the offer is withdrawn and must match the terms of the offer. 30 Consideration For there to be a sufficient exchange of consideration, something of value must be bargained for and given in exchange for the other party’s promise. “Something of value” may be a promise, an act, or forbearance. It can be a benefit to one party or a detriment to the other party. Its actual value in money terms is not important. 31 Form of Contract A contract can be entirely oral or entirely written, or it can be partly oral and partly in writing. It is not necessary that the parties use any particular words or form of agreement. Words and phrases commonly used in daily life are sufficient, such as agreement, purchase order, letter, e-mail, and telephone call. In each instance the essential ingredient is that the parties agree on the object of the contract. 32 Alter Ego The Court will now instruct you regarding Custom Kilns’s theory that Manufacturing Ventures LLC was the alter ego of James Pierron. You must decide the alter ego issues according to the instructions that I will give to you. Custom Kilns claims that Mr. Pierron is the alter ego of Manufacturing Ventures LLC, and accordingly, any liability for Manufacturing Ventures’s actions should be assessed against Mr. Pierron individually. Although a corporation is presumptively treated as a distinct entity from its officers, that distinction may be disregarded, or “pierced,” under certain circumstances. In other words, under some circumstances, you may disregard the separate existence of a corporation. One such circumstance is when the corporation is shown to be a “sham or dummy,” sometimes referred to as the “alter ego theory” of piercing the corporate veil. To find that a corporation is the alter ego of another individual(s), you must consider the following factors: (1) Whether there was a failure to collect paid in capital; (2) Whether the corporation was grossly undercapitalized; (3) The nonissuance of stock certificates; (4) The sole ownership of stock by one individual; 33 (5) The use of the same office or business location; (6) The employment of the same employees or attorneys; (7) The use of the corporation as an instrumentality or business conduit for an individual or another corporation; (8) The diversion of corporate assets by or to a stockholder or other entity to the detriment of creditors, or the manipulation of assets and liabilities in another; (9) The use of the corporation as a subterfuge in illegal transactions; (10) The formation and use of the corporation to transfer to it the existing liability of another person or entity; and (11) The failure to maintain arms length relationships among related entities. Custom Kilns bears the burden of presenting facts in support of the above factors, but it is not necessary for all of the factors to weigh in Custom Kilns’s favor. 34 2. Breach of Contract Breach of Contract - Law I will now instruct you as to the law regarding the breach of contract claims. The following three elements must be proven by the greater weight or preponderance of the evidence in order to prove a breach of contract: 1. 2. The existence of the contract; An unexcused non-performance of an obligation under the contract amounting to a breach of contract; and 3. Damages caused by the breach. I will instruct you concerning damages later in these instructions. I will now further define the terms I have just set out regarding breach of contract. 35 Breach of Contract - Definition If you find that a valid contract or contracts was or were entered into, you must determine whether either party breached the contract. If a party does not perform according to the contract terms, that party has committed a breach of the contract. Any unexcused breach of contract allows a non- breaching party to recover damages. Thus, the first thing that you must determine in deciding these breach of contract claims is whether the party accused of breach of contract did something that was prohibited by the specific provisions of their contracts, or failed to do something that their contracts specifically required. The breach of contract must be a material breach. A minor and insubstantial failure of a party to meet the terms of a contract does not entitle the other party to reject the contract and not be responsible under it. To be a “breach” under these instructions, the action or inaction by the non-performing party (the party “in breach” of the contract) must be material in the overall context of the contract terms you are considering. Factors that you may consider in determining whether a breach is material include the following: (1) the extent to which the injured party will be deprived of the expected benefits under the contract; (2) the extent to which the injured party can be 36 adequately compensated for loss of benefit;(3) the extent to which the non-performing party will suffer forfeiture (i.e., a divestiture of specific property without compensation); (4) the likelihood that the non-performer will cure the failure or has cured the failure, taking into account the circumstances including any reasonable assurances; and (5) the extent to which the behavior of the non-performing party comports to standards of good faith and fair dealing. Although none of the above factors alone is dispositive on the question of whether a breach is material, they should guide your decision. Normally, a party who commits the first substantial breach of a contract cannot enforce the contract against the other party even if the other party later fails to abide by the terms of the contract. There must be a financial loss in order to recover damages for breach of contract. 37 Breach of Contract - Waiver Waiver is the voluntary surrender of a known right. It can be proved by statements, acts, or conduct of a party showing an intent not to claim a right. The parties may jointly agree to waive one or more requirements of the contract. If a party to the contract claims the other party waived a contract right, the burden of proof is on the party claiming the waiver to show that the other party gave up a contract right and did so with full and complete knowledge of the relevant facts. If a party waived a particular term in the contract, that party can no longer enforce that part of the contract. 38 Breach of Contract - Repudiation Tn Civil 13.11 Any party to a contract has a legal right to abandon or refuse to perform the contract where the other party has actually defaulted, has unequivocally renounced the contract, or is completely unable to perform the terms of the contract. 39 Seller’s Remedies on Discovery of Buyer’s Insolvency 47-2-702 Where the seller discovers that the buyer has received goods on credit while insolvent he may reclaim the goods upon demand made within ten (10) days after the receipt, but if misrepresentation of solvency has been made to the particular seller in writing within three (3) months before delivery the ten (10) day limitation does not apply. Except as provided in this subsection the seller may not base a right to reclaim goods on the buyer’s fraudulent or innocent misrepresentation of solvency or of intent to pay. Any receipt of goods on credit by an insolvent buyer may constitute a tacit business misrepresentation of solvency and therefore may be fraudulent as against the particular seller. A person/business is “insolvent” when it has ceased to pay its debts in the ordinary course of business or cannot pay its debts as they become due. 40 Written Misrepresentation of Solvency Whether a writing constitutes a written misrepresentation of solvency is a question of fact. As a general rule, checks given in payment for goods are written representations of solvency. 41 A bailee who has sufficient notice of the title or paramount claim of a third person must yield to that claim or title. Bailment 42 Passage of Title 47-2-401(2) Unless otherwise explicitly agreed, title passes to the buyer at the time and place at which the seller completes his/its performance with reference to the physical delivery of the goods. If the contract requires or authorizes the seller to send the goods to the buyer but does not require him to deliver them at destination, title passes to the buyer at the time and place of shipment, but if the contract requires delivery at destination, title passes on tender (i.e. delivery to) that destination. 43 Seller’s Stoppage of Delivery in Transit or Otherwise 47-2-705 The seller may stop delivery of goods in the possession of a carrier or other bailee when he discovers the buyer to be insolvent and may stop delivery when the buyer repudiates or fails to make a payment due before delivery or if for any other reason the seller has a right to withhold or reclaim the goods. To stop delivery the seller must so notify as to enable the bailee by reasonable diligence to prevent delivery of the goods. After such notification the bailee must hold and deliver the goods according to the directions of the seller but the seller is liable to the bailee for any ensuing charges or damages. 44 Breach of Contract - Claims of the Parties Custom Kilns claims that Craftco and Mr. Pierron breached a contract with it by failing to make installment payments as dictated by the contract and by repudiating the contract in an attempt to substantially modify the payment terms. Custom Kilns also claims that Rose Machine breached a contract with it by delivering materials that Rose Machine had contracted to fabricate for Custom Kilns to Mr. Freudenberg without Custom Kilns’s permission. Mr. Freudenberg claims that Custom Kilns breached a contract with it by failing to make payment under the terms of the contract. Rose Machine claims that Custom Kilns breached a contract with it by failing to make payment under the terms of the contract. 45 3. Summary of Contract Issues If Custom Kilns has proven by a preponderance of the evidence that Craftco breached the contract between Custom Kilns and Craftco (and recall that the Court has determined that Craftco committed a material breach), you must return a verdict for Custom Kilns and answer Verdict Form Question No. 2 “Yes” as to Craftco. If Custom Kilns has failed to prove by a preponderance of the evidence that Craftco breached the contract, and Custom Kilns has failed to prove by a preponderance of the evidence any of the other claims it brings against Craftco, you must return a verdict for Craftco and answer Verdict Form Question No. 2 “No” as to Craftco. If Custom Kilns has proven by a preponderance of the evidence that Mr. Pierron breached the contract between Custom Kilns and Craftco, you must return a verdict for Custom Kilns and answer Verdict Form Question No. 2 “Yes” as to Mr. Pierron. If Custom Kilns has failed to prove by a preponderance of the evidence that Mr. Pierron breached the contract, and Custom Kilns has failed to prove by a preponderance of the evidence any of the other claims it brings against Mr. Pierron, you must return a verdict for Mr. Pierron and answer Verdict Form Question No. 2 “No” as to Mr. Pierron. 46 If Custom Kilns has proven by a preponderance of the evidence that Rose Machine breached the contract between Custom Kilns and Rose Machine, you must return a verdict for Custom Kilns and answer Verdict Form Question No. 2 “Yes” as to Rose Machine. If Custom Kilns has failed to prove by a preponderance of the evidence that Rose Machine breached the contract, and Custom Kilns has failed to prove by a preponderance of the evidence any of the other claims it brings against Rose Machine, you must return a verdict for Rose Machine and answer Verdict Form Question No. 2 “No” as to Rose Machine. If Mr. Freudenberg has proven by a preponderance of the evidence that Custom Kilns breached the contract between Mr. Freudenberg and Custom Kilns, you must return a verdict for Mr. Freudenberg and answer Verdict Form Question No. 4(a) “Yes.” If Mr. Freudenberg has failed to prove by a preponderance of the evidence that Custom Kilns breached the contract, and Mr. Freudenberg has failed to prove by a preponderance of the evidence the fraud claim he brings against Custom Kilns, you must return a verdict for Custom Kilns and answer Verdict Form Question No. 4(a) “No.” 47 If Rose Machine has proven by a preponderance of the evidence that Custom Kilns breached the contract between Rose Machine and Custom Kilns, you must return a verdict for Rose Machine and answer Verdict Form Question No. 5 “Yes.” If Rose Machine has failed to prove by a preponderance of the evidence that Custom Kilns breached the contract, you must return a verdict for Custom Kilns and answer Verdict Form Question No. 5 “No.” 48 B. TORT ISSUES 1. Promissory Fraud Promissory Fraud - Law Tn Civil 8.41 I will now instruct you as to the law regarding the parties’ next claim, promissory fraud. Craftco alleges a claim of fraud against Custom Kilns and Mr. Plass. Custom Kilns alleges a claim of fraud against Mr. Pierron and Craftco. Mr. Freudenberg alleges a claim of fraud against Custom Kilns. Generally, the subject of a misrepresentation must be a past or existing fact and not a mere promise. If the promise is made without the intent to perform, however, the promise may be a misrepresentation. To recover under this theory, a plaintiff must prove each of the following: 1. The defendant made a promise as to a material matter and, at the time the promise was made, the defendant did not intend to perform it; 2. The defendant made the promise with an intent to deceive the plaintiff. In other words, the defendant made the promise to induce the plaintiff to rely upon it and to act or not act in reliance upon it; 49 3. The plaintiff was unaware that the defendant did not intend to perform the promise; the plaintiff acted in reliance upon the promise; and the plaintiff was justified in relying upon the promise made by the defendant; and 4. As a result of the reliance upon defendant's promise, the plaintiff has sustained damage. 50 Promissory Fraud - Proof of Intent Not to Perform Tn Civil 8.42 Evidence of the defendant’s conduct before or after the promise was made may be considered in determining whether the defendant intended to perform when the promise was made. 51 Promissory Fraud - Reliance Tn Civil 8.46 A party seeking recovery for promissory fraud must have relied upon the representation. In other words, the plaintiff would not have entered into the transaction without the representation. You must determine whether reliance upon the representation substantially influenced the party’s action, even though other influences operated as well. Reliance upon a representation may be shown by direct evidence or may be inferred from the circumstances. 52 Promissory Fraud - Right to Rely Tn Civil 8.47 A person claiming to have been damaged by a false representation must not only have acted in reliance on the representation but must have been justified in that reliance. That is, it must be reasonable for the person, in light of the circumstances and that person’s intelligence, experience, and knowledge, to accept the representation without making an independent inquiry or investigation. 53 Summary of Promissory Fraud If you find that Craftco has proven by a preponderance of the evidence that Custom Kilns is liable for fraud against Craftco, you must return a verdict for Craftco and answer Verdict Form Question No. 1(a) “Yes” as to Custom Kilns. If Craftco has failed to prove by a preponderance of the evidence that Custom Kilns is liable for fraud, and Craftco has failed to prove by a preponderance of the evidence the negligent misrepresentation claim it brings against Custom Kilns, you must return a verdict for Custom Kilns and answer Verdict Form Question No. 1(a) “No” as to Custom Kilns. If you find that Craftco has proven by a preponderance of the evidence that Mr. Plass is liable for fraud against Craftco, you must return a verdict for Craftco and answer Verdict Form Question No. 1(a) “Yes” as to Mr. Plass. If Craftco has failed to prove by a preponderance of the evidence that Mr. Plass is liable for fraud, and Craftco has failed to prove by a preponderance of the evidence the negligent misrepresentation claim it brings against Mr. Plass, you must return a verdict for Mr. Plass and answer Verdict Form Question No. 1(a) “No” as to Mr. Plass. 54 If you find that Custom Kilns has proven by a preponderance of the evidence that Mr. Pierron is liable for fraud against Custom Kilns, you must return a verdict for Custom Kilns and answer Verdict Form Question No. 2 “Yes” as to Mr. Pierron. If Custom Kilns has failed to prove by a preponderance of the evidence that Mr. Pierron is liable for fraud, and Custom Kilns has failed to prove by a preponderance of the evidence any of the other claims it brings against Mr. Pierron, you must return a verdict for Mr. Pierron and answer Verdict Form Question No. 2 “No” as to Mr. Pierron. If you find that Mr. Freudenberg has proven by a preponderance of the evidence that Custom Kilns is liable for fraud against Mr. Freudenberg, you must return a verdict for Mr. Freudenberg and answer Verdict Form Question No. 4(a) “Yes.” If Mr. Freudenberg has failed to prove by a preponderance of the evidence that Custom Kilns is liable for fraud, and Mr. Freudenberg has failed to prove by a preponderance of the evidence the breach of contract claim he brings against Custom Kilns, you must return a verdict for Custom Kilns and answer Verdict Form Question No. 4(a) “No.” 55 2. Negligent Misrepresentation Negligent Misrepresentation - Law Tn Civil 8.43 I will now instruct you as to the law regarding negligent misrepresentation. Craftco alleges claims of negligent misrepresentation against Custom Kilns and Mr. Plass. To prove negligent misrepresentation, plaintiff must prove that: 1. The defendant was acting in the course of his business or in any other transaction in which defendant has a financial interest; 2. The defendant negligently supplied materially false information; 3. The defendant intended the information to guide plaintiff in plaintiff's business transaction; 4. The plaintiff justifiably relied upon the false information; and 5. As a result, plaintiff suffered a financial loss. Plaintiff may prove that defendant negligently supplied false information by proving that (a) defendant failed to exercise reasonable care or competence in obtaining information 56 about the business transaction or that (b) defendant failed to exercise reasonable care or competence in communicating that information. 