Gatx/Airlog Company, et al v. Evergreen Intl, et al

Filing 2202

JURY INSTRUCTIONS. (cwlc3, COURT STAFF) (Filed on 11/20/2011)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4
5

KALITTA AIR, LLC, as assignee of
American International Airways, Inc.,

v.

7
8

FINAL JURY
INSTRUCTIONS

Plaintiff,

6

CENTRAL TEXAS AIRBORNE SYSTEMS, INC.,
Defendant.

9

/

10
United States District Court
For the Northern District of California

No. C 96-2494 CW

11
DUTY OF THE JURY TO FIND FACTS AND FOLLOW THE LAW

12
13

Members of the Jury: Now that you have heard all of the

14

evidence, it is my duty to instruct you as to the law of the case.

15

A copy of these instructions will be sent with you to the jury room

16

when you deliberate.

17

instructions; the final instructions control and you should not

18

concern yourselves with any differences between them and the

19

preliminary instructions.

20

instructions or from anything I may say or do that I have an

21

opinion regarding the evidence or what your verdict should be.

You should discard the preliminary

You must not infer from these

It is your duty to find the facts from all the evidence in the

22
23

case.

To those facts you will apply the law as I give it to you.

24

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

25

it or not.

26

dislikes, opinions, prejudices, or sympathy.

27

must decide the case solely on the evidence before you.

28

recall that you took an oath to do so.

And you must not be influenced by any personal likes or
That means that you
You will

1
2

In following my instructions, you must follow all of them and
not single out some and ignore others; they are all important.

3

BURDEN OF PROOF

4

When a party has the burden of proof on any claim or

5

affirmative defense by a preponderance of the evidence, it means

6

you must be persuaded by the evidence that the claim or affirmative

7

defense is more probably true than not true.

8
9

You should base your decision on all of the evidence,
regardless of which party presented it.

United States District Court
For the Northern District of California

10

WHAT IS EVIDENCE

11
12

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

13

(1) the sworn testimony of any witness;

14

(2) the exhibits which are received into evidence; and

15

(3) any facts to which the lawyers stipulate.

16

WHAT IS NOT EVIDENCE

17

In reaching your verdict, you may consider only the testimony

18

and exhibits received into evidence.

19

evidence, and you may not consider them in deciding what the facts

20

are.

21

Certain things are not

I will list them for you:
(1) Arguments and statements by lawyers are not evidence.

The

22

lawyers are not witnesses.

23

closing statements, and at other times, is intended to help you

24

interpret the evidence, but it is not evidence.

25

you remember them differ from the way the lawyers state them, your

26

memory of them controls.

What they say in their opening and

If the facts as

27

(2) Questions and objections by lawyers are not evidence.

28

2

1

Attorneys have a duty to their clients to object when they believe

2

a question is improper under the rules of evidence.

3

be influenced by the objection or by the Court’s ruling on it.

4

You should not

(3) Testimony that was excluded or stricken, or that you were

5

instructed to disregard, is not evidence and must not be

6

considered.

7

(4) Anything you see or hear when the Court is not in session

8

is not evidence.

9

received at the trial.

United States District Court
For the Northern District of California

10
11

You are to decide the case solely on the evidence

DIRECT AND CIRCUMSTANTIAL EVIDENCE
Evidence may be direct or circumstantial.

Direct evidence is

12

direct proof of a fact, such as testimony by a witness about what

13

that witness personally saw or heard or did.

14

evidence is proof of one or more facts from which you could find

15

another fact.

16

makes no distinction between the weight to be given to either

17

direct or circumstantial evidence.

18

much weight to give to any evidence.

19
20

Circumstantial

You should consider both kinds of evidence.

The law

It is for you to decide how

EVIDENCE FOR LIMITED PURPOSE
Some evidence was admitted for a limited purpose only.

When I

21

instructed you that an item of evidence was admitted for a limited

22

purpose, you must consider it only for that limited purpose and for

23

no other.

24
25

LIMITED ADMISSIBILITY OF THE AD
You have heard evidence in this case about Airworthiness

26

Directive, otherwise called the AD.

27

not admitted for the truth of what is in it.

28

3

The Airworthiness Directive is
Therefore, you cannot

1

consider the material in the AD as proof of the facts it contains.

2

RULING ON OBJECTIONS

3

There are rules of evidence that control what can be received

4

into evidence.

5

exhibit into evidence and a lawyer on the other side thought that

6

it was not permitted by the rules of evidence, that lawyer may have

7

objected.

8

to answer the question.

9

was not permitted to answer the question.

When a lawyer asked a question or offered an

If I overruled the objection, the witness was permitted
If I sustained the objection, the witness
If I sustained an

United States District Court
For the Northern District of California

10

objection to a question, you must ignore the question and must not

11

guess what the answer might have been.

