Trial Procedures for Magistrate Judges; Emergency Discovery Telephone Conferences; Civil Jury Instructions

=== Trial Procedures for Magistrate Judges ===

UNITED STATES DISTRICT COURT DISTRICT OF HAWAII 300 ALA MOANA BLVD. HONOLULU, HAWAII 96850 KENNETH J. MANSFIELD CHIEF UNITED STATES MAGISTRATE JUDGE ROM TRADER UNITED STATES MAGISTRATE JUDGE WES REBER PORTER UNITED STATES MAGISTRATE JUDGE TELEPHONE: (808) 541-1428 COURTROOM 6 (2nd floor) TELEPHONE: (808) 541-1480 COURTROOM 5 (2nd floor) TELEPHONE: (808) 541-1433 COURTROOM 7 (2nd floor) CONSENT TO A MAGISTRATE JUDGE IN A CIVIL CASE and TRIAL PROCEDURES BEFORE MAGISTRATE JUDGES A United States magistrate judge may, if all parties consent, preside over all proceedings in a civil action including a jury or nonjury trial. See 28 U.S.C. §636(c); Fed. R. Civ. Pro. 73. The Local Rules of Practice for the United States District Court for the District of Hawaii (Local Rules) allow parties in a civil case to consent to all proceedings, including a jury or non-jury trial, before a magistrate judge. See L.R. 73.1(a). Parties may consent to a magistrate judge for all proceedings using a Form AO 85, or parties can designate a specific matter for consent such as a dispositive motion using Form AO 85A. See L.R. 73.1(a). An appeal from any final order or judgment entered by a magistrate judge with consent jurisdiction is taken directly to the United States Court of Appeals for the Ninth Circuit. See 28 U.S.C. § 636(c)(3); Fed. R. Civ. P. 73(c). If all parties to a civil case consent, the United States magistrate judge will have the same jurisdictional authority as a United States district judge and will preside over all aspects of the civil matter, including the authority to: • • • • • Schedule, hear, and decide all dispositive and non-dispositive matters; Schedule, hear, and decide all interlocutory matters; Conduct jury or non-jury trials; Enter final orders and judgement; and Schedule, hear, and decide all post-trial motions. In the District of Hawaii, parties to a civil case also may designate “a particular magistrate judge” by naming one of above judges on the consent form. L.R.73.1(a). A consent to conduct a civil proceeding including trial by a magistrate judge “shall be filed as soon as practicable, preferably before any ruling on a dispositive motion.” L.R. 73.1(b). To inquire about a particular magistrate judge’s availability and trial calendar, contact that magistrate judge's courtroom manager from the District of Hawaii website. There are several compelling reasons to consider consenting to a magistrate judge in a federal civil case. See Should You Consent to a Magistrate Judge? Absolutely, and Here’s Why, Choosing to Consent to a Magistrate Judge, and “Nothing Less Than Indispensable”: The Expansion of Federal magistrate Judge Authority and Utilization in the Past Quarter Century, 16 NEV. L.J. 845 (2016). One primary consideration is, district judges are assigned both civil and criminal cases and must give scheduling priority to criminal cases. Magistrate judges do not preside over felony criminal matters. Further, in the District of Hawaii, magistrate judges do not “double-book” their trial calendars and are generally more readily available to preside over civil trials.1 Thus, magistrate judges may be able to provide a more certain and expedited trial date for parties in civil cases. 1 In the District of Hawaii, the three, full time magistrate judges rotate “criminal duty” by month. During their month on criminal duty, the magistrate judge will handle all requests for search and arrest warrants and all initial hearings in criminal cases in the district (including initial appearances, arraignments, detention hearings and change of plea hearings). Accordingly, the magistrate judges generally do not schedule civil consent trials during their assigned criminal duty months. Consent Cases and Trial Procedures Before Magistrate Judges Last Revised: 11/01/2019 TRIAL PROCEDURES BEFORE MAGISTRATE JUDGES Telephone numbers: Prior to the commencement of trial, counsel shall provide the court and one another with telephone numbers at which they may be reached after court hours so that notice may be given, if necessary, of any changes in the schedule. Jury Questionnaires: Jury questionnaires are available to counsel one (1) week prior to jury selection. Please contact the Jury Clerk in the Clerk’s Office to order a set and to ascertain copy charges. Interpreters: Counsel and the parties are responsible for hiring and arranging for any interpreters who may be necessary for witness testimony. These arrangements should be made well in advance of trial. Tardiness: Arrive early for each court session. Check in with the courtroom manager upon arrival to the courtroom. Trial proceedings take precedence over any other business including other hearings. Sanctions may be imposed on any party, attorney, or witness for tardiness that delays the trial. Trial Schedule: Except for the day(s) of jury selection, jury trial commences daily at 8:30 a.m. and runs until 1:30 p.m. unless otherwise announced. There is no lunch break taken during trial hours. Jurors and counsel are advised to bring a snack for consumption during a break. Short breaks are taken at various intervals throughout the day. Trial may extend beyond 1:30 p.m. on certain days if the judge deems it necessary. Jury selection day begins at 9:00 a.m. and concludes at 4:00 p.m., with a lunch break from noon to 1:30 p.m. Bench (non-jury) trials: Many of the trial procedures outlined here may not apply to a bench (non-jury) trial. The presiding magistrate judge will set more particularized trial procedures in these proceedings. Trial hours may be longer for non-jury trials. Consent Cases and Trial Procedures Before Magistrate Judges Last Revised: 11/01/2019 Use of microphone: Counsel shall use the microphone provided when addressing the court or the jury such as in any examination, objection, statement for the record, or argument. Bench Conferences: Bench conferences or side bars are generally not permitted. Counsel should plan to meet daily with the judge prior to trial, during recess, or after the jury is dismissed for the day to discuss any disputes. If a problem arises during a witness examination, then counsel should