57 Summary of Negligent Misrepresentation If you find that Craftco has proven by the preponderance of the evidence that Custom Kilns is liable for negligent misrepresentation, you must return a verdict for Craftco and answer Verdict Form Question No. 1(a) “Yes” as to Custom Kilns. If Craftco has failed to prove by a preponderance of the evidence that Custom Kilns is liable for negligent misrepresentation, and Craftco has failed to prove by a preponderance of the evidence the fraud claim it brings against Custom Kilns, you must return a verdict for Custom Kilns and answer Verdict Form Question No. 1(a) “No” as to Custom Kilns. If you find that Craftco has proven by the preponderance of the evidence that Mr. Plass is liable for negligent misrepresentation, you must return a verdict for Craftco and answer Verdict Form Question No. 1(a) “Yes” as to Mr. Plass. If Craftco has failed to prove by a preponderance of the evidence that Mr. Plass is liable for negligent misrepresentation, and Craftco has failed to prove by a preponderance of the evidence the fraud claim it brings against Mr. Plass, you must return a verdict for Mr. Plass and answer Verdict Form Question No. 1(a) “No” as to Mr. Plass. 58 3. Violations of the Tennessee Consumer Protection Law Tennessee Consumer Protection - Law I will now instruct you as to the law regarding Craftco’s and Mr. Freudenberg’s claims against Custom Kilns and Mr. Plass under the Tennessee Consumer Protection Law. Craftco claims that Custom Kilns and Mr. Plass violated the Tennessee Consumer Protection Law. Mr. Freudenberg also claims that Custom Kilns violated the Tennessee Consumer Protection Law. The Tennessee Consumer Protection Law allows a plaintiff to recover actual damages for a loss of money, property, or thing of value as a result of a defendant’s use of an unfair or deceptive act or practice. To recover damages from the defendant for violation of this law, the plaintiff must prove by a preponderance of the evidence that: 1. The defendant’s act or practice is unfair or deceptive under this law; and 2. The plaintiff suffered a loss of money, property or thing of value as a result of the unfair or deceptive act or practice. 59 Craftco claims that Custom Kilns and Mr. Plass used the following unfair or deceptive acts or practices that violate the Tennessee Consumer Protection Law: 1. Refusing to sell goods or services offered in accordance with the terms of the offer; and 2. Engaging in any other act(s) or practice(s) that are deceptive to the consumer or to any other person, including, but not limited to, making fraudulent misrepresentations and soliciting special payment terms but not acting consistent with those terms. If you find that Craftco has proven by a preponderance of the evidence that Custom Kilns and/or Mr. Plass used any one or more of these acts or practices, then Custom Kilns and/or Mr. Plass have violated the Tennessee Consumer Protection Law. Craftco is entitled to actual damages for any loss of money, property, or thing of value that was caused by Custom Kilns’s and/or Mr. Plass’s use of the unfair or deceptive act or practice. 60 Mr. Freudenberg claims that Custom Kilns used the following unfair or deceptive acts or practices that violate the Tennessee Consumer Protection Law: 1. Engaging in any act(s) or practice(s) that are deceptive to the consumer or to any other person. If you find that Mr. Freudenberg has proven by a preponderance of the evidence that Custom Kilns used any one or more of these acts or practices, then Custom Kilns has violated the Tennessee Consumer Protection Law. Mr. Freudenberg is entitled to actual damages for any loss of money, property, or thing of value that was caused by Custom Kilns’s use of the unfair or deceptive act or practice. 61 Summary of the Tennessee Consumer Protection Law If you find that Craftco has proven by the preponderance of the evidence that Custom Kilns violated the Tennessee Consumer Protection Law, you must return a verdict for Craftco and answer Verdict Form Question No. 1(b) “Yes” as to Custom Kilns. If Craftco has failed to prove by a preponderance of the evidence that Custom Kilns violated the Tennessee Consumer Protection Law, you must return a verdict for Custom Kilns and answer Verdict Form Question No. 1(b) “No” as to Custom Kilns. If you find that Craftco has proven by the preponderance of the evidence that Mr. Plass violated the Tennessee Consumer Protection Law, you must return a verdict for Craftco and answer Verdict Form Question No. 1(b) “Yes” as to Mr. Plass. If Craftco has failed to prove by a preponderance of the evidence that Custom Kilns violated the Tennessee Consumer Protection Law, you must return a verdict for Mr. Plass and answer Verdict Form Question No. 1(b) “No” as to Mr. Plass. If you find that Mr. Freudenberg has proven by the preponderance of the evidence that Custom Kilns violated the Tennessee Consumer Protection Law, you must return a verdict for Mr. Freudenberg and answer Verdict Form Question No. 4(b) “Yes.” 62 If Mr. Freudenberg has failed to prove by a preponderance of the evidence that Custom Kilns violated the Tennessee Consumer Protection Law, you must return a verdict for Custom Kilns and answer Verdict Form Question No. 4(b) “No.” 63 4. Conversion Conversion - Law I will now instruct you as to the law regarding the parties’ sixth theory of recovery, conversion. Custom Kilns alleges claims of conversion against Craftco, Mr. Pierron, Mr. Freudenberg, and Rose Machine. A conversion is any assumption of control over property that is inconsistent with the rights of the owner. A conversion may consist of the: 1. Use and enjoyment of personal property of another without the owner’s consent; or 2. Destruction or dominion over the property of another by excluding or defying the owner’s right; or 3. Withholding of personal property from the owner under a claim of title, inconsistent with the owner’s claim of title. 64 Summary of Conversion If you find that Custom Kilns has proven by the preponderance of the evidence that Craftco is liable for conversion, you must return a verdict for Custom Kilns and answer Verdict Form Question No. 2 “Yes” as to Craftco. If Custom Kilns has failed to prove by a preponderance of the evidence that Craftco is liable for conversion, and Custom Kilns has failed to prove by a preponderance of the evidence any of the other claims it brings against Craftco, you must return a verdict for Craftco and answer Verdict Form Question No. 2 “No” as to Craftco. If you find that Custom Kilns has proven by the preponderance of the evidence that Mr. Pierron is liable for conversion, you must return a verdict for Custom Kilns and answer Verdict Form Question No. 2 “Yes” as to Mr. Pierron. If Custom Kilns has failed to prove by a preponderance of the evidence that Mr. Pierron is liable for conversion, and Custom Kilns has failed to prove by a preponderance of the evidence any of the other claims it brings against Mr. Pierron, you must return a verdict for Mr. Pierron and answer Verdict Form Question No. 2 “No” as to Mr. Pierron. 65 If you find that Custom Kilns has proven by the preponderance of the evidence that Mr. Freudenberg is liable for conversion, you must return a verdict for Custom Kilns and answer Verdict Form Question No. 2 “Yes” as to Mr. Freudenberg. If Custom Kilns has failed to prove by a preponderance of the evidence that Mr. Freudenberg is liable for conversion, and Custom Kilns has failed to prove by a preponderance of the evidence any of the other claims it brings against Mr. Freudenberg, you must return a verdict for Mr. Freudenberg and answer Verdict Form Question No. 2 “No” as to Mr. Freudenberg. If you find that Custom Kilns has proven by the preponderance of the evidence that Rose Machine is liable for conversion, you must return a verdict for Custom Kilns and answer Verdict Form Question No. 2 “Yes” as to Rose Machine. If Custom Kilns has failed to prove by a preponderance of the evidence that Rose Machine is liable for conversion, and Custom Kilns has failed to prove by a preponderance of the evidence any of the other claims it brings against Rose Machine, you must return a verdict for Rose Machine and answer Verdict Form Question No. 2 “No” as to Rose Machine. 66 5. Civil Conspiracy Civil Conspiracy - Law I will now instruct you as to the law regarding the next claim of the parties - civil conspiracy. Custom Kilns alleges that Craftco, Mr. Pierron, Mr. Freudenberg, and Rose Machine were engaged in a civil conspiracy to convert the property of Custom Kilns. A civil conspiracy is a combination between two or more persons to accomplish, by acting together, an unlawful purpose; or to accomplish a lawful act by unlawful means. There must be a common design, actions on each person’s part, and an overt act. In a civil conspiracy, all conspirators have liability for all damages flowing from the conspiracy. 67 Civil Conspiracy - Elements To recover under this theory, the plaintiff must prove all of the following elements by a preponderance of the evidence: 1. Two or more individuals agreed to do something that the law forbids; 2. That the defendant you are considering joined in that agreement with the intent to advance the purpose of the conspiracy; 3. One or more of the defendants did, or caused to be done, an act in furtherance of the object of the conspiracy; and 4. Plaintiff must have suffered some injury as a result of the conspiracy. 68 To find against a defendant on the theory of civil conspiracy, you, the jury, must find the conspirator you are considering had the intent to accomplish a common purpose, and each conspirator knew of the others’s intent. However, the agreement to conspire need not be formal, the understanding may be a tacit one, and it is not essential that each conspirator have knowledge of the details of the conspiracy. Finally, it is a basic principle that each conspirator is responsible for everything done by his confederate which the execution of the common design makes probable as a consequence; in other words, each conspirator is liable for the damage caused by the other. Please keep in mind that if you do not find that the defendant you are considering is liable for conversion, then there can be no claim for civil conspiracy. However, if you do find that the defendant you are considering is liable for conversion, you are not required to necessarily find that that defendant is also liable for civil conspiracy. You, the jury, may only find a defendant liable for civil conspiracy if you find that the elements of civil conspiracy, as set out in these instructions, have been established by the greater weight or 69 preponderance of the evidence as to the defendant you are considering. 70 Summary of Civil Conspiracy If you find that Custom Kilns has proven by the preponderance of the evidence that Craftco engaged in a civil conspiracy, you must return a verdict for Custom Kilns and answer Verdict Form Question No. 2 “Yes” as to Craftco. If Custom Kilns has failed to prove by a preponderance of the evidence that Craftco engaged in a civil conspiracy, and Custom Kilns has failed to prove by a preponderance of the evidence any of the other claims it brings against Craftco, you must return a verdict for Craftco and answer Verdict Form Question No. 2 “No” as to Craftco. If you find that Custom Kilns has proven by the preponderance of the evidence that Mr. Pierron engaged in a civil conspiracy, you must return a verdict for Custom Kilns and answer Verdict Form Question No. 2 “Yes” as to Mr. Pierron. If Custom Kilns has failed to prove by a preponderance of the evidence that Mr. Pierron engaged in a civil conspiracy, and Custom Kilns has failed to prove by a preponderance of the evidence any of the other claims it brings against Mr. Pierron, you must return a verdict for Mr. Pierron and answer Verdict Form Question No. 2 “No” as to Mr. Pierron. 71 If you find that Custom Kilns has proven by the preponderance of the evidence that Mr. Freudenberg engaged in a civil conspiracy, you must return a verdict for Custom Kilns and answer Verdict Form Question No. 2 “Yes” as to Mr. Freudenberg. If Custom Kilns has failed to prove by a preponderance of the evidence that Mr. Freudenberg engaged in a civil conspiracy, and Custom Kilns has failed to prove by a preponderance of the evidence any of the other claims it brings against Mr. Freudenberg, you must return a verdict for Mr. Freudenberg and answer Verdict Form Question No. 2 “No” as to Mr. Freudenberg. If you find that Custom Kilns has proven by the preponderance of the evidence that Rose Machine engaged in a civil conspiracy, you must return a verdict for Custom Kilns and answer Verdict Form Question No. 2 “Yes” as to Rose Machine. If Custom Kilns has failed to prove by a preponderance of the evidence that Rose Machine engaged in a civil conspiracy, and Custom Kilns has failed to prove by a preponderance of the evidence any of the other claims it brings against Rose Machine, you must return a verdict for Rose Machine and answer Verdict Form Question No. 2 “No” as to Rose Machine. 72 6. Tortious Interference with Business Relationships Tortious Interference - Law I will now instruct you as to the law regarding the parties’ next theory of recovery - tortious interference with business relationships. Custom Kilns alleges a claim of tortious interference with business relationships against Craftco, Mr. Pierron, and/or Mr. Freudenberg. The law does not permit a complaining party to recover damages from another party who has engaged in proper competitive business practices. However, the law does prohibit a party from unfairly interfering with a business relationship. 73 Tortious Inteference - Elements There are five elements required to prove tortious interference with business relationships. To recover damages, Custom Kilns must prove, by a preponderance of the evidence, each of the following five elements: 1. Custom Kilns had a business relationship with an identifiable class of third persons - Rose Machine; and 2. The defendant you are considering, at the time he/it committed the acts complained of, knew of these relationships and did not have just a mere awareness of Custom Kilns’s business dealings with others in general; 3. The defendant you are considering intended to cause a breach or termination of the business relationship or expectancy; 4. The defendant you are considering had an improper motive or used improper means; and 5. Custom Kilns suffered damages as a result of the tortious interference. 74 Tortious Interference - Formal Contract Not Required A prospective business relationship with an identifiable class of persons is protected against the intentional interference by another party if that relationship is of pecuniary value to the complaining party, or would otherwise lead to potentially profitable contracts. 75 Tortious Interference - Improper Motive or Means "Improper motive" is established by proving that the interfering party's predominant purpose was to injure the complaining party. A purpose is "predominant" if it is greater or superior in influence as compared to other facts. Injuring the complaining party does not have to be the interfering party's sole purpose for its motive to be improper. "Improper means" of interference include those means that are illegal or independently tortious, such as fraud, duress, undue influence, misuse of inside or confidential information, or breach of a fiduciary relationship. Improper means also includes those methods that involve unethical conduct, such as overreaching. 76 Summary of Tortious Interference If you find that Custom Kilns has proven by the preponderance of the evidence that the party you are considering (either Craftco, Mr. Pierron, or Mr. Freudenberg, or each of them) is liable for tortiously interfering with Custom Kilns’s business relationships, you must return a verdict for Custom Kilns and answer Verdict Form Question No. 2 “Yes” as to that party. If Custom Kilns has failed to prove by a preponderance of the evidence that a party is liable for tortious interference, and Custom Kilns has failed to prove by a preponderance of the evidence any of the other claims it brings against that party, you must return a verdict for that party and answer the applicable Verdict Form Question No. 2 “No.” 77 7. Inducement to Breach a Contract Inducement to Breach a Contract - Law I will now instruct you as to the law regarding the parties’ next theory of recovery - inducement to breach a contract. Custom Kilns alleges a claim of inducement to breach a contract against Mr. Freudenberg. The plaintiff is entitled to recover for inducement to breach a contract if the plaintiff establishes all of the following by clear and convincing evidence: 1. 2. There was a contract; The defendant had knowledge of the existence of the contract; 3. The defendant intended to bring about or cause its breach; The defendant acted maliciously; The contract was in fact breached; Defendant’s actions were the legal cause of the breach; Plaintiff suffered damages as a result of the breach. 4. 5. 6. 7. 78 Summary of Inducement to Breach a Contract If you find that Custom Kilns has proven by clear and convincing evidence that Mr. Freudenberg is liable for inducement to breach a contract, you must return a verdict for Custom Kilns and answer Verdict Form Question No. 3 “Yes” as to Mr. Freudenberg. If Custom Kilns has failed to prove by clear and convincing evidence that Mr. Freudenberg is liable for inducement to breach a contract, you must return a verdict for Mr. Freudenberg and answer Verdict Form Question No. 3 “No” as to Mr. Freudenberg. 