12

In some instances I ordered that evidence be stricken from the

13

record and that you disregard or ignore the evidence.

14

that when you are deciding the case, you must not consider the

15

evidence that I told you to disregard.

That means

16

CREDIBILITY OF WITNESSES

17

In deciding the facts in this case, you may have to decide

18

which testimony to believe and which testimony not to believe.

19

may believe everything a witness said, or part of it, or none of

20

it.

21

You

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

22

account:

23

(1)

24

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

25

(2)

the witness' memory;

26

(3)

the witness' manner while testifying;

27

(4)

the witness' interest in the outcome of the case and any

28

4

1

bias or prejudice;

2

(5)

3

whether other evidence contradicted the witness'
testimony;

4

(6)

5

the reasonableness of the witness' testimony in light of
all the evidence; and

6

(7) any other factors that bear on believability.

7

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

8

depend on the number of witnesses who testify about it.

9

EXPERT OPINION

United States District Court
For the Northern District of California

10

Some witnesses, because of education or experience, were

11

permitted to state opinions and the reasons for those opinions.

12

Opinion testimony should be judged just like any other

13

testimony.

14

weight as you think it deserves, considering the witness’s

15

education and experience, the facts the expert relied upon, the

16

reasons given for the opinion, and all the other evidence in the

17

case.

18

You may accept it or reject it, and give it as much

The law allows expert witnesses to be asked questions that are

19

based on assumed facts.

20

questions.”

21

that is based on assumed facts, you should consider whether the

22

assumed facts are true.

23
24

These are sometimes called “hypothetical

In determining the weight to give the expert’s opinion

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

25

DEPOSITIONS IN LIEU OF LIVE TESTIMONY

26

In this trial, the parties submitted deposition testimony

27
28

instead of live testimony from certain witnesses.
5

A deposition is

1

the sworn testimony of a witness taken before trial.

2

is placed under oath to tell the truth and lawyers for each party

3

may ask questions.

4

person is unavailable to testify at trial, the deposition of that

5

person may be used at the trial.

6

The witness

The questions and answers are recorded.

When a

You should consider deposition testimony, presented to you in

7

court in lieu of live testimony, insofar as possible, in the same

8

way as if the witness had been present to testify.

9

Some of the depositions were read to you.

Do not place any

United States District Court
For the Northern District of California

10

significance on the behavior or tone of voice of any person reading

11

the questions or answers.

12

Some of the deposition testimony was presented to you through

13

videos.

14

where things have been omitted.

15

participated in the editing process and they have eliminated

16

portions of the testimony which are not important for you to hear

17

in an effort to save time.

18

there may be gaps or edits of the videos in judging the credibility

19

of the testimony.

20

The videos are sometimes choppy or appear to be edited
The parties and the Court have

You are not to consider the fact that

CHARTS AND SUMMARIES

21

Certain charts and summaries were received into evidence to

22

illustrate information brought out in the trial.

23

summaries are only as good as the underlying evidence that supports

24

them.

25

think the underlying evidence deserves.

26
27
28

Charts and

You should, therefore, give them only such weight as you

Certain graphics not received in evidence were shown to you in
order to help explain the contents of books, records, documents or
6

1

other evidence in the case.

2

proof of any facts.

3

figures shown by the evidence in the case, you should disregard

4

these graphics and determine the facts from the underlying

5

evidence.

6
7

They are not themselves evidence or

If they do not correctly reflect the facts or

ABSENCE OF PARTIES
You have heard the names of people and parties and government

8

agencies that are not parties to this case.

9

speculate as to whether any of those other parties have been sued

You should not

United States District Court
For the Northern District of California

10

by anyone, and if so, what the outcomes of those other lawsuits

11

might or might not have been.

12

lawsuit between these parties.

You need to consider only this

13

CORPORATIONS

14

All parties are equal before the law and a corporation is

15

entitled to the same fair and conscientious consideration by you as

16

any party.

17

LIABILITY OF CORPORATIONS

18

Under the law, a corporation is considered to be a person.

19

can only act through its employees, agents, directors, or officers.

20

Therefore, a corporation is responsible for the acts of its

21

employees, agents, directors, and officers performed within the

22

scope of authority.

23

It

NEGLIGENCE - ESSENTIAL ELEMENTS

24

Kalitta’s claim against CTAS is for negligence.

25

this claim, Kalitta must prove all of the following:

To establish

26

(1) That CTAS was negligent; and

27

(2) That CTAS’ negligence was a substantial factor in causing

28

7

1

harm to Kalitta.

2

DEFINITION OF NEGLIGENCE

3

Negligence is the failure to use reasonable care to prevent

4

harm to oneself or to others.

5

or failing to act.

6

something that a reasonably careful person would not do in the same

7

situation or fails to do something that a reasonably careful person

8

would do in the same situation.