defer the matter and move to another line of questioning so the dispute can be resolved during the next recess. Communications With Jurors: Under no circumstances are counsel to attempt to communicate with any juror prior to or during trial. Counsel must instruct clients and witnesses accordingly. Juror note taking: Jurors will be permitted to take notes during trial. The court will provide notebooks and pens. These notebooks will be left face-down on the jurors’ chairs when they leave the courtroom. The jurors may take their notes into the jury deliberation room. After trial, these notes will be destroyed. Voir Dire: The court conducts the general voir dire and will incorporate special voir dire based on questions that the parties may have submitted. Each side will then have a maximum of fifteen (15) minutes for voir dire which must include both general and individual questioning of the jurors. Motions (in limine): All motions should be in writing and conform to the Local Rules. These matters may be raised at sidebar or by request, at the first recess without waiving any rights by such delayed motion. Except for good cause, motions in limine must be filed in accordance with the deadlines set forth in the Rule 16 Scheduling Order and these motions generally will be heard at the Final Pretrial Conference. Do not make substantive motions (such as motions for a mistrial or judgment notwithstanding the law) in the presence of the jury. Consent Cases and Trial Procedures Before Magistrate Judges Last Revised: 11/01/2019 Addressing the Court & Objections: Stand when you address the Court including making and responding to objections. When you object in the presence of the jury, make your objection concise and cite the basis or the applicable Rule of Evidence for your objection. Speaking objections are not allowed. Use of demonstrative aids during trial: The parties should meet and confer about the use of demonstrative aids during trial (including exhibits not yet admitted into evidence, summary charts or other materials created to assist the jury). If the parties are unable to reach an agreement, the sponsoring party may seek leave of court. Agreement of the parties or leave of court must be obtained prior to when the proponent intends to use it and without delaying proceedings before the jury. Witnesses: Each party will be responsible for securing the appearance of witnesses the party proposes to call. Counsel should arrange for a sufficient number of witnesses each day and there should not be any delay in trial proceedings caused by witness unavailability. The next day’s witnesses must be disclosed by the proffering counsel to other counsel by no later than the close of each day’s trial proceedings. Deposition testimony to be used at trial: Deadlines for the deposition testimony designations and objections are as set forth in the Rule 16 Scheduling Conference Order. If deposition testimony is to be published to the jury, then the party offering this testimony should notify the court and the other parties in a timely manner so that the written or videotaped testimony can be edited in accordance with the court’s rulings on any objections without delaying trial proceedings. Procedure: The party offering the testimony must give a list of the precise designations that are in dispute to the court and the other parties no later than noon on the day before the testimony will be published to the jury. The offering party must provide the court with two (2) working copies of the complete, condensed-version deposition highlighting the precise designations in dispute. Consent Cases and Trial Procedures Before Magistrate Judges Last Revised: 11/01/2019 Redacted deposition filing and declaration: After the court rules on the objections and before the testimony is published to the jury, the offering party must file with the court and serve all parties a declaration by the party or counsel and attach a redacted copy of the deposition transcript reflecting the testimony permitted into evidence. If the deposition testimony is published to the jury by reading testimony aloud, then the offering party must provide a person to read the testimony. Final redacted transcript: A final redacted deposition transcript may be filed as an exhibit after the deposition testimony is published to the jury. Exhibits: Parties are required to meet and confer about a common set of exhibits, as well as the stipulated authenticity and admissibility of exhibits. Before the final pretrial conference or any hearing on motions in limine, counsel must inform the that counsel have met and conferred, stipulated that some exhibits are admissible or authentic, and otherwise identified which exhibits remain in dispute. Marking Exhibits: Exhibits must be marked as follows: plaintiff’s by numbers (i.e.,, 1, 2, 3, ...), defendant’s by letters (i.e.,, A, B, C, ... AA, AB, AC, ...) and, to be used by either party, demonstrative exhibits by roman numerals following the word “Demo” (i.e., Demo. I, Demo. II, …). A party objecting to exhibits listed by the opposing party must inform the court of the exhibits in dispute by exhibit number. Court time may not be used for marking exhibits, which must be done in advance of the court session. Adding Exhibits: A party may seek, during trial or an evidentiary hearing, to add exhibits not previously listed by requesting leave of court. The party seeking to add exhibits must provide the court and all parties with copies of the additional exhibits, mark the additional exhibits with exhibit numbers next in order, and submit supplemental exhibit lists. Publishing Exhibits: Counsel may not approach the jury with exhibits. Exhibits should be handed directly to the courtroom manager or law clerk for all purposes. Consent Cases and Trial Procedures Before Magistrate Judges Last Revised: 11/01/2019 Retrieving Exhibits: At the conclusion of the trial and jury deliberations, counsel must remain in the courtroom to receive their exhibits. All exhibits must be returned to counsel. Jury Instructions: Parties are required to meet and confer about a common set of jury instructions. Hard copies of proposed jury instructions and proposed special verdict forms must be submitted, along with electronic copies in Microsoft Word. Electronic copies may be submitted to the respective magistrate judge’s email orders address: [email protected] [email protected] [email protected] Special equipment: Permission to use special equipment (such as television monitors, laptops, iPads, and other demonstrative aides) must be obtained in advance from the court. Following approval, the parties are responsible for coordinating set up and removal of the equipment. If the parties wish to use court equipment, then they must make all necessary arrangements with the IT department and are subject to any applicable limitations with respect to the usage of the equipment. Consent Cases and Trial Procedures Before Magistrate Judges Last Revised: 11/01/2019