79 IV. DAMAGES If you find that the party you are considering has carried his/its burden of proving by a preponderance of the evidence any claim brought by that party, or where required by clear and convincing evidence, you must then consider the issue of damages. I shall now instruct you on the award of damages. The fact that I am giving you instructions on damages should not be considered as an indication of any view of mine as to which party is entitled to your verdict. Instructions as to the measure of damages are given only for your guidance and are to be applied only in the event that you should find in favor of the party you are considering by a preponderance of the evidence, or where required by clear and convincing evidence, in accordance with the instructions that I have given you. If you decide that the party you are considering is not entitled to prevail with respect to his/its claims, you shall not answer any questions on the Verdict Form with regard to damages. First, I will discuss the law as it relates to damages under the contract theories. I will then discuss the law regarding damages related to the tort issues. 80 If you find for the party that you are considering on a particular claim, then you must determine an amount that is fair and reasonable compensation for damages. You may award compensatory damages only for damages or injuries that the party proves were caused by the defendant’s allegedly unlawful conduct. The damages that you award must be fair compensation – no more and no less. 81 A. CONTRACT DAMAGES Contract Damages - Law I will now instruct you as to the law regarding contract damages. In this case, if you find that none of the parties, Craftco, Mr. Pierron, Custom Kilns, or Rose Machine, breached its contract, you will not be concerned with the question of contract damages. But if you find that either Craftco or Mr. Pierron or Custom Kilns or Rose Machine did breach the contract or contracts and that the breach caused damage to one of the parties, you will be concerned with the question of contract damages. It is my duty to instruct you as to the proper measure of damages to be applied in the event you find there was a breach of contract. When a contract is breached, the plaintiff is entitled to be placed in as good a position as would have been occupied had the contract been fulfilled in accordance with its terms. The plaintiff is not entitled to be put in a better position by a recovery of damages for breach of contract than would have been realized had there been full performance. The damages to be awarded are those that may fairly and reasonably be considered as arising out of the breach or those that may reasonably have been 82 in the contemplation of the parties when the contract was made. Damages that are remote or speculative may not be awarded. 83 Contract Damages - Legal Cause Tn Civil 14.60 If you find that Custom Kilns and/or Mr. Freudenberg and/or Rose Machine is entitled to a verdict for breach of a contract, you may award damages to the non-breaching party in an amount that will reasonably compensate the non-breaching party only if you find that the damage resulted from the breach. If you find that the party you are considering is entitled to a verdict against the defendant you are considering, you must then award damages in an amount that will reasonably compensate the plaintiff for all the loss suffered by the plaintiff that was legally caused by the breach of contract. A legal cause of a damage is a cause which, in natural and continuous sequence, produces the damage, and without which the damage would not have occurred. 84 Additional Instructions on Contract Damages The preceding instructions on contract damages apply to the claims for breach of any of the three contracts at issue in this case. I will now provide you with special instructions as to the calculation of damages for any claim for breach of the contract between Craftco and Custom Kilns and/or the contract between Mr. Freudenberg and Custom Kilns. These instructions do not apply to any claims for breach of the contract between Rose Machine and Custom Kilns. As to the claims of breach of contract involving the contract between Craftco and Custom Kilns and/or the contract between Mr. Freudenberg and Custom Kilns, the amount of such award may include: (1) Prejudgment Interest (2) Any reasonable charges, expenses, or commissions incurred by the seller in stopping delivery of the goods, or in the transportation, care, and custody of returned or resold goods together with any other expenses reasonably resulting from the buyer’s breach may be recovered. 85 (3) Where goods have been resold in good faith and in a commercially reasonably manner, the amount by which the resale price is less than the contract price less any costs saved due to the breach of contract may be recovered. (4) A seller may recover the greater of the following: a. The amount by which the contract price of any goods whose purchase was repudiated exceeded the market price at the time and place delivery was to have been made, less expenses saved by the seller due to the breach of contract; or b. The profit, including reasonable overhead, that the seller would have made had the contract been fully performed. The buyer is to receive credit against either amount for any payments made on the contract and for the proceeds of any resale of the goods. (5) A seller may recover the price of goods that were identified to the contract and for which the seller was not able to obtain a fair price after a reasonable effort to resell them or the circumstances indicated such an effort would be useless. 86 B. TORT DAMAGES Damages for Promissory Fraud or Negligent Misrepresentation Tn Civil 8.49 If you find that the party you are considering is entitled to a verdict against the defendant you are considering based on promissory fraud or negligent misrepresentation, you must then award damages in an amount that will reasonably compensate the plaintiff for all the loss suffered by the plaintiff that was legally caused by the promissory fraud or negligent misrepresentation upon which you base your finding of liability. 87 Damages for Violation of the Tennessee Consumer Protection Law If you find that the party you are considering has proven by a preponderance of the evidence that the defendant you are considering violated the Tennessee Consumer Protection Law, the plaintiff is entitled to actual damages for any loss of money, property, or thing of value that was caused by the defendant's use of the unfair or deceptive act or practice. 88 Damages for Conversion The measure of damages for conversion of personal property is the value of the property converted at the time and place of the conversion. 89 Damages for Civil Conspiracy In regard to damages under a claim of civil conspiracy, the injured party may recover the damages that flow from the conspiracy. The plaintiff is entitled to recover only such damages as naturally and proximately result from the wrongful act or acts done in pursuance of the conspiracy and which directly result from it. The elements of actual damage that may be awarded are any damage or injury done to the profession, business, or occupation of the person, any loss of business, and any loss of profits resulting from the conspiracy. 90 Damages for Tortious Interference or Inducement to Breach a Contract If you find by a preponderance of the evidence that Custom Kilns is entitled to recover damages for tortious interference with business relationships or if you find by clear and convincing evidence that Custom Kilns is entitled to recover for inducement to breach a contract, you may award Custom Kilns an amount that will compensate it for all damages resulting from the interference. The award of damages may include compensation for: 1. The pecuniary loss of the benefits of the business relationships resulting from the interference or the benefits of the contract. This may include Custom Kilns’s loss of profits from the business relationships. 2. Any consequential losses legally caused by the interference. A consequential loss is any direct out-of-pocket expense incurred by Custom Kilns as a direct and legal result of the interference or breach of contract. 3. Actual harm to Custom Kilns’s reputation, where such losses should have been reasonably expected to result from the interference. 91 C. General Damages Instructions Duty to Mitigate A person whose property has been damaged by the wrongful act of another is bound to use reasonable care to avoid loss and to minimize damages. A party may not recover for losses that could have been prevented by reasonable efforts or by expenditures that might reasonably have been made. 92 Multiple Claims You cannot award compensatory damages more than once for the same injury. For example, if a party were to prevail on two claims and establish a total injury of one dollar, you could not award him one dollar compensatory damages on each claim - he or it is only entitled to be made whole again, not to recover more than he or it lost. Further, you must be careful to impose any damages that you may award on a claim solely upon the party or parties that you find to be liable on that claim. Although there may be multiple parties on one side in this case, it does not follow that if one is liable, the other is liable as well. Each party is entitled to fair, separate and individual consideration of the case without regard to your decision as to the other parties. If you find that only one party is responsible for a particular injury, then you must impose damages, if any, for that injury only upon that party. In addition, if you find for the plaintiff you are considering on both the Tennessee Consumer Protection Law claim and the claim based on fraud or negligent misrepresentation, the plaintiff will not be permitted to collect damages under both 93 claims but instead will have to choose whether to accept the damages under the Tennessee Consumer Protection Law or the damages under the claim based on fraud or negligent misrepresentation. In other words, if you decide the plaintiff should recover monetary damages from the defendant, the plaintiff will be able to recover those damages only once, even if you find that the plaintiff has proved both the Tennessee Consumer Protection Law claim and the claim based on fraud or negligent misrepresentation. 94 Prejudgment Interest Tn Civil 13.35 Mr. Freudenberg, Rose Machine, and Custom Kilns seek awards of prejudgment interest as part of their breach of contract claims. If you find that the party you are considering is entitled to recover a judgment for breach of contract, you may in your discretion award interest on the amount awarded at a rate not greater than 10% per year calculated from any date you choose. You may only award interest up to the date of your verdict. 95 No Speculative Damages You may not award remote or speculative damages. You may not, therefore, include any damages which compensate for loss or harm that, although possible, are based on conjecture, speculation, or are not reasonably certain. To state this principle in another way, damages are prohibited as speculative when their existence is uncertain, not when merely their amount is uncertain. Mathematical certainty is not required. Instead, the amount of damages must be shown with such reasonable degree of certainty as the situation permits. In determining whether the proof meets the requisite degree of certainty, you may consider whether a party is responsible for creating the difficulty in ascertaining the exact amount of damages. If you make that determination, then you may, but are not required to, resolve any doubt about the amount of damages against the party responsible. 96 Reasonable Certainty A party is not entitled to recover damages for a particular loss or type of harm unless the party proves that it is reasonably certain that the party has suffered such a loss or type of harm as a result of an action or inaction by the accused party. However, once a party proves that it is reasonably certain that the party has suffered a particular loss or type of harm as a result of an action or inaction by the accused party, the law does not require the party to prove the exact amount of that loss or harm. If it is reasonably certain that the party has suffered a particular loss or type of harm as a result of a wrongful action or failure to act by the accused party, the injured party is entitled to recover damages for that loss or harm as long as there is some reasonable basis for estimating or approximating the amount of the loss or harm. A party may not be denied damages merely because the amount of the loss or harm is uncertain or difficult to determine. 97 Punitive Damages Craftco, Custom Kilns, and Mr. Freudenberg have asked that you make an award of punitive damages, but this award may be made only under the following circumstances. You may consider an award of punitive damages only if you find that the party you are considering has suffered actual damage as a result of fault of the defendant you are considering and have made an award for compensatory damages. The purpose of punitive damages is not to further compensate the plaintiff, but to punish the wrongdoer and deter others from committing similar wrongs in the future. Punitive damages may be considered if, and only if, the plaintiff you are considering has shown by clear and convincing evidence that the defendant has acted either intentionally, recklessly, maliciously, or fraudulently. Clear and convincing evidence is a different and higher standard than preponderance of the evidence. It means that the defendant’s wrong, if any, must be so clearly shown that there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. 98 A person acts intentionally when it is the person’s purpose or desire to do a wrongful act or to cause the result. A person acts recklessly when the person is aware of, but consciously disregards a substantial or unjustifiable risk of injury or damage to another. Disregarding the risk must be a gross deviation from the standard of care that an ordinary person would use under the circumstances. A person acts maliciously when the person is motivated by ill will, hatred, or personal spite. A person acts fraudulently when: (1) the person intentionally either misrepresents an existing material fact or causes a false impression of an existing material fact to mislead or to obtain an unfair or undue advantage; and (2) another person suffers injury or loss because of reasonable reliance upon the representation. If you decide to award punitive damages, you will not assess an amount of punitive damages at this time. You will, however, report your findings to the Court. 99 If you, the jury, find that the conduct of the defendant you are considering, as determined under these instructions, was intentional, reckless, malicious, or fraudulent towards the plaintiff you are considering, then indicate so in your response on the Verdict Form, but do not indicate the amount of punitive damages you would award. Of course, if you find that the actions of the defendant you are considering were not intentional, reckless, malicious, or fraudulent towards the plaintiff you are considering, then you should so indicate in your response on the Verdict Form. 100 V. VERDICT FORM Finally, ladies and gentlemen, we come to the point where we will discuss the form of your verdict and the process of your deliberations. You will be taking with you to the jury room the verdict form which will reflects your findings. The verdict form reads as follows: [Read Verdict Form] You will be selecting a presiding juror after you retire to the jury room. That person will preside over your deliberations and be your spokesperson here in court. When you have completed your deliberations, your presiding juror will fill in and sign the verdict form. Your verdict must represent the considered judgment of each of you. In order to return a verdict, it is necessary that each of you agree to that verdict. That is, your verdict must be unanimous. It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgments. Each of you must 101 decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. We will be sending with you to the jury room all of the exhibits in the case. You may have not seen all of these previously and they will be there for your review and consideration. You may take a break before you begin deliberating but do not begin to deliberate and do not discuss the case at any time unless all eleven of you are present together in the jury room. Some of you have taken notes. I remind you that these are for your own individual use only and are to be used by you only to refresh your recollection about the case. They are not to be shown to others or otherwise used as a basis for your discussion about the case. 102 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION NO.: 06-2600-JPM-tmp MANUFACTURING VENTURES LLC, d/b/a CRAFTCO HARDWOOD FLOORS, INC., Plaintiff/Counter-Defendant, v. CUSTOM KILNS, INC., Defendant/Counter-Plaintiff, PATRICK PLASS, Defendants. CUSTOM KILNS, INC., Third-Party Plaintiff/ Counter-Defendant, v. JAMES P. PIERRON, Third-Party Defendant, ROSE MACHINE & TOOL LLC, and PAUL FREUDENBERG d/b/a 55 CORP., Third-Party Defendants/ Counter-Plaintiffs. SUPPLEMENTAL INSTRUCTION NO. 1 Willful or Knowing If you determine that the defendant you are considering violated the Tennessee Consumer Protection Law, then you must determine if that defendant’s violation was willful or knowing. A person acts “willfully” if the act was committed voluntarily and purposely, with the specific intent to do something the law forbids; that is with bad purpose either to disobey or disregard the law. A person acts “knowingly” if the act was done voluntarily and intentionally and not because of mistake or accident.
