McCann v. Jupina et al

Filing 128

[Second Proposed] Jury Instructions. Signed by Judge Jacqueline S. Corley on November 14, 2017. (jsclc1S, COURT STAFF) (Filed on 11/14/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WILLIAM DENIS MCCANN,
Plaintiff,

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Northern District of California

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Case No.16-cv-03244-JSC
[SECOND PROPOSED] JURY
INSTRUCTIONS

v.
DAVID JUPINA, et al.,
Defendants.

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IT IS SO ORDERED.
Dated: November 14, 2017

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

DUTY OF JURY

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Members of the Jury: Now that you have heard all of the evidence and the arguments of

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the attorneys, it is my duty to instruct you on the law that applies to this case. A copy of these

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instructions will be available in the jury room for you to consult if you find it necessary.

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It is your duty to find the facts from all the evidence in the case. To those facts you will

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apply the law as I give it to you. You must follow the law as I give it to you whether you agree

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with it or not. And you must not be influenced by any personal likes or dislikes, opinions,

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prejudices, or sympathy. That means that you must decide the case solely on the evidence before

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you. You will recall that you took an oath to do so at the beginning of this case.
In following my instructions, you must follow all of them and not single out some and

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ignore others; they are all equally important. Please do not read into these instructions or anything

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that I may say or do or have said or done that I have an opinion regarding the evidence or what

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your verdict should be.

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WHAT IS EVIDENCE

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The evidence you are to consider in deciding what the facts are consists of:

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1.

the sworn testimony of any witness;

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2.

the exhibits that have been admitted into evidence;

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3.

any facts to which the lawyers have agreed; and

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4.

any facts that I have instructed you to accept as proved.

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WHAT IS NOT EVIDENCE

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In reaching your verdict, you may consider only the testimony and exhibits received into

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evidence. Certain things are not evidence, and you may not consider them in deciding what the

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facts are. I will list them for you:

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1.

Arguments and statements by lawyers are not evidence. The lawyers are not

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witnesses. What they have said in their opening statements, closing arguments and at other times

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is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember

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them differ from the way the lawyers have stated them, your memory of them controls.

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2.

Questions and objections by lawyers are not evidence. Attorneys have a duty to

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their clients to object when they believe a question is improper under the rules of evidence. You

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should not be influenced by the objection or by the court’s ruling on it.

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3.

Testimony that is excluded or stricken, or that you have been instructed to

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disregard, is not evidence and must not be considered. In addition some evidence was received

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only for a limited purpose; when I have instructed you to consider certain evidence only for a

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limited purpose, you must do so and you may not consider that evidence for any other purpose.

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4.

Anything you may have seen or heard when the court was not in session is not

evidence. You are to decide the case solely on the evidence received at the trial.

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DIRECT AND CIRCUMSTANTIAL EVIDENCE

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Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as

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testimony by a witness about what that witness personally saw or heard or did. Circumstantial

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evidence is proof of one or more facts from which you could find another fact. You should

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consider both kinds of evidence. The law makes no distinction between the weight to be given to

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either direct or circumstantial evidence. It is for you to decide how much weight to give to any

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evidence.

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By way of example, if you wake up in the morning and see that the sidewalk is wet, you
may find from that fact that it rained during the night. However, other evidence, such as a turned

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on garden hose, may provide a different explanation for the presence of water on the sidewalk.

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Therefore, before you decide that a fact has been proven by circumstantial evidence, you must

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consider all the evidence in the light of reason, experience, and common sense.

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RULING ON OBJECTIONS

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There are rules of evidence that control what can be received into evidence. When a

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lawyer asked a question or offers an exhibit into evidence and a lawyer on the other side thinks

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that it is not permitted by the rules of evidence, that lawyer may have objected. If I overruled the

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objection, the question was answered or the exhibit received. If I sustained the objection, the

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question could not be answered, and the exhibit could not be received. Whenever I sustained an

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objection to a question, you must ignore the question and must not guess what the answer might

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have been.

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BENCH CONFERENCES AND RECESSES

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From time to time during the trial, it became necessary for me to talk with the attorneys out

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of the hearing of the jury, either by having a conference at the bench when the jury was present in

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the courtroom, or by calling a recess. Please understand that while you were waiting, we were

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working. The purpose of these conferences is not to keep relevant information from you, but to

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decide how certain evidence is to be treated under the rules of evidence and to avoid confusion

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and error.

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Of course, we have done what we could to keep the number and length of these
conferences to a minimum. I did not always grant an attorney’s request for a conference. Do not

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consider my granting or denying a request for a conference as any indication of my opinion of the

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case or of what your verdict should be.