=== Emergency Discovery Telephone Conferences ===

UNITED STATES DISTRICT COURT DISTRICT OF HAWAII 300 ALA MOANA BLVD. HONOLULU, HAWAII 96850 KENNETH J. MANSFIELD TELEPHONE: (808) 541-1428 CHIEF UNITED STATES MAGISTRATE JUDGE COURTROOM 6 (2nd floor) ROM TRADER TELEPHONE: (808) 541-1480 UNITED STATES MAGISTRATE JUDGE COURTROOM 5 (2nd floor) WES REBER PORTER TELEPHONE: (808) 541-1433 UNITED STATES MAGISTRATE JUDGE COURTROOM 7 (2nd floor) EMERGENCY DISCOVERY TELEPHONE CONFERENCES WITH MAGISTRATE JUDGES “Counsel may seek resolution of disputed discovery issues expeditiously and economically” under Local Rule 37.1(c) of the Local Rules of Practice of the United States District Court for the District of Hawaii (Local Rules). After they meet and confer, counsel file and serve on opposing counsel abbreviated, simultaneous letter briefs on an agreeable date for “expedited discovery assistance.” LR37.1(a)(1). Upon receipt of the letters, the magistrate judge “shall determine a procedure for resolving the dispute” and may decide the matter, set a conference, request formal briefing with or without a hearing. LR37.1(a)(3). The magistrate judges also may address “emergency discovery disputes” by telephone conference if the following circumstances are met: 1. 2. 3. 4. The dispute must concern a narrow and discrete issue (e.g., improper objections or coaching during a deposition); Counsel agree1 that if the dispute is not heard on an “emergency” basis the parties will incur avoidable expenses, delay proceedings in the case, or suffer other unfair prejudice as a result; Counsel must be available (and flexible) to participate in a conference when the judge is available; and Counsel must call chambers and make scheduling arrangements with the assigned judge’s staff, including how the telephone conference will be memorialized (i.e., by the court reporter at a deposition or by the court’s FTR system). 1 The party seeking “emergency” relief may call the assigned judge without the opposing party’s agreement if the expense, delay and unfair prejudice is readily apparent to the court.

=== Civil Jury Instructions ===

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII HONORABLE KENNETH J. MANSFIELD HONORABLE ROM A. TRADER HONORABLE WES REBER PORTER UNITED STATES MAGISTRATE JUDGES GENERAL FEDERAL JURY INSTRUCTIONS IN CIVIL CASES The following will be proposed as the Court=s instructions in all civil cases. Additional instructions applicable to the particular case may be prepared and proposed by the parties. Such additional instructions are to be exchanged between the parties and submitted in conformity with the Local Rules, Pretrial Order, and any directives issued by the Court. INDEX INSTRUCTION NO. 1.1: CONSIDERATION AND APPLICATION OF INSTRUCTIONS A. INTRODUCTORY AND CAUTIONARY INSTRUCTIONS INSTRUCTION NO. 1.2: NO FAVORITISM, PASSION, PREJUDICE, OR SYMPATHY INSTRUCTION NO. 1.3: CONSIDERATION OF BUSINESS ENTITY PARTIES INSTRUCTION NO. 1.4: MULTIPLE PARTIES INSTRUCTION NO. 1.5: REMARKS OF THE COURT INSTRUCTION NO. 2.1: CONSIDER ONLY THE EVIDENCE INSTRUCTION NO. 2.2: OBSERVATIONS AND EXPERIENCE INSTRUCTION NO. 2.3: NO INDEPENDENT INVESTIGATION OR RESEARCH INSTRUCTION NO. 3.1: BURDEN OF PROOF B. BURDEN OF PROOF INSTRUCTION NO. 3.2: PREPONDERANCE OF THE EVIDENCE INSTRUCTION NO. 3..3 BURDEN OF PROOF — CLEAR AND CONVINCING EVIDENCE INSTRUCTION NO. 4.1: STIPULATION INSTRUCTION NO. 4.2: DEPOSITION TESTIMONY C. EVIDENCE INSTRUCTION NO. 4.3: ANSWERS TO INTERROGATORIES INSTRUCTION NO. 4.4: JUDICIAL NOTICE INSTRUCTION NO. 4.5: TYPES OF EVIDENCE — DIRECT AND CIRCUMSTANTIAL INSTRUCTION NO. 4.6: OBJECTIONS TO EVIDENCE INSTRUCTION NO. 5.1: WEIGHT OF EVIDENCE AND CREDIBILITY OF WITNESSES D. WITNESSES INSTRUCTION NO. 5.2: DISCREDITED TESTIMONY INSTRUCTION NO. 5.3: FALSE WITNESS INSTRUCTION NO. 5.4: EXPERT WITNESSES INSTRUCTION NO. 6.1: NEGLIGENCE DEFINED E. STANDARD OF CONDUCT INSTRUCTION NO. 6.2: FORESEEABILITY INSTRUCTION NO. 6.3: ALLOCATION OF NEGLIGENCE INSTRUCTION NO. 6.4: EFFECT OF COMPARATIVE NEGLIGENCE INSTRUCTION NO. 6.5: EFFECT OF JOINT/SEVERAL LIABILITY INSTRUCTION NO. 7.1: LEGAL CAUSE INSTRUCTION NO. 7.2: SUPERSEDING CAUSE F. CAUSATION INSTRUCTION NO. 7.3: PRE-EXISTING INJURY OR CONDITION INSTRUCTION NO. 7.4: SUBSEQUENT INJURIES INSTRUCTION NO. 7.5: APPORTIONMENT FOR BOTH PRE-EXISTING AND SUBSEQUENT INJURIES G. DAMAGES -- MEASURES AND ELEMENTS OF DAMAGES INSTRUCTION NO. 8.1: DAMAGE INSTRUCTIONS - FOR GUIDANCE ONLY INSTRUCTION NO. 8.2: SPECIAL DAMAGES DEFINED INSTRUCTION NO. 8.3: GENERAL DAMAGES DEFINED INSTRUCTION NO. 8.4: PAIN INSTRUCTION NO. 8.5: EMOTIONAL DISTRESS DEFINED INSTRUCTION NO. 8.6: LOSS OF CONSORTIUM INSTRUCTION NO. 8.7: LIFE EXPECTANCY INSTRUCTION NO. 8.8: ARGUMENT RE DAMAGES INSTRUCTION NO. 8.9: ELEMENTS OF DAMAGES INSTRUCTION NO. 8.10: PAIN AND SUFFERING INSTRUCTION NO. 8.11: SPECULATIVE DAMAGES INSTRUCTION NO. 8.12: PUNITIVE DAMAGES INSTRUCTION NO. 8.13: PUNITIVE DAMAGES (DEFINITION OF "WILLFUL") INSTRUCTION NO. 8.14: PUNITIVE DAMAGES (DEFINITION OF "WANTON") INSTRUCTION NO. 8.15: PUNITIVE DAMAGES (DEFINITION OF "OPPRESSIVE") INSTRUCTION NO. 8.16: PUNITIVE DAMAGES (DEFINITION OF "MALICIOUS") INSTRUCTION NO. 8.17: PUNITIVE DAMAGES (DEFINITION OF "GROSS NEGLIGENCE") 1 INSTRUCTION NO. 8.18: MITIGATION OF DAMAGES INSTRUCTION NO. 9.1: CONDUCT OF JURY INSTRUCTION NO. 9.2: EXHIBITS IN THE JURY ROOM H. JURY DELIBERATION INSTRUCTION NO. 9.3: VERDICT 2 INSTRUCTION NO. 1.1 Members of the Jury: You have heard the evidence in this case. I will now instruct you on the law that you must apply. You are the judges of the facts. It is your duty to review the evidence and to decide the true facts. When you have decided the true facts, you must then apply the law to the facts. I will tell you the law that applies to this case. You must apply that law, and only that law, in deciding this case, whether you personally agree or disagree with it. The order in which I give you the instructions does not mean that one instruction is any more or less important than any other instruction. You must follow all the instructions I give you. You must not single out some instructions and ignore others. All the instructions are equally important and you must apply them as a whole to the facts. 