9
United States District Court
For the Northern District of California

10

A person can be negligent by acting

A person is negligent if he or she does

You must decide how a reasonably careful aircraft conversion
facility would have acted in CTAS’ situation.

11

ORDINARY CARE IN AVIATION INDUSTRY

12

An aircraft conversion facility is negligent if it fails to

13

use the amount of care in modifying an airplane that a reasonably

14

careful aircraft conversion facility would use in similar

15

circumstances to avoid exposing others to a foreseeable risk of

16

harm.

17

Whether CTAS exercised ordinary care in the present case is to

18

be evaluated under the standards of ordinary care of similar

19

aircraft conversion facilities acting under similar circumstances

20

shown by the evidence.

21

something which a reasonably prudent aircraft conversion facility

22

acting under the authority of the FAA would do or would not do.

23

Thus, ordinary care is doing or not doing

EVIDENCE OF CUSTOM OR PRACTICE

24

You may consider customs or practices in other aircraft

25

conversion facilities in deciding whether CTAS acted reasonably.

26

Customs and practices do not necessarily determine what a

27

reasonable aircraft conversion facility would have done in CTAS’

28

8

1
2

situation.

They are only factors for you to consider.

Following a custom or practice does not excuse conduct that is

3

unreasonable.

4

itself is reasonable.

You should consider whether the custom or practice

5
6

CAUSE OF HARM
The second element of Kalitta’s negligence claim against CTAS

7

is that CTAS’ negligence caused harm to Kalitta.

8

“cause” in its own particular way.

9

that is a substantial factor in bringing about the harm.

United States District Court
For the Northern District of California

10

The law defines

A cause of harm is something

SUBSTANTIAL FACTOR

11

A substantial factor in causing harm is a factor that a

12

reasonable person would consider to have contributed to the harm.

13

It must be more than a remote or trivial factor.

14

to be the only cause of the harm.

15

factor in causing harm if the same harm would have occurred without

16

that conduct.

17
18

It does not have

Conduct is not a substantial

CONCURRING CAUSES
There may be more than one cause of harm.

When negligent or

19

wrongful conduct of two or more persons contributes concurrently as

20

a cause of the harm, the conduct of each is a cause of the harm

21

regardless of the extent to which each contributes to the harm.

22

cause is concurrent if it was operative at the moment of harm and

23

acted with another cause to produce the harm.

24

that the wrongful conduct of a person not joined as a party was

25

also a cause of the harm.

It is no defense

26

SUPERSEDING CAUSE

27

CTAS claims that it is not responsible for Kalitta’s harm

28

9

A

1

because of the later misconduct of the FAA.

2

was the cause of harm to Kalitta, then to avoid legal

3

responsibility for the harm, CTAS must prove all of the following:

If you find that CTAS

4

(1) That the FAA’s conduct occurred after the conduct of CTAS;

5

(2) That a reasonable person could consider the FAA’s conduct

6

as highly unusual or an extraordinary response to the situation;

7

(3) That CTAS did not know and had no reason to expect that

8
9

the FAA would act in a negligent manner; and
(4) That the kind of harm resulting from the FAA‘s conduct was

United States District Court
For the Northern District of California

10

different from the kind of harm that could have been reasonably

11

expected from CTAS’ conduct.

12
13

DAMAGES - PROOF
It is the duty of the Court to instruct you about the measure

14

of damages.

15

to suggest for which party your verdict should be rendered.

16

By instructing you on damages, the Court does not mean

If you find for Kalitta on its negligence claim, you must

17

determine Kalitta’s damages.

18

damages by a preponderance of the evidence.

19

amount of money that will reasonably and fairly compensate Kalitta

20

for any harm you find was caused by CTAS.

21

for damages as a result of the loss of use of the CTAS modified

22

aircraft, N701CK and N706CK, consisting of the lost profits on the

23

grounded aircraft from the date of the grounding until the date of

24

AIA’s sale to Kitty Hawk, the lost value of the 727 aircraft sold

25

to Kitty Hawk prior to the sale, and the lost value of AIA in its

26

sale to Kitty Hawk, which Kalitta claims was caused by the loss of

27

use of N701CK and N706CK.

28

Kalitta has the burden of proving

10

Damages means the

Kalitta asserts a claim

1

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

2

proved.

3

speculation, guesswork or conjecture.

4

not evidence of damages.

Your award must be based upon evidence and not upon

5

The arguments of counsel are

ALTERNATIVE DAMAGES THEORIES

6

CTAS denies that it is liable for any damages, but it argues

7

that if you were to find that it is, the appropriate measure of

8

damages is either:

9

(1)

United States District Court
For the Northern District of California

10
11
12

the reasonable value of necessary repairs to the N701CK and
N706CK airplanes, to return these planes to service; or

(2)

the reduction in the value of the affected aircraft.
Kalitta would be entitled to recover the reasonable cost of

13

repairing the planes, or the reduction in the value of the affected

14

aircraft, whichever is less.

