May et al v. BHP Billiton Petroleum (Fayetteville) LLC

Filing 175

ORDER: The Court is attaching its current working drafts of (1) the key parts of the voir dire areas, (2) the preliminary instructions, (3) the final instructions, and (4) the verdicts. Please file any objections to the preliminary instructions by no on on Friday, April 1. There's no need to comment or object yet on the final instructions or the verdicts. The Court will instruct about depositions when it comes up during trial. Counsel should consider a counter-proposal on opening statements. Twenty minutes a side Monday afternoon to sketch the whole; then five minutes a side, first thing every morning each day thereafter, to explain the witnesses and proof expected that day. If not, we'll have thirty minute openings on Monday previ ously ordered. Counsel should also consider letting the jurors ask questions. This proposal is subject to unanimous consent. Signed by Judge D. P. Marshall Jr. on 3/31/2016. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(jak)

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. You must, of course, continue to follow all the instructions I
gave you earlier, as well as those I give you now.
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. Again, all my instructions, whether given in
writing or spoken from this bench, must be followed.
It is your duty as jurors to follow the law as stated in the
instructions, and to apply the given rules of law to the facts as you
find them to be from the evidence in this case.

Court’s Draft Final Instructions
31 March 2016

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You are not to single out one instruction alone as stating the
law, but must consider the instructions as a whole.
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 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.
Don’t take anything I say in the instructions as an indication
that I have any opinion about the facts of the case, or what that
opinion is. It is not my function to determine the facts. You will
determine the facts. During this trial I have occasionally asked
questions of witnesses.

Do not assume that because I asked

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questions I hold any opinion on the matters to which my questions
related.
Justice through trial by jury must always depend on the
willingness of each juror to seek the truth about the facts from the
same evidence presented to all the jurors. You must arrive at a
verdict by applying the rules of law given in the Court’s
instructions.
Statements and arguments of counsel are not evidence in the
case. The Jury must accept the stipulation and regard these facts as
proved and these items as defined. The evidence in the case always
consists of the sworn testimony of the witnesses, regardless of who
may have called them and any documents, photographs, or other
items that are received by the Court, and all facts that may have
been admitted or stipulated. Any evidence on which an objection

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was sustained by the Court—and any witness statement or tangible
item that was stricken by the Court—must be entirely disregarded.
Anything you may have seen or heard outside this courtroom
is not evidence, and it must be entirely disregarded.

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INSTRUCTION NO. 2
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 violence to individual judgment, because a verdict
must be unanimous.
Each of you must make your own conscientious 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.

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31 March 2016

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Do not be afraid to change your opinions if the discussion
persuades you that you should. But do not come to a decision
simply because other jurors think it is right, or simply to reach a
verdict. Remember at all times that you are not partisans. You are
judges—judges of the facts. Your sole interest is to seek the truth
from the evidence in the case.
Third, if you need to communicate with me during your
deliberations, you may send a note to me, through the court security
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

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to suggest what your verdict should be—that is entirely for you to
decide.

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INSTRUCTION NO. 3
You are the sole judges of the credibility of the witnesses and
the weight and value to be given to their testimony. 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 said, or only part of it, or none of it.
In deciding what testimony to believe, consider several things:
the witness’s intelligence; the opportunity the witness had to see or
hear the things about which he or she testified; the witness’s
memory; any motives a witness may have for testifying a certain
way; the manner and demeanor of the witness while testifying;
whether the witness said something different at an earlier time; the
general reasonableness or unreasonableness of the testimony; and
the extent to which the testimony is consistent with any other
evidence that you believe.

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31 March 2016

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In deciding whether or not to believe a witness, keep in mind
that people sometimes hear or see things differently and sometimes
forget things. You need to consider therefore whether a
contradiction is an innocent misrecollection, a lapse of memory, or
a lie—and that may depend on whether the contradiction has to do
with an important fact or only a small detail.

