Cervetto v. Powell et al

Filing 128

Jury Instructions. (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION

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CIVIL ACTION NO. 1:14-CV-0075-HBB
MICHAEL G. CERVETTO

PLAINTIFF

vs.
MARK J. POWELL and
TRANSERVICE LOGISTICS, INC.

DEFENDANTS

JURY INSTRUCTIONS

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These instructions will be in three parts: first, general rules that define and control
your duties as jurors; second, the rules of law that you must apply in deciding whether the
Plaintiff has proven his case; and third, some rules for your deliberations. A copy of
these instructions will be available for you in the jury room.
I. GENERAL RULES CONCERNING JURY DUTIES

It is your duty to find the facts from all the evidence in the case. You must apply

the law to those facts . You must follow the law I give to you whether you agree with it
or not.

You must not be influenced by any personal likes or dislikes, opinions,

prejudices, or sympathy.

That means that you must decide the case solely on the

evidence before you and according to the law, as you gave your oaths to do at the
beginning of this case.
In following my instructions, you must follow all of them and not single out some
and ignore others; they are all equally important.

You must not read into these

instructions, or into anything I may have said or done, any suggestion as to what verdict
you should return -- that is a matter entirely for you to decide.
The lawyers may refer to some of the governing rules of law in their arguments.
However, if any differences appear to you between the law as stated by the lawyers and
what I state in these instructions, you are to be governed solely by my instructions.
BURDEN OF PROOF

The Plaintiff has the burden of proving their case by what is called a
preponderance of the evidence. That means that the Plaintiff has to produce evidence
that, considered in light of all the facts, leads you to believe that what the Plaintiff claims
is more likely true than not. If the Plaintiff fails to meet this burden, the verdict must be
for the Defendants.
EVIDENCE

The evidence from which you are to decide what the facts are consists of (1) the
sworn testimony of witnesses, here in Court or by deposition, both on direct and crossexamination, regardless of who called the witness; (2) the exhibits that have been
received into evidence; and (3) any facts to which the lawyers have agreed or stipulated
to or that have been judicially noticed.
WHAT IS NOT EVIDENCE

The following things are not evidence and you may not consider them in deciding
what the facts are:
1) Arguments and statements by lawyers are not evidence;
2) Questions and objections by lawyers are not evidence;

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3) Testimony I have instructed you to disregard is not evidence; and
4) Anything you may have seen or heard when the Court was not in session is not
evidence.
DIRECT AND CIRCUMSTANTIAL EVIDENCE

There are two kinds of evidence: direct and circumstantial. Direct evidence is
direct proof of a fact, such as testimony of an eyewitness. Circumstantial evidence is
indirect evidence, that is, proof of a fact or chain of facts from which you could draw the
inference, by reason and common sense that another fact exists, even though it has not
been proven directly. You are entitled to consider both kinds of evidence. The law
permits you to give equal weight to both, but it is for you to decide how much weight to
give to any evidence.
CREDIBILITY OF WITNESSES

In deciding what the facts are, you must consider all of the evidence. In doing
this, you must decide which testimony to believe and which testimony not to believe.
You may disbelieve all or any part of any witness's testimony. You may wish to take
into consideration such factors as the witnesses' conduct and demeanor while testifying;
their apparent fairness or any bias or prejudice they may have; any interest you may
discern that they may have in the outcome of the case; their opportunities for seeing and
knowing the things about which they have testified; the reasonableness or
unreasonableness of the events that they have related to you in their testimony; and any
other facts or circumstances disclosed by the evidence that tend to corroborate or
contradict their versions of the events.

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In deciding whether to believe a witness, keep in mind that people sometimes
forget things. You need to consider, therefore, whether a contradiction is an innocent
lapse of memory or an intentional falsehood, and that may depend on whether it has to do
with an important fact or with only a small detail.
The weight of the evidence presented by each side does not necessarily depend on
the number of witnesses testifying on one side or the other. You must consider all the
evidence in the case, and you may decide that the testimony of a smaller number of
witnesses on one side has greater weight than that of a larger number on the other or vice
versa.
You should use your common sense in weighing the evidence. Consider it in light
of your everyday experience with people and events, and give it whatever weight you
believe it deserves. If your experience tells you that certain evidence reasonably leads to
a conclusion, you are free to reach that conclusion.
All of these are matters for you to consider in deciding the facts.
OPINION EVIDENCE, EXPERT WITNESSES

You have heard testimony from someone who has testified as an opinion or expert
witness. You do not have to accept the opinions. In deciding how much weight to give
them, you should consider the witness's qualifications and how the witness reached his
conclusions. Also consider the other factors discussed in these instructions for weighing
the credibility of witnesses.
Remember that you alone decide how much of a witness's testimony to believe,
and how much weight it deserves.

