UNITED STATES COURT OF APPEALS
FIFTH JUDICIAL CIRCUIT
PATTERN JURY INSTRUCTIONS
2004
MEMBERS OF THE JURY:
You have now been sworn as the jury to try this case. As the jury you will decide the disputed questions of fact.
As the Judge, I will decide all questions of law and procedure. From time to time during the trial and at the end of the trial, I will instruct you on the rules of law that you must follow in making your decision.
Soon, the lawyers for each of the parties will make what is called an opening statement. Opening statements are intended to assist you in understanding the evidence. What the lawyers say is not evidence.
After the opening statements, the plaintiff will call witnesses and present evidence. Then, the defendant will have an opportunity to call witnesses and present evidence. After the parties' main case is completed, the plaintiff may be permitted to present rebuttal evidence. After all the evidence is completed, the lawyers will again address you to make final arguments. Then I will instruct you on the applicable law. You will then retire to deliberate on a verdict.
Keep an open mind during the trial. Do not decide any fact until you have heard all of the evidence, the closing arguments, and my instructions.
Pay close attention to the testimony and evidence. [Do not take notes.]
[Alternate 1: You will need to rely on your memories.]
[Alternate 2: If you would like to take notes during the trial, you may do so. If you do take notes, be careful not to get so involved in note taking that you become distracted and miss part of the testimony. Your notes are to be used only as aids to your memory, and if your memory should later be different from your notes, you should rely on your memory and not on your notes. If you do not take notes, rely on your own independent memory of the testimony. Do not be unduly influenced by the notes of other jurors. A juror's notes are not entitled to any greater weight than the-recollection of each juror concerning the testimony.] Even though the court reporter is making stenographic notes of everything that is said, a typewritten copy of the testimony will not be available for your use during deliberations. On the other hand, any exhibits [may] [will] be available to you during your deliberations.
Until this trial is over, do not discuss this case with anyone and do not permit anyone to discuss this case in your presence. Do not discuss the case even with the other jurors until all of the jurors are in the jury room actually deliberating at the end of the case. If anyone should attempt to discuss this case or to approach you concerning the case, you should inform the Court immediately. Hold yourself completely apart from the people involved in the case--the parties, the witnesses, the attorneys and persons associated with them. It is important not only that you be fair and impartial but that you also appear to be fair and impartial.
Do not make any independent investigation of any fact or matter in this case. You are to be guided solely by what you see and hear in this trial. Do not learn anything about the case from any other source. [In particular, do not read any newspaper account of this trial or listen to any radio or television newscast concerning it.] [Do not listen to any local radio or television newscasts until this trial is over, or read any local newspaper unless someone else first removes any possible reference to this trial.]
During the trial, it may be necessary for me to confer with the lawyers out of your hearing or to conduct a part of the trial out of your presence. I will handle these matters as briefly and as conveniently for you as I can, but you should remember that they are a necessary part of any trial.
It is now time for the opening statements.
PATTERN JURY INSTRUCTIONS
CAUTIONARY INSTRUCTIONS
We are about to take our first break during the trial and I want to remind you of the instruction I gave you earlier. Until the trial is over, you are not to discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else. If anyone approaches you and tries to talk to you about the case, do not tell your fellow jurors but advise me about it immediately. Do not read or listen to any news reports of the trial. Finally, remember to keep an open mind until all the evidence has been received and you have heard the views of your fellow jurors.
If you need to speak with me about anything, simply give a signed note to the marshal to give to me.
I may not repeat these things to you before every break that we take, but keep them in mind throughout the trial.
The parties have agreed or stipulated that [e.g., if _______ were called as a witness he would testify that _______]. The agreement is that that would be [_______'s] testimony if called as a witness. You should consider that testimony in the same way as if it had been given here in court, and give it the value you believe it deserves.
The parties have agreed, or stipulated, that [_______]. This means that both sides agree that this is a fact. You must therefore treat this fact as having been proved.
Although no evidence has been presented, I instruct you that you must accept as proved [state the facts].
_______ and _______ are no longer involved in this trial. As jurors, it is your duty to consider the issues between [among] (identify remaining parties) under the instructions I give you after you have heard all of the evidence [which might still concern _______ and _______'s conduct in this dispute].
If there is publicity about this trial, you must ignore it. You must decide this case only from the evidence presented in the trial. Do not read anything or listen to any TV or radio programs about the case. [This instruction can be modified according to the extent of the case's notoriety].
At times during the trial it may be necessary for me to talk with the lawyers here at the bench out of your hearing, or by calling a recess. We meet because often during a trial something comes up that doesn't involve the jury.
Exhibit [describe] is an illustration. It is a party's [description or picture or model] to describe something involved in this trial. If your recollection of the evidence differs from the exhibit, rely on your recollection.
(Name of Witness) _______ was available to both sides. Thus [the plaintiff] [the defendant] cannot complain that (Witness) was not called to testify, because (Party) could have called (Witness). [This instruction is appropriate only if the issue arises during closing argument or at some other time in trial.]
Evidence that an act was done at one time or on one occasion is not any evidence or proof whatever that the act was done in this case. Then how may you consider evidence of similar acts? You may consider evidence of similar acts for the limited purpose of showing _______'s [motive, opportunity, intent, knowledge, plan, identity, or absence of
mistake or accident] which is at issue in this case. Such evidence may not be considered for any other purpose whatsoever. You can't use it to reflect on _______'s character. It is your sworn duty as jurors to discuss the case with one another in an effort to reach agreement if you can do so. Each of you must decide the case for
yourself, but only after full consideration of the evidence with the other members of the jury. While you are discussing the case, do not hesitate to re-examine
your own opinion and change your mind if you become convinced that you are wrong. However, do not give up your honest beliefs solely because the others
think differently, or merely to finish the case. Remember that in a very real way you are the judges--judges of the facts. Your only interest is to seek the truth from the evidence in the case. When you retire to the jury room to deliberate, you may take with you [this charge and] the exhibits that the Court has admitted into evidence. Select your
Foreperson and conduct your deliberations. If you recess during your deliberations, follow all of the instructions that I have given you concerning your conduct
during the trial. After you have reached your unanimous verdict, your Foreperson must fill in your answers to the written questions and sign and date the
verdict form. [Return this charge together with your written answers to the questions.] Unless I direct you otherwise, do not reveal your answers until such
time as you are discharged. You must never disclose to anyone, not even to me, your numerical division on any question. If you want to communicate with me at any time, please give a written message to the bailiff, who will bring it to me. I will then respond as promptly as
possible either in writing or by meeting with you in the courtroom. I will always first show the attorneys your question and my response before I answer your
question. After you have reached a verdict, you are not required to talk with anyone about the case unless I order you to do so. You may now retire to the jury room to conduct your deliberations. Do not let bias, prejudice or sympathy play any part in your deliberations. A corporation and all other persons are equal before the law and must be treated as
equals in a court of justice. Clear and convincing evidence is evidence that produces in your mind a firm belief or conviction as to the matter at issue. This involves a greater degree of
persuasion than is necessary to meet the preponderance of the evidence standard; however, proof to an absolute certainty is not required. You will recall that during the course of this trial I instructed you that I admitted certain testimony [and certain exhibits] for a limited purpose and I instructed
you that you may consider some testimony [and documents] as evidence against one party but not against another. You may consider such evidence only for
the specific limited purposes for which it was admitted. [Specific limiting instructions may be repeated as appropriate.] In determining the weight to give to the testimony of a witness, you should ask yourself whether there was evidence tending to prove that the witness testified
falsely about some important fact, or, whether there was evidence that at some other time the witness said [or did] something, [or failed to say or do something]
that was different from the testimony he gave at the trial. (2)
In weighing the credibility of a witness, you may consider the fact that he has previously been convicted of a felony [a crime involving dishonesty or false
statement]. Such a conviction does not necessarily destroy the witness' credibility, but it is one of the circumstances you may take into account in determining
the weight to give to his testimony. You must consider only the evidence in this case. However, you may draw such reasonable inferences from the testimony and exhibits as you feel are justified
in the light of common experience. You may make deductions and reach conclusions that reason and common sense lead you to make from the testimony and
evidence. The testimony of a single witness may be sufficient to prove any fact, even if a greater number of witnesses may have testified to the contrary, if after
considering all the other evidence you believe that single witness. There are two types of evidence you may consider. One is direct evidence--such as testimony of an eyewitness. The other is indirect or circumstantial
evidence--the proof of circumstances that tend to prove or disprove the existence or nonexistence of certain other facts. The law makes no distinction between
direct and circumstantial evidence, but simply requires that you find the facts from a preponderance of all the evidence, both direct and circumstantial. When knowledge of technical subject matter may be helpful to the jury, a person who has special training or experience in that technical field--he is called an
