Duren et al v. E I duPont de Nemours and Company et al

Filing 129

ORDER attaching the Court's first working draft of the final jury instructions. Counsel is directed to be prepared to talk more on the issues set forth in this Order at the end of the day on Monday. Signed by Judge D. P. Marshall Jr. on 7/6/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
JAMES DUREN; ANN DUREN;
J.J.'S TRUCK STOP, INC.; and
AL'S TRUCK STOP OF MALVERN, INC.

v.

PLAINTIFFS

No. 4:09-cv-713-DPM

E.I. DUPONT DE NEMOURS AND
COMPANY

DEFENDANT

ORDER
The Court has been working on the jury instructions. It will give its

own versions of the preliminary and intermediate instructions proposed by
the parties. They are substantially similar. The final instructions are in pretty
good shape, but we need to do some more work, particularly on the elementsof-damages instructions and the interrogatories. Is what we've all been
calling loss-of-sale damages really just a species of lost profits- the profit lost
from the failed prospective sale? The Court's first working draft of the final
instructions is attached. Counsel should be prepared to talk more on these
issues at the end of the day on Monday.
I'

So Ordered.

D.P. Marshall Jr.
United States District Judge

I'

6 July 2012

t'

-2-

INSTRUCTION NO.1
Members of the Jury, the instructions I gave you at the beginning of the
trial and during the trial remain in effect. I now give you some additional
instructions on the law that applies to this case. The instructions I am about
to give you now are in writing and will be available to you in writing in the
jury room. I emphasize, however, that this does not mean they are more
important than my earlier instructions.
The faithful performance of your duties as jurors is essential to the
administration of justice.
It is my duty as judge to inform you of the law applicable to this case by

instructions, and it is your duty to accept and follow them as a whole, not
singling out one instruction to the exclusion of others.

Again, all my

instructions, whether given in writing or spoken from this bench, must be
followed. You should not consider any rule of law with which you may be
familiar unless it is included in my instructions. Neither are you to be
concerned with the wisdom of any rule of law as stated by the Court.
Regardless of any opinion you may have as to what the law ought to be, it
would be a violation of your sworn duty to base a verdict upon any other
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view of the law other than that given in the instructions of the Court; just as
it would be a violation of your sworn duty, as judges of the facts, to base a
verdict upon anything but the evidence in the case.
It is your duty to determine the facts from the evidence produced in this

trial. You are to apply the law as contained in these instructions to the facts
and render your verdict upon the evidence and law. You should not permit
sympathy, prejudice, or like or dislike of any party to this action or of any
attorney to influence your findings in this case.
In deciding the issues you should consider the testimony of the
witnesses and the exhibits received in evidence. The introduction of evidence
in court is governed by law. You should accept without question my rulings
as to the admissibility or rejection of evidence, drawing no inferences that by
these rulings I have in any manner indicated my views on the merits of the
case.
Opening statements, remarks during the trial, and closing arguments
of the attorneys are not evidence but are made only to help you in
understanding the evidence and applicable law. Any argument, statements,
or remarks of attorneys having no basis in the evidence should be disregarded
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by you. When the lawyers on both sides stipulate or agree on the existence
of a fact, however, the Jury must-unless otherwise instructed-accept the
stipulation and regard that fact as proved.
I have not intended by anything I have said or done, or by any questions
that I may have asked, to intimate or suggest what you should find to be the
facts, or that I believe or disbelieve any witness who testified. If anything that
I have done or said has seemed to so indicate, you will disregard it.

[AGREED]

Source: Hybrid of AMI 103 and 8th Circuit Model Instruction 3.01

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INSTRUCTION NO. 2
In considering the evidence in this case, you are not required to set aside
your common knowledge, but you have a right to consider all the evidence
in the light of your own observations and experiences in the affairs of life.

[AGREED]

Source: AMI 104

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INSTRUCTION NO. 3
You are the sole judges of the weight of the evidence and the credibility
of the witnesses. In deciding the credibility of any witnesses and the weight
to be given their her testimony, you may take into consideration their
demeanor while on the witness stand, any prejudice for or against a party,
their means of acquiring knowledge concerning any matters to which they
testified, any interest they may have in the outcome of the case, and the
consistency or inconsistency of their testimony, as well as its reasonableness
or unreasonableness.

[AGREED]

Source: AMI 105

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INSTRUCTION NO.4
An expert witness is a person who has special knowledge, skill,
experience, training, or education on the subject to which his testimony
relates.
An expert witness may g1ve his or her opinion on questions in
controversy. You may consider the expert's opinion in the light of his or her
qualifications and credibility, the reasons given for the opinion, and the facts
and other matters upon which the opinion is based.
You are not bound to accept an expert opinion as conclusive, but should
give it whatever weight you think it should have. You may disregard any
opinion testimony if you find it to be unreasonable.

[AGREED]

Source: AMI 107

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INSTRUCTION NO. 5
A fact in dispute maybe proved by circumstantial evidence as well as
by direct evidence.