=== Vest v. Freightliner (Wrongful Death / Products Liability / Comparative Fault) ===
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION CHAD VEST, individually and as the Special Administrator of the ESTATE OF ALLEN J. VEST, Plaintiff, vs. FREIGHTLINER, LLC, Defendant. Civil No. 07-CV-2517-D _________________________________________________________________ JURY INSTRUCTIONS _________________________________________________________________ JURY INSTRUCTION NO. 1 RESPECTIVE DUTIES OF JUDGE AND JURY Members of the jury, now that you have heard all of the evidence and the arguments of the lawyers, it is my duty to instruct you on the law that applies to this case. You will be provided with a written copy of these jury instructions. It is your duty to find the facts from all the evidence in the case. After you determine the facts, you must apply the law that has been given to you, whether you agree with it or not. You must not be influenced by any personal likes or dislikes, prejudice or sympathy. You must decide the case solely on the evidence before you and according to the law given to you. JURY INSTRUCTION NO. 2 INSTRUCTIONS TO BE CONSIDERED AS A WHOLE All of the instructions are equally important. The order in which these instructions are given has no significance. You must follow all of the instructions and not single out some and ignore others. -2- JURY INSTRUCTION NO. 3 ROLE OF JURY As members of the jury, you are the sole and exclusive judges of the facts. You pass upon the evidence. You determine the credibility of the witnesses. You resolve such conflicts as there may be in the testimony. You draw whatever reasonable inferences you decide to draw from the facts as you have determined them, and you determine the weight of the evidence. Since you are the sole and exclusive judges of the facts, I do not mean to indicate any opinion as to the facts or what your verdict should be. The rulings I have made during the trial are not any indication of my views of what your decision should be as to whether or not the plaintiff has proven his case. As to the facts, ladies and gentlemen, you are the exclusive judges. You are to perform the duty of finding the facts without bias or prejudice to any party. -3- JURY INSTRUCTION NO. 4 ROLE OF JURY Your authority must be exercised with sincere judgment, sound discretion, and in accordance with the rules of law which I give you. In making your determination of the facts in this case, your judgment must be applied only to that which is properly in evidence. Arguments of counsel are not in evidence, although you may give consideration to those arguments in making up your mind on what inferences to draw from the facts which are in evidence. From time to time the court has been called upon to pass upon the admissibility of certain evidence, although I have tried to do so, insofar as it was practicable, out of your hearing. You have no concern with the reasons for any such rulings and you are not to draw any inferences from them. Whether offered evidence is admissible is purely a question of law in the province of the court and outside the province of the jury. In admitting evidence to which objection has been made, the court does not determine what weight should be given to such evidence, nor does it pass on the credibility of the evidence. Of course, you will dismiss from your mind completely, entirely any evidence which has been ruled out of the case by the court, and you will refrain from speculation or conjecture or any guesswork about the nature or effect of any discussion between court and counsel -4- held out of your hearing or sight. -5- JURY INSTRUCTION NO. 5 OBJECTIONS It is the duty of the attorney on each side of a case to object when the other side offers testimony or other evidence which the attorney believes is not properly admissible. Counsel also have the right and duty to ask the court to make rulings of law and to request conferences at the side bar out of the hearing of the jury. All those questions of law must be decided by me, the court. You should not show any prejudice against an attorney or his or her client because the attorney objected to the admissibility of evidence, or asked for a conference out of the hearing of the jury or asked the court for a ruling on the law. As I already indicated, my rulings on the admissibility of evidence do not, unless expressly stated by me, indicate any opinion as to the weight or effect of such evidence. You are the sole judges of the credibility of all witnesses and the weight and effect of all evidence. -6- JURY INSTRUCTION NO.6 STATEMENTS OF COUNSEL EVIDENCE STRICKEN OUT – INSINUATIONS OF QUESTIONS In reaching your verdict you may consider only the evidence that was admitted. Remember that any questions, objections, statements or arguments made by the attorneys during the trial are not evidence. If the attorneys have stipulated or agreed to any fact, however, you will regard that fact as having been proved. Testimony that you have been instructed to disregard is not evidence and must not be considered. If evidence has been received only for a limited purpose, you must follow the limiting instructions I have given you. You are to decide the case solely on the evidence received at trial. -7- JURY INSTRUCTION NO. 7 EVIDENCE You are to decide this case only from the evidence which was presented at this trial. The evidence consists of: 1. The sworn testimony of the witnesses who have testified, both in person and by deposition. 2. The exhibits that were received and marked as evidence; and 3. Any facts to which all the lawyers have agreed or stipulated. -8- JURY INSTRUCTION NO. 8 ORDINARY OBSERVATIONS AND EXPERIENCES Although you must only consider the evidence in this case in reaching your verdict, you are not required to set aside your common knowledge. You are permitted to weigh the evidence in the light of your common sense, observations and experience. -9- JURY INSTRUCTION NO. 9 DIRECT AND CIRCUMSTANTIAL EVIDENCE There are two kinds of evidence; direct and circumstantial. Direct evidence is direct proof of a fact, such as testimony of a witness about what the witness personally observed. Circumstantial evidence is indirect evidence that gives you clues about what happened. Circumstantial evidence is proof of a fact, or a group of facts, that causes you to conclude that another fact exists. It is for you to decide whether a fact has been proved by circumstantial evidence. If you base your decision upon circumstantial evidence, you must be convinced that the conclusion you reach is more probable than any other explanation. For example, if a witness testified that the witness saw it was raining outside, that would be direct evidence that it was raining. If a witness testified that the witness saw someone enter a room wearing a raincoat covered with drops of water and carrying a wet umbrella, that would be circumstantial evidence from which you could conclude that it was raining. You are to consider both direct and circumstantial evidence. The law permits you to give equal weight to both, but it is for you to decide how much weight to give to any evidence. In making your decision, you must consider all the evidence in light of reason, experience and common sense. -10- JURY INSTRUCTION NO. 10 WEIGHING CONFLICTING TESTIMONY Although you must consider all of the evidence, you are not required to accept all of the evidence as true or accurate. You should not decide an issue by the simple process of counting the number of witnesses who have testified on each side. You must consider all the evidence in the case. You may decide that the testimony of fewer witnesses on one side is more convincing than the testimony of more witnesses on the other side. -11- JURY INSTRUCTION NO. 11 DEPOSITION TESTIMONY Certain testimony has been presented by deposition. A deposition is testimony taken under oath before the trial and preserved in writing or videotape. You are to consider that testimony as if it had been given in court. -12- JURY INSTRUCTION NO. 12 STIPULATIONS A stipulation is an agreement. The parties have stipulated that certain matters of fact are true. They are bound by this agreement, and in your consideration of the evidence you are to treat these facts as proved. -13- JURY INSTRUCTION NO. 13 CREDIBILITY OF WITNESS You are the sole and exclusive judges of the credibility or believability of the witnesses who have testified in this case. You must decide which witnesses you believe and how important you think their testimony is. You are not required to accept or reject everything a witness says. You are free to believe all, none, or part of any person’s testimony. In deciding which testimony you believe, you should rely on your own common sense and everyday experience. There is no fixed set of rules to use in deciding whether you believe a witness, but it may help you to think about the following questions: 1. Was the witness able to see, hear, or be aware of the things about which the witness testified? 2. How well was the witness able to recall and describe those things? 3. 4. 5. 6. 7. How long was the witness watching or listening? Was the witness distracted in any way? Did the witness have a good memory? How did the witness look and act while testifying? Was the witness making an honest effort to tell the truth, or did the witness evade questions? 8. Did the witness have any interest in the outcome of the case? -14- 9. Did the witness have any motive, bias, or prejudice that would influence the witness’s testimony? 10. How reasonable was the witness’ testimony when you consider all of the evidence in the case? 11. Was the testimony contradicted by what that witness had said or done at another time, by the testimony of other witnesses, or by other evidence? -15- JURY INSTRUCTION NO. 14 DISCREPANCIES IN TESTIMONY There may be discrepancies or differences within a witness’ testimony or between the testimony of different witnesses. This does not necessarily mean that a witness should be disbelieved. Sometimes when two people observe an event they will see or hear it differently. Sometimes a witness may have an innocent lapse of memory. Witnesses may testify honestly but simply may be wrong about what they thought they saw or remembered. You should consider whether a discrepancy relates to an important fact or only to an unimportant detail. -16- JURY INSTRUCTION NO. 15 WITNESS WILLFULLY FALSE You may conclude that a witness deliberately lied about a fact that is important to your decision in the case. If so, you may reject everything that witness said. On the other hand, if you decide that the witness lied about some things but told the truth about others, you may accept the part you decide is true and you may reject the rest. -17- JURY INSTRUCTION NO. 16 PHYSICAL LAWS, FACTS You should consider all of the surrounding circumstances at the time of the event or occurrence when weighing the testimony of a witness. A statement of fact should be disregarded if you find the statement is inherently impossible or contrary to universally recognized physical laws or well established physical facts. -18- JURY INSTRUCTION NO. 17 EXPERT TESTIMONY - DETERMINATION OF WEIGHT Usually witnesses are not permitted to testify as to opinions or conclusions. However, a witness who has scientific, technical, or other specialized knowledge, skill, experience, training, or education may be permitted to give testimony in the form of an opinion. Those witnesses are often referred to as “expert witnesses.” You should determine the weight that should be given to each expert’s opinion and resolve conflicts in the testimony of different expert witnesses. You should consider: 1. The education, qualifications, and experience of the witnesses; and 2. 3. The credibility of the witnesses; and The facts relied upon by the witnesses to support the opinion; and 4. The reasoning used by witnesses to arrive at the opinion. You should consider each expert opinion and give it the weight, if any, that you think it deserves. You are not required to accept the opinion of any expert. -19- JURY INSTRUCTION NO. 18 HYPOTHETICAL QUESTION An expert witness was asked to assume that certain facts were true and to give an opinion based upon that assumption. This is called a hypothetical question. You must determine if any fact assumed by the witness has not been established by the evidence and the effect of that omission, if any, upon the value of the opinion. -20- JURY INSTRUCTION NO. 19 CORPORATION NOT TO BE PREJUDICED The fact that a corporation is a party must not influence you in your deliberations or in your verdict. Corporations and persons are equal in the eyes of the law. Both are entitled to the same fair and impartial treatment and to justice by the same legal standards. -21- JURY INSTRUCTION NO. 20 BURDEN OF PROOF PREPONDERANCE OF EVIDENCE In this action, the Plaintiff has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the following issues: 1. Whether the Freightliner Century Class Truck was defective or unreasonably dangerous; 2. Whether the defective or unreasonably dangerous condition of the Freightliner Century Class Truck was the cause of Allen Vest’s death and damages. The Defendant has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the following issues: 1. That John B. Latta crossing the center line of travel and striking the Freightliner Century Class truck being driven by Allen Vest was the cause of the injuries sustained by Allen Vest. The term “preponderance of the evidence” means that amount of evidence that causes you to conclude that an allegation is probably true. To prove an allegation by a preponderance of the evidence, a party must convince you that the allegation is more likely true than not true. If the evidence on a particular issue is equally balanced, that issue has not been proven by a preponderance of the evidence and the party having the burden of proving that issue has failed. -22- You must consider all the evidence on each issue. -23- JURY INSTRUCTION NO. 21 LEGAL THEORIES Turning now to the legal theories in the case, it is my duty to tell you what the law is. If a lawyer or party has told you that the law is different from what I tell you it is, you must, of course, take the law as I give it to you. That is my duty, but it is your duty, and your duty alone, to determine what the facts are and after you have determined what the facts are, to apply those facts to the law as I give it to you, free from any bias, prejudice or sympathy, either one way or the other. The plaintiff’s first theory of recovery in this case is strict liability. The plaintiff’s second theory of recovery in this case is negligence. The plaintiff’s third theory of recovery is breach of warranty, specifically, the implied warranty of merchantability. I will now discuss the legal theories of strict liability, negligence, and breach of warranty in more detail. -24- JURY INSTRUCTION NO. 22 STRICT LIABILITY Plaintiff’s first theory is strict liability. One who manufacturers a defective or unreasonably dangerous product is responsible to the ultimate consumer of the product for physical harm caused to the consumer or the consumer’s property if: 1. The manufacturer is engaged in the business of manufacturing such a product; and 2. It is expected to and does reach the user or consumer without substantial change in the condition in which it was manufactured. A product is “defective” if it is unsafe for normal or reasonably anticipated handling and use. A product is “unreasonably dangerous” if it is more dangerous than would be reasonably expected by the ordinary consumer or would not be offered for sale by a reasonably careful manufacturer who knew of its dangerous condition. An “ordinary consumer” is a person who purchases or uses a product with the ordinary knowledge common to the community as to its characteristics. A “manufacturer” is a person or company that designs, fabricates, produces, compounds, processes or assembles any product or its component parts. The word “seller” includes a retailer, wholesaler, or distributor. The manufacturer of a product is not responsible for any injury to a person or property caused by the product unless the -25- product is determined to be in a defective condition or is unreasonably dangerous at the time it left the manufacturer’s control. In making this determination, you must apply the state of scientific and technological knowledge available to the manufacturer at the time the product was placed on the market, rather than at the time of the injury. Consider also the customary designs, methods, standards and techniques of manufacturing and testing by other manufacturers of similar products. -26- JURY INSTRUCTION NO. 23 NEGLIGENCE The second claim by the plaintiff is that defendant was negligent. Negligence is the failure to use ordinary or reasonable care. It is either doing something that a reasonably careful person would not do, or the failure to do something that a reasonably careful person would do, under all of the circumstances in this case. A person may assume that every other person will use reasonable care, unless a reasonably careful person has cause for thinking otherwise. While the instructions as to negligence discuss the elements as they relate to plaintiff’s claim against defendant, the same elements and analysis relates to defendant’s claim that John Latta was negligent. -27- JURY INSTRUCTION NO. 24 NEGLIGENCE ELEMENTS In order to establish a claim of negligence, the plaintiff must prove the following elements: 1. 