expert witness--is permitted to state his opinion on those technical matters. However, you are not required to accept that opinion. As with any other witness, it
is up to you to decide whether to rely upon it. (3)
In this case, the plaintiff must prove every essential part of his claim by a preponderance of the evidence. A preponderance of the evidence simply means evidence that persuades you that the plaintiff's claim is more likely true than not true. In deciding whether any fact has been proven 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. If the proof fails to establish any essential part of the plaintiff's claim by a preponderance of the evidence, you should find for the defendant as to that claim. Any notes that you have taken during this trial are only aids to your memory. If your memory differs from your notes, you should rely on your memory and not
on the notes. The notes are not evidence. If you have not taken notes, you should rely on your independent recollection of the evidence and should not be
unduly influenced by the notes of other jurors. Notes are not entitled to any greater weight than the recollection or impression of each juror about the
testimony. 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. Certain testimony will now be presented to you through a deposition. A deposition is the sworn, recorded answers to questions asked a witness in advance of
the trial. Under some circumstances, if a witness cannot be present to testify from the witness stand, that witness' testimony may be presented, under oath, in
the form of a deposition. Some time before this trial, attorneys representing the parties in this case questioned this witness under oath. A court reporter was
present and recorded the testimony. The questions and answers will be read (shown) to you today. This deposition testimony is entitled to the same
consideration [and is to be judged by you as to credibility] [and weighed and otherwise considered by you insofar as possible in the same way] as if the witness
had been present and had testified from the witness stand in court. PATTERN JURY INSTRUCTIONS GENERAL INSTRUCTIONS FOR CHARGE MEMBERS OF THE JURY: You have heard the evidence in this case. I will now instruct you on the law that you must apply. It is your duty to follow the law as I give it to you. On the
other hand, you the jury are the judges of the facts. Do not consider any statement that I have made in the course of trial or make in these instructions as an
indication that I have any opinion about the facts of this case. [After I instruct you on the law, the attorneys will have an opportunity to make their closing arguments.] [You have heard the closing arguments of the
attorneys.] Statements and arguments of the attorneys are not evidence and are not instructions on the law. They are intended only to assist the jury in
understanding the evidence and the parties' contentions. Answer each question from the facts as you find them. [Do not decide who you think should win and then answer the questions accordingly.] Your answers
and your verdict must be unanimous. You must answer all questions from a preponderance of the evidence. By this is meant the greater weight and degree of credible evidence before you. In other
words, a preponderance of the evidence just means the amount of evidence that persuades you that a claim is more likely so than not so. In determining
whether any fact has been proved by a preponderance of the evidence in the case, 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. [You will recall that during the course of this trial I instructed you that certain testimony and certain exhibits were admitted into evidence for a limited purpose
and I instructed you that you may consider some documents as evidence against one party but not against another. You may consider such evidence only for
the specific limited purposes for which it was admitted. (Specific limiting instructions may be repeated as appropriate.) ] In determining the weight to give to the testimony of a witness, you should ask yourself whether there was evidence tending to prove that the witness testified
falsely concerning some important fact, or whether there was evidence that at some other time the witness said or did something, or failed to say or do
something, that was different from the testimony the witness gave before you during the trial. You should keep in mind, of course, that a simple mistake by a witness does not necessarily mean that the witness was not telling the truth as he or she
remembers it, because people may forget some things or remember other things inaccurately. So, if a witness has made a misstatement, you need to consider
whether that misstatement was an intentional falsehood or simply an innocent lapse of memory; and the significance of that may depend on whether it has to
do with an important fact or with only an unimportant detail. [The fact that a witness has previously been convicted of a felony, or a crime involving dishonesty or false statement, is also a factor you may consider in
weighing the credibility of that witness. Such a conviction does not necessarily destroy the witness' credibility, but it is one of the circumstances you may take
into account in determining the weight to give to his testimony.] While you should consider only the evidence in this case, you are permitted to draw such reasonable inferences from the testimony and exhibits as you feel are
justified in the light of common experience. In other words, you may make deductions and reach conclusions that reason and common sense lead you to draw
from the facts that have been established by the testimony and evidence in the case. The testimony of a single witness may be sufficient to prove any fact, even if a greater number of witnesses may have testified to the contrary, if after
considering all the other evidence you believe that single witness. There are two types of evidence that you may consider in properly finding the truth as to the facts in the case. One is direct evidence--such as testimony of an
eyewitness. The other is indirect or circumstantial evidence--the proof of a chain of circumstances that indicates the existence or nonexistence of certain other
facts. As a general rule, the law makes no distinction between direct and circumstantial evidence, but simply requires that you find the facts from a
preponderance of all the evidence, both direct and circumstantial. When knowledge of technical subject matter may be helpful to the jury, a person who has special training or experience in that technical field--he is called an
expert witness--is permitted to state his opinion on those technical matters. However, you are not required to accept that opinion. As with any other witness, it
is up to you to decide whether to rely upon it. In deciding whether to accept or rely upon the opinion of an expert witness, you may consider any bias of the witness, including any bias you may infer from
evidence that the expert witness has been or will be paid for reviewing the case and testifying, or from evidence that he testifies regularly as an expert witness
and his income from such testimony represents a significant portion of his income. [Any notes that you have taken during this trial are only aids to memory. If your memory should differ from your notes, then you should rely on your memory
and not on the notes. The notes are not evidence. A juror who has not taken notes should rely on his or her independent recollection of the evidence and should
not be unduly influenced by the notes of other jurors. Notes are not entitled to any greater weight than the recollection or impression of each juror about the
testimony.] When you retire to the jury room to deliberate on your verdict, you may take [this charge with you as well as] exhibits which the Court has admitted into
evidence. Select your Foreperson and conduct your deliberations. If you recess during your deliberations, follow all of the instructions that the Court has given
you about/on your conduct during the trial. After you have reached your unanimous verdict, your Foreperson is to fill in on the form your answers to the
questions. Do not reveal your answers until such time as you are discharged, unless otherwise directed by me. You must never disclose to anyone, not even to
me, your numerical division on any question. If you want to communicate with me at any time, please give a written message or question to the bailiff, who will bring it to me. I will then respond as
promptly as possible either in writing or by having you brought into the courtroom so that I can address you orally. I will always first disclose to the attorneys
your question and my response before I answer your question. After you have reached a verdict, you are not required to talk with anyone about the case unless the Court orders otherwise. [You may now retire to the jury
room to conduct your deliberations.] PATTERN JURY INSTRUCTIONS ADMIRALTY The plaintiff is seeking damages from the defendant for injuries that he allegedly suffered as a result of an accident while he was performing (describe task ). The plaintiff's claim arises under the Jones Act. Only a seaman can bring a claim under the Jones Act. The plaintiff claims that his employment with the
defendant was of such a nature that under the law he was a seaman and is entitled to bring this claim. The defendant denies that the plaintiff was a seaman and
takes the position that the plaintiff is not entitled to bring this claim. You first must determine whether, at the time of the accident, the plaintiff was a seaman as
the law defines that term. [May be modified to reflect unseaworthiness claim.] As I instruct you about the test for seaman status, I also may use the term "member of a crew." Seaman and member of a crew mean the same thing. The plaintiff is a seaman if he proves by a preponderance of the evidence that he performs the work of the vessel. (4)
He performs the work of the vessel if and
only if: 1. he was assigned permanently to a vessel or performed a substantial part of his work on a vessel; and 2. the capacity in which he was employed or the duties that he performed contributed to the function of a vessel or to the accomplishment of the vessel's
mission or to the operation or maintenance of the vessel during its movement or while at anchor for the vessel's future trips. A person need not aid in the
navigation of a vessel in order to qualify as a seaman. The plaintiff must satisfy both the first and second parts of this test. If he satisfies both, then you must find that he was a seaman. In applying the first part of
the test, you must determine whether, from a preponderance of the evidence, the plaintiff was either assigned permanently to the _______, the vessel, or
whether he performed a substantial part of his work on it. The plaintiff need only to prove one of these to satisfy the first part of the test. Plaintiff was permanently assigned to the _______ if he had more than a temporary or occasional connection with the vessel, the _______. The plaintiff must
prove that he had an actual regular connection with the _______. Even if you find that the plaintiff was not permanently assigned to the vessel as I have just defined it, he nevertheless can satisfy the first part of the test for
seaman status if he performed a substantial part of his work on the vessel or if he performed a significant part of his work on the vessel with at least some
degree of regularity and continuity and his duties on the vessel were more than merely fortuitous and incidental. (For example, a person who comes aboard to
perform an isolated piece of work is not a seaman.) When a person performs some of his duties on land--[or in this case a platform]--and other of his duties
on the vessel, you must consider the portion of his duties that he performed in each location in connection with your determination as to whether or not he
