Davis v. Old Dominion Freight Line et al

Filing 115

ORDER: The Court appreciates the parties' suggestions about jury instructions. The Court is attaching its current working drafts of (1) the preliminary instructions and (2) the final instructions, including the embedded verdict form. Please file any objections to the preliminary instructions by the close of business on January 7. If any summaries are admitted, the Court will add a final instruction and the Court will instruct about depositions when it comes up during trial. The disputed part of AMI 901(B) is in the working draft; the proof will determine whether it stays. Signed by Judge D. P. Marshall Jr. on 1/4/2016. (Attachments: # 1 Document Preliminary Instructions, # 2 Document Final Jury Instructions)(jak)

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PRELIMINARY INSTRUCTIONS COURT'S JURY INSTRUCTION NO. 1.01 GENERAL: NATURE OF CASE; BURDEN OF PROOF; DUTY OF JURY; CAUTIONARY Ladies and gentlemen of the jury: Here are some initial instructions about this case and your duties as jurors. During the trial, I will give you more instructions. And at the end of the trial, I will give you final instructions. Follow all my instructions. I am the judge of the law and you are the judges of the facts. As judges of the facts, it’s your duty to determine the truth from the evidence and the reasonable inferences arising from the evidence. In making your factual decisions, you must not engage in guess work or speculation. This case involves an auto accident which occurred on westbound Interstate 30 in Benton, Arkansas, on November 25, 2012, at approximately 8:43 p.m. Carla Lewis was driving a 2003 Dodge Durango, accompanied by passenger Christina Jones, traveling to Court’s Preliminary Instructions Davis v. Old Dominion & Howze 4 January 2016 Page 1 of 21 4:13-cv-589-DPM Hot Springs, Arkansas. In this lawsuit, Katherine Davis, as Guardian of Carla Lewis, alleges Ms. Lewis became incapacitated while driving, and as a result, her vehicle was stopped in the center lane of westbound Interstate 30. The passenger, Ms. Jones, fled the Durango, while Ms. Lewis remained inside. After which, a pickup truck made contact with the passenger side of the Lewis vehicle. Melvin “Keith” Howze, operating a tractor-trailer on behalf of Old Dominion Freight Line, was also traveling westbound on Interstate 30 alongside other traffic. Sometime after the first impact from the pickup truck, Mr. Howze struck the Durango from the rear. Ms. Davis claims that Mr. Howze was negligent and that he and Old Dominion, his employer, are liable for any damages incurred by Carla Lewis as a result of the accident. Mr. Howze and Old Dominion deny that Mr. Howze was negligent, and deny liability for any of the damages sought by Ms. Davis for Ms. Lewis. Court’s Preliminary Instructions Davis v. Old Dominion & Howze 4 January 2016 Page 2 of 21 4:13-cv-589-DPM Ms. Lewis contends that Mr. Howze was negligent in several ways: • failing to keep a proper lookout; • failing to control his truck; • failing to yield; • failing to use ordinary care; and • failing to obey the rules of the road. The parties agree that if Mr. Howze was negligent, then his employer, Old Dominion Freight Line, is responsible for his negligence. But Mr. Howze and Old Dominion deny that Mr. Howze was negligent in any way. They say the wreck was unavoidable. They also contend that Ms. Lewis was the one who was negligent. You must decide—from the evidence—whether Ms. Lewis is entitled to a verdict against Mr. Howze and Old Dominion on her negligence claim. If you decide that both Ms. Lewis, on the one hand, and Mr. Howze and Old Dominion, on the other hand, were Court’s Preliminary Instructions Davis v. Old Dominion & Howze 4 January 2016 Page 3 of 21 4:13-cv-589-DPM negligent in some way, then you must decide who was most negligent in the circumstances. This case should be considered and decided by you as a dispute between persons of equal worth. All persons—including a corporation such as Old Dominion, which is a person in the law’s eyes—stand equal before the law and are to be treated as equals. From the evidence you will decide what the facts are. 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 will have to decide what testimony you believe and what testimony you don’t believe. You may believe all of what a witness says, or only part of it, or none of it. Court’s Preliminary Instructions Davis v. Old Dominion & Howze 4 January 2016 Page 4 of 21 4:13-cv-589-DPM In deciding what testimony to believe, consider several things: 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. 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. Don’t 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. Court’s Preliminary Instructions Davis v. Old Dominion & Howze 4 January 2016 Page 5 of 21 4:13-cv-589-DPM COURT’S JURY INSTRUCTION NO. 1.02 EVIDENCE: EXPERT OPINION This case will include testimony from some expert witnesses. 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’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. Court’s Preliminary Instructions Davis v. Old Dominion & Howze 4 January 2016 Page 6 of 21 4:13-cv-589-DPM COURT'S JURY INSTRUCTION NO. 1.03 EVIDENCE: LIMITATIONS I have mentioned the word “evidence.” “Evidence” includes the testimony of witnesses, the documents and other things received as exhibits, and any facts that have been stipulated—that is, agreed to by the parties. 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 Court’s Preliminary Instructions Davis v. Old Dominion & Howze 4 January 2016 Page 7 of 21 4:13-cv-589-DPM 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 you must not try to guess what the information might 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. 