3 INSTRUCTION NO. 1.2 It is your duty and obligation as jurors to decide this case on the evidence presented in court and upon the law given to you. You must perform your duty and obligation without favoritism, passion, or sympathy for any party in the case, and without prejudice against any of the parties. Our system of law does not permit jurors to be governed by prejudice or sympathy or public opinion. The parties and the public expect that you will carefully and impartially consider all of the evidence in this case, follow the law as stated by the court, and reach a just verdict regardless of the consequences. This case should be considered and decided by you as an action between persons of equal standing in the community, and holding the same or similar stations in life. The law is no respecter of persons, and all persons stand equal before the law and are to be dealt with as equals in a court of justice. 4 INSTRUCTION NO. 1.3 You must not be prejudiced or biased in favor of or against a party simply because the party is a corporation or other business entity. You must treat business entities the same as you treat individuals. In this case, the [corporate/partnership] plaintiff(s)/defendant(s) is/are entitled to receive the same fair and unprejudiced treatment that an individual plaintiff/defendant would receive under similar circumstances. 8/15/94 5 INSTRUCTION NO. 1.4 Each plaintiff in this case has separate and distinct rights. You must decide the case of each plaintiff separately, as if it were a separate lawsuit. Unless I tell you otherwise, these instructions apply to all of the plaintiffs. Similarly, each defendant in this case has separate and distinct rights. You must decide the case of each defendant separately, as if it were a separate lawsuit. Unless I tell you otherwise, these instructions apply to all of the defendants. 6 INSTRUCTION NO. 1.5 If any of these instructions, or anything I have said or done in this case makes you believe I have an opinion about the facts or issues in the case, the weight to be given to the evidence, or the credibility of any witness, then you must disregard such belief. It is not my intention to create such an impression. You, and you alone, must decide the facts of this case from the evidence presented in court and you must not be concerned about my opinion of the facts. 7 INSTRUCTION NO. 2.1 In reaching your verdict, you may consider only the testimony and the exhibits received in evidence.* The following are not evidence and you must not consider them as evidence in deciding the facts of this case. 1. Attorneys’ statements, arguments and remarks during opening statements, closing arguments, jury selection, and other times during the trial are not evidence, but may assist you in understanding the evidence and applying the law. 2. Attorneys’ questions and objections are not evidence. 3. Excluded or stricken testimony or exhibits are not evidence and must not be considered for any purpose. 4. Anything seen or heard when the court was not in session is not evidence. You must decide this case solely on the evidence received at the trial. * When warranted, additional reference may also be made to jury views, site inspections, matters of judicial notice, and the like. 8/15/94 8 INSTRUCTION NO. 2.2 Even though you are required to decide this case only upon the evidence presented in court, you are allowed to consider the evidence in light of your own observations, experiences, and common sense. You may use your common sense to make reasonable inferences from the facts. 9 INSTRUCTION NO. 2.3 You must not use any source outside the courtroom to assist you in deciding any question of fact. This means that you must not make an independent investigation of the facts or the law. For example, you must not visit the scene on your own, conduct experiments, or consult dictionaries, encyclopedias, textbooks, or other reference materials for additional information. 10 INSTRUCTION NO. 3.1 Plaintiff(s) has/have the burden of proving by a preponderance of the evidence every element of each claim that plaintiff(s) assert(s). Defendant(s) has/have the burden of proving by a preponderance of the evidence every element of each affirmative defense that defendant(s) assert(s). In these instructions, whenever I say that a party must prove a claim or affirmative defense, that party must prove such claim or affirmative defense by a preponderance of the evidence, unless I instruct you otherwise. 11 INSTRUCTION NO. 3.2 To "prove by a preponderance of the evidence" means to prove that something is more likely so than not so. It means to prove by evidence which, in your opinion, convinces you that something is more probably true than not true. It does not mean that a greater number of witnesses or a greater number of exhibits must be produced. In deciding whether a claim, defense, or fact has been proven by a preponderance of the evidence, you must consider all of the evidence presented in court by both the plaintiffs and the defendant. Upon consideration of all the evidence, if you find that a particular claim, defense or fact is more likely true than not true, then such claim, defense, or fact has been proven by a preponderance of the evidence. If a preponderance of the evidence does not support each essential element of a claim or affirmative defense, then the jury should find against the party having the burden of proof as to that claim or affirmative defense. 