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31 March 2016

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INSTRUCTION NO. 4
An expert witness is a person who has special knowledge, skill,
experience, training, or education on a subject to which his or her
testimony relates. An expert witness may give an opinion on
questions in controversy. You may consider the expert 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.

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31 March 2016

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INSTRUCTION NO. 5
In considering the evidence in this case you are not required to
set aside your common sense or common knowledge. You have the
right to consider all the evidence in light of your own observations
and experiences in the affairs of life.

Court’s Draft Final Instructions
31 March 2016

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INSTRUCTION NO. 6
In these instructions you are told that one or the other party has
the burden to prove certain facts. The burden of proving a fact is
placed upon the party whose claim or defense depends upon that
fact. The party who has the burden of proving a fact must prove it
by a preponderance of the evidence. To prove something by the
“preponderance of the evidence” is to prove that it is more likely
true than not true. It is determined by considering all of the
evidence and deciding which evidence is more believable.
If, on any issue of fact in the case, the evidence is equally
balanced, you cannot find that fact has been proved. But the
preponderance of the evidence is not necessarily established by the
greater number of witnesses or exhibits a party has presented.
You may have heard of the term “proof beyond a reasonable
doubt.” This is a stricter standard, which applies only in criminal
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cases. It does not apply in civil cases like this one. You should,
therefore, put it out of your minds.

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31 March 2016

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INSTRUCTION NO. 7
Certain charts and summaries—called demonstratives—have
been shown to you in order to help explain the facts disclosed by the
books, records, or other underlying evidence in the case. Those
demonstratives are used for convenience. They are not themselves
evidence or proof of any facts. If any demonstrative does not
correctly reflect the facts shown by the evidence in the case, you
should disregard the demonstrative and determine the facts from
the books, records, or other underlying evidence.

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INSTRUCTION NO. 8
You will remember that other summaries and charts were
admitted into evidence. You may use those summaries and charts
as evidence, even though the underlying documents and records
may or may not be in evidence. It is for you to decide how much
weight, if any, you will give these summaries. In making that
decision, you should consider all the testimony you heard about the
way in which they were prepared and any underlying documents.

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INSTRUCTION NO. 9
It is the sworn duty of the lawyer on each side of the case to
object when the other side offers testimony or exhibits which that
attorney believes are not properly admissible. Only by raising an
objection can a lawyer request and obtain a ruling from the Court on
the admissibility of that evidence being offered by the other side.
You should not be influenced against a lawyer or his client because
the lawyer has made objections. Do not attempt, moreover, to
interpret my rulings on objections as somehow indicating to you
who I think should win or lose the case.

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31 March 2016

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INSTRUCTION NO. 10
All parties to a lawsuit are entitled to the same fair and
impartial consideration, whether they are a company, such as BHP,
or an individual, such as the property owners.
When I use the term “property owner” in these instructions, I
mean each of the four individuals who brought this case—Kenneth
Joe May, Mary Ann May, Steve Snowden, and Cindy Snowden.
When I use the term “BHP” in these instructions, I mean BHP
Billiton Petroleum (Fayetteville) LLC, who has been sued.

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INSTRUCTION NO. 11
The Mays and the Snowdens assert separate claims against
BHP. Each couple bears the burden of proving their claim that BHP
failed to reasonably develop the land BHP leased from them. You
must consider the Mays’ and Snowdens’ claims separately, and
determine whether each has sustained their burden of proof on each
lease. Of course, some evidence may relate to more than one claim
or lease.

Court’s Draft Final Instructions
31 March 2016

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INSTRUCTION NO. 12
The parties agree that the Mays entered into two oil and gas
leases dated 10 February 2005 with JRE Investments, Inc. They also
agree that the leases were assigned first to Chesapeake Energy
Company, and then to BHP.
BHP’s implied covenant of reasonable development under the
Mays’ leases went into effect on 1 January 2011, when BHP took
over the leases. This covenant continues to the present day.