performed a substantial or significant part of his work on the vessel, as compared to what he did on land [on the platform]. In other words, in determining
whether or not the plaintiff was a seaman at the time of the accident, you must look at the nature and location of his work for the defendant taken as a whole. If
the plaintiff's regularly assigned duties required him to divide his work time between vessel and land (or platform), you must determine his status as a seaman
in the context of his entire employment with his employer, _______, not just his duties at the time he was injured. (If plaintiff had a change in work assignment only.) If, however, you find that the plaintiff's employment with _______ was changed before the accident, then you must determine whether the plaintiff was a
seaman on the basis of his activities in his new assignment. Under the law, a person may change his employment with the same employer if his work duties or
his work location are changed permanently. If you find that the plaintiff was assigned permanently to the _______ or that he performed a substantial part of his work on the _______, you must then
determine whether the plaintiff's duties were such that he meets the second part of the test. The plaintiff meets the second part of the test if he proves by a
preponderance of the evidence that the job or duties he performed contributed to the function of the vessel, the _______, or to the accomplishment of its
mission or to its operation or maintenance during its voyages or during its anchorage for its future trips. A person may contribute to the function of the vessel
or the accomplishment of its mission although he is not engaged in actual navigation of the vessel. McDermott International, Inc. v. Wilander, 498 U.S. 337, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991). See Southwest Marine, Inc. v. Byron Gizoni, 502 U.S. 81,
112 S.Ct. 486, 116 L.Ed.2d 405 (1991). Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067 (5th Cir.1986). Offshore Co. v. Robison, 266 F.2d 769 (5th Cir.1959). You must determine whether the _______ (name, or describe structure) was a vessel. A vessel is a structure designed or used in navigation for the
transportation of passengers, cargo, or equipment across navigable waters. In determining whether [the _______ (the structure) ] is a vessel, you may but need
not consider whether it had the following features: (1) Navigational aids; (2) A racked bow; (3) Lifeboats or other lifesaving equipment; (4) Bilge pumps; (5) Crew quarters; or (6) Coast Guard registration. You may also consider the size of the [_______ (the structure) ], its ability to float, the permanence of its attachment to the shore or the water bottom, and the
fact of its movement, if any, across navigable waters. However, the fact that the (structure) had any one of these features is not conclusive. They are merely
factors that you might wish to consider in determining whether the [_______ (structure) ] was a vessel. (5)
The plaintiff, _______ [a seaman], is asserting three separate claims against the defendant in this case. The plaintiff's first claim, under a federal law known as the Jones Act, is that his employer, _______, was negligent, and that _______'s negligence was a cause
of his injuries. The plaintiff's second claim is that unseaworthiness of a vessel caused his injury. The plaintiff's third claim is for Maintenance and Cure. You must consider each of these claims separately. The plaintiff is not required to prove all of these claims. He may recover if he proves any one of them.
However, he may only recover those damages or benefits that the law provides for the claims that he proves; he may not recover the same damages or benefits
more than once. The plaintiff _______ seeks damages for the loss of society with her husband, plaintiff _______. (6)
Under the Jones Act, the plaintiff _______ must prove that his employer was negligent. Negligence is the doing of an act that a reasonably prudent person
would not do, or the failure to do something that a reasonably prudent person would do, under the same or similar circumstances. The occurrence of an
accident, standing alone, does not mean anyone's negligence caused the accident. In a Jones Act claim, the word "negligence" is given a liberal interpretation. It includes any breach of duty that an employer owes to his employees who are
seamen, including the duty of providing for the safety of the crew. Under the Jones Act, if the employer's negligent act caused the plaintiff's injury (7)
, in whole or in part, then you must find that the employer is liable under the
Jones Act. Negligence under the Jones Act may consist of a failure to comply with a duty required by law. Employers of seamen have a duty to provide their employees
with a reasonably safe place to work. If you find that the plaintiff was injured because the defendant failed to furnish him with a reasonably safe place to work,
and that the plaintiff's working conditions could have been made safe through the exercise of reasonable care, then you must find that the defendant was
negligent. The fact that the defendant conducted its operations in a manner similar to that of other companies is not conclusive as to whether the defendant was negligent
or not. You must determine if the operation in question was reasonably safe under the circumstances. The fact that a certain practice has been continued for a long
period of time does not necessarily mean that it is reasonably safe under all circumstances. A long accepted practice may be an unsafe practice. However, a
practice is not necessarily unsafe or unreasonable merely because it injures someone. A seaman's employer is legally responsible for the negligence of one of his employees while that employee is acting within the course and scope of his job
[employment]. If you find from a preponderance of the evidence that the defendant assigned the plaintiff to perform a task that the plaintiff was not adequately trained to
perform, you must find that the defendant was negligent. The plaintiff seeks damages for personal injury that he claims was caused by the unseaworthiness of the defendant's vessel, the _______. A shipowner owes to every member of the crew employed on its vessel the absolute duty to keep and maintain the ship, and all decks and passageways,
appliances, gear, tools, parts and equipment of the vessel in a seaworthy condition at all times. A seaworthy vessel is one that is reasonably fit for its intended use. The duty to provide a seaworthy vessel is absolute because the owner may not delegate that
duty to anyone. Liability for an unseaworthy condition does not in any way depend upon negligence or fault or blame. If an owner does not provide a
seaworthy vessel--a vessel that is reasonably fit for its intended use--no amount of care or prudence excuses the owner. The duty to provide a seaworthy vessel includes a duty to supply an adequate and competent crew. A vessel may be unseaworthy even though it has a
numerically adequate crew, if too few persons are assigned to a given task. However, the owner of a vessel is not required to furnish an accident free ship. He need only furnish a vessel and its appurtenances that are reasonably fit for
their intended use and a crew that is reasonably adequate for their assigned tasks. The shipowner is not required to provide the best appliances and equipment, or the finest of crews, on his vessel. He is only required to provide gear that is
reasonably proper and suitable for its intended use, and a crew that is reasonably adequate. In summary, if you find that the owner of the vessel did not provide an adequate crew of sufficient manpower to perform the tasks required, or if you find that
the vessel was in any manner unfit in accordance with the law as I have just explained it to you and that this was a proximate cause of the injury, a term I will
explain to you, then you may find that the vessel was unseaworthy and the shipowner liable, without considering any negligence on the part of the defendant or
any of its employees. However, if you find that the owner had a capable crew and appliances and gear that were safe and suitable for their intended use, then the vessel was not
unseaworthy and the defendant is not liable to the plaintiff on the claim of unseaworthiness. Not every injury (8)
that follows an accident necessarily results from it. The accident must be the cause of the injury. In determining causation, a different rule applies to the Jones Act claim and to the unseaworthiness claim. Under the Jones Act, for both the employer's negligence and the plaintiff's contributory negligence (9)
an injury or damage is considered caused by an act or
failure to act if the act or omission brought about or actually caused the injury or damage, in whole or in part. In an unseaworthiness claim, the plaintiff must show, not merely that the unseaworthy condition was a cause of the injury, but that such condition was a
proximate cause of it. This means that the plaintiff must show that the condition in question played a substantial part [was a substantial factor] in bringing
about or actually causing his injury, and that the injury was either a direct result or a reasonably probable consequence of the condition. The defendant contends that the plaintiff was negligent, and that the plaintiff's negligence caused or contributed to causing his injury. This is the defense of
contributory negligence. The defendant has the burden of proving that the plaintiff was contributorily negligent. If the plaintiff was guilty of contributory
negligence that contributed to his injury, he nevertheless may recover. However, the amount of his recovery will be reduced by the extent of his contributory
negligence. A seaman is obligated under the Jones Act to act with ordinary prudence under the circumstances. The circumstances of a seaman's employment include not
only his reliance on his employer to provide a safe work environment, but also his own experience, training and education. In other words, under the Jones Act
a seaman has the duty to exercise that degree of care for his own safety that a reasonable seaman would exercise in like circumstances. (10)
If you find that the defendant was negligent (the vessel was unseaworthy), and that the (negligence) (unseaworthiness) was a proximate (legal) cause of the
plaintiff's injury, but you also find that the accident was due partly to the contributory negligence of the plaintiff, then you must determine the percentage the
plaintiff's contributory negligence contributed to the accident. You will provide this information by filling in the appropriate blanks in the special
interrogatories. Do not make any reduction in the amount of damages that you award to the plaintiff. I will reduce the damages that you award by the
percentage of contributory negligence that you assign to the plaintiff. If you find that the defendant is liable, you must award the amount you find by a preponderance of the evidence as full and just compensation for all of the
plaintiff's damages. [If there is no issue of punitive damages for the jury, continue with this instruction. If there is, however, then this instruction should be
prefaced with: You also will be asked to determine if the Defendant is liable for punitive damages, and, if so, you will be asked to fix the amount of those
damages. Because the method of determining punitive damages and compensatory damages differ, I will instruct you separately on punitive damages. The
instructions I now give you apply only to your award, if any, of compensatory damages.] Compensatory damages are not allowed as a punishment against a
party. Such damages cannot be based on speculation, for it is only actual damages--what the law calls compensatory damages--that are recoverable.