12 INSTRUCTION NO. 3.3 The plaintiff(s)/defendant(s) has/have the burden of proving certain facts, claims or defenses by clear and convincing evidence. To prove by clear and convincing evidence means to prove by evidence which, in your opinion, produces a firm belief about the truth of the allegations which the parties have presented. It means to prove that the existence of a fact is highly probable. Clear and convincing evidence is a higher requirement of proof than the "preponderance of the evidence" requirement, but it is a lower requirement of proof than the "beyond a reasonable doubt" requirement in criminal cases. 13 INSTRUCTION NO. 4.1 Where the attorneys for the parties have stipulated to a fact, you must consider the fact as having been conclusively proved. 14 INSTRUCTION NO. 4.2 The testimony of a witness has been read into evidence from a deposition. A deposition is the testimony of a witness given under oath before the trial and preserved in written form. You must consider and judge the deposition testimony of a witness in the same manner as if the witness actually appeared and testified in court in this trial. 15 INSTRUCTION NO. 4.3 Evidence has been presented in the form of written answers given by a party in response to written questions from another party. The written answers were given under oath by the party. The written questions are called "interrogatories." You must consider and judge a party's answers to interrogatories in the same manner as if the party actually appeared and testified in court in this trial. 16 INSTRUCTION NO. 4.4 The Court may take judicial notice of certain facts. When the Court says that it takes judicial notice of some fact, the jury must accept that fact as conclusively proved. 17 INSTRUCTION NO. 4.5 There are two kinds of evidence from which you may decide the facts of a case: direct evidence and circumstantial evidence. Direct evidence is direct proof of a fact, for example, the testimony of an eyewitness. Circumstantial evidence is indirect proof of a fact, that is, when certain facts lead you to conclude that another fact also exists. You may consider both direct evidence and circumstantial evidence when deciding the facts of this case. You are allowed to give equal weight to both kinds of evidence. The weight to be given any kind of evidence is for you to decide. 18 INSTRUCTION NO. 4.6 During the trial, I have ruled on objections made by the attorneys. Objections are based on rules of law designed to protect the jury from unreliable or irrelevant evidence. It is an attorney's duty to object when he or she believes that the rules of law are not being followed. These objections relate to questions of law for me to decide and with which you need not be concerned. 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. 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 of it. You must never speculate as to be true any insinuation suggested by a question asked a witness. A question is not evidence and may be considered only as it supplied meaning to the answer. 19 INSTRUCTION NO. 5.1 I have said that you must consider all of the evidence. This does not mean , however, that you must accept all of the evidence as true or accurate. You are the sole judges of the credibility of all witnesses who testified in this case. The weight their testimony deserves is for you to decide. It is your exclusive right to determine whether and to what extent a witness should be believed and to give weight to that testimony according to your determination of the witness' credibility. In evaluating a witness, you may consider: (1) the witness' appearance and demeanor on the witness stand; (2) the manner in which a witness testified and the degree of intelligence shown; (3) the witness' degree of candor or frankness; (4) the witness' interest, if any, in the result of this case; (5) the witness' relationship to either party in the case; (6) any temper, feeling or bias shown by the witness; (7) the witness' character as shown by the evidence; (8) the witness' means and opportunity to acquire information; (9) the probability or improbability of the witness' testimony; (10) the extent to which the witness' testimony is supported or contradicted by other evidence; (11) the extent to which the witness made contradictory statements; and (12) all other circumstances affecting the witness' credibility. 20 Inconsistencies in the testimony of a witness, or between the testimonies of different witnesses, may or may not cause you to discredit the inconsistent testimony. This is because two or more persons witnessing an event may see or hear the event differently. An innocently mistaken recollection or failure to remember is not an uncommon experience. In examining any inconsistent testimony, you should consider whether the inconsistency concerns important matters or unimportant details. You should also consider whether inconsistent testimony is the result of an innocent mistake or a deliberate false statement. You may, in short, accept or reject the testimony or any witness in whole or in part. Also, the weight of the evidence is not necessarily determined by the number of witnesses testifying as to the existence or non-existence of any fact. You may find that the testimony of a smaller number of witnesses as to any fact is more credible than the testimony of a larger number of witnesses to the contrary. 21 INSTRUCTION NO. 5.2 The testimony of a witness may be discredited by contradictory evidence or by evidence showing that at other times the witness made statements inconsistent with the witness' testimony in this trial. If you believe that testimony of any witness has been discredited, you may give that testimony the degree of credibility you believe it deserves. 22 INSTRUCTION NO. 5.3 You may reject the testimony of a witness if you find and believe from all of the evidence presented in this case that: 1. The witness intentionally testified falsely in this trial about any important fact; or 2. The witness intentionally exaggerated or concealed an important fact or circumstance in order to deceive or mislead you. In giving you this instruction, I am not suggesting that any witness intentionally testified falsely or deliberately exaggerated or concealed an important fact or circumstance. That is for you to decide. 