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31 March 2016

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INSTRUCTION NO. 13
The parties agree that the Snowdens entered into a lease with
Chesapeake Exploration Limited Partnership and that the lease was
assigned to BHP.
BHP’s implied covenant of reasonable development under the
Snowdens’ lease went into effect on 5 October 2011, when the lease’s
primary term ended. This covenant continues to the present day.

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INSTRUCTION NO. 14
A failure to do what is required under a lease is called a breach.
The parties dispute whether BHP is in breach of these oil and gas
leases.

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INSTRUCTION NO. 15
There is an implied covenant on the part of BHP in these oil
and gas leases to proceed with reasonable diligence in the search for
oil and gas. BHP also must continue the search with reasonable
diligence so that oil and gas may be produced in paying quantities
throughout the whole of the leased premises.
Due deference should be given to the judgment of BHP as
operator to determine how many wells should be drilled. But BHP
must use sound judgment in the matter and cannot act arbitrarily.
BHP must deal with the leased premises so as to promote and
protect the interests of the property owners and itself. BHP must not
consider its own interest wholly or for the most part. BHP must
perform under the lease so as to further the parties’ original purpose
and intention.

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BHP has a duty to drill all wells that a reasonably prudent
operator would drill under the same or similar circumstances, with
a reasonable expectation of profit.
A “reasonably prudent operator” means an operator of
ordinary prudence with ordinary diligence under the same or
similar circumstances, having due regard for the interests of both
BHP and the property owner—either the Mays or the Snowdens.

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INSTRUCTION NO. 16
To prevail on their claim about Section 23, on their claim about
Section 26, or on both, the Mays must prove that BHP did not act as
a reasonably prudent operator for a particular section. The Mays
must prove each of their claims by a preponderance of the evidence.
If the Mays do not prove their claim on a particular section, your
verdict must be for BHP on that section.
To prevail on their claim about Section 14, the Snowdens must
prove that BHP did not act as a reasonably prudent operator for
Section 14. The Snowdens must prove their claim by a
preponderance of the evidence. If the Snowdens do not prove their
claim on Section 14, your verdict must be for BHP on that section.

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INSTRUCTION NO. 17
If you find BHP in breach of its implied covenant of reasonable
development under either of the Mays’ leases, then the measure of
damages is the amount of royalties the Mays would have received
from the drilling of additional wells on that lease. Calculate any
damages under the Section 23 lease, or under the Section 26 lease,
separately.
If you find BHP in breach of its implied covenant of reasonable
development under the Snowdens’ lease, then the measure of
damages is the amount of royalties the Snowdens would have
received from the drilling of additional wells on their lease in
Section 14.
Reduce any damages to present value. Do not add any interest.
And do not be concerned about a potential double recovery to the
Mays or the Snowdens. BHP will be entitled to a credit against

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future royalty payments to the Mays or the Snowdens on their leases
for any amount of damages awarded.

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INSTRUCTION NO. 18
The fact that I have instructed you on the measure of damages
should not be considered by you as suggesting any view of mine on
which side of this case is entitled to your verdict. I’m giving
instructions on damages for your guidance, as I do in all cases, in the
event you for find the Mays or the Snowdens on liability.
The question of damages is entirely distinct and different from
the question of liability. You should not consider whether the Mays
or the Snowdens have been damaged until you have first considered
and decided whether BHP violated its covenant of reasonable
development with the Mays or the Snowdens.

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INSTRUCTION NO. 19
Finally, the verdicts are simply the written notice of the
decisions that you reach in this case. I’ll read them now. There is one
for each lease. You will take these verdicts to the jury room, and
when each of you has agreed on the answers, your foreperson will
fill in each verdict that you are called upon to answer to reflect your
unanimous decision, sign and date it when you have reached all
your verdicts, 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—and
nothing in the verdict forms I’ve prepared for your convenience—is
or was intended to suggest or convey in any way or manner any
intimation about what answers I think you should find. How you
choose to answer the verdicts shall be the sole and exclusive
responsibility of you, the Jury.
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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.
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.
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Court security 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?

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