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CREDIBILITY OF WITNESSES

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In deciding the facts in this case, you may have to decide which testimony to believe and

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which testimony not to believe. You may believe everything a witness says, or part of it, or none

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of it.

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In considering the testimony of any witness, you may take into account:

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1.

the opportunity and ability of the witness to see or hear or know the things testified

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2.

the witness’s memory;

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3.

the witness’s manner while testifying;

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4.

the witness’s interest in the outcome of the case, if any;

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5.

the witness’s bias or prejudice, if any;

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whether other evidence contradicted the witness’s testimony;

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7.

the reasonableness of the witness’s testimony in light of all the evidence; and

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any other factors that bear on believability.

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Sometimes a witness may say something that is not consistent with something else he or

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she said. Sometimes different witnesses will give different versions of what happened. People

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often forget things or make mistakes in what they remember. Also, two people may see the same

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event but remember it differently. You may consider these differences, but do not decide that

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testimony is untrue just because it differs from other testimony.

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to;

However, if you decide that a witness has deliberately testified untruthfully about

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something important, you may choose not to believe anything that witness said. On the other

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hand, if you think the witness testified untruthfully about some things but told the truth about

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others, you may accept the part you think is true and ignore the rest.

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The weight of the evidence as to a fact does not necessarily depend on the number of

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witnesses who testify. What is important is how believable the witnesses were, and how much

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weight you think their testimony deserves.

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EXPERT OPINION

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Experts may give opinions on those subjects in which they have special skills, knowledge,

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experience, training or education. You should consider each expert opinion in evidence and give it

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whatever weight it deserves. Remember, you decide all the facts. If, in reaching an opinion, you

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find that an expert relied on certain facts, and you decide that any of those facts were not true, then

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you are free to disregard the opinion.

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EXPERTS: QUESTIONS CONTAINING ASSUMED FACTS

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The law allows expert witnesses to be asked questions that are based on assumed facts.
These are sometimes called “hypothetical questions.”
In determining the weight to give to the expert’s opinion that is based on the assumed
facts, you should consider whether the assumed facts are true.

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CONFLICTING EXPERT TESTIMONY

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If the expert witnesses disagreed with one another, you should weigh each opinion against

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the others. You should examine the reasons given for each opinion and the facts or other matters

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that each witness relied on. You may also compare the experts’ qualifications.

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PLAINTIFF’S CLAIM

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William McCann brings a claim of medical malpractice against David Jupina. I will now
describe this claim to you.

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MEDICAL MALPRACTICE

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The elements of a cause of action for medical malpractice are: (1) a duty to use such skill,

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prudence, and diligence as other members of the profession commonly possess and exercise; (2) a

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breach of the duty; (3) a proximate casual connection between the negligent conduct and the

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injury; and (4) resulting loss or damage.

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NEGLIGENCE: ESSENTIAL FACTUAL ELEMENTS

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William McCann claims that he was harmed by David Jupina M.D.’s negligence. To

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establish this claim, William McCann must prove all of the following by a preponderance of the

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evidence:

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1. That David Jupina, M.D. was negligent;

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2. That William McCann was harmed; and

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3. That David Jupina, M.D.’s negligence was a substantial factor in causing William

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McCann’s harm.

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BURDEN OF PROOF – PREPONDERANCE OF THE EVIDENCE

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When a party has the burden of proving any claim by a preponderance of the evidence, it

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means you must be persuaded by the evidence that the claim or affirmative defense is more

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probably true than not true.
You should base your decision on all of the evidence, regardless of which party presented

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it.

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STANDARD OF CARE FOR MEDICAL SPECIALISTS

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An orthopedic surgeon is negligent if he/she fails to use the level of skill, knowledge, and

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care in diagnosis and treatment that other reasonably careful orthopedic surgeons would use in

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similar circumstances. This level of skill, knowledge, and care is sometimes referred to as “the

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standard of care.”

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You must determine the level of skill, knowledge, and care that other reasonably careful

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orthopedic surgeons would use in similar circumstances based only on the testimony of the expert

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witnesses including David Jupina, M.D. who have testified in this case.

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MALPRACTICE: NEGLIGENCE NOT DETERMINED BY HINDSIGHT

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The circumstances to be considered in deciding whether or not the defendants, or any of

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them, were negligent, are those which the evidence shows may reasonably be supposed to have

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been known by such defendant and to have influenced his mind and actions at the time. Medical

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negligence is not to be determined by hindsight or by what a party subsequently learns.

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SUCCESS NOT REQUIRED

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An orthopedic surgeon is not necessarily negligent just because his efforts are unsuccessful

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or he makes an error that was reasonable under the circumstances. An orthopedic surgeon is

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negligent only if he was not as skillful, knowledgeable, or careful as other reasonable orthopedic

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surgeons would have been in similar circumstances.