23 INSTRUCTION NO. 5.4 In this case, you heard testimony from witnesses described as experts. Experts are persons who, by education, experience, training or otherwise, have special knowledge which is not commonly held by people in general. Experts may state an opinion on matters in their field of special knowledge and may also state their reasons for the opinion. The testimony of expert witnesses should be judged in the same manner as the testimony of any witness. You may accept or reject the testimony in whole or in part. You may give the testimony as much weight as you think it deserves in consideration of all of the evidence in this case. 24 INSTRUCTION NO. 6.1 Negligence is doing something which a reasonable person would not do or failing to do something which a reasonable person would do. It is the failure to use that care which a reasonable person would use to avoid injury to himself, herself, or other people or damage to property. In deciding whether a person was negligent, you must consider what was done or not done under the circumstances as shown by the evidence in this case. 25 INSTRUCTION NO. 6.2 In determining whether a person was negligent, it may help to ask whether a reasonable person in the same situation would have foreseen or anticipated that injury or damage could result from that person's action or inaction. If such a result would be foreseeable by a reasonable person and if the conduct reasonably could be avoided, then not to avoid it would be negligence. 26 INSTRUCTION NO. 6.3 You must determine whether any of the parties in this case were negligent and whether such negligence on the part of a party was a legal cause of plaintiff's(s') injuries or damages. If you find that at least one defendant was negligent and such negligence was a legal cause of the injuries or damages, you must determine the total amount of plaintiff's(s') damages, without regard to whether plaintiff's(s') own negligence was also a legal cause of the injuries or damages. If you find that more than one party was negligent and the negligence of each was a legal cause of the injuries or damages, then you must determine the degree to which each party's negligence contributed to the injuries or damages, expressed in percentages. The percentages allocated to the parties must total 100%. 27 INSTRUCTION NO. 6.4 If you find that plaintiff's(s') negligence is 50% or less, the Court will reduce the amount of damages you award by the percentage of the negligence you attribute to plaintiff(s). If, on the other hand, you find that plaintiff's(s') negligence is more than 50%, the Court will enter judgment for defendant(s) and plaintiff(s) will not recover any damages. 28 INSTRUCTION NO. 6.5 Any defendant found liable to plaintiff(s) to any degree may be required to pay his/her/its share of the judgment as well as the share of another/other liable defendant(s). Any defendant who pays more than his/her/its share of the judgment has the right to seek payment from another/other liable defendant(s) to the extent of the other liable defendant's(s') proportionate share of the judgment.** ** This instruction may require modification to comply with Hawaii Revised Statutes § 663-10.9 and relevant case law. 29 INSTRUCTION NO. 7.1 An act or omission is a legal cause of an injury or damage if it was a substantial factor in bringing about the injury or damage. One or more substantial factors such as the conduct of more than one person may operate separately or together to cause an injury or damage. In such a case, each may be a legal cause of the injury or damage. 30 INSTRUCTION NO. 7.2 A superseding cause is an act or force which relieves defendant(s) of responsibility for plaintiff's(s') injury or damage. To be a superseding cause, an act or force must: (1) occur after defendant's(s') conduct, (2) be a substantial factor in bringing about the injury or damage to plaintiff(s), (3) intervene in such a way that defendant's(s') conduct is no longer a substantial factor in bringing about the injury or damage, and (4) not be reasonably foreseeable at the time defendant(s) acted or failed to act. If the act or force was a normal consequence of the situation created by defendant's(s') conduct, then said act or force is not a superseding cause. The conduct of plaintiff(s) cannot be a superseding cause. 31 INSTRUCTION NO. 7.3 In determining the amount of damages, if any, to be awarded to plaintiffs, you must determine whether plaintiff(s) had an injury or condition which existed prior to the [insert date of the incident] incident. If so, you must determine whether plaintiff(s) was/were fully recovered from the pre-existing injury or condition or whether the pre-existing injury or condition was latent at the time of the subject incident. A pre-existing injury or condition is latent if it was not causing pain, suffering or disability at the time of the subject incident. If you find that plaintiff(s) was/were fully recovered from the pre-existing injury or condition or that such injury or condition was latent at the time of the subject incident, then you should not apportion any damages to the pre-existing injury or condition. If you find that plaintiff(s) was/were not fully recovered and that the pre-existing injury or condition was not latent at the time of the subject incident, you should make an apportionment of damages by determining what portion of the damages is attributable to the pre-existing injury or condition and limit your award to the damages attributable to the injury caused by defendant(s). If you are unable to determine, by a preponderance of the evidence, what portion of the damages can be attributed to the pre-existing injury or condition, you may make a rough apportionment. If you are unable to make a rough apportionment, then you must divide the damages equally between the pre-existing injury or condition and the injury caused by defendant(s). 32 INSTRUCTION NO. 7.4 In determining the amount of damages, if any, to be awarded to plaintiff(s), you must also determine whether plaintiff(s) was/were injured after the [insert date of the incident] incident. If plaintiff(s) suffered injury after the subject incident, and such injury was not legally caused by the conduct of defendant(s), then you should make an apportionment of damages by determining what portion of the damages is attributable to the later injury and limit your award to the damages attributable to the injury caused by defendant(s). If you are unable to determine, by a preponderance of the evidence, what portion of the damages can be attributed to the later injury, you may make a rough apportionment. If you are unable to make a rough apportionment, then you must divide the damages equally between the later injury and the injury caused by defendant(s). 