15

would be entitled to the lesser of the amounts.

16

If there is evidence of both, Kalitta

To determine the reduction in value of the aircraft, you must

17

determine the cost to replace the airplanes immediately after the

18

harm occurred and then subtract the salvage value of the planes

19

immediately after the harm occurred.

20

DAMAGES - LOSS OF USE OF PROPERTY

21

If you award damages based on the cost to repair or replace

22

the airplanes, you may also award damages for the loss of use of

23

the airplanes during the time reasonably necessary to repair or

24

replace them.

25

reasonable cost to lease similar aircraft for the amount of time

26

reasonably necessary to repair or replace the planes, or the

27

profits lost during that length of time, whichever is less.

28

To award damages for loss of use, you must find the

11

1
2
3
4
5
6

DUTY TO MITIGATE
Kalitta has a duty to use reasonable efforts to mitigate
damages.

To mitigate means to avoid or reduce damages.

CTAS has the burden of proving by a preponderance of the
evidence:
(1)

that Kalitta failed to use reasonable efforts to mitigate

7

damages; and

8

(2)

9

A party who has been damaged by the wrongful act of another

the amount by which damages would have been mitigated.

United States District Court
For the Northern District of California

10

may not recover for losses which could have been prevented by

11

reasonable efforts or by expenditures that might reasonably have

12

been made.

13

reasonably made or harm suffered in a reasonable effort to avert

14

further harm.

A party is entitled to recover for expenditures

15
16

INTEREST
If you find that Kalitta is entitled to an award of damages

17

against CTAS, then it is for you to determine, in your discretion,

18

whether or not Kalitta should receive interest in addition to

19

damages.

20

reasonably compensate Kalitta for its loss.

21

interest should be awarded, the Court will make the calculation of

22

the amount.

You should consider whether interest is necessary to

23
24

If you determine that

INSURANCE
You must not consider whether any of the parties in this case

25

has insurance.

26

You must decide this case only on the law and evidence.

The presence of insurance is totally irrelevant.

27
28

12

1

DAMAGES - NO PUNITIVE DAMAGES

2

You must not include in your award any damages to punish or

3

make an example of CTAS.

4

and they cannot be part of your verdict.

5

damages that fairly compensate Kalitta for its loss.

6

Such damages would be punitive damages,

DUTY TO DELIBERATE

7

When you retire, you should elect one member of the jury as

8

your foreperson.

9

and speak for you here in court.

10
United States District Court
For the Northern District of California

You must award only the

11

That person will preside over the deliberations

You will then discuss the case with your fellow jurors to
reach agreement if you can do so.

12

Your verdict must be unanimous.

Each of you must decide the case for yourself, but you should

13

do so only after you have considered all of the evidence, discussed

14

it fully and with the other jurors, and listened to the views of

15

your fellow jurors.

16

Do not be afraid to change your opinion if the discussion

17

persuades you that you should.

18

because other jurors think it is right.

19

Do not come to a decision simply

It is important that you attempt to reach a unanimous verdict

20

but, of course, only if each of you can do so after having made

21

your own conscientious decision.

22

about the weight and effect of the evidence simply to reach a

23

verdict.

24

Do not change an honest belief

USE OF NOTES

25

Some of you have taken notes during the trial.

Whether or not

26

you took notes, you should rely on your own memory of what was

27

said.

28

Notes are only to assist your memory.
13

You should not be

1

overly influenced by the notes.

2

COMMUNICATION WITH THE COURT

3

If it becomes necessary during your deliberations to

4

communicate with me, you may send a note through the marshal,

5

signed by your foreperson or by one or more members of the jury.

6

No member of the jury should ever attempt to communicate with me

7

except by a signed writing; and I will communicate with any member

8

of the jury on anything concerning the case only in writing, or

9

here in open court.

If you send out a question, I will consult

United States District Court
For the Northern District of California

10

with the parties before answering it, which may take some time.

11

You may continue your deliberations while waiting for the answer to

12

any question.

13

me, how the jury stands, numerically or otherwise, until after you

14

have reached a unanimous verdict or have been discharged.

15

disclose any vote count in any note to the court.

16
17

Remember that you are not to tell anyone, including

Do not

RETURN OF VERDICT
A verdict form has been prepared for you.

After you have

18

reached unanimous agreement on a verdict, your presiding juror will

19

fill in the form that has been given to you, sign and date it, and

20

advise the Court that you are ready to return to the courtroom.

21
22

Dated:
CLAUDIA WILKEN
United States District Judge

23
24
25
26
27
28

14