However, compensatory damages are not restricted to actual loss of time or money; they include both the mental and physical aspects of injury, tangible and
intangible. They are an attempt to make the plaintiff whole, or to restore him to the position he would have been in if the accident had not happened. You should consider the following elements of damages, to the extent you find that the plaintiff has established such damages by a preponderance of the
evidence: physical pain and suffering including physical disability, impairment, and inconvenience, and the effect of the plaintiff's injuries and inconvenience
on the normal pursuits and pleasures of life; mental anguish and feelings of economic insecurity caused by disability; income loss in the past; impairment of
earning capacity or ability in the future, including impairment in the normal progress in the plaintiff's earning capacity due to his physical condition;
postmedical expenses; the reasonable value, not exceeding actual cost to the plaintiff, of medical care that you find from the evidence will be reasonably
certain to be required in the future as a proximate result of the injury in question. Some of these damages, such as mental or physical pain and suffering, are intangible things about which no evidence of value is required. In awarding these
damages, you are not determining value, but you should award an amount that will fairly compensate the plaintiff for his injuries. Any award you make to the plaintiff is not subject to income tax; neither the state nor the federal government will tax it. Therefore, you should determine the
amount that plaintiff is entitled to receive without considering the effect of taxes upon it. In addition to the damages that the plaintiff _______ demands, plaintiff _______ seeks damages for loss of society with her husband, _______, which she
claims she has suffered as a result of his accident. The spouse of an injured person may recover damages for loss of society if she proves by a preponderance of the evidence that she has suffered loss of society
with her husband and that that loss of society was caused by injuries to her husband that are attributable to the fault of the defendant. (11)
Loss of society covers only the loss of love, affection, care, attention, comfort, protection and sexual relations the spouse has experienced. It does not include
loss of support or loss of income that the spouse sustains. And it does not include grief or mental anguish. Therefore, if you find by a preponderance of the evidence that plaintiff _______ suffered loss of society with her husband, _______ as a result of injuries
caused by the fault of the defendant, you may award her damages for loss of society. If, on the other hand, you find from a preponderance of the evidence that
plaintiff _______ did not sustain loss of society with her husband _______ as a result of injuries attributable to the fault of the defendant, then you may not
award her damages for loss of society. You may not award damages for any injury or condition from which the plaintiffs may have suffered, or may now be suffering, unless it has been proved by a
preponderance of the evidence that the accident proximately or directly caused such injury or condition. 1. Under General Maritime Law You may but are not required to award punitive damages against a defendant who has acted willfully and wantonly. The purpose of an award of punitive
damages is to punish the defendant and to deter him and others from acting as he did. (12)
A person acts willfully or wantonly if he acts in reckless or callous disregard of, or with indifference to, the rights of the plaintiff. An actor is indifferent to the
rights of another, regardless of the actor's state of mind, when he proceeds in disregard of a high and excessive degree of danger that is known to him or was
apparent to a reasonable person in his position. (13)
2. Unseaworthiness You may, but are not required to, award punitive damages if you find that the shipowner, _______, wantonly or willfully failed to provide the plaintiff with a
seaworthy vessel, and that failure was a proximate cause of the plaintiff's injuries. The plaintiff's third claim is that, as a seaman, he is entitled to recover Maintenance and Cure. This claim is separate and independent from both the Jones Act
and the unseaworthiness claims of the plaintiff. You must decide this claim separately from your determination of his Jones Act and unseaworthiness claims. Maintenance and Cure is a seaman's remedy. [If you determine that plaintiff was a seaman, you then must determine if he is entitled to maintenance and cure.]
[Plaintiff is a seaman; thus you must determine whether he is entitled to maintenance and cure.] Maintenance and cure provides a seaman, who is disabled by injury or illness while in the service of the ship, medical care and treatment, and the means of
maintaining himself, while recuperating. A seaman is entitled to maintenance and cure even though he was not injured as a result of any negligence on the part of his employer or any unseaworthy
condition of the vessel. To recover maintenance and cure, the plaintiff need only show that he suffered injury or illness while in the service of the vessel on
which he was employed as a seaman, without willful misbehavior on his part. The injury or illness need not be work related, it need only occur while the
seaman is in the service of the ship. And maintenance and cure may not be reduced because of any negligence on the part of the seaman. The "cure" to which a seaman may be entitled includes the cost of medical attention, including the services of physicians and nurses as well as the cost of
hospitalization, medicines and medical apparatus. However, the employer does not have a duty to provide cure for any period of time during which a seaman is
hospitalized at the employer's expense. Maintenance is the cost of food and lodging, and transportation to and from a medical facility. A seaman is not entitled to maintenance for that period of time
that he is an inpatient in any hospital, because the cure provided by the employer through hospitalization includes the food and lodging of the seaman. A seaman is entitled to receive maintenance and cure from the date he leaves the vessel until he reaches the point of what is called "maximum cure." Maximum
cure is the point at which no further improvement in the seaman's medical condition is reasonably expected. Thus, if it appears that a seaman's condition is
incurable, or that the treatment will only relieve pain but will not improve a seaman's physical condition, he has reached maximum cure. The obligation to
provide maintenance and cure usually ends when qualified medical opinion is to the effect that maximum possible cure has been accomplished. If you decide that the plaintiff is entitled to maintenance and cure, you must determine when the employer's obligation to pay maintenance began, and when it
ends. One factor you may consider in determining when the period ends is the date when the seaman resumed his employment, if he did so. However, if the
evidence supports a finding that economic necessity forced the seaman to return to work prior to reaching maximum cure, you may take that finding into
consideration in determining when the period for maintenance and cure ends. If you find that the plaintiff is entitled to an award of damages under either the Jones Act or unseaworthiness claims, and if you award him either lost wages or
medical expenses, then you may not award him maintenance and cure for the same period of time. That is because the plaintiff may not recover twice for the
same loss of wages or medical expenses. However, the plaintiff may also be entitled to an award of damages for failure to pay maintenance and cure when it
was due. (14)
A shipowner who has received a claim for maintenance and cure is entitled to investigate the claim. However, if after investigating the claim, the shipowner
unreasonably rejects the claim for maintenance and cure, he is liable for both the maintenance and cure payments he should have made, and any compensatory
damages caused by his unreasonable failure to pay. Compensatory damages may include any aggravation of the plaintiff's condition because of the failure to
provide maintenance and cure. Thus, you may award compensatory damages because the shipowner failed to provide maintenance and cure if you find by a preponderance of the evidence
that: 1. The plaintiff was entitled to maintenance and cure; 2. It was not provided; 3. The defendant acted unreasonably in failing to provide maintenance and cure; and 4. The failure to provide the maintenance and cure resulted in some injury to the plaintiff. (15)
If you also find that the shipowner's failure to pay maintenance and cure was not only unreasonable, but was willful, that is, with the deliberate intent to do so,
you may also award the plaintiff attorney's fees. However, you should not award attorney's fees unless the shipowner acted willfully in disregard of the
seaman's claim for maintenance and cure. The plaintiff may not recover attorney's fees for the prosecution of the Jones Act or unseaworthiness claims. Thus,
you may award only those attorney's fees plaintiff incurred in pursuing the maintenance and cure claim and only if you find that the shipowner acted willfully