2. 3. 4. That the defendant owed Allen Vest a duty of care; That defendant breached that duty through conduct falling below the applicable standard of care; That an injury was suffered by Allen Vest; That the injury would not have occurred but for the breach of duty by defendant; and 5. That the breach of duty of defendant was the legal cause of Allen Vest’s injuries. -28- JURY INSTRUCTION NO. 25 ELEMENTS The first element that the plaintiff must prove by a preponderance of the evidence in a negligence claim is that defendant owed Allen Vest a duty of care. A duty is a legal obligation owed by one person to another. In this case, defendant owed to Allen Vest a duty to manufacture, design, and test a truck that may be used in the manner and for the purpose for which it was made. The second element that the plaintiff must prove by a preponderance of the evidence to establish a claim of negligence against defendant is that defendant breached a duty of care owed to Allen Vest. The third element that the plaintiff must prove by a preponderance of the evidence is that Allen Vest was injured. The fourth element that the plaintiff must prove by a preponderance of the evidence is that the injuries to Allen Vest would not have occurred but for the breach of duty of defendant. In order to satisfy this fourth element as to defendant, the plaintiff must show that defendant failed to use reasonable care in designing, manufacturing, and testing the truck and that the failure resulted in injuries to Allen Vest. -29- The fifth element the plaintiff must prove by a preponderance of the evidence is that the breach of duty as to defendant was the legal cause of Allen Vest’s injuries. A legal cause of an injury is a cause which, in natural and continuous sequence, produces the injury, and without which the injury would not have occurred. -30- JURY INSTRUCTION NO. 26 MANUFACTURER’S DUTY OF CARE The manufacturer of a product has a duty to use reasonable care in designing, manufacturing and testing the product and in the selection and testing of any component parts made by another so that the product may be safely used in the manner and for the purpose for which it was made. The failure to fulfill that duty is negligence. -31- PLAINTIFF’S PROPOSED JURY INSTRUCTION NO. 27 COMPARATIVE FAULT - THEORY AND EFFECT In deciding this case you must determine the fault, if any, of each Freightliner and John Latta. If you find both of them at fault, you will then compare the fault of each of them. To do this, you will need to know the definition of fault. A party or non-party is at fault if you find that party or non-party was negligent or has a basis of responsibility arising from strict liability or breach of warranty, and that the negligence or basis of responsibility was a legal cause of the injury for which the claims was made. Fault has two parts: a basis of responsibility in either negligence, strict liability, or breach of warranty and causation. Negligence is the failure to use reasonable care. It is either doing something that a reasonably careful person would not do, or the failure to do something that a reasonably careful person would do, under circumstances similar to those shown by the evidence. The mere happening of an injury or accident does not, in and of itself, prove negligence. A person may assume that every other person will use reasonable care unless the circumstances indicate the contrary to a reasonably careful person. The second part of fault is causation. Causation has two components: (a) causation in fact and (b) legal cause. -32- A cause in fact of Allen Vest’s death is a cause which directly contributed to the death and without which the death would not have occurred. To be a cause in fact, it is not necessary that a negligent act or omission be the sole cause of Allen Vest’s death, only that it be a cause. Once you have determined that a party’s or non-party’s negligence was a cause in fact of Allen Vest’s death, the next question you must decide is whether the party’s or non-party’s negligence was also a legal cause of the plaintiff’s injury. Two requirements must be met to determine whether a party’s or non-party’s negligent act or conduct giving rise to strict liability was a legal cause of the injury or damage. 1. The conduct must have been a substantial factor in bringing about the harm being complained of; and 2. The harm giving rise to the action could have been reasonably foreseen or anticipated by a person of ordinary intelligence and prudence. To be a legal cause of an injury there is no requirement that the cause be the only cause, the last act, or the one nearest to the injury, so long as it is a substantial factor in producing the injury or damage. The foreseeability requirement does not require the person guilty of negligence to foresee the exact manner in which the injury takes place or the exact person who would be injured. It -33- is enough that the person guilty of negligence could foresee, or through the use of reasonable care, should have foreseen the general manner in which the injury or damage occurred. A single injury can be caused by the negligent acts or omissions of one or more persons. If you find that a party or non-party was negligent or has a basis of responsibility arising from strict liability or breach of warranty, and that negligence or basis of responsibility was a legal cause of the injury for which a claim was made, you have found that party to be at fault. The plaintiff has the burden to prove the defendant’s fault. If the plaintiff fails to do so, you should find the Defendant’s fault to be zero. Likewise, Defendant has the burden to prove John Latta’s fault. If the Defendant fails to do so, you should find John Latta’s fault to be zero. If you find more than one person to be at fault, you must then determine the percentage of fault chargeable to each of them. You must also determine the total amount of damages sustained by the Plaintiff. You must do so without reducing those damages by any percentage of fault you may have charged to a non-party. I will instruct you on the law of damages in a few minutes. It is my responsibility under the law to reduce the amount of damages you may award by any percentage of fault that you may have assigned to Jon Latta. -34- JURY INSTRUCTION NO. 28 WHERE CLAIM IS MADE AGAINST ONE NOT JOINED AS A PARTY In this case, Freightliner claims that John Latta was at fault and has the burden of proving his fault. Even though he has not appeared or offered evidence, it is necessary that you determine whether John Latta was at fault and determine the percentage of fault, if any, chargeable to him. -35- JURY INSTRUCTION NO. 29 COMPARATIVE FAULT BASIS OF COMPARISON You have been instructed that if you find both Defendant and John Latta at fault, you must apportion the fault of Defendant and John Latta. In making the apportionment of percentage of fault, you should keep in mind that the percentage of fault chargeable to either is not to be measured solely by the number of particulars in which either is found to have been at fault. You should weigh the respective contributions of the Defendant and John Latta, considering the conduct of each as a whole, determine whether one made a larger contribution than the other, and if so, to what extent it exceeds that of the other. -36- JURY INSTRUCTION NO. 30 COMPARATIVE FAULT - ADDITIONAL FACTORS FOR COMPARING FAULT The percentage of fault assigned to either Defendant or John Latta depends upon all of the circumstances of the case. The conduct of either may make that person more or less at fault, depending upon all of the circumstances. In order to assist you in making this decision, you may consider the following factors(s) and you may also consider any other factors that you find to be important under the facts and circumstances. But the determination of fault on the part of either Defendant or John Latta and the determination of the relative percentages of fault, if any, are matters for you alone to decide. 1. 2. Whose conduct more directly caused Mr. Vest’s death; How reasonable was the person’s conduct in confronting a risk, for example, did the person know of the risk or should the person have known of it; 3. Did the person fail to reasonably use an existing opportunity to avoid an injury to another; and, 4. What was the significance of what the person was attempting to accomplish by the conduct. -37- JURY INSTRUCTION NO. 31 DUTY OF DRIVER Each driver has a duty to drive with reasonable care, considering the hazards of weather, road, traffic and other conditions. Each driver is under a duty to maintain a reasonably safe rate of speed; to keep the vehicle under reasonable control; to keep a proper lookout under the existing circumstances; to see and be aware of what is in that driver’s view; and to use reasonable care to avoid an accident and to obey the traffic laws. -38- JURY INSTRUCTION NO. 32 BREACH OF WARRANTY The third theory under which plaintiff seeks to establish liability is on a breach of warranty, specifically, breach of the implied warranty of merchantability. A breach of warranty may be established without proof of negligence on the part of the defendant and usually occurs in connection with a sale of goods. A sale of goods contains an implied warranty that goods are merchantable. This warranty requires that the goods are fit for the ordinary purposes for which such goods are used or sold. To prove breach of warranty, the plaintiff must prove that the truck was sold in a defective or unreasonably dangerous condition. A sale is the transfer of ownership of goods from a seller to a buyer for a price. “Goods” means any movable property and is interchangeable with the terms “product” or “article”. “Seller” includes the manufacturer, fabricator, producer, compounder, processor, assembler, retailer, wholesaler, distributor, lessor, or bailor. “Buyer” includes the user or consumer of the product. -39- JURY INSTRUCTION NO. 33 IMPLIED WARRANTY DEFINED An implied warranty is a guarantee about the quality of goods or services purchased that is not written down or explicitly spoken. Virtually everything you buy comes with an implied warranty of merchantability. -40- JURY INSTRUCTION NO. 34 IMPLIED WARRANTY OF MERCHANTABILITY Unless excluded or modified by agreement of the parties, a sale of goods contains an implied warranty that goods are merchantable. This warranty requires that the goods: Are fit for the ordinary purposes for which such goods are used. -41- JURY INSTRUCTION NO. 35 WRONGFUL DEATH In this case, suit has been brought for damages alleging the death of Allen Vest was caused by the fault of Freightliner. If you decide to award damages, there are two classes of damages you may consider: First, those damages sustained immediately by the injured party including compensation for the following: 1. 2. 3. The mental and physical suffering actually endured by the injured party between the injury and death; Loss of earning capacity; and Loss of pension. You may not speculate as to whether conscious pain and suffering actually did exist between the injury and death. If, however, you find that there was such pain and suffering prior to death, you must award damages for it. The second class of damages that may be awarded is the present cash value of the pecuniary value of the life of the deceased. In determining this value, you should take into consideration the following factors: 1. 2. 3. 4. The age of the deceased; The condition of health of the deceased; The life expectancy of the deceased; The strength and capacity of the deceased for work and for earning money through skill in any art, trade, profession, occupation, or business; -42- 5. 6. The personal habits of the deceased as to sobriety and industry; and The reasonable value of the loss of consortium suffered by the wife and children of the deceased. “Consortium” is a legal term consisting of several elements. It includes both tangible services provided by a family member, as well as intangible benefits each family member receives from the continued existence of other family members. Such intangible benefits include love, affection, attention, education, guidance, care, protection, training, companionship and cooperation and in the case of a spouse, sexual relations, that the wife and children would reasonably be certain to have received during the life of the deceased. In determining whether to award damages for loss of consortium for the death of a parent, you should consider the age of the children, closeness of relationship, dependence and any other factors that reflect upon the relationship between parent and child. In weighing these factors, you should consider the fact that expectancy of life is, at most, a probability based upon experience and statistics. You should be mindful of the possibility that the earnings of an individual are not always uniform over a period of time. You should consider not only the most optimistic expectations of the future, but also the most pessimistic, and all of the uncertainties between the extremes. -43- Finally, when determining the amount of damages based upon life expectancy and earning capacity, you should deduct the present cash value of the deceased’s living expenses had the deceased lived. These living expenses are those that under the deceased’s standard of living would have been reasonably necessary to keep the deceased in such a condition of health and well-being as to maintain the capacity to earn money. -44- JURY INSTRUCTION NO. 36 COMPENSATORY DAMAGES If, under the Court’s instructions, you find that the plaintiff is entitled to damages, then you must award plaintiff damages that will reasonably compensate the plaintiff for claimed loss or harm which has been proven by a preponderance of the evidence, provided you also find it was or will be suffered by the plaintiff and was legally caused by the act or omission or condition upon which you base your finding of liability. Each of these elements of damage is separate. You may not duplicate damages for any element by also including that same loss or harm in another element of damage. In determining the amount of damages, you should consider the following elements: Loss of earning capacity. Loss of earning capacity is the value of earning capacity that has been lost in the past and the present cash value of lost earning capacity that is likely to be lost in the future as a result of the injury in question. It is not the loss of time or actual earnings that make up this item of damages, but the loss of the ability to earn. There may be a loss of earning capacity even though there has been no loss of earnings. The loss of the ability to earn money may include, but is not limited to, actual loss of income. In deciding what, if any, award should be made for loss of the ability to earn, you should consider any evidence of Allen -45- Vest’s earning capacity, including, among other things, his health, age, character, occupation, past earnings, intelligence, skill, talents, experience and record of employment. Physical pain and mental suffering. Physical pain and suffering is reasonable compensation for any physical pain and suffering, physical and mental discomfort suffered by the Allen Vest. Mental suffering includes anguish, grief, shame, or worry. Loss of enjoyment of life: Loss of the enjoyment of life takes into account the loss of the normal enjoyments and pleasures in life in the future. Pain and suffering, and loss of enjoyment of life are separate types of losses. A plaintiff is entitled to recover for these losses if the plaintiff proves by a preponderance of the evidence that each was caused by the defendant’s fault. No definite standard or method of calculation is prescribed by law by which to fix reasonable compensation for pain and suffering, and loss of enjoyment of life. Nor is the opinion of any witness required as to the amount of such reasonable compensation. In making an award for pain and suffering and loss of enjoyment of life, you shall exercise your authority with calm and reasonable judgment and the damages you fix shall be just and reasonable in light of the