33 INSTRUCTION NO. 7.5 If you must apportion damages among (1) pre-existing injuries or conditions, (2) injuries caused by defendant(s), and (3) later injuries, and you are unable to determine apportionment by a preponderance of the evidence, you may make a rough apportionment. If you are unable to make a rough apportionment, then you must divide the damages equally among the injuries or conditions. 34 INSTRUCTION NO. 8.1 Instructions on damages are only a guide for an award of damages if you find defendant(s) responsible to plaintiff(s). The fact that the Court is instructing you on damages does not mean that defendant(s) is/are responsible to plaintiff(s). That is for you to decide. 35 INSTRUCTION NO. 8.2 Special damages are those damages which can be calculated precisely or can be determined by you with reasonable certainty from the evidence. 36 INSTRUCTION NO. 8.3 General damages are those damages which fairly and adequately compensate plaintiff(s) for any past, present, and reasonably probable future disability, pain, and emotional distress caused by the injuries or damages sustained. 37 INSTRUCTION NO. 8.4 Pain is subjective, and medical science may or may not be able to determine whether pain actually exists. You are to decide, considering all the evidence, whether pain did, does and will exist. 38 INSTRUCTION NO. 8.5 Emotional distress includes mental worry, anxiety, anguish, suffering, and grief, where they are shown to exist. 39 INSTRUCTION NO. 8.6 If you find that defendants are liable, you may allow plaintiff _____________ a fair and reasonable compensation for the loss and impairment of ______________’s ability to perform services as wife/husband, because of her/his injuries. In determining the amount of such compensation, you are to consider the loss and impairment of her/his companionship, aid, assistance, comfort and society, and services to her husband/his wife in performing her/his domestic and household functions, if any. The services provided by a wife/husband to her husband/his wife may often be of such character that no one can say what they are worth. The relationship between spouses is a special and unique one, and the actual facts of the case, considered together with your own experience, must guide you in deciding what amount would fairly and justly compensate the husband/wife for his/her loss. 40 INSTRUCTION NO. 8.7 The life expectancy of plaintiff(s) may be considered by you in determining the amount of damages, if any, which he/she/they should receive for permanent injuries and future expenses and losses. 41 INSTRUCTION NO. 8.8 In presenting his/her argument to you on the amount, if any, which should be awarded to plaintiff(s) as damages, the attorney for plaintiff(s) has proposed to you figures which he/she arrived at by mathematical calculations (and has shown you those figures on a chart). After first suggesting that a dollar value per hour or day or month or year be given to an item such as pain, disability, emotional distress and so forth, he/she multiplied that dollar value by a certain number of hours or days or months or years and came up with a total figure as an amount of damages for such items. Neither the chart nor what the attorney has said as to the dollar values or figures for measuring such items of damages is evidence. The law permits this kind of argument to be made, but you must remember argument is not evidence. The law gives you no way to mathematically calculate such items of damages and leaves them to be fixed by you as your common sense and good judgment dictate, based on the nature and extent of plaintiff's(s') injuries or damages under the evidence in this case. 42 INSTRUCTION NO. 8.9 If you find for plaintiff(s) on the issue of liability, plaintiff(s) is/are entitled to damages in such amount as in your judgment will fairly and adequately compensate him/her/them for the injuries which he/she/they suffered. In deciding the amount of such damages, you should consider: 1. The extent and nature of the injuries he/she/they received, and also the extent to which, if at all, the injuries he/she/they received are permanent; 2. The deformity, scars and/or disfigurement he/she/they received, and also the extent to which, if at all, the deformity, scars and/or disfigurement are permanent; 3. The reasonable value of the medical services provided by physicians, hospitals and other health care providers, including examinations, attention and care, drugs, supplies, and ambulance services, reasonably required and actually given in the treatment of plaintiff(s) and the reasonable value of all such medical services reasonably probable to be required in the treatment of plaintiff(s) in the future; 4. The pain, emotional suffering, and disability which he/she/they has/have suffered and is/are reasonably probable to suffer in the future because of the injuries, if any. 5. The lost income sustained by plaintiff(s) in the past and the lost income he/she/they is/are reasonably probable to sustain in the future. 43 INSTRUCTION NO. 8.10 Plaintiff(s) is/are not required to present evidence of the monetary value of their pain or emotional distress. It is only necessary that plaintiff(s) prove the nature, extent and effect of their injury, pain, and emotional distress. It is for you, the jury, to determine the monetary value of such pain or emotional distress using your own judgment, common sense and experience. 44 INSTRUCTION NO. 8.11 Compensation must be reasonable. You may award only such damages as will fairly and reasonably compensate plaintiff(s) for the injuries or damages legally caused by defendant’s(s') negligence. You are not permitted to award a party speculative damages, which means compensation for loss or harm which, although possible, is conjectural or not reasonably probable. 