in failing to pay maintenance and cure. (16)
The plaintiff may not recover attorney's fees for the prosecution of the Jones Act or unseaworthiness claims. You may award attorney's fees only if you find
that the shipowner acted arbitrarily or with callous disregard, in failing to pay maintenance and cure. If you find that the plaintiff is entitled to an award of damages for loss of future earnings, there are two particular factors you must consider. First, you should
consider loss after income taxes; that is, you should determine the actual or net income that plaintiff has lost or will lose, taking into consideration that any past
or future earnings would be subject to income taxes. You must award the plaintiff only his net earnings after tax. This is so because any award you may make
here is not subject to income tax. The federal or state government will not tax any amount which you award on this basis. Second, an amount to cover a future loss of earnings is more valuable to the plaintiff if he received the amount today than if he received the same amount in the
future. Therefore, if you decide to award plaintiff an amount for lost future earnings, you must discount it to present value by considering what return would be
realized on a relatively risk free investment. Note: A maritime worker who is a seaman has the Jones Act remedy against his employer, and an unseaworthiness claim against the operator of the vessel as
to which he is a seaman, whether the vessel operator is his employer or not. A maritime worker who is not a seaman may claim LHWCA benefits from his
employer, and may bring a negligence action [33 U.S.C. Sec. 905(b) ] against the operator of the vessel on which he is working (and, in some cases, against his
employer, if his employer is operating the vessel). The standards for liability under the Jones Act and unseaworthiness differ from those for liability under
Section 905(b). The United States Supreme Court has said that the categories of maritime worker--seaman and non-seaman--are mutually exclusive, (18)
and
the U.S. Fifth Circuit Court of Appeals has ruled that if a worker is covered by the LHWCA, he cannot qualify for seaman status. (19)
The U.S. Ninth Circuit
Court of Appeals has reached the opposite conclusion, holding that the initial inquiry is whether the worker is a seaman, and the U.S. Supreme Court granted
writs in the Ninth Circuit case. The Supreme Court affirmed the Ninth Circuit and, in doing so, impliedly overruled the Fifth Circuit ruling, which is now of
doubtful value. Seaman status and LHWCA status are mutually exclusive, requiring independent determinations, as the facts of the case may require. A
maritime worker is limited to LHWCA remedies only if no genuine issue of fact exists as to whether the worker was a seaman under the Jones Act. (20)
A worker is covered by the LHWCA if he is engaged in maritime employment and is injured at a place within the coverage of the act. These are two separate
requirements. A worker is engaged in maritime employment if: (1) he is injured on actual navigable waters in the course of his employment on those waters, (21)
or (2) he is injured while engaged in an essential part of the loading or unloading process of a vessel. (22)
Note: A special charge may be appropriate if reasonable minds could conclude that the plaintiff was engaged in the activities described in 33 USC Sec.
902(3)(A)-(H). (23)
A place is within the coverage of the act if it is either actual navigable waters, an area adjoining actual navigable waters, or an area adjoining an area adjoining
actual navigable waters and customarily used by an employer in loading, unloading, building or repairing of a vessel. (24)
Note: A special charge may be appropriate if reasonable minds could conclude that the plaintiff's employment fit within 33 USC Sec. 903(d). (25)
If you find that the plaintiff, _______, was covered by the LHWCA at the time of his injury, then you must determine whether plaintiff's injury was caused by
the negligence of the defendant, the operator of the vessel _______. The defendant does not owe plaintiff the duty to provide a seaworthy vessel; the defendant
is liable only if he was guilty of negligence which was the legal cause of the plaintiff's injury. Negligence is the failure to exercise reasonable care under the circumstances. A vessel operator such as defendant must exercise reasonable care before the
plaintiff's employer, a (here, insert "stevedore," or the other type of maritime employment in which the plaintiff's employer was engaged on the vessel) began
its operations on the vessel. This means that the defendant must use reasonable care to have the vessel and its equipment in such condition that an expert and
experienced (here, insert "stevedore," or the other type of maritime employment in which the plaintiff's employer was engaged on the vessel) would be able, by
the exercise of reasonable care, to carry on its work on the vessel with reasonable safety to persons and property. This means that the defendant must warn the
plaintiff's employer of a hazard on the ship, or a hazard with respect to the ship's equipment, if: The defendant knew about the hazard, or should have discovered it in the exercise of reasonable care, and The hazard was one which was likely to be encountered by the plaintiff's employer in the course of his operations in connection with the defendant's vessel, and The hazard was one which the plaintiff's employer did not know about, and which would not be obvious to or anticipated by a reasonably competent (stevedore,
or other designated maritime employer) in the performance of his work. Even if the hazard was one about which the plaintiff's employer knew, or which would
be obvious or anticipated by a reasonably competent (here, insert "stevedore" or the other type of maritime employment in which the plaintiff's employer was
engaged on the vessel), the defendant must exercise reasonable care to avoid the harm to plaintiff if the hazard was one which defendant knew or should have
known the plaintiff's employer would not or could not correct and the plaintiff could not or would not avoid. (26)
The standard of care which a vessel operator owes to the plaintiff after the plaintiff's employer began its operations on the vessel is different. If, after the plaintiff's employer began operations on the vessel, the defendant actively involved itself in those operations, it is liable if it failed to exercise
reasonable care in doing so, and such failure was the cause of plaintiff's injuries. If, after the plaintiff's employer began operations on the vessel, the defendant maintained control over equipment or over an area of the vessel on which the
plaintiff could reasonably have been expected to go in the performance of his duties, the defendant must use reasonable care to avoid exposing the plaintiff to
harm from the hazards the plaintiff reasonably could have been expected to encounter from such equipment or in such area. If, after the plaintiff's employer began its operations on the vessel, the defendant learned that an apparently dangerous condition existed (including a condition
which existed before the plaintiff's employer began its operations) or has developed in the course of those operations, the defendant vessel owner must use
reasonable care to intervene to protect the plaintiff against injury from that condition only if the plaintiff's employer's judgment in continuing to work in the
face of such a condition was so obviously improvident that the defendant should have known that the condition created an unreasonable risk of harm to the
plaintiff. In determining whether the plaintiff's employer's judgment is "so obviously improvident" that the defendant should have intervened, you may
consider that the plaintiff's employer has the primary duty to provide a safe place to work for plaintiff and its other employees, and that the defendant ordinarily
must justifiably rely upon the plaintiff's employer to provide his employees with a reasonably safe place to work. In determining whether the defendant
justifiably relied upon the decision of the plaintiff's employer to continue the work despite the condition, you should consider the expertise of the plaintiff's
employer, the expertise of the defendant, and any other factors which would tend to establish whether the defendant was negligent in failing to intervene into
the operations of the plaintiff's employer. (27)
PATTERN JURY INSTRUCTIONS RAILROAD EMPLOYEES The plaintiff is making a claim under the Federal Employers Liability Act. To win, the plaintiff must prove each of the following elements by a preponderance
of the evidence: 1. That at the time of the plaintiff's injury (28)
, he (she) was an employee of the defendant performing duties in the course of his (her) employment; 2. That the defendant was at such time a common carrier by railroad, engaged in interstate commerce; 3. That the defendant was "negligent"; and 4. That defendant's negligence was a "legal cause" of damage sustained by the plaintiff. The plaintiff claims that the defendant was negligent because [describe the specific act(s) or omission(s) asserted as negligence on the part of the defendant ]. Negligence is the failure to use reasonable care. Reasonable care is that degree of care that a reasonably careful person would use under like circumstances.
Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances, or in failing to do something that a
reasonably careful person would do under like circumstances. Negligence is a legal cause of damage if it played any part, no matter how small, in bringing about or actually causing the injury or damage. If you find that the
defendant was negligent and that the defendant's negligence contributed in any way toward any injury or damage suffered by the plaintiff, you must find that
such injury or damage was legally caused by the defendant's act or omission. Negligence may be a legal cause of damage even though it operates in
combination with the act of another, or some natural cause, or some other cause, if the negligence played any part, no matter how small, in causing the damage. If the plaintiff does not establish his claim by a preponderance of the evidence, your verdict must be for the defendant. If, however, plaintiff does establish his
claim by a preponderance of the evidence, then you must consider the defense raised by the defendant. The defendant contends that the plaintiff was negligent and that such negligence was a legal cause of the plaintiff's injury. The defendant bears the burden of
proving that the plaintiff was negligent. The defendant must establish: 1. That the plaintiff was also negligent; and 2. That such negligence was a legal cause of the plaintiff's own damage. If you find that the defendant was negligent and that the plaintiff was negligent, then the plaintiff will not be barred from recovery, but his recovery will be
reduced. Let me give you an example: If you find that the accident was due partly to the fault of the plaintiff, that the plaintiff's own negligence was, for
example, 10% responsible for the damage, then you must fill in that percentage as your finding on the special verdict form that I will explain to you. Your
finding that the plaintiff was negligent does not prevent him from recovering; I will merely reduce the plaintiff's total damages by the percentage that you
insert. Of course, by using the number 10% as an example, I do not mean to suggest any specific figure to you. If you find that the plaintiff was negligent, you
might find any amount between 1% and 99%. The plaintiff's claim is based upon the Federal Safety Appliance Act. Specifically, plaintiff claims that [describe the specific act(s) or omission(s) asserted as a
violation of the Act by the defendant ]. The relevant provision of the Federal Safety Appliances Act is: [Quote the relevant provision of the Act, 45 U.S.C. § 1 et seq. ] If you find from a preponderance of the evidence that the defendant violated this provision of the Federal Safety Appliance Act and that the violation played
any part, no matter how small, in bringing about or actually causing injury to the plaintiff, then the plaintiff is entitled to recover from the defendant such
damages you determine the plaintiff actually sustained as a result of the violation. The defendant is liable for the damages caused by the violation, although the
defendant was not negligent. The negligence of the plaintiff is not a defense and does not reduce the recovery by the plaintiff for any damages caused by any violation of the Federal Safety
Appliance Act. [Enumerate recoverable elements of damage with explanation, as appropriate, of the terms used in describing each element. ] PATTERN JURY INSTRUCTIONS ANTITRUST The plaintiff claims that the defendant violated the anti-trust laws. [The purposes of the anti-trust laws are to preserve and advance the system of free and open competition, and to secure to everyone an equal opportunity to
engage in business, trade, and commerce. This policy is the primary feature of the private free enterprise system. The law promotes the concept that free
competition produces the best allocation of economic resources. However, it recognizes that in the natural operation of the economic system, some competitors
are going to lose business while others prosper. An act becomes unlawful only when it constitutes an unreasonable restraint on interstate commerce.] To establish his claim the plaintiff must prove the following elements by a preponderance of the evidence: 1. That there was a combination or conspiracy between the defendants to fix the price of _______; 2. That the combination or conspiracy constituted an unreasonable restraint on interstate commerce as I will define it; 3. That the restraint involved a substantial amount of such commerce; and 4. That the plaintiff suffered injury in his business or property as a proximate result of the alleged combination or conspiracy. A combination or conspiracy is formed when two or more persons knowingly join together to accomplish some unlawful purpose by joint action. A person acts
knowingly if he acts voluntarily and intentionally, and not by mistake or accident. The essence of a conspiracy is an agreement between two or more persons to
violate or disregard the law. This does not mean that the members of an alleged conspiracy must enter into any [express or] formal agreement. The required
combination or conspiracy may be established by showing that the defendant(s) knowingly came to a common and mutual understanding to accomplish or
attempt to accomplish an unlawful purpose. A conspiracy cannot be formed unless at least two separate persons or corporations reach an agreement or
understanding. A single corporation cannot agree, combine or conspire with its own officers or employees. [However, one corporation can combine or conspire with another corporation if the two operate as separate entities. Affiliated parent-subsidiary corporations
do not lose their separate existences merely because they are affiliated. On the other hand, no combination or conspiracy is possible between corporations that
are commonly owned and controlled and that regularly conduct their business affairs in such a manner that they constitute, in effect, a single business entity.
You must determine whether the defendants constituted separate and distinct corporate entities or a single, integrated business enterprise.] Mere similarity of conduct among various persons, and the fact that they may have associated with each other, and may have assembled together and discussed
common aims and interests, do not necessarily establish proof of the existence of a conspiracy. Likewise, a mere similarity of competitive business practices of
the defendant(s) and others, or the fact that they may have charged identical prices for the same goods and services, do not necessarily establish a conspiracy
because such practices may be consistent with ordinary competitive behavior in a free and open market. As to the second element, the plaintiff must prove that the alleged conspiracy resulted in an unreasonable restraint on interstate commerce. A conspiracy to fix
prices in interstate trade or commerce is, in and of itself, an unreasonable restraint of trade. It is immaterial whether the prices agreed to be fixed were
reasonable or unreasonable. A price fixing conspiracy may consist of any agreement or arrangement or understanding between two or more competitors,
knowingly made, to sell at a uniform price, or to raise, lower or stabilize prices. There is a price fixing conspiracy and an unreasonable restraint on interstate
commerce in violation of the anti-trust laws if (1) there is a common plan or understanding, (2) knowingly made, or arranged, or entered into, (3) between two
or more competitors, (4) who are engaged in interstate trade or commerce, (5) to adopt or follow or adhere to any price formula that results in raising, or
lowering, or maintaining at fixed levels prices charged for goods or services sold in interstate trade or commerce. (Alternative "Rule of Reason" Instruction) [I have instructed you on price fixing and have instructed you that price fixing is unreasonable in and of itself. However, there is an exception to this rule. If
you find that this case involves an industry in which restraints on competition are essential if the industry's product (or service) is to be available at all, or, if
you find that this case does not involve a price fixing agreement, then the question of whether the alleged conspiracy constituted an unreasonable restraint on
interstate commerce must then be determined on the basis of full consideration of all of the facts and circumstances disclosed by the evidence, including the
nature of the particular industry or the product or service involved, the market area involved, any facts that you find to be peculiar to that industry, product,
service, or market area, the nature of the alleged restraint and its effect, actual or probable, and the history of the circumstances surrounding the alleged restraint
and the reasons for adopting the particular practice that is alleged to constitute the restraint. In sum, the reasonableness of a restraint is judged by its general
effect on the market, not by the circumstances of a particular application. An individual business decision that is negligent or based on insufficient facts or
illogical conclusions is not a basis for antitrust liability.] The third element requires the plaintiff to prove as a part of its claim that the alleged combination or conspiracy constituted a restraint on interstate commerce
involving a substantial amount of such commerce. The term "interstate commerce" refers to business transacted across State lines or between persons having
their residences or businesses in different States. It differs from intrastate commerce, which is business done within a single State. There can be no violation of
the antitrust law unless you find that the challenged activities of the defendants have actually occurred in interstate commerce or, if only done within one State,
that such activity constituted a restraint on interstate commerce involving a not insubstantial amount of such commerce. The plaintiff is not required to show
that the disputed transactions were interstate transactions in and of themselves, if the plaintiff shows that such transactions have affected interstate commerce in
a substantial way. The fourth element that the plaintiff must establish as a part of its claim is that it suffered injury in its business or property as a proximate result of the alleged
combination or conspiracy. In the course of normal, lawful competition, some businesses may suffer economic losses or even go out of business. The anti-trust
laws are violated only when unlawful competitive practices cause such economic losses. An injury to a business is the "proximate result" of an anti-trust