evidence. -46- JURY INSTRUCTION NO. 37 DETERMINING DAMAGES - SPECULATION If you are to determine a party’s damages, you must compensate that party for loss or harm that is reasonably certain to be suffered in the future as a result of the injury in question. You may not include speculative damages, which is compensation for future loss or harm that, although possible, is conjectural or not reasonably certain. -47- JURY INSTRUCTION NO. 38 LIFE EXPECTANCY The life expectancy read to you is not conclusive but is an average life expectancy of persons who have reached a certain age. You should be aware that many persons live longer, and many die sooner, than the average. This figure may be considered by you in connection with other evidence relating to the probable life expectancy of Allen Vest including evidence of the Allen Vest’s health, occupation, habits and other activities. -48- JURY INSTRUCTION NO. 39 MEANING OF PRESENT CASH VALUE I have used the expression “present cash value” in these instructions concerning damages for future losses that may be awarded to the Plaintiff. In determining the damages arising in the future, you must determine the present cash value of those damages. That is, you must adjust the award of those damages to allow for the reasonable earning power of money and the impact of inflation. “Present cash value” means the sum of money needed now which, when added to what that sum may reasonably be expected to earn in the future when invested, would equal the amount of damages, expenses, or earnings at the time in the future when the damages from the injury will be suffered, or the expenses must be paid, or the earnings would have been received. You should also consider the impact of inflation, its impact on wages, and its impact on purchasing power in determining the present cash value of future damages. -49- JURY INSTRUCTION NO. 40 PUNITIVE DAMAGES - PURPOSE AND STANDARD The Plaintiff has asked that you make an award of punitive damages, but this award may be made only under the following circumstances. You may consider an award of punitive damages only if you find that the Plaintiff has suffered actual damages as a legal result of Defendant’s fault and you have made an award for compensatory damages. The purpose of punitive damages is not to further compensate a Plaintiff but to punish a wrongdoer and deter others from committing similar wrongs in the future. Punitive damages may be considered if, and only if, the Plaintiff has shown by clear and convincing evidence that Defendant has acted recklessly. Clear and convincing evidence is a different and higher standard than preponderance of the evidence. It means that Defendant’s wrong, if any, must be so clearly shown that there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. A person acts recklessly when the person is aware of, but consciously disregards a substantial and unjustifiable risk of injury or damage to another. Disregarding the risk must be a gross deviation from the standard of care that an ordinary person would use under all the circumstances. -50- JURY INSTRUCTION NO. 41 PUNITIVE DAMAGES - AMOUNT If you decide that the plaintiff is entitled to punitive damages, you must decide the amount of those damages. The plaintiff has the burden of proving by a preponderance of the evidence the amount of punitive damages that you should award. In making your decision, you must consider the instructions I have already given you and also the following: 1. The objectionable nature of the defendant’s wrongdoing, the impact of the defendant’s conduct on the plaintiff, and the relationship of the parties; 2. The defendant’s awareness of the amount of harm being caused and the defendant’s motivation in causing the harm; 3. The duration of the defendant’s misconduct and whether the defendant attempted to conceal the conduct; 4. The amount of money the plaintiff has spent in the attempt to recover the losses; 5. Whether defendant profited from the activity, and if so, whether the punitive award should be in excess of the profit in order to deter similar future behavior; and 6. Any other circumstances shown by the evidence that bears on determining the proper amount of the punitive award. -51- If you decide to award the Plaintiff compensatory damages that is for the purpose for making the Plaintiff whole. The purpose of an award for punitive damages is to punish a wrongdoer and to deter misconduct by the defendant or others. -52- JURY INSTRUCTION NO. 42 CHANCE OR QUOTIENT VERDICT PROHIBITED The law forbids you to determine any issue in this case by chance. If you decide that a party is entitled to recover damages, you must not arrive at the amount of those damages by agreeing in advance: (1) to use each juror’s independent estimate of the amount to be awarded; (2) to total those amounts; (3) to divide the total by [number of jurors]; and (4) to make the resulting average the amount you award. -53- PLAINTIFF’S PROPOSED JURY INSTRUCTION NO. 43 EXPLANATION OF VERDICT The percentage figure for each party or non-party may range from zero (0) to one hundred (100) percent. When the percentages of fault of all parties or non-parties being compared are added together, the total must equal 0% or 100%. The total percentage cannot be more or less than 0% or 100%. The person to whom you may assign fault are: (1) Freightliner, LLC (2) John Latta Your next obligation is to determine the full amount of damages, if any, sustained by Chad Vest, the Administrator of the estate of Allen Vest, without considering the question of fault. -54- JURY INSTRUCTION NO. 44 CLOSING INSTRUCTIONS Finally, ladies and gentlemen, we come to the point where we will discuss the form of your verdict and the process of your deliberations. You will be taking with you to the jury room a verdict form that will reflect your findings. The verdict form reads as follows: [READ VERDICT FORM] Upon retiring to the jury room, you will select one of your number to act as your foreperson. The foreperson will preside over your deliberations and be your spokesperson here in court. A Verdict Form has been prepared for your convenience. You will take this form and a copy of these instructions with you to the jury room. When the jury has completed the Verdict Form, the foreperson will then date and sign the Verdict Form as so completed, and the jury will then return it to the courtroom. It is proper to add the caution that nothing said in these instructions and nothing in any form of verdict prepared for your convenience is meant to suggest or convey in anyway or manner any intimation as to what verdict I think you should find. What the verdict shall be is your sole and exclusive duty and responsibility. -55- Your verdict must represent the considered judgment of each of you. In order to return a verdict, it is necessary that each of your agree to that verdict. That is, your verdict must be unanimous. It is your duty as jurors, to consult with one another, and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. We will be sending with you to the jury room all of the exhibits in the case. You may have not seen all of these previously and they will be there for your review and consideration. You may take a break before you begin the case. However, you may not deliberate at any time unless all of you are present together in the jury room. Some of you have taken notes. I remind you that these are for your own individual use only and are to be used by you only to refresh your recollection about the case. They are not to be shown to others or otherwise used as a -56- basis for your discussion about the case. You will take the verdict form to the jury room and when you have reached a unanimous agreement as to your verdict, you will have your foreperson fill it in, date and sign it, and then return to the courtroom. Remember at all times that you are not partisans. You are judges – judges of the facts. Your sole interest is to seek the truth from the evidence in the case. If it becomes necessary during your deliberations to communicate with the Court, you may send a note by the marshal, signed by your foreperson, or by one or more members of the jury. No member of the jury should ever attempt to communicate with the Court by any means other than a signed writing, and the Court will never communicate with any member of the jury on any subject touching the merits of the case, other than in writing, or orally here in open court. -57- IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION CHAD VEST, individually and as the Special Administrator of the ESTATE OF ALLEN J. VEST, Plaintiff, vs. FREIGHTLINER, LLC, Defendant. Civil No. 07-CV-2517-D ____________________________________________________________________________ JURY VERDICT ____________________________________________________________________________ 1. Do you find Freightliner, LLC to be at fault due to strict liability? (Any liability arising out of strict liability must be compared to the result set out in question No. 5. The Plaintiff has the burden of proof.) Yes _____ No _____ 2. Do you find Freightliner, LLC to be at fault due to negligence? (Any liability arising out of negligence must be compared to the result set out in question No. 5. The Plaintiff has the burden of proof.) Yes _____ No _____ -58- 3. Do you find Freightliner, LLC to be at fault due to breach of implied warranty? (Any liability arising out of breach of warranty must be compared to the result set out in question No. 5. The Plaintiff has the burden of proof.) Yes _____ No _____ If you answered Yes to any of the above questions, then go to the next question. If your answer to all of the above questions is No, return to the Courtroom with your Signed Verdict Form. 4. Do you find John Latta to be at fault due to negligence? (Any fault arising out of John Latta’s negligence must be compared and the result set out in question 5. The Defendant has the burden of proof.) Yes _____ No _____ If you answered Yes to Question 4, then go to Question 5. If your answer to Question 4 was No, then go to Question 6. 5. If you found Freightliner, LLC and John Latta to be at fault, considering all the fault at One Hundred Percent (100%), what percentage of fault do you attribute to each of the parties? Freightliner, LLC John Latta (Total must be equal to 100%) (0-100%) ________% (0-100%) ________% 6. Decide the total amount of damages sustained by the Plaintiff. Do not reduce those damages by any percentage of fault you assign to John Latta. It is the responsibility of the -59- judge, after you return your verdict, to reduce the damages you award, if any by the percentage of fault you assign to John Latta. What amount of damages, if any, which have been proven by a preponderance of the evidence: Past physical pain and suffering of Allen Vest Present cash value of past and future loss of capacity for the enjoyment of life of Allen Vest $_______________________ $_______________________ Present cash value of Allen Vest’s past and future loss of earning capacity $_______________________ Present cash value of Allen Vest’s loss of pension benefits $_______________________ Loss of consortium $_______________________ TOTAL DAMAGES $_______________________ 7. Do you find that Plaintiff has proven by clear and convincing evidence the acts of Freightliner, LLC were reckless? Yes _____ No If you answered Yes to Question 7, then go to Question 8. If you answered No to Question 7, return to the Courtroom with your signed Verdict Form. 8. What is the total amount of punitive damages you award in this case? -60- $___________________________ __________________________ Jury Foreperson ___________________________ Date -61-
=== Lyons v. Hunter (Personal Injury) ===
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION Plaintiff, WAYMOND GLENN LYONS, JOHN W. HUNTER and ) HEARTLAND EXPRESS, INC. OF IOWA, Defendants. v. Civil No. 09-2005-P JURY INSTRUCTIONS Introduction Before Deliberations Members of the Jury: You have now heard all of the evidence in the case. It becomes my duty, therefore, to instruct you on the rules of law that you must follow and apply in arriving at your decision in the case. In any jury trial there are, in effect, two judges. I am one of the judges; the other is the jury. It is my duty to preside over the trial and to determine what testimony and evidence is relevant under the law for your consideration. It is also my duty at the end of the trial to instruct you on the law applicable to the case. You, as jurors, are the judges of the facts. But in determining what actually happened in this case -- that is, in reaching your decision as to the facts -- it is your sworn duty to follow the law I am now in the process of defining for you. You must not be influenced by sympathy, bias, prejudice or passion. You are not to single out any particular part of the instructions and ignore the rest, but you are to consider all the instructions as a whole and regard each in the light of all the others. -2- EVIDENCE You are to decide this case only from the evidence which was presented at this trial. The evidence consists of: 1. The sworn testimony of the witnesses who have testified, both in person and by deposition; 2. The exhibits that were received and marked as evidence; 3. Any facts to which all the lawyers have agreed or stipulated; and 4. Any other matters that I have instructed you to consider as evidence. -3- Direct and Circumstantial Evidence There are two kinds of evidence; direct and circumstantial. By way of explanation, direct evidence is testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is indirect evidence, that is, it is proof of one or more facts from which one can find another fact. Direct evidence is simply evidence like the testimony of an eyewitness which, if you believe it, directly proves a fact. If a witness testified that he saw it raining outside, and you believed him, that would be direct evidence that it was raining. Circumstantial evidence is simply a chain of circumstances that indirectly proves a fact. If someone walked into the courtroom wearing a raincoat covered with drops of water and carrying a wet umbrella, that would be circumstantial evidence from which you could conclude that it was raining. It is your job to decide how much weight to give the direct and circumstantial evidence. The law makes no distinction between the weight that you should give to either one, or say that one is any better evidence than the other. You should consider all the evidence, both direct and circumstantial, and give it whatever weight you believe it deserves. You may consider both direct and circumstantial evidence in deciding this case. The law permits you to give equal weight to both, but it is for you to decide how much weight to give to any evidence. -4- STATEMENTS OF COUNSEL B EVIDENCE STRICKEN OUT B INSINUATIONS OF QUESTIONS In reaching your verdict you may consider only the evidence that was admitted. Remember that any questions, objections, statements or arguments made by the attorneys during the trial are not evidence. If the attorneys have stipulated or agreed to any fact, however, you will regard that fact as having been proved. Testimony that you have been instructed to disregard is not evidence and must not be considered. If evidence has been received only for a limited purpose, you must follow the limiting instructions I have given you. You are to decide the case solely on the evidence received at trial. -5- ORDINARY OBSERVATIONS AND EXPERIENCES Although you must only consider the evidence in this case in reaching your verdict, you are not required to set aside your common knowledge. You are permitted to weigh the evidence in the light of your common sense, observations and experience. -6- Credibility Of Witnesses You, as members of the jury, are judges of the facts concerning the controversy involved in this lawsuit. In order for you to determine what the true facts are, you are called upon to weigh the testimony of every witness who has appeared before you, and to give the testimony of the witnesses the weight, faith, credit and value to which you think it is entitled. You will note the manner and demeanor of witnesses while on the stand or on video. You must consider whether the witness impressed you as one who was telling the truth or one who was telling a falsehood and whether or not the witness was a frank witness. You should consider the reasonableness or unreasonableness of the testimony of the witness; the opportunity or lack of opportunity of the witness to know the facts about which he testified; the intelligence or lack of intelligence of the witness; the interest of the witness in the result of the lawsuit, if any; the relationship of the witness to any of the parties to the lawsuit, if any; and whether the witness testified inconsistently while on the witness stand, or if the