45 INSTRUCTION NO. 8.12 If you award plaintiff(s) any damages, then you may consider whether you should also award punitive damages. The purposes of punitive damages are to punish the wrongdoer and to serve as an example or warning to the wrongdoer and others not to engage in such conduct. You may award punitive damages against a particular defendant only if plaintiff(s) has/have proved by clear and convincing evidence that the particular defendant acted intentionally, willfully, wantonly, oppressively or with gross negligence. Punitive damages may not be awarded for mere inadvertence, mistake or errors of judgment. The proper measure of punitive damages is (1) the degree of intentional, willful, wanton, oppressive, malicious or grossly negligent conduct that formed the basis for your prior award of damages against that defendant and (2) the amount of money required to punish that defendant considering his/her/its financial condition. In determining the degree of a particular defendant's conduct, you must analyze that defendant's state of mind at the time he/she/it committed the conduct which formed the basis for your prior award of damages against that defendant. Any punitive damages you award must be reasonable. 46 INSTRUCTION NO. 8.13 An act is "willful" when it is premeditated, unlawful, without legal justification, or done with an evil intent, with a bad motive or purpose, or with indifference to its natural consequences. 47 INSTRUCTION NO. 8.14 An act is "wanton" when it is reckless, heedless, or characterized by extreme foolhardiness, or callous disregard of, or callous indifference to, the rights or safety of others. 48 INSTRUCTION NO. 8.15 An act is "oppressive" when it is done with unnecessary harshness or severity. 49 INSTRUCTION NO. 8.16 An act is "malicious" when it is prompted or accompanied by ill will or spite. 50 INSTRUCTION NO. 8.17 Gross negligence is conduct that is more extreme than ordinary negligence. It is an aggravated or magnified failure to use that care which a reasonable person would use to avoid injury to himself, herself, or other people or damage to property. But gross negligence is something less than willful or wanton conduct. 51 INSTRUCTION NO. 8.18 Any plaintiff claiming damages resulting from the wrongful act of a defendant has a duty under the law to use reasonable diligence under the circumstances to mitigate or minimize those damages. If you find plaintiff(s) suffered damages, plaintiff(s) may not recover for any damages which he/she/it/they could have avoided through reasonable effort. If you find that plaintiff(s) unreasonably failed to mitigate or lessen his/her/its/their damages, you should not award those damages which he/she/it/they could have avoided. You are the sole judge of whether plaintiff(s) acted reasonably in mitigating his/her/its/their damages. Plaintiff(s) may not sit idly by when presented with a reasonable opportunity to reduce his/her/its/their damages. However, plaintiff(s) is/are not required to exercise unreasonable efforts or incur unreasonable expenses in mitigating his/her/its/their damages. Defendant(s) has/have the burden of proving the damages which plaintiff(s) could have mitigated. You must consider all of the evidence in light of the particular circumstances of the case in deciding whether defendant(s) has/have satisfied his/her/its/their burden of proving that plaintiff's(s') conduct was not reasonable. 52 INSTRUCTION NO. 9.1 Your verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. In other words, your verdict must be unanimous. When you retire to the jury room to begin your deliberations, your first duty will be selection of a foreperson to preside over the deliberations and to speak on your behalf in court. The foreperson's duties are: 1. To keep order during the deliberations and to make sure that every juror who wants to speak is heard; 2. To represent the jury in communications you wish to make to me; and 3. To sign, date and present the jury's verdict to me. In deciding the verdict, all jurors are equal and the foreperson does not have any more power than any other juror. After you select a foreperson, you will proceed to discuss the case with your fellow jurors and reach agreement on a verdict, if you can. You may take as much time as you feel is necessary for your deliberations. 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 you have considered the views of your fellow jurors. Do not be afraid to change your opinion if you think you are wrong. But do not come to a decision simply because other jurors think it is a right decision, or simply to get the case over with. 53 INSTRUCTION NO. 9.2 During this trial, items were received in evidence as exhibits. These exhibits will be sent into the jury room with you when you begin to deliberate. 54 INSTRUCTION NO. 9.3 Remember at all times that you are not partisans. You are judges - judges of the judges of the facts in this case. Your only interest is to seek the truth from the evidence presented. From the time you retire to the jury room to begin your deliberations until you complete your deliberations, it is necessary that you remain together as a body. You should not discuss the case with anyone other than your fellow jurors. If it becomes necessary for you to communicate with me during your deliberations, you may send a note by the bailiff. I will then respond as promptly as possible, either in writing or by having you returned to the courtroom. Your verdict will consist of answers to the questions on the verdict form. You will answer the questions according to the instructions I have given you and according to the directions contained in the verdict form. Your verdict must be unanimous. It is necessary that each of you agree on all answers required by the verdict form. Each of you must be able to state, when you return to the courtroom after a verdict is reached, that his or her vote is expressed in the answers on the verdict form. As soon as all of you agree upon each answer required by the directions in the verdict form, the form should be dated and signed by your foreperson. The foreperson will then notify the bailiff by a written communication that the jury has reached a verdict. Thereafter, the bailiff will arrange to have you return with the verdict form to the courtroom. Bear in mind that you are not to reveal to the court or anyone else how the jury stands on the verdict until all of you have agreed on it. 55