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In this trial, this witness may have been, at times, asked hypothetical questions and
gave answers to such questions. In answering a hypothetical question, an opinion witness
must accept as true every asserted fact stated therein, but this does not mean that you
must. If you find that assumed facts are not proven, you should disregard the answer
based on the hypothetical question.

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II. RULES OF LAW

INSTRUCTION NO. 1
If you are satisfied from the evidence that immediately before the accident Mark
Powell suddenly became incapacitated, that such incapacity was not reasonably
foreseeable by him, and that the accident resulted from it, you will find in favor of the
Defendants. If you are not satisfied from the evidence, you will find in favor of Plaintiff
Michael Cervetto.
However, if you are also satisfied from the evidence that at the time of the
accident Powell was in violation of a statute, you will nonetheless find in favor of
Plaintiff Cervetto.

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INSTRUCTION NO. 2

If you find for Plaintiff, Michael Cervetto, under Instruction No. 1, then you will
need to determine from the evidence and award him such sums of money as will fairly
and reasonably compensate him for such of the following damages as you believe from
the evidence he has sustained directly by reason of the June 24, 2013 accident:
1) Past reasonable medical expenses, not to exceed $1 ,723.79.
2) Past pain and suffering.
3) Future pain and suffering.
If you determine that Plaintiff, Michael Cervetto, is entitled to recover damages
for his injuries, your award shall include compensation for losses attributable or related to
any pre-existing physical condition, but only if and to the extent that any such preexisting physical condition was aroused or aggravated by the accident in question.
The fact that I instruct you on damages should not be taken by you as indicating
one way or the other whether the Plaintiff is entitled to recover damages. This is entirely
for you to decide. Any damages you award must have a reasonable basis in the evidence.
They need not be mathematically exact but there must be enough evidence for you to
make a reasonable estimate of damages without speculation or guesswork.

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III. JURY DELIBERATIONS
When you retire, you will discuss the case with your fellow jurors to reach
agreement if you can do so. The first order of business should be the selection of a
foreperson. That person will preside over your deliberations and speak for you here in
Court.
REACHING AGREEMENT

Your verdict must be unanimous and based solely on the evidence and on the law
as I have given it to you in these instructions. You must all agree on any verdict you
reach.
Each of you must decide the case for yourself, but you should do so only after you
have considered all the evidence, discussed it fully with each other, and listened to the
views of your fellow jurors.
Do not be afraid to change your opinion if you think you are wrong. But do not
come to a decision simply because other jurors think it is right.
This case has taken a great deal of time and effort to prepare and try. There is no
reason to think it could be better tried or that another jury is better qualified to decide it.
Therefore, it is important that you reach a verdict if you can do so conscientiously. If it
looks at some point as if you may have difficulty in reaching a unanimous verdict, you
should reexamine your position to see whether you have given careful consideration and
sufficient weight to the evidence that has favorably impressed the jurors who disagree
with you. You should not hesitate to reconsider your views from time to time and to
change them if you think that is appropriate.

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It is important that you attempt to return a verdict but, of course, only if each of

you can do so after having made his or her own conscientious determination. Do not
surrender an honest conviction as to the weight and effect of the evidence simply to reach
a verdict.
NOTES

Now I would like to say something about the notes you may have taken during the
trial. Your notes should be used only as memory aids. You should not give your notes
precedence over your independent recollection of the evidence. If you have not taken
notes, you should rely upon your independent recollection of the proceeding, and you
should not be unduly influenced by the notes of other jurors.
Notes are not entitled to any greater weight than the memory or impression of each
juror as to what the testimony may have been. Whether you have used notes or not, each
of you must form and express your own opinion of the facts of the case.
You will notice that we do have an official court reporter making a record of the
trial. However, we will not have a typewritten transcript from the record available for
your use in reaching a decision in this case.
RETURN OF VERDICT FORM

I have prepared a Verdict Form for your use in making your verdict. After you
have reached unanimous agreement on a verdict, your foreperson will fill in the verdict
form that has been given to you and advise the Marshal outside your door that you are
ready to return to the courtroom. After you return to the courtroom, your foreperson will
deliver the completed verdict form as directed.

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COMMUNICATION WITH THE COURT

Do not talk to the Marshal, or to me, or to anyone else, except each other, about
this case. If it becomes necessary during your deliberations to communicate with me,
you may send a note through the Marshal signed by your foreperson or by one or more
members of the jury. No member of the jury should ever attempt to communicate with
me on anything concerning the case except by a signed writing or here in open Court.
Remember that you are not to tell anyone- including me- how the jury stands,
numerically or otherwise, until after you have reached a unanimous verdict or have been
discharged.

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