A fact is established by direct evidence when, for

example, it is proved by witnesses who testify to what they saw, heard, or
experienced.

A fact is established by circumstantial evidence when its

existence can reasonably be inferred from other facts proved in the case.

[AGREED]

Source: AMI 108

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INSTRUCTION NO. 6

You will remember that certain [schedules] [summaries] [charts] were
admitted in evidence. You may use those [schedules] [summaries] [charts] as
evidence, even though the underlying documents and records are not here.
[However, the [accuracy] [authenticity] of those [schedules] [summaries]
[charts] has been challenged. It is for you to decide how much weight, if any,
you will give to them. In making that decision, you should consider all of the
testimony you heard about the way in which they were prepared.]

[DISPUTED - depends on proof]

Source: 8th Circuit Model Instruction 2.10B

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INSTRUCTION NO. 7

The rights of James and Ann Duren, J.J.'s Truck Stop, Inc., and Al's
Truck Stop of Malvern, Inc., are separate and distinct, and you will treat their
claims as if they were separate suits. You should consider the evidence and
the instructions that apply to each party's claim. Some evidence and some
instructions may apply to more than one claim.

[Court's modification of agreed instruction]

Source: AMI 109

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INSTRUCTION NO. 8
A corporation and all other persons are equal before the law and must
be treated as equals in a court of justice.

[AGREED]

Source: Missouri Pacific Railroad Co. v. Foreman, 194 Ark. 490, 107 S.W.2d 546
(1937).

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INSTRUCTION NO. 9
A party who has the burden of proof on a proposition must establish it
by a preponderance of the evidence, unless the proposition is so established
by other proof in the case. "Preponderance of the evidence" means the
greater weight of the evidence.

The greater weight of evidence is not

necessarily established by the greater number of witnesses testifying to any
fact or state of facts. It is the evidence that, when weighed with that opposed
to it, has more convincing force and is more probably true and accurate. If,
upon any issue in the case, the evidence appears to be equally balanced, or if
you cannot say upon which side it weighs heavier, you must resolve that
question against the party who has the burden of proving it.

[AGREED]

Source: AMI 202

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INSTRUCTION NO. 10

Dupont admits that it was negligent in handling the tanker truck. The
company also admits that JJ's (the truck stop) and Al's (the restaurant) lost
some profits because of the tanker incident. The amount of lost profits is
disputed. JJ' s and AI' s must each prove by a preponderance of the evidence
how much profit was lost. You may award damages for any profits lost
during the four days that the businesses were closed and for any profits lost
after the businesses reopened. But all damages awarded must have been
proximately caused by the tanker incident.
The Durens contend that they would have sold all their stock in JJ' s and
AI' s to the Edmisten Group at a profit had the tanker incident not occurred.
The Durens also contend that the tanker incident was the proximate cause of
this deal falling through. Dupont contends that the prospective sale would
not have occurred in any event. Dupont also contends that the tanker
incident did not proximately cause the deal to fall apart. The Durens must
prove by a preponderance of the evidence that the tanker incident
undermined a prospective sale that would otherwise have been completed.

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The Durens must also prove by a preponderance of the evidence how much
profit they would have made from the prospective sale but lost.
[MODIFIED BY COURT]

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INSTRUCTION NO. 11
The law frequently uses the expression" proximate cause," with which
you may not be familiar. When I use the expression "proximate cause," I
mean a cause that, in a natural and continuous sequence, produces damage
and without which the damage would not have occurred.
[This does not mean that the law recognizes only one proximate cause
of damage. To the contrary, if two or more causes work together to produce
damage, then you may find that each of them was a proximate cause.]

[DISPUTED AS TO BRACKETED PARAGRAPH ONLY- Depends on
Proof]
Source: AMI 501

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INSTRUCTION NO. 12

If you find that the tanker incident proximately caused the Durens to
lose a sale of their business that would otherwise have occurred, then you
must decide what amount of money today will fairly and reasonably
compensate them for the profit they would have realized from the sale. Any
award should put the Durens in no better position than they would have been
in if the sale of their businesses had been consummated. The Durens are
entitled to recover what the Edmisten Group would have paid, minus the
stock's fair market value at the time, plus [and minus] other appropriate
adjustments.
You must consider:
•

The Durens still own all the stock in JJ' s and AI' s;

•

The fair market value of the stock in J.J.'s and Al's on 7 March
2012;

•

The amount the Edmisten Group was prepared to pay for the
stock in J.J.' s and AI' shad the prospective sale been completed;

•

[Any other adjustments supported by proof of interim
circumstances.]

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[Court-modified instruction- Consider the cases and principles discussed
in Professor Brill's treatise at§ 30:11 in an analogous situation.]

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[INSTRUCTION NO. 13]
[If you find that the tanker incident proximately caused the Durens to

lose a sale of their business that would otherwise have occurred, then in
assessing the Durens' damages for the loss of the potential sale, you are

t?

consider that a person whose business is damaged must use ordinary care to
avoid damages. DuPont has the burden of proving that the Durens failed to
use ordinary care to avoid damages and the amount of damages that might
have been avoided in the exercise of ordinary care.]