4. Finally, some of you may have heard the terms “direct evidence” and “circumstantial evidence.” A fact is established by Court’s Preliminary Instructions Davis v. Old Dominion & Howze 4 January 2016 Page 8 of 21 4:13-cv-589-DPM direct evidence when, for example, it is proved by witnesses who testifies to what he or she 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. Court’s Preliminary Instructions Davis v. Old Dominion & Howze 4 January 2016 Page 9 of 21 4:13-cv-589-DPM COURT'S JURY INSTRUCTION NO. 1.04 BURDEN OF PROOF 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. The preponderance of the evidence is not necessarily established by the greater number of witnesses or exhibits a party has presented. You’ve probably heard of the term “proof beyond a reasonable doubt.” This is a stricter standard, which applies in criminal cases. It does not apply in civil cases like this one. You should, therefore, Court’s Preliminary Instructions Davis v. Old Dominion & Howze 4 January 2016 Page 10 of 21 4:13-cv-589-DPM put it out of your minds. Court’s Preliminary Instructions Davis v. Old Dominion & Howze 4 January 2016 Page 11 of 21 4:13-cv-589-DPM COURT'S JURY INSTRUCTION NO. 1.05 BENCH CONFERENCES During the trial it will 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. Court’s Preliminary Instructions Davis v. Old Dominion & Howze 4 January 2016 Page 12 of 21 4:13-cv-589-DPM 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 in your chair. When you leave at night, your notes will be secured and not read by anyone. Court’s Preliminary Instructions Davis v. Old Dominion & Howze 4 January 2016 Page 13 of 21 4:13-cv-589-DPM COURT'S JURY INSTRUCTION NO. 1.07 CONDUCT OF THE JURY Finally, to insure fairness, you as jurors must obey the following rules: First, don’t talk among yourselves about this case, or about anyone involved with the case, until the end of the trial when you go to the jury room to deliberate and decide on your verdict. Second, don’t 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, don’t talk with or speak to any of the parties, lawyers or witnesses involved in this case—you should not Court’s Preliminary Instructions Davis v. Old Dominion & Howze 4 January 2016 Page 14 of 21 4:13-cv-589-DPM 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 unnecessary suspicion about your fairness might arise. If any lawyer, party, or witness doesn’t 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, don’t read any news stories, articles, or blogs 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, don’t 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 Wikipedia), a dictionary, textbook, encyclopedia, or talk Court’s Preliminary Instructions Davis v. Old Dominion & Howze 4 January 2016 Page 15 of 21 4:13-cv-589-DPM 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 courtroom 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. Once the trial has been completed and you’ve 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 trial is intended to indicate Court’s Preliminary Instructions Davis v. Old Dominion & Howze 4 January 2016 Page 16 of 21 4:13-cv-589-DPM what I think 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 on the believability and credibility of the witnesses and the weight and value of the evidence. Court’s Preliminary Instructions Davis v. Old Dominion & Howze 4 January 2016 Page 17 of 21 4:13-cv-589-DPM COURT'S JURY INSTRUCTION NO. 1.08 EXPANDED INSTRUCTION RE: JURY PROHIBITION ON ELECTRONIC COMMUNICATIONS/RESEARCH 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, iPad, computer, the Internet, any Internet service, any text or instant messaging service, any Internet chat room, blog, or website such as Facebook, Instagram, YouTube, or Twitter, to communicate to anyone any information about this case until I accept your verdict. Do not use the Internet to look up or research anything about the case. 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, Instagram, or the like during the trial? On your oath, do you promise not to use the Internet to Court’s Preliminary Instructions Davis v. Old Dominion & Howze 4 January 2016 Page 18 of 21 4:13-cv-589-DPM look up anything about the case, the matters discussed, the lawyers, Ms. Davis, Mr. Howze, Old Dominion, me, or the law? Remember, you have taken an oath to follow the rules, and you must do so. If you do not, the case might have to be retried, and you could be held in contempt of court and possibly punished. Court’s Preliminary Instructions Davis v. Old Dominion & Howze 4 January 2016 Page 19 of 21 4:13-cv-589-DPM COURT'S INSTRUCTION NO. 1.09 OUTLINE OF TRIAL The trial will proceed in the following manner: First, Ms. Lewis’s lawyer will make an opening statement. Next, the lawyer for Mr. Howze and Old Dominion will make an opening statement. An opening statement is not evidence. It is simply a summary of what the lawyer expects the evidence to be. Ms. Lewis’s lawyer will then present evidence by calling witnesses, and Mr. Howze and Old Dominion’s lawyer will cross-examine those witnesses. Following Ms. Lewis’s case, Mr. Howze and Old Dominion’s lawyer will present evidence by calling witnesses, and Ms. Lewis will cross-examine those witnesses. Finally, Ms. Lewis may offer rebuttal evidence. After presentation of all the evidence is completed, I’ll give you some more jury instructions. Then the lawyers will have a second opportunity to address you directly, and at that time, they’re Court’s Draft Preliminary InstructionsDavis v. Old Dominion & Howze 4 January 2016 Page 20 of 21 4:13-cv-589-DPM permitted to argue the evidence to you in an attempt to persuade you to their differing views of the true facts in the case. But as with opening statements, closing arguments are not evidence. After the closing arguments, the Court will give you some final instructions on the law. Then you’ll go to the jury room to deliberate on your verdict. Court’s Draft Preliminary InstructionsDavis v. Old Dominion & Howze 4 January 2016 Page 21 of 21 4:13-cv-589-DPM

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