violation only when the act or transaction constituting the violation directly and in natural and continuous sequence produces, or contributes substantially to
producing, the injury. In other words, the defendant's alleged violation of the anti-trust laws must be a direct, substantial and identifiable cause of the injury
that plaintiff claims to have suffered. Proof of an antitrust violation does not necessarily mean the plaintiff was damaged. Proof of an antitrust violation and
antitrust injury must be shown independently. A plaintiff can recover only if the loss stems from a reduction in competition because of the defendant's(s')
behavior. There is no antitrust injury unless that behavior reduced competition, even if the behavior violated the antitrust law at issue. (29)
In considering the evidence as to the conspiracy charged, you must first determine whether or not the conspiracy existed. If you conclude that the conspiracy
did exist, you should next determine whether or not the defendant(s) was (were) a knowing member of the conspiracy. If it appears from a preponderance of the evidence that the conspiracy was knowingly formed, and that the defendant(s) knowingly became a member of the
conspiracy, then the plaintiff is entitled to the verdict. The ultimate success or failure of the conspiracy is immaterial, if the plaintiff sustained some damage as
a result of the conspiracy. If you find that the plaintiff is entitled to a verdict, the law provides that the plaintiff is to be fairly compensated for all damage, if any, to his business and
property, that was proximately caused by the defendant's violation of the antitrust laws. In arriving at the amount of the award, you should include any
damages the plaintiff suffered because of any profits he lost as a proximate result of the violation by the defendant(s) of the antitrust laws. If you should find from a preponderance of the evidence that the defendant's illegal conduct proximately caused damage to the plaintiff's business and property,
such as a loss of profits, then the fact that the precise amount of the plaintiff's damages may be difficult to ascertain should not affect the plaintiff's recovery. However, you may not award the plaintiff purely speculative damages. You may include an allowance for lost profits in the damages you award if there is
some reasonable basis in the evidence for finding that the plaintiff has in fact suffered a loss of profits, even though the amount of such loss is difficult to
calculate. In arriving at the amount of any lost profits the plaintiff sustained, you may consider all evidence in the case bearing upon the issue, including the plaintiff's
past earnings in the business. [Note: Tying agreements are highly fact-specific. This suggested charge is a sample of a common tying arrangement.] The plaintiff claims that the defendant violated the anti-trust laws of the United States. (30)
The plaintiff claims that the defendant violated antitrust laws by using a "tying" arrangement in its business with the plaintiff. A tying arrangement is an agreement by one party to sell a product or service (known as the "tying" product) but only on the condition that the buyer also
purchases a different product (known as the "tied" product) from the seller. To establish his claim, the plaintiff must prove each of the following five elements
by a preponderance of the evidence: The first element is that ___ (the "tying" product) and ___ (the "tied" product) are separate and distinct products, and not simply two components of one
product. The plaintiff claims that the franchise and the method of doing business that it represents, including the right to use the defendant's licensed trademark, is the
"tying" product. The plaintiff also claims that the merchandise and other items manufactured or sold by the defendant constitute the second or "tied" products. The defendant contends that its franchise agreement with the plaintiff was merely a system for distributing its trademarked products, that the sale of
trademarked products was the primary purpose of the business to be operated under the franchise, and that the franchise or license agreement did not itself
constitute a "product" that can be separated or distinguished from the distribution and sale of the trademarked goods. A franchise or licensing agreement may be a separate product or "tying" item. You must determine whether the franchise or licensing agreement in this case
was such a separate "tying" product. The second element of the plaintiff's claim is that there was a contract or agreement in which the defendant agreed to sell ___ the "tying" product, on the
condition that the plaintiff also purchase ___ the "tied" product. The third element is that ___ had sufficient economic power or significant market leverage in the [describe relevant geographic or product market] to restrain
free competition in the market for [the tying product ]. The existence of a registered trademark in association with the alleged "tying" product gives rise to a presumption that the product does possess economic
power or significant market leverage because, under the trademark laws, no one else may sell the goods bearing that trademark without permission of the owner
of the mark. However, the defendant contends that notwithstanding the presumption of economic power, the trademark did not in fact enjoy any economic power or
significant market leverage in the [describe relevant geographic or product market ] enabling them to use the trademark as an effective means of restraining
competition in the market for the "tied" products. To overcome the presumption favoring the plaintiff on this issue, the defendant must prove its contention by
a preponderance of the evidence. The fourth element of the plaintiff's claim is that the alleged tying arrangement foreclosed a "substantial volume of commerce." In deciding this question, you
must look to the total dollar volume of sales in interstate commerce by the defendant to the plaintiff of the products, if any, that you find to have been tied to
[the tying product ]. The fifth element of plaintiff's claim is that it suffered injury to its business or property as a proximate result of the defendant's making an illegal "tying"
agreement. The injury must have been a direct and natural consequence of the illegal "tying" arrangement. If you find that the plaintiff has established each of these five elements of its anti-trust claim, your verdict must be for the plaintiff, unless you find that the
defendant has proved a defense to the plaintiff's claim by a preponderance of the evidence. The defense the defendant claims is justification. There may be a legitimate justification for an otherwise illegal "tying" arrangement. One such possible justification arises from the duties the law imposes
upon a trademark owner. As the owner of the trademark [insert name of trademark ] the defendant had a duty to the public to assure that the trademark
continued to represent what it purported to represent, and that the products bearing the trademark were genuine and not of inferior quality. On the other hand, the use of a "tying" arrangement as an alleged means of protecting a trademark and preventing its misuse is justified only in the absence of
any other, less restrictive, alternative means of doing so. Similarly, an otherwise illegal "tying" arrangement also may be justified if it is used as a necessary means for establishing a new business. A franchisor may
impose restrictions on purchasing and other practices by its franchisees at the beginning of its business, and for a reasonable time thereafter, to establish good
will and gain customer recognition in the market. The use of a "tying" arrangement for this purpose may be justified only if it was necessary to accomplish that
purpose and there was no other, less restrictive, way of accomplishing the same objective. If you find for the plaintiff on its anti-trust claim, and against the defendant on its affirmative defenses, you must consider the issue of damages. Proof of an
antitrust violation does not necessarily mean the plaintiff was damaged. Proof of antitrust violation and antitrust injury must be shown independently. A violation of the antitrust laws does not give rise to a right of recovery unless the plaintiff proves, by a preponderance of the evidence, that it was injured in its
business or property as a proximate result of such violation. The plaintiff is not entitled to recover any losses it suffered because of poor business practices or
management, unfavorable business conditions generally, or other such causes. As to the amount of damages, the plaintiff need not prove the exact or precise amount with mathematical certainty. But the plaintiff is not entitled to an award
of damages based upon speculation or conjecture. You should award an amount shown by a preponderance of the evidence to be a sum sufficient to fairly
compensate the plaintiff for the injury sustained. You may take into consideration the following elements: [Enumerate recoverable elements of damage with
explanation, as appropriate, of terms used in describing each element.] PATTERN JURY INSTRUCTIONS SECURITIES ACT The plaintiff claims that the defendant violated the federal securities law. To win, the plaintiff must establish each of the following elements by a preponderance of the evidence: 1. That the defendant used an instrumentality of interstate commerce in connection with the securities transaction involved in this case; 2. That the defendant made a misrepresentation of material fact [or failed to state a material fact] in connection with the securities transactions involved in this
case; 3. That the defendant acted knowingly; 4. That the plaintiff justifiably relied upon the defendant's conduct; and 5. That the plaintiff suffered damages as a result of the defendant's wrongful conduct. As to the first element, the use of an "instrumentality of interstate commerce" means, for example, the use of the mails or the telephone. It is not necessary that
a misrepresentation or omission occur during the use of the mail or the telephone. All that is required is that the mails or the telephone be used in some phase
of the transaction. In other words, it is not necessary that the misrepresentation be communicated by telephone or by mail, only that the telephone or mails be
used at some stage of the events involved. As to the second element, the alleged misrepresentations [or omissions] asserted by the plaintiff are: [Describe the specific statements or omissions claimed to have been fraudulently made.] To establish this second element of his claim the plaintiff must prove both 1. That the defendant made one or more misrepresentations of fact [or omitted to state facts which would be necessary to prevent the defendant's other