[DISPUTED]
Source: AMI 2230 (Mitigation of Damages - Real and Personal Property

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[INSTRUCTION NO. 14)

[When I use the words "ordinary care," I mean the care a reasonably
careful person would use under circumstances similar to those shown by the
evidence in this case. It is for you to decide how a reasonably careful person
would act under those circumstances.]

[DISPUTED]

Source: AMI 303

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INSTRUCTION NO. 15
If you find that the tanker incident proximately caused J.J's (the truck

stop) to lose profits that it would have otherwise earned, then you must
decide what amount of money today will compensate J.J.' s for that loss. You
must consider the value of any lost profits. Whether these damages have
been proved by the evidence is for you to determine.

[Omit in light of No. 1 0?]

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INSTRUCTION NO. 16
If you find that the tanker incident proximately caused the AI' s (the

restaurant) to lose profits that it would have otherwise earned, then you must
decide what amount of money today will compensate AI' s for that loss. You
must consider the value of any lost profits. Whether these damages have
been proved by the evidence is for you to determine.

[Omit in light of No. 10?]

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INSTRUCTION NO. 17

In conducting your deliberations and returning your verdict, there are
certain rules you must follow.
First, when you go to the jury room, you must select one of your
members as your foreperson. That person will preside over your discussions
and speak for you all here in court.
Second, it is your duty, as jurors, to discuss this case with one another
in the jury room. You should try to reach agreement if you can do so without
going against what you believe to be the truth, because all jurors have to
agree on the verdict. Each of you must come to your own decision, but only
after you have considered all the evidence, discussed it fully with your fellow
jurors, and listened to the views of your fellow jurors. Do not be afraid to
change your opinions if the discussion persuades you that you should. But
do not come to a decision just because other jurors think it is right, or simply
to reach a verdict. Remember that you are not for or against any party. You
are judges- judges of the facts. Your sole interest is to seek the truth from the
evidence in the case.

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Third, if you need to communicate with me during your deliberations,
you may send a note to me, through Officer _ __, that is signed by one or
more JUrors. I will respond as soon as possible either in writing or orally in
open court.

Remember that you should never tell anyone- including

me-how your votes stand numerically.
Fourth, your verdict must be based solely on the evidence and on the
law that I have given to you in my instructions.

The verdict must be

unanimous. Again, nothing I have said or done is intended to suggest what
your verdict should be- that is entirely for you to decide.

[AGREED]

Source: Modified 8th Circuit Model Instruction 3.06

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INSTRUCTION NO. 18
This case is submitted to you on Interrogatories or questions. Your
answers to these questions will be your verdict in this case. The questions are:

1. How much lost profit at JJ' s (the truck stop) was proximately caused
by the tanker incident?

$________________

2. How much lost profit at AI' s (the restaurant) was proximately caused
by the tanker incident?

$_________________

3. Did the tanker incident proximately cause the Durens to lose the
prospective sale of JJ's and Al's to the Edmisten Group?
____ Yes

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___ No

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If you answered Question 3 u yes," then answer Question 4. If you answered
question 3 "no," then your work is done.

4. What amount of money will fairly and reasonably compensate the
Durens today for the profit the Durens would have realized from the lost
prospective sale?
$________________

Foreperson

Date and Time

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You will take these Questions to the jury room, and when each of you
has agreed on the answers, your foreperson will fill in each Question that you
are called upon to answer to reflect your unanimous decision, sign and date
them, and then advise the Court Security Officer that you are ready to return
to the Courtroom.
I add the caution that nothing said in the instructions-nothing in the
form of the Questions prepared for your convenience- is or was intended to
suggest or convey in any way or manner any intimation as to what answers
I think you should find. How you choose to answer the Questions shall be the
sole and exclusive responsibility of you, the Jury.
If it becomes necessary during your deliberations to communicate with

the Court, you may send a note by the Court Security Officer, signed by your
foreperson, or by one or more members of the Jury. No member of the Jury
should ever attempt to communicate with the Court by any means other than
a signed writing; and the Court will never communicate with any member of
the Jury on any subject touching the merits of the case, other than in writing,
or orally here in open Court.

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You will note from the oath about to be taken by the Court Security
Officer to act as bailiff that he, and all other persons, are forbidden to
communicate in any way or manner with any member of the Jury on any
subject touching the merits of the case. Bear in mind also that you are never
to reveal to any person, not even to the Court, how the Jury stands,
numerically or otherwise, on the issues presented to you unless or until you
reach a unanimous verdict.
Officer--~

do you solemnly swear to keep this Jury together in the

jury room, and not to permit any person to speak to or communicate with
them, concerning this case, nor to do so yourself unless by order of the Court
or to ask whether they have agreed on a verdict, and to return them into the
Courtroom when they have so agreed, or when otherwise ordered by the
Court, so help you God?

[COURT]

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