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ALTERNATIVE METHODS OF CARE
An orthopedic surgeon is not necessarily negligent just because he chooses one medically

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accepted method of treatment or diagnosis and it turns out that another medically accepted method

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would have been a better choice.

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CAUSATION: SUBSTANTIAL FACTOR

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A substantial factor in causing harm is a factor that a reasonable person would consider to

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have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be

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the only cause of the harm.

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Conduct is not a substantial factor in causing harm if the same harm would have occurred
without that conduct.

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AGENT AND PRINCIPAL—DEFINITION

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An agent is a person who performs services for another person under an express or implied

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agreement and who is subject to the other’s control or right to control the manner and means of

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performing the services. The other person is called a principal.

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DAMAGES—PROOF

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It is the duty of the Court to instruct you about the measure of damages. By instructing

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you on damages, the Court does not mean to suggest for which party your verdict should be

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rendered.

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If you find for the plaintiff, you must determine the plaintiff’s damages. The plaintiff has

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the burden of proving damages by a preponderance of the evidence. Damages means the amount

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of money that will reasonably and fairly compensate the plaintiff for any injury you find was

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caused by the defendant. You should consider the following:

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The nature and extent of the injuries;

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The disability, disfigurement, loss of enjoyment of life experienced;

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The mental, physical, emotional, pain and suffering experienced;

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The reasonable value of necessary medical care, treatment, and services received to the

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present time;

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The reasonable value of necessary household help, services other than medical, and

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expenses required up to the present time.

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Plaintiff is not seeking lost income and you are instructed not to include income in your
calculation.

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It is for you to determine what damages, if any, have been proved.

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Your award must be based upon evidence and not upon speculation, guesswork or

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conjecture.

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ARGUMENTS OF COUNSEL NOT EVIDENCE OF DAMAGES

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The arguments of the attorneys are not evidence of damages. Your award must be based on

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your reasoned judgment applied to the testimony of the witnesses and the other evidence that has

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been admitted during trial.

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DAMAGES—MITIGATION

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The plaintiff has a duty to use reasonable efforts to mitigate damages. To mitigate means
to avoid or reduce damages.

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The defendant has the burden of proving by a preponderance of the evidence:

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1. that the plaintiff failed to use reasonable efforts to mitigate damages; and

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2. the amount by which damages would have been mitigated.

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NO PUNITIVE DAMAGES

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You must not include in your award any damages to punish or make an example of David

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Jupina, M.D. Such damages would be punitive damages, and they cannot be a part of your verdict.

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You must award only the damages that fairly compensate William McCann for his loss.

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INSURANCE

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You must not consider whether any of the parties in this case has insurance. The presence

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or absence of insurance is totally irrelevant. You must decide this case based only on the law and

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the evidence.

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DUTY TO DELIBERATE

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Before you begin your deliberations, elect one member of the jury as your presiding juror.

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The presiding juror will preside over the deliberations and serve as the spokesperson for the jury

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in court.

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You shall diligently strive to reach agreement with all of the other jurors if you can do so.
Your verdict must be unanimous as to each issue submitted to you.
Each of you must decide the case for yourself, but you should do so only after you have
considered all of the evidence, discussed it fully with the other jurors, and listened to their views.
It is important that you attempt to reach a unanimous verdict but, of course, only if each of you

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can do so after having made your own conscientious decision. Do not be unwilling to change your

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opinion if the discussion persuades you that you should. But do not come to a decision simply

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because other jurors think it is right, or change an honest belief about the weight and effect of the

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evidence simply to reach a verdict.

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USE OF NOTES

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Some of you took notes during the trial. Whether or not you took notes, you should rely

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on your own memory of the evidence. Notes are only to assist your memory. You should not be

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overly influenced by your notes or those of other jurors.

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You will have in the jury room the exhibits admitted into evidence.

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COMMUNICATION WITH THE COURT

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If it becomes necessary during your deliberations to communicate with me, you may send

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a note through the court staff, signed by any one or more of you. No member of the jury should

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ever attempt to communicate with me except by a signed writing. I will not communicate with

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any member of the jury on anything concerning the case except in writing or here in open court.

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If you send out a question, I will consult with the lawyers before answering it, which may

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take some time. You should continue your deliberations while waiting for the answer to any

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question. Remember that you are not to tell anyone—including the me—how the jury
stands, whether in terms of vote count or otherwise, until after you have reached a unanimous

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verdict or have been discharged. Do not disclose any vote count in any note to me.

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RETURN OF VERDICT

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A verdict form has been prepared for you. After you have reached unanimous agreement

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on a verdict, your presiding juror should complete the verdict form according to your

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deliberations, sign and date it, and advise the court that you are ready to return to the courtroom.

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