statements from being misleading to the plaintiff] and 2. That the misrepresentation [or omission] involved "material" facts. A "misrepresentation" is a statement that is not true. A "material" fact [or omission] is a fact relating to a matter that would be of some importance to the reasonable investor when deciding how to invest. A minor
or trivial detail is not material. To establish the third element--that the defendant acted knowingly--the plaintiff does not satisfy the burden of proof merely by showing that the defendant
acted accidentally or that the defendant made a mistake. The plaintiff must show that the defendant acted with an intent to deceive, manipulate or defraud. In
other words, the plaintiff must show that the defendant stated material facts he knew to be false [or stated untrue facts with reckless disregard for their truth or
falsity] [or knew of the existence of material facts that were not disclosed although he knew that knowledge of those facts would be necessary to prevent his
other statements from being misleading]. To satisfy the fourth element of the plaintiff's claim--justifiable reliance--the plaintiff must prove that he in fact relied upon the false statements. If you find
that the plaintiff would have engaged in the transaction anyway, and that the misrepresentation had no effect upon his decision, then there was no reliance and
plaintiff loses. Also, the plaintiff must prove that his reliance was justified. The plaintiff cannot have intentionally closed his eyes and refused to investigate
the circumstances in disregard of a risk known to him, or a risk that was so obvious that he should have been aware of it, and so great as to make it highly
probable that harm would follow. [If you find that the defendant made an omission or failed to disclose a material fact, you must presume that the plaintiff relied upon the omission or failure to
disclose. The defendant may rebut this presumption if he proves, by a preponderance of the evidence, that even if the material fact had been disclosed, the
plaintiff's decision as to the transaction would not have been different.] As to the fifth element--damages--the plaintiff must show that his damages were a proximate result of the misrepresentation [or omission]. He must show
that, except for the misrepresentation [or omission] such damage would not have occurred. If you find for the plaintiff on his claim, you must then consider the issue of the amount of money damages to award to the plaintiff. You should award the
plaintiff an amount of money shown by a preponderance of the evidence to be fair and adequate compensation for the loss that proximately resulted from the
defendant's wrongful conduct. [Enumerate recoverable elements of damage with explanation, as appropriate, of the terms used in describing each element.] PATTERN JURY INSTRUCTIONS RICO The plaintiff has brought claims against each defendant for alleged violations of the Racketeer Influenced and Corrupt Organizations Act, commonly referred to
as RICO. Specifically, the plaintiff claims that each defendant violated Section 1962 [ (a) (b) (c) or (d) ] of RICO. The plaintiff must establish by a preponderance of the evidence every element of a RICO claim. You should consider each and every element of a RICO cause
of action only in the precise way that I will define them in these instructions. You must avoid confusing any of the elements of a RICO claim with your prior
conceptions of the meaning of the terms that are used to describe the elements of a RICO claim. I. The plaintiff has alleged that each defendant violated Section 1962(a) of the RICO Act. To establish that a defendant violated Section 1962(a), the plaintiff
must prove by a preponderance of the evidence each of the following four elements: 1. That there was an "enterprise"; 2. That the enterprise engaged in or had some effect "on interstate commerce"; 3. That the defendant derived income, directly or indirectly, from a "pattern of racketeering activity"; and 4. That some part of that income was used in acquiring an interest in or operating the enterprise. A "person" under the law includes but is not limited to any person or entity that is capable of holding a legal or beneficial interest in property. A corporation is
a legal entity that, like a person, is capable of holding a legal or beneficial interest in property. The term "enterprise" includes any individual, partnership, corporation, association, or other legal entity. An enterprise "affects interstate or foreign commerce"
if the enterprise either engages in, or has an effect on commerce between the states or between the states and foreign countries. A "racketeering activity" means an act in violation of [ (the federal mail fraud statute) (the federal wire fraud statute) (securities fraud statutes).] You will be
instructed on the law pertaining to this (these) statute(s) to guide you in determining whether the plaintiff proved by a preponderance of the evidence that a
defendant committed one or more violations of these statutes. A "racketeering activity" may also be referred to as a "predicate offense". A "pattern of racketeering activity" requires that the plaintiff prove that a defendant committed at least two acts of "racketeering activity" within ten years of
each other [and that both of the acts occurred after October 15, 1970.] The proof of two or more predicate acts does not in and of itself establish a "pattern"
under RICO. The two acts need not be of the same kind. For example, the acts may be one act of mail fraud and one act of wire fraud. However, you must
find by a preponderance of the evidence that the two acts occurred within the time specified and that each was connected with the other by some common
scheme, plan or motive so as to constitute a "pattern". A series of wholly separate, isolated or disconnected acts of racketeering activity does not constitute a
pattern. In other words, two or more otherwise unrelated acts of "racketeering activity" do not constitute a "pattern" of racketeering activity under RICO unless the acts
all relate to a common scheme by the defendant to continually conduct the affairs of the alleged enterprise for illicit personal benefit, whether monetary or
otherwise, for himself or for another, by committing the predicate offenses. As I instructed you, "racketeering activity" means an act in violation of [the mail fraud and/or wire fraud and/or securities fraud statutes.] However you may
not consider just any racketeering act allegedly committed by a defendant in violation of one of these statutes as bearing on the question of whether a defendant
has committed two or more predicate offenses as a pattern of racketeering activity. In making this determination, you are to consider only those specific
racketeering acts alleged by the plaintiff against a particular defendant. Furthermore, you cannot find that the defendant has engaged in a "pattern of
racketeering activity" unless you unanimously agree to which of the alleged predicate offenses, if any, make up the pattern. Thus, it would not be sufficient if
some of you should find that a defendant committed a violation of two or more predicate offenses under one particular statute as a pattern and the rest of you
should find that a defendant committed a violation of two or more predicate acts under another statute as a pattern. In other words, you may not find that the
defendant has engaged in a pattern of racketeering activity unless you [1] find a "pattern" of predicate offenses and [2] find that the plaintiff has proved by a
preponderance of the evidence that a defendant committed each of the two or more predicate offenses that you find are necessary to make up the pattern. You should note that the pattern must be one in which the defendant has participated as a "principal." Thus in order to satisfy the second element, the plaintiff
must prove the defendant was a "principal" by showing by a preponderance of the evidence: 1. That the defendant knowingly and willfully committed, or knowingly and willfully aided and abetted in the commission of two or more alleged predicate
offenses that constitute the alleged pattern of racketeering activity, and 2. That the defendant knowingly and willfully received income derived, directly or indirectly, from that alleged pattern of racketeering activity. The word "knowingly," as that term has been used in these instructions, means that the action was done voluntarily and intentionally and not because of mistake
or accident. The word "willfully," as that term has been used in these instructions, means that the action was committed voluntarily and purposely, with the specific intent to
do something the law forbids. The action must be done with a bad purpose: either to disobey or disregard the law. The plaintiff has alleged that each of the defendants has committed two or more predicate acts including violations of the mail fraud and wire fraud statutes. It
is your function to decide whether the plaintiff has proved by a preponderance of the evidence as to each defendant whether that defendant violated either or
both of those statutes on one or more occasions, if at all. To establish that mail fraud has been committed, the plaintiff must prove each of the following by a
preponderance of the evidence as to each defendant so charged: 1. Some person or persons willfully and knowingly devised a scheme or artifice to defraud, or a scheme for obtaining money or property by means of false
pretenses, representations or promises, and 2. Some person or persons used the United States Postal Service by mailing, or by causing to be mailed, some matter or thing for the purpose of executing the
scheme to defraud. To act with "intent to defraud" means to act knowingly and with the specific intent to deceive. The words "scheme" and "artifice" in the mail fraud statute
include any plan or course of action intended to deceive others, and to obtain property by false or fraudulent pretenses, representations, or promises, from the
persons so deceived. A statement or representation is "false" or "fraudulent" within the meaning of the mail fraud statute if it relates to a material fact and is known to be untrue or is
made with reckless indifference as to its truth or falsity, and is made or caused to be made with intent to defraud. A statement or representation may also be
"false" or "fraudulent" if it constitutes a half truth, or effectively conceal