Parkison v. Halliburton Energy Services Inc et al

Filing 140

ORDER re working drafts of the preliminary instructions, the final instructions and the verdict form. Signed by Judge D. P. Marshall Jr. on 3/14/2014. (Attachments: # 1 Preliminary Instructions; #2 Final Instructions and Verdict Form (mkf)

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K. PRELIMINARY INSTRUCTIONS COURT'S JURY INSTRUCTION NO. 1.03 GENERAL: NATURE OF CASE; BURDEN OF PROOF; DUTY OF JURY; CAUTIONARY Ladies and gentlemen of the jury: I will take a few moments now to give you some initial instructions about this case and about your duties as jurors. During the trial, I will give you more instructions. And at the end of the trial, I will give you further instructions. Unless I specifically tell you otherwise, all these instructions—both those I give you now and those I give you later—are equally binding on you and must be followed. In this case, I am the judge of the law and the jury is the judge of the facts. As the judge of the facts, it is your duty to determine the true facts from the evidence and the reasonable inferences arising from the evidence. In making your factual determinations, you must not engage in guess work or speculation. As I explained during voir dire, this is a civil case brought by Clinton Parkison against Chesapeake Energy Corporation. Parkison fell off a tank at a Chesapeake hydraulic fracturing well site. A railing on the tank was missing a securing pin, and when Parkison leaned against the rail, it gave way and he fell. Parkison says that Chesapeake should have been more careful about the rails and pins on the tank. Chesapeake says it was careful and that Page 23 of 40 Parkison knew the rail wasn’t secure. The jury will decide, after hearing all the evidence, whether Chesapeake or Parkison was negligent in any way. You are entitled to consider that evidence in the light of your own observations and experiences in the affairs of life. You will then apply those facts to the law that I give you in these and in my other instructions, and in that way reach your verdict. While you are the sole judges of the facts; you must follow the law, as stated in my instructions, whether you agree with it or not. In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness says, or only part of it, or none of it. In deciding what testimony to believe, consider the witnesses’ intelligence, their opportunity to have seen or heard the things they testify about, their memories, any motives they may have for testifying a certain way, their manner while testifying, whether they said something different at an earlier time, the general reasonableness of their testimony, and the extent to which their testimony is consistent with other evidence that you believe. Page 24 of 40 Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you. You should not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be. Page 25 of 40 COURT'S JURY INSTRUCTION NO. 1.04 EVIDENCE: LIMITATIONS I have mentioned the word "evidence." "Evidence" includes the testimony of witnesses; documents and other things received as exhibits; and any facts that have been stipulated—which means the parties have formally agreed on some facts. Certain things are not evidence. I will list those things for you now: 1. Statements, arguments, questions, and comments by lawyers are not evidence. 2. Objections are not evidence. Lawyers have a right and sometimes a duty to object or to move that certain evidence that has already been received be stricken. If such an objection or such a motion to strike is made, it will be my duty, as judge, to rule on the matter and determine whether you jurors may take into consideration the challenged evidence. You are not to concern yourself with the reasons for the attorneys’ objections or motions to strike or with the reasons for the Court’s rulings. You also should not be influenced by the objection or the motion to strike. If I sustain an objection to a question or an exhibit, you must ignore the question or the exhibit and must not try to guess what the information might Page 26 of 40 have been. Similarly, testimony and exhibits that I strike from the record, or tell you to disregard, are not evidence and must not be considered. 3. Anything you see or hear about this case outside the courtroom is not evidence. Furthermore, a particular item of evidence is sometimes received for a limited purpose only. That is, it can be used by you only for one particular purpose, and not for any other purpose. I will tell you when that occurs and instruct you on the purposes for which the item can and cannot be used. Finally, some of you may have heard the terms “direct evidence” and “circumstantial 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. The law makes no distinction between the weight to be given to direct and circumstantial evidence. Page 27 of 40 COURT'S JURY INSTRUCTION NO. 1.05 BENCH CONFERENCES During the trial it may be necessary for me to speak with the lawyers out of your hearing, either by having a bench conference here while you are present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is to decide how certain evidence is to be treated under the Rules of Evidence, which govern the trial, and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum. Page 28 of 40 COURT'S JURY INSTRUCTION NO. 1.06 NO TRANSCRIPT AVAILABLE/NOTE-TAKING At the end of the trial you must make your decision based on what you recall of the evidence. You will not have a written transcript to consult. You must pay close attention to the testimony as it is given. If you wish, however, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. And do not let note-taking distract you so that you do not hear other answers by the witness. The Clerk has provided each of you with a pad of paper and a pencil. At each recess, leave your notes face down in your chair. When you leave at night, your notes will be secured and not read by anyone. Page 29 of 40 COURT'S JURY INSTRUCTION NO. 1.08 CONDUCT OF THE JURY Finally, to insure fairness, you as jurors must obey the following rules: First, as jurors, I do not want you to talk among yourselves about this case, or about anyone involved with the case, until the end of the case when you go to the jury room to deliberate and decide on your verdict. Second, do not talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors. Third, when you are outside the courtroom, do not let anyone tell you anything about the case, or about anyone involved with it. If someone does try to talk to you about the case during the trial, please report it to me immediately. Fourth, during the trial you should not talk with or speak to any of the parties, lawyers, or witnesses involved in this case—you should not even pass the time of day with any of them. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side —even if it is simply to pass the time of day—an unwarranted and Page 30 of 40 unnecessary suspicion about your fairness might be aroused. If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator, or the like, remember it is because they are not supposed to talk or visit with you. Fifth, do not read any news stories or articles about the case or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it. Sixth, do not do any research or make any investigation about the case on your own about any matter involved in this case. By way of example, that means that you must not consult the Internet (e.g., Google or Google Maps), a dictionary, textbook, encyclopedia, or talk with a person you consider knowledgeable. In fairness, you must only learn about this case from the evidence you receive here at the trial and apply those facts to the law as I give it to you. Seventh, remember, cell phones are not permitted in the courthouse or in the jury room. Eighth, keep an open mind during the trial about what the verdict should be. Keep an open mind until after you have heard all of the evidence. Page 31 of 40 Once the trial has been completed and you have retired to the jury room to decide the case, you and your fellow jurors are free to discuss the evidence among yourselves. Ninth, remember that you are not to be influenced in any degree by any personal feelings or sympathy or prejudice for or against any of the parties or the attorneys in the case. Each party is entitled to the same fair and impartial consideration at your hands. Tenth, no statement, remark, or ruling that I make or question that I might ask of a witness during the course of the trial is intended to indicate how I feel about the facts of the case. You, as the jurors, are the sole judges of the facts of the case. You and you alone will have to decide upon the believability and credibility of the witnesses and the weight and value of the evidence. Finally, from time to time during the course of the trial there will be recesses during which you will be permitted to leave the jury box and go your separate ways, and I want to advise you now, in case I forget to do so on those many different occasions, that until this case is turned over to you for your deliberations near the very end of the trial, you are not to discuss it among Page 32 of 40 yourselves, or with any one else, or permit anyone to discuss it in your presence. Let me repeat that. Until this case is turned over to you for your deliberations near the end of the trial, you are not to discuss it among yourselves, or with anyone else, or permit anyone to discuss it in your presence. Under your oaths you are obligated to keep an open mind on all of the factual issues in the case until you have heard, seen, or otherwise experienced all of the evidence, and until you have had the benefit of the arguments of the attorneys and have received the Court’s final instructions as to the law. Page 33 of 40 COURT'S JURY INSTRUCTION NO. 1.05A EXPANDED INSTRUCTION RE: JURY PROHIBITION ON ELECTRONIC COMMUNICATIONS/RESEARCH Now it will be necessary for you to tell your family, friends, teachers, coworkers, or employer about your participation in this trial so that you can let them know you are required to be in court. You should warn them not to ask you about this case, not to tell you anything they know or think they know about this case, and not to discuss this case in your presence. You must not communicate with anyone about the parties, witnesses, participants, claims, evidence, or anything else related to this case, or tell anyone anything about the jury’s deliberations in this case until after I accept your verdict or until I give you specific permission to do so. During the trial, while you are in the courthouse and after you leave for the day, do not provide any information to anyone by any means about this case. For example, do not talk face-to-face or use any electronic device or media, such as the telephone, a cell phone, a smart phone, Blackberry, PDA, computer, the Internet, any Internet service, any text or instant messaging service, any Internet chat room, blog, or website such as Facebook, MySpace, YouTube, or Twitter, to communicate to anyone any information about this Page 34 of 40 case until I accept your verdict. Do not do any Internet research— do not go on the Internet to use Google or Bing, for example. Do not do any research by using libraries, reading the newspapers, or in any other way making any investigation about this case on your own. Do not visit or view any place discussed in this case and do not use Internet maps or Google Earth or any other program or device to search for or to view any place discussed in the testimony. Also do not research any information about this case, the law, or the people involved, including the parties, the witnesses, the lawyers, or me. Ask each juror: Juror No. —, on your oath, do you promise not to post anything about your jury service on any social media website such as Facebook, Twitter, Myspace, or the like during the trial? On your oath, do you promise not to use the Internet to look up anything about the case, the lawyers, Clinton Parkison, Chesapeake Energy Corp., me, or the law? Do not read any news stories or articles in print, on the Internet, or in any blog, about the case or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it. Page 35 of 40 In fact, until the trial is over I suggest that you avoid reading any newspapers or news journals at all, and avoid listening to any tv or radio newscasts at all. I do not know whether there will be any news reports of this case, but if there are, you might inadvertently find yourself reading or listening to something before you could do anything about it. If you want, you can have your spouse or a friend clip out any stories and set them aside to give you after the trial is over. I can assure you, however, that by the time you have heard the evidence in this case, you will know more about the matter than anyone will learn through the news media. Page 36 of 40 COURT'S INSTRUCTION NO. 1.09 OUTLINE OF TRIAL The trial will proceed in the following manner: First, Parkison’s lawyer will make an opening statement. Next, Chesapeake’s lawyer will make an opening statement. An opening statement is not evidence but is simply a summary of what the lawyer expects the evidence to be. Parkison will then present evidence by calling witnesses, and Chesapeake’s lawyer may cross-examine those witnesses. Following Parkison’s case, Chesapeake’s lawyer will present evidence by calling witnesses, and Parkison may cross-examine those witnesses. Finally, Parkison may offer rebuttal evidence. After presentation of evidence is completed, the lawyers will then have a second opportunity to address you directly, and on that second occasion, they are permitted to argue to you the evidence in an attempt to persuade you that their view of the facts is the truth. As with opening statements, closing arguments are not evidence. After the closing arguments, the Court will give you the final instructions on the law. Then you will retire to the jury room to deliberate on your verdict. Page 37 of 40

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