witness said or did something or failed to say or do something at any other time that is inconsistent with what the witness said while testifying. These are the rules that should guide you, along with your common judgment, your common experience and your common -7- observations gained by you in your various walks in life, in weighing the testimony of the witnesses who have appeared before you in this case. If there is a conflict in the testimony of the witnesses, it is your duty to reconcile that conflict if you can. But if there is a conflict in the testimony of the witnesses which you are not able to reconcile, in accordance with these instructions, then it is with you absolutely to determine which ones of the witnesses you believe have testified to the truth and which ones you believe have testified to a falsehood. Immaterial discrepancies do not affect a witness= testimony, but material discrepancies do. The greater weight or preponderance of the evidence in a case is not determined by the number of witnesses testifying to a particular fact or a particular state of facts. Rather, it depends on the weight, credit and value of the total evidence on either side of the issue, and of this you, as jurors, are the exclusive judges. If in your deliberations you come to a point where the evidence is evenly balanced and you are unable to determine which way the scales should turn on a particular issue, then the jury must find against that party upon whom the burden of proof has been cast in accordance with these instructions. -8- DISCREPANCIES IN TESTIMONY There may be discrepancies or differences within a witness= testimony or between the testimony of different witnesses. This does not necessarily mean that a witness should be disbelieved. Sometimes when two people observe an event they will see or hear it differently. Sometimes a witness may have an innocent lapse of memory. Witnesses may testify honestly but simply may be wrong about what they thought they saw or remembered. You should consider whether a discrepancy relates to an important fact or only to an unimportant detail. -9- Impeachment-Inconsistent Statements A witness may be discredited or impeached by contradictory evidence; or by evidence that at some other time the witness has said or done something, or has failed to say or do something, which is inconsistent with the witness's present testimony. If you believe any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you may think it deserves. If a witness is shown knowingly to have testified falsely concerning any material matter, you have a right to distrust such witness's testimony in other particulars and you may reject all the testimony of that witness or give it such credibility as you may think it deserves. An act or omission is "knowingly" done, if voluntarily and intentionally, and not because of mistake or accident or other innocent reason. -10- EXPERT TESTIMONY C DETERMINATION OF WEIGHT Usually witnesses are not permitted to testify as to opinions or conclusions. However, a witness who has scientific, technical, or other specialized knowledge, skill, experience, training, or education may be permitted to give testimony in the form of an opinion. Those witnesses are often referred to as Aexpert witnesses.@ You should determine the weight that should be given to each expert's opinion and resolve conflicts in the testimony of different expert witnesses. You should consider: 1. The education, qualifications, and experience of the witnesses; and, 2. The credibility of the witnesses; and, 3. The facts relied upon by the witnesses to support the opinion; and, 4. The reasoning used by witnesses to arrive at the opinion. You should consider each expert opinion and give it the weight, if any, that you think it deserves. You are not required to accept the opinion of any expert. -11- The Law Turning now to the legal theories in the case, it is my duty to tell you what the law is. If a lawyer or party has told you that the law is different from what I tell you it is, you must, of course, take the law as I give it to you. That is my duty, but it is your duty, and yours alone, to determine what the facts are and after you have determined what the facts are, to apply the law as I give it to you, free from any bias, prejudice or sympathy, either one way or the other. -12- ADMITTED FAULT Heartland and John Hunter admit that the 18-wheeler wreck was caused by John Hunter=s negligence. However, defendants deny the nature and extent of the injuries and losses claimed by the plaintiff. The plaintiff has the burden of proving the following issues by a preponderance of the evidence: 1. The nature and extent of the plaintiff=s injuries caused by the incident; and 2. The amount of damages that will compensate the plaintiff for his damages, if any, that the plaintiff has experienced as a result of Defendants= liability in the wreck Defendant caused. The term Apreponderance of the evidence@ means that amount of evidence that causes you to conclude that an allegation is probably true. To prove an allegation by a preponderance of the evidence, a party must convince you that the allegation is more likely true than not true. If the evidence on a particular issue is equally balanced, that issue has not been proven by a preponderance of the evidence and the party having the burden of proving that issue has failed. You must consider all the evidence on each issue. The admission of liability should not prejudice you for or against the defendant in fixing the amount of damages, if any. -13- RESPONDEAT SUPERIOR As John Hunter's employer, Heartland Express, Inc. Of Iowa, is responsible for John Hunter's negligence. In addition, you may also attribute fault directly against Heartland Express, Inc. Of Iowa if you find that Heartland Express, Inc. Of Iowa was at fault separate and apart from the fault of John Hunter. -14- INSURANCE AND INSURANCE COMPANIES There is no evidence before you that any party has or does not have insurance. Whether or not insurance exists has no bearing upon any issue in this case. You may not discuss insurance or speculate about insurance, based on your general knowledge. There are sound reasons for this rule. Injuries and damages, if any, are not increased or decreased because a party does or does not have insurance. -15- CAUSATION A negligence claim requires proof of two types of causation: Cause in fact and legal cause. Cause in fact and legal cause are distinct elements of a negligence claim and both must be proven by the plaintiff by a preponderance of the evidence. -16- CAUSE IN FACT The defendant=s negligent conduct is a cause in fact of the plaintiff=s injury if, as a factual matter, it directly contributed to the plaintiff=s injury and without it plaintiff=s injury would not have occurred. -17- LEGAL CAUSE Once you have determined that a defendant=s negligence is a cause in fact of the plaintiff=s injury, you must decide whether the defendant=s negligence was also a legal cause of the plaintiff=s injury. The law in Tennessee sets out two requirements to determine whether an act or omission was a legal cause of the injury or damage. 1. The conduct must have been a substantial factor in bringing about the harm being complained of; and, 2. The harm giving rise to the action could have been reasonably foreseen or anticipated by a person of ordinary intelligence and care. To be a legal cause of an injury there is no requirement that the cause be the only cause, the last act, or the one the nearest to the injury, so long as it is a substantial factor in producing the injury or damage. The foreseeability requirement does not require the person guilty of negligence to foresee the exact manner in which the injury takes place or the exact person who would be injured. It is enough that the person guilty of negligence could foresee, or through the use of reasonable care, should have foreseen the general manner in which the injury or damage occurred. -18- COMPENSATORY DAMAGES If, under the Court=s instructions, you find that the plaintiff is entitled to damages, then you must award plaintiff damages that will reasonably compensate the plaintiff for claimed loss or harm which has been proven by a preponderance of the evidence, provided you also find it was or will be suffered by the plaintiff and was legally caused by the act or omission upon which you base your finding of liability. Each of these elements of damage is separate. You may not duplicate damages for any element by also including that same loss or harm in another element of damage. In determining the amount of damages, you should consider the following elements: Medical expenses. Medical expenses are the cost of medical care, services and supplies reasonably required and actually given in the treatment of the plaintiff as shown by the evidence and the present cash value of similar services likely to be required in the future. Loss of earning capacity. Loss of earning capacity is the value of earning capacity that has been lost in the past and the present cash value of lost earning capacity that is likely to be lost in the future as a result of the injury in question. It is not the loss of time or actual earnings that make up this item of damages, but the loss of the ability to earn. There may be a loss of earning capacity even though there has been no -19- loss of earnings. The loss of the ability to earn money may include, but is not limited to, actual loss of income. In deciding what, if any, award should be made for loss of the ability to earn, you should consider any evidence of plaintiff=s earning capacity, including, among other things, the plaintiff=s health, age, character, occupation, past earnings, intelligence, skill, talents, experience and record of employment. Physical pain and mental suffering. Physical pain and suffering is reasonable compensation for any physical pain and suffering, physical and mental discomfort suffered by the plaintiff, and the present cash value for pain and suffering likely to be experienced in the future. Mental suffering includes anguish, grief, shame, or worry. Permanent Injury. A permanent injury is an injury that the plaintiff must live with for the rest of the plaintiff=s life that may result in inconvenience or the loss of physical vigor. Damages for permanent injury may be awarded whether or not it causes any pain or inconvenience. Loss of enjoyment of life: Loss of the enjoyment of life takes into account the loss of the normal enjoyments and pleasures in life in the future as well as limitations on the person=s lifestyle resulting from the injury. Pain and suffering, permanent injury, and loss of enjoyment of life are separate types of losses. A plaintiff is entitled to -20- recover for these losses if the plaintiff proves by a preponderance of the evidence that each was caused by the defendant=s fault. No definite standard or method of calculation is prescribed by law by which to fix reasonable compensation for pain and suffering, permanent injury, and loss of enjoyment of life. Nor is the opinion of any witness required as to the amount of such reasonable compensation. In making an award for pain and suffering, loss of enjoyment of life, and/or permanent injury, you shall exercise your authority with calm and reasonable judgment and the damages you fix shall be just and reasonable in light of the evidence. The amount of damages does not have to equal or exceed the amount of medical expenses proven or incurred. -21- AGGRAVATION OF PRE-EXISTING CONDITION A person who has a condition or disability at the time of an injury is entitled to recover damages only for any aggravation of the pre-existing condition. Recovery is allowed even if the pre- existing condition made plaintiff more likely to be injured and even if a normal, healthy person would not have suffered substantial injury. A plaintiff with a pre-existing condition may recover damages only for any additional injury or harm resulting from the fault you may have found in this case. If you find that defendant=s fault aggravated plaintiff=s pre- existing condition you must apportion the amount of disability and pain between that caused by the pre-existing condition and that caused by the incident. If, however, you find that the defendant=s fault makes it impossible to apportion the amount of disability or pain that pre-existed the incident, then defendant is responsible for all harm caused by the incident even though it is greater because of the pre-existing condition than it might otherwise have been. -22- DETERMINING FUTURE DAMAGES WITHOUT SPECULATION If you are to determine a party=s damages, you must compensate that party for loss or harm that is reasonably certain to be suffered in the future as a result of the injury in question. You may not include speculative damages, which is compensation for future loss or harm that, although possible, is conjectural or not reasonably certain. In order to meet his burden of proof to show additional medical treatment is reasonably certain to be required in the future, the Plaintiff must establish that it is more probable than not that he will require and undergo future medical treatment for the injuries caused by Defendants= negligence. -23- DUTY TO MITIGATE A person who has been injured has the duty to mitigate damages by using reasonable diligence in caring for an injury and employing reasonable means to accomplish healing. When one does not use reasonable diligence to care for injuries and they are aggravated as a result of that failure, the damages you determine must be limited to the amount of damage that would have been suffered had the injured person used the diligence required. -24- MEANING OF PRESENT CASH VALUE I have used the expression Apresent cash value@ in these instructions concerning damages for future losses that may be awarded to the plaintiff. In determining the damages arising in the future, you must determine the present cash value of those damages. That is, you must adjust the award of those damages to allow for the reasonable earning power of money and the impact of inflation. APresent cash value@ means the sum of money needed now which, when added to what that sum may reasonably be expected to earn in the future when invested, would equal the amount of damages, expenses, or earnings at the time in the future when the damages from the injury will be suffered, or the expenses must be paid, or the earnings would have been received. You should also consider the impact of inflation, its impact on wages, and its impact on purchasing power in determining the present cash value of future damages. -25- HOW JURORS SHOULD APPROACH THEIR TASK Your attitude and conduct at the beginning of your deliberations are very important. It is rarely productive for any juror to immediately announce a determination to hold firm for a certain verdict before any deliberations or discussions take place. Taking that position might make it difficult for you to consider the opinions of your fellow jurors or change your mind, even if you later decide that you might be wrong. Please remember that you are not advocates for one party or another. You are the judges of the facts in this case. -26- CHANCE OR QUOTIENT VERDICT PROHIBITED The law forbids you to determine any issue in this case by chance. If you decide that a party is entitled to recover damages, you must not arrive at the amount of those damages by agreeing in advance: 1) to use each juror=s independent estimate of the amount to be awarded; 2) to total those amounts; 3) to divide the total by eight; and 4) to make the resulting average the amount that you award. -27- AT THE CLOSE OF THE CASE During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any test or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict. -28- Closing Instructions Finally, ladies and gentlemen, we come to the point where we will discuss the form of your verdict and the process of your deliberations. As an initial matter, nothing in the instructions that I have given nor any ruling or remark that I have made in this case should be interpreted as giving an opinion as to what your verdict should be. You will be taking with you to the jury room a verdict form that will reflect your findings. The verdict form reads as follows: [READ VERDICT FORM] You will be selecting a foreperson after you retire to the jury room. That person will preside over your deliberations and be your spokesperson here in court. When you have completed your deliberations, your foreperson will fill in and sign the verdict form. Your verdict must represent the considered judgment of each of you. In order to return a verdict, it is necessary that each of your agree to that verdict. That is, your verdict must be unanimous. It is your duty as jurors, to consult with one another, and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of -29- your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. We will be sending with you to the jury room all of the exhibits in the case. You may have not seen all of these previously and they will be there for your review and consideration. You may take a break before you begin the case. However, you may not deliberate at any time unless all eight of you are present together in the jury room. Some of you have taken notes. I remind you that these are for your own individual use only and are to be used by you only to refresh your recollection about the case. They are not to be shown to others or otherwise used as a basis for your discussion about the case. You will take the verdict form to the jury room and when you have reached a unanimous agreement as to your verdict, you will have your foreperson fill it in, date and sign it, and then return to the courtroom. If, during your deliberations, you should desire to communicate with the Court, please reduce your message or question to writing signed by the foreperson, and pass the note to the -30- Court=s security officer who will bring it to my attention. I will then respond as promptly as possible, either in writing or by having you returned to the courtroom so that I can address you orally. I caution you, however, with regard to any message or question you might send, that you should never state or specify the vote of the jury at the time. -31-
=== Model Jury Instruction on Juror Use of Electronic Communication Technologies During Trial ===
(cid:2)(cid:3)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:3) Proposed Model Jury Instructions The Use of Electronic Technology to Conduct Research on or Communicate about a Case (cid:10)(cid:11)(cid:8)(cid:12)(cid:4)(cid:11)(cid:8)(cid:13)(cid:14)(cid:15)(cid:16)(cid:14)(cid:3)(cid:6)(cid:8)(cid:14)(cid:17)(cid:18)(cid:13)(cid:19)(cid:5)(cid:19)(cid:4)(cid:20)(cid:14)(cid:21)(cid:22)(cid:9)(cid:23)(cid:8)(cid:11)(cid:8)(cid:9)(cid:5)(cid:8)(cid:14)(cid:21)(cid:22)(cid:7)(cid:7)(cid:19)(cid:3)(cid:3)(cid:8)(cid:8)(cid:14)(cid:22)(cid:9)(cid:14) (cid:21)(cid:22)(cid:18)(cid:11)(cid:3)(cid:14)(cid:2)(cid:13)(cid:7)(cid:19)(cid:9)(cid:19)(cid:24)(cid:3)(cid:11)(cid:4)(cid:3)(cid:19)(cid:22)(cid:9)(cid:14)(cid:4)(cid:9)(cid:13)(cid:14)(cid:21)(cid:4)(cid:24)(cid:8)(cid:14)(cid:25)(cid:4)(cid:9)(cid:4)(cid:26)(cid:8)(cid:7)(cid:8)(cid:9)(cid:3) (cid:27)(cid:8)(cid:5)(cid:8)(cid:7)(cid:15)(cid:8)(cid:11)(cid:14)(cid:28)(cid:29)(cid:29)(cid:30) Before Trial: (cid:31)(cid:22)(cid:18) 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cid:9)(cid:22)#(cid:14)(cid:3)(cid:6)(cid:4)(cid:3)(cid:14)(cid:7)(cid:4)(cid:9)(cid:16)(cid:14)(cid:22)(cid:23)(cid:14)(cid:16)(cid:22)(cid:18)(cid:14)(cid:18)(cid:24)(cid:8)(cid:14)(cid:5)(cid:8)(cid:20)(cid:20)(cid:14)(cid:12)(cid:6)(cid:22)(cid:9)(cid:8)(cid:24) (cid:14 (cid:20)(cid:4)(cid:5) cid:15)(cid:8)(cid:11)(cid:11)(cid:19)(cid:8)(cid:24) (cid:14)(cid:3)(cid:6)(cid:8)(cid:14)(cid:19)(cid:9)(cid:3)(cid:8)(cid:11)(cid:9)(cid:8)(cid:3)(cid:14)(cid:4)(cid:9)(cid:13)(cid:14)(cid:22)(cid:3)(cid:6)(cid:8)(cid:11) (cid:3)(cid:22)(cid:22)(cid:20)(cid:24)(cid:14)(cid:22)(cid:23)(cid:14)(cid:3)(cid:8)(cid:5)(cid:6)(cid:9)(cid:22)(cid:20)(cid:22)(cid:26)(cid:16)$(cid:14)(cid:14)(cid:31)(cid:22)(cid:18)(cid:14)(cid:4)(cid:20)(cid:24)(cid:22)(cid:14)(cid:7)(cid:18)(cid:24)(cid:3)(cid:14)(cid:9)(cid:22)(cid:3)(cid:14)(cid:3)(cid:4)(cid:20) cid:14)(cid:3)(cid:22)(cid:14)(cid:4)(cid:9)(cid:16)(cid:22)(cid:9)(cid:8)(cid:14)(cid:4)(cid:15)(cid:22)(cid:18)(cid:3)(cid:14)(cid:3)(cid:6)(cid:19)(cid:24)(cid:14)(cid:5)(cid:4)(cid:24)(cid:8)(cid:14)(cid:22)(cid:11)(cid:14)(cid:18)(cid:24)(cid:8)(cid:14)(cid:3)(cid:6)(cid:8)(cid:24)(cid:8)(cid:14)(cid:3)(cid:22)(cid:22)(cid:20)(cid:24)(cid:14)(cid:3)(cid:22) (cid:5)(cid:22)(cid:7)(cid:7)(cid:18)(cid:9)(cid:19)(cid:5)(cid:4)(cid:3)(cid:8)(cid:14)(cid:8)(cid:20)(cid:8)(cid:5)(cid:3)(cid:11)(cid:22)(cid:9)(cid:19)(cid:5)(cid:4)(cid:20)(cid:20)(cid:16)(cid:14)#(cid:19)(cid:3)(cid:6)(cid:14)(cid:4)(cid:9)(cid:16)(cid:22)(cid:9)(cid:8)(cid:14)(cid:4)(cid:15)(cid:22)(cid:18)(cid:3)(cid:14)(cid:3)(cid:6)(cid:8)(cid:14)(cid:5)(cid:4)(cid:24)(cid:8)$(cid:14)(cid:14)%(cid:6)(cid:19)(cid:24)(cid:14)(cid:19)(cid:9)(cid:5)(cid:20)(cid:18)(cid:13)(cid:8)(cid:24)(cid:14)(cid:16)(cid:22)(cid:18)(cid:11)(cid:14)(cid:23)(cid:4)(cid:7)(cid:19)(cid:20)(cid:16)(cid:14)(cid:4)(cid:9)(cid:13) (cid:23)(cid:11)(cid:19)(cid:8)(cid:9)(cid:13)(cid:24)$(cid:14)(cid:14)(cid:31)(cid:22)(cid:18)(cid:14)(cid:7)(cid:4)(cid:16)(cid:14)(cid:9)(cid:22)(cid:3)(cid:14)(cid:5)(cid:22)(cid:7)(cid:7)(cid:18)(cid:9)(cid:19)(cid:5)(cid:4)(cid:3)(cid:8)(cid:14)#(cid:19)(cid:3)(cid:6)(cid:14)(cid:4)(cid:9)(cid:16)(cid:22)(cid:9)(cid:8)(cid:14)(cid:4)(cid:15)(cid:22)(cid:18)(cid:3)(cid:14)(cid:3)(cid:6)(cid:8)(cid:14)(cid:5)(cid:4)(cid:24)(cid:8)(cid:14)(cid:22)(cid:9)(cid:14)(cid:16)(cid:22)(cid:18)(cid:11)(cid:14)(cid:5)(cid:8)(cid:20)(cid:20)(cid:14)(cid:12)(cid:6)(cid:22)(cid:9)(cid:8) (cid:3)(cid:6)(cid:11)(cid:22)(cid:18)(cid:26)(cid:6)(cid:14)(cid:8)*(cid:7)(cid:4)(cid:19)(cid:20) (cid:14 (cid:20)(cid:4)(cid:5) cid:15)(cid:8)(cid:11)(cid:11)(cid:16) (cid:14)(cid:19)(cid:10)(cid:6)(cid:22)(cid:9)(cid:8) (cid:14)(cid:3)(cid:8)+(cid:3)(cid:14)(cid:7)(cid:8)(cid:24)(cid:24)(cid:4)(cid:26)(cid:19)(cid:9)(cid:26) (cid:14)(cid:22)(cid:11)(cid:14)(cid:22)(cid:9)(cid:14)%#(cid:19)(cid:3)(cid:3)(cid:8)(cid:11) (cid:14)(cid:3)(cid:6)(cid:11)(cid:22)(cid:18)(cid:26)(cid:6)(cid:14)(cid:4)(cid:9)(cid:16)(cid:14)(cid:15)(cid:20)(cid:22)(cid:26)(cid:14)(cid:22)(cid:11) #(cid:8)(cid:15)(cid:24)(cid:19)(cid:3)(cid:8) (cid:14)(cid:3)(cid:6)(cid:11)(cid:22)(cid:18)(cid:26)(cid:6)(cid:14)(cid:4)(cid:9)(cid:16)(cid:14)(cid:19)(cid:9)(cid:3)(cid:8)(cid:11)(cid:9)(cid:8)(cid:3)(cid:14)(cid:5)(cid:6)(cid:4)(cid:3)(cid:14)(cid:11)(cid:22)(cid:22)(cid:7) (cid:14)(cid:22)(cid:11)(cid:14)(cid:15)(cid:16)(cid:14)#(cid:4)(cid:16)(cid:14)(cid:22)(cid:23)(cid:14)(cid:4)(cid:9)(cid:16)(cid:14)(cid:22)(cid:3)(cid:6)(cid:8)(cid:11)(cid:14)(cid:24)(cid:22)(cid:5)(cid:19)(cid:4)(cid:20)(cid:14)(cid:9)(cid:8)(cid:3)#(cid:22)(cid:11) cid:19)(cid:9)(cid:26) #(cid:8)(cid:15)(cid:24)(cid:19)(cid:3)(cid:8)(cid:24) (cid:14)(cid:19)(cid:9)(cid:5)(cid:20)(cid:18)(cid:13)(cid:19)(cid:9)(cid:26)(cid:14),(cid:4)(cid:5)(cid:8)(cid:15)(cid:22)(cid:22) cid:14)(cid:25)(cid:16)(cid:14)-(cid:12)(cid:4)(cid:5)(cid:8) (cid:14).(cid:19)(cid:9) cid:8)(cid:13)&(cid:9) (cid:14)(cid:4)(cid:9)(cid:13)(cid:14)(cid:31)(cid:22)(cid:18)%(cid:18)(cid:15)(cid:8)$ At the Close of the Case: (cid:27)(cid:18)(cid:11)(cid:19)(cid:9)(cid:26)(cid:14)(cid:16)(cid:22)(cid:18)(cid:11)(cid:14)(cid:13)(cid:8)(cid:20)(cid:19)(cid:15)(cid:8)(cid:11)(cid:4)(cid:3)(cid:19)(cid:22)(cid:9)(cid:24) (cid:14)(cid:16)(cid:22)(cid:18)(cid:14)(cid:7)(cid:18)(cid:24)(cid:3)(cid:14)(cid:9)(cid:22)(cid:3)(cid:14)(cid:5)(cid:22)(cid:7)(cid:7)(cid:18)(cid:9)(cid:19)(cid:5)(cid:4)(cid:3)(cid:8)(cid:14)#(cid:19)(cid:3)(cid:6)(cid:14)(cid:22)(cid:11)(cid:14)(cid:12)(cid:11)(cid:22)"(cid:19)(cid:13)(cid:8)(cid:14)(cid:4)(cid:9)(cid:16) (cid:19)(cid:9)(cid:23)(cid:22)(cid:11)(cid:7)(cid:4)(cid:3)(cid:19)(cid:22)(cid:9)(cid:14)(cid:3)(cid:22)(cid:14)(cid:4)(cid:9)(cid:16)(cid:22)(cid:9)(cid:8)(cid:14)(cid:15)(cid:16)(cid:14)(cid:4)(cid:9)(cid:16)(cid:14)(cid:7)(cid:8)(cid:4)(cid:9)(cid:24)(cid:14)(cid:4)(cid:15)(cid:22)(cid:18)(cid:3)(cid:14)(cid:3)(cid:6)(cid:19)(cid:24)(cid:14)(cid:5)(cid:4)(cid:24)(cid:8)$(cid:14)(cid:14)(cid:31)(cid:22)(cid:18)(cid:14)(cid:7)(cid:4)(cid:16)(cid:14)(cid:9)(cid:22)(cid:3)(cid:14)(cid:18)(cid:24)(cid:8)(cid:14)(cid:4)(cid:9)(cid:16)(cid:14)(cid:8)(cid:20)(cid:8)(cid:5)(cid:3)(cid:11)(cid:22)(cid:9)(cid:19)(cid:5) (cid:13)(cid:8)"(cid:19)(cid:5)(cid:8)(cid:14)(cid:22)(cid:11)(cid:14)(cid:7)(cid:8)(cid:13)(cid:19)(cid:4) (cid:14)(cid:24)(cid:18)(cid:5)(cid:6)(cid:14)(cid:4)(cid:24)(cid:14)(cid:4)(cid:14)(cid:3)(cid:8)(cid:20)(cid:8)(cid:12)(cid:6)(cid:22)(cid:9)(cid:8) (cid:14)(cid:5)(cid:8)(cid:20)(cid:20)(cid:14)(cid:12)(cid:6)(cid:22)(cid:9)(cid:8) (cid:14)(cid:24)(cid:7)(cid:4)(cid:11)(cid:3)(cid:14)(cid:12)(cid:6)(cid:22)(cid:9)(cid:8) (cid:14)(cid:19)(cid:10)(cid:6)(cid:22)(cid:9)(cid:8) (cid:14 (cid:20)(cid:4)(cid:5) cid:15)(cid:8)(cid:11)(cid:11)(cid:16)(cid:14)(cid:22)(cid:11) (cid:5)(cid:22)(cid:7)(cid:12)(cid:18)(cid:3)(cid:8)(cid:11)/(cid:14)(cid:3)(cid:6)(cid:8)(cid:14)(cid:19)(cid:9)(cid:3)(cid:8)(cid:11)(cid:9)(cid:8)(cid:3) (cid:14)(cid:4)(cid:9)(cid:16)(cid:14)(cid:19)(cid:9)(cid:3)(cid:8)(cid:11)(cid:9)(cid:8)(cid:3)(cid:14)(cid:24)(cid:8)(cid:11)"(cid:19)(cid:5)(cid:8) (cid:14)(cid:22)(cid:11)(cid:14)(cid:4)(cid:9)(cid:16)(cid:14)(cid:3)(cid:8)+(cid:3)(cid:14)(cid:22)(cid:11)(cid:14)(cid:19)(cid:9)(cid:24)(cid:3)(cid:4)(cid:9)(cid:3)(cid:14)(cid:7)(cid:8)(cid:24)(cid:24)(cid:4)(cid:26)(cid:19)(cid:9)(cid:26)(cid:14)(cid:24)(cid:8)(cid:11)"(cid:19)(cid:5)(cid:8)/(cid:14)(cid:22)(cid:11) (cid:4)(cid:9)(cid:16)(cid:14)(cid:19)(cid:9)(cid:3)(cid:8)(cid:11)(cid:9)(cid:8)(cid:3)(cid:14)(cid:5)(cid:6)(cid:4)(cid:3)(cid:14)(cid:11)(cid:22)(cid:22)(cid:7) (cid:14)(cid:15)(cid:20)(cid:22)(cid:26) (cid:14)(cid:22)(cid:11)(cid:14)#(cid:8)(cid:15)(cid:24)(cid:19)(cid:3)(cid:8)(cid:14)(cid:24)(cid:18)(cid:5)(cid:6)(cid:14)(cid:4)(cid:24)(cid:14),(cid:4)(cid:5)(cid:8)(cid:15)(cid:22)(cid:22) cid:14)(cid:25)(cid:16)(cid:14)-(cid:12)(cid:4)(cid:5)(cid:8) (cid:14).(cid:19)(cid:9) cid:8)(cid:13)&(cid:9) (cid:14)(cid:31)(cid:22)(cid:18)%(cid:18)(cid:15)(cid:8) (cid:22)(cid:11)(cid:14)%#(cid:19)(cid:3)(cid:3)(cid:8)(cid:11) (cid:14)(cid:3)(cid:22)(cid:14)(cid:5)(cid:22)(cid:7)(cid:7)(cid:18)(cid:9)(cid:19)(cid:5)(cid:4)(cid:3)(cid:8)(cid:14)(cid:3)(cid:22)(cid:14)(cid:4)(cid:9)(cid:16)(cid:22)(cid:9)(cid:8)(cid:14)(cid:4)(cid:9)(cid:16)(cid:14)(cid:19)(cid:9)(cid:23)(cid:22)(cid:11)(cid:7)(cid:4)(cid:3)(cid:19)(cid:22)(cid:9)(cid:14)(cid:4)(cid:15)(cid:22)(cid:18)(cid:3)(cid:14)(cid:3)(cid:6)(cid:19)(cid:24)(cid:14)(cid:5)(cid:4)(cid:24)(cid:8)(cid:14)(cid:22)(cid:11)(cid:14)(cid:3)(cid:22)(cid:14)(cid:5)(cid:22)(cid:9)(cid:13)(cid:18)(cid:5)(cid:3)(cid:14)(cid:4)(cid:9)(cid:16) (cid:11)(cid:8)(cid:24)(cid:8)(cid:4)(cid:11)(cid:5)(cid:6)(cid:14)(cid:4)(cid:15)(cid:22)(cid:18)(cid:3)(cid:14)(cid:3)(cid:6)(cid:19)(cid:24)(cid:14)(cid:5)(cid:4)(cid:24)(cid:8)(cid:14)(cid:18)(cid:9)(cid:3)(cid:19)(cid:20)(cid:14)&(cid:14)(cid:4)(cid:5)(cid:5)(cid:8)(cid:12)(cid:3)(cid:14)(cid:16)(cid:22)(cid:18)(cid:11)(cid:14)"(cid:8)(cid:11)(cid:13)(cid:19)(cid:5)(cid:3)$(cid:14)
=== Settlement Conference Instructions ===
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION STANDING ORDER FOR SETTLEMENT CONFERENCES BEFORE MAGISTRATE JUDGE TU M. PHAM This case has been referred for a settlement conference before Magistrate Judge Tu M. Pham. All parties and their lead counsel are ordered to appear at the Clifford Davis/Odell Horton Federal Building, 167 North Main Street, Suite 338, Memphis, Tennessee, on the date and time set by Judge Pham. The lead attorney who will try the case for each party must appear. In addition, the parties, or representatives of corporate parties, must be present in person at the conference and must possess full authority to approve any settlement. If any part of the potential liability of a party is insured, or subject to indemnity, a representative of an insurer or indemnitor with authority to pay the full policy limits must also be present in person at the conference. All participants should allocate adequate time for the settlement conference. Although the conference may conclude in the early afternoon, all participants should clear their calendars for the entire day. Judge Pham's commitment is to work with the parties for as long as necessary. At least fourteen (14) days prior to the settlement conference, the plaintiff must make a good faith proposal of settlement to the defendant. At least seven (7) days prior to the conference, the defendant must make a good faith counter-proposal. Counsel shall submit to Judge Pham's ECF inbox ([email protected]), at least three (3) business days before the settlement conference, an in camera statement containing (1) a summary of the evidence and legal principles; (2) an explanation of the relief sought, including an itemization of damages by the plaintiff and factors that may mitigate damages by the defendant; (3) the strengths and weaknesses of the case; and (4) a summary of the parties' settlement discussions. The in camera statement is not to be filed with the court, will be for Judge Pham's review only, and will be used solely for the settlement conference. s/ Tu M. Pham TU M. PHAM United States Magistrate Judge IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________ xx, Plaintiff, v. xx Defendant. No. xx ________________________________________________________________ SETTLEMENT CONFERENCE CONFIDENTIALITY Pursuant to Local Rule 16.1(c) and in accordance with 28 U.S.C. § 652(d), any ADR process conducted in a case pending in the Court is confidential. By entering into such a process, the parties mutually covenant with one another to preserve confidentiality. The parties, their counsel, and the neutral are prohibited from disclosing to the presiding judge or to a third person any information regarding communications or expressive conduct made during settlement proceedings except as specified in this Rule. Evidence about such communications shall not be admissible in any subsequent proceeding except as permitted by the Federal Rules of Evidence. Communications deemed confidential by this Rule may be disclosed, if such disclosure is not otherwise prohibited by law, only in the following circumstances: (A) All parties consent to the disclosure of the communication; or (B) The judicial officer who would otherwise enter judgment in the case or, in the event of the unavailability of that judicial officer, the Chief District Judge, conducts an in camera hearing or comparable proceeding and determines that evidence of the content of the communication is not otherwise available and that there is a compelling need for the evidence which substantially outweighs the policy favoring confidentiality. The confidentiality of information disclosed during ADR proceedings does not prohibit or limit (i) the Court from collecting information relative to evaluation of the ADR process, (ii) a party from disclosing the final resolution and settlement reached unless the parties have agreed to the confidentiality of same, and (iii) a participant from making such disclosures as required by law. During the settlement conference, it will be necessary for the undersigned Magistrate Judge to meet with the parties and/or their attorneys separately and engage in private ex parte communications. By participating in the settlement conference, all parties and their counsel consent to the Magistrate Judge engaging in these separate communications in an effort to -2- mediate the case. If any party objects to the Magistrate Judge engaging in separate communications, those objections must be made known to the Magistrate Judge and opposing party prior to the start of the settlement conference. AGREED TO BY: Printed Name and Title, if Applicable Signature Plaintiff or Defendant Date -3-
=== Cases assigned to District Judge ===
AO 85 (Rev. 01/09) Notice, Consent, and Reference of a Civil Action to a Magistrate Judge UNITED STATES DISTRICT COURT for the __________ District of __________ Plaintiff v. Defendant Civil Action No. NOTICE, CONSENT, AND REFERENCE OF A CIVIL ACTION TO A MAGISTRATE JUDGE Notice of a magistrate judge’s availability. A United States magistrate judge of this court is available to conduct all proceedings in this civil action (including a jury or nonjury trial) and to order the entry of a final judgment. The judgment may then be appealed directly to the United States court of appeals like any other judgment of this court. A magistrate judge may exercise this authority only if all parties voluntarily consent. You may consent to have your case referred to a magistrate judge, or you may withhold your consent without adverse substantive consequences. The name of any party withholding consent will not be revealed to any judge who may otherwise be involved with your case. Consent to a magistrate judge’s authority. The following parties consent to have a United States magistrate judge conduct all proceedings in this case including trial, the entry of final judgment, and all post-trial proceedings. Parties’ printed names Signatures of parties or attorneys Dates IT IS ORDERED: This case is referred to a United States magistrate judge to conduct all proceedings and order the entry of a final judgment in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. Reference Order Date: District Judge’s signature Printed name and title Please email this form to [email protected]. Do not return this form to a judge.
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