Barrios v. Elmore et al

Filing 156

Jury Instructions. (SRH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:18-CV-00132-RSE
FRANCIS BARRIOS

PLAINTIFF

VS.
CALEB ELMORE

DEFENDANT
*****
JURY INSTRUCTIONS

Members of the Jury, now that you have heard all the evidence and the argument of the
attorneys, it is my duty to give you instructions on the law applicable to this case.
It is your duty as jurors to follow the law stated in the instructions, and to apply it to the
facts you find from the evidence.
Do not single out one instruction alone as stating the law. Rather, consider these
instructions as a whole.
Do not let the wisdom of any rule of law concern you. You must apply the law in these
instructions whether you agree with it or not.
It is your duty to determine the facts. In so doing, you must consider only the evidence I
have admitted. The term “evidence” includes the sworn testimony of the witnesses, both live and
by video deposition, and the exhibits admitted in the record. It is your own interpretation and
recollection of the evidence that controls. You are permitted to draw reasonable inferences,
deductions, and conclusions from the testimony and exhibits which you feel are justified in light
of your own common sense.
What the lawyers have said is not binding upon you. Neither my legal rulings nor my
comments and questions are considered evidence. Lawyers have a duty to object when they believe

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a question is improper. You should not be influenced by any objection, and you should not infer
from my ruling that I have any view as to how you should decide the case. The attorneys’ opening
and closing statements to you are not evidence. Their purpose is to discuss the issues and the
evidence. If the evidence as you remember it differs from what the lawyers said, your memory is
what counts.
There are two types of evidence: “direct evidence” and “circumstantial evidence.” Direct
evidence is direct proof of a fact, such as testimony by a witness about what that witness saw or
heard or did. If a witness testified that he/she saw it raining outside, and you believed him/her, that
would be direct evidence that it was raining. Circumstantial evidence is proof of one or more facts
from which one could find another fact. If someone walked into the courtroom wearing a raincoat
covered with drops of water and carrying a wet umbrella, that would be circumstantial evidence
from which you could conclude it was raining. The law makes no distinction between the weight
that you should give to either one, and does not say that one is any better evidence than the other.
It is your job to decide how much weight to give the direct and circumstantial evidence.
By telling you to consider the evidence, I do not mean to suggest that you must necessarily
accept all the evidence as true or accurate. You are the sole judges of the credibility or believability
of each witness and the weight to be given their testimony. You may measure the credibility of
any witness, including an expert witness, by considering their demeanor on the witness-stand, their
frankness or lack of it, and their interest in the outcome of the case, if any. The fact that a witness
has given an opinion that requires special knowledge or skill (i.e., an “expert” opinion) does not
mean you are required to accept it. You should judge their testimony in the same way you judge
the testimony of any other witness. Give the testimony whatever weight you think it deserves,
considering the reasons given for the opinion, the witness’s qualifications, and all the other

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evidence in the case.
In determining whether any fact has been proved, you should consider all of the evidence
bearing on the question regardless of who introduced it.
You are free to believe everything that a witness said, or only part of it, or none of it at all.
But you should act reasonably and carefully in making these decisions. In evaluating the testimony
of any witness, including any party to the case, you may consider, among other things: the ability
and opportunity the witness had to see, hear, or know the things that the witness testified about;
the witness’s memory; any interest, bias, or prejudice the witness may have; the witness’s
intelligence; the manner of the witness while testifying; the witness’s age; and the reasonableness
of the witness’s testimony in light of all the evidence in the case.
You may consider statements given by a party or witness under oath before trial as evidence
of the truth of what he/she said in the earlier statements, as well as in deciding what weight to give
his/her testimony. With respect to other witnesses, the law is different. If you decide that, before
the trial, one of these witnesses made a statement not under oath or acted in a manner that is
inconsistent with his/her testimony here in court, you may consider the earlier statement or conduct
only in deciding whether his/her testimony here in court was true and what weight to give to his/her
testimony here in court. In considering a prior inconsistent statement or conduct, you should
consider whether it was simply an innocent error or an intentional falsehood and whether it
concerns an important fact or an unimportant detail.
A jury is allowed to make reasonable inferences. Any inference you make must be
reasonable and must be based on the evidence in the case. If at any point I instructed you that I
admitted certain evidence for a limited purpose, you must consider this evidence only for the
limited purpose for which it was admitted.

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During the trial, certain testimony was presented to you by the reading and/or playing of
recorded depositions. You should give this testimony the same consideration you would give it
had the witness appeared and testified here in court.
A witness may be discredited or impeached by contradictory evidence or by evidence that
the witness said or did something, or failed to say or do something, at some other time, which is
inconsistent with the witness’s present testimony. If you believe any witness has been impeached,
and thus discredited, you may determine the weight, if any, to give such a conclusion.
The number of witnesses testifying does not, necessarily, determine the weight you should
give testimony. The quality and credibility of the evidence is usually more important in your
deliberations. Likewise, the number or length of exhibits does not determine the weight you should
give to the exhibits.
The law does not require any party to call as a witness every person who might have
knowledge of the facts related to this trial. Similarly, the law does not require any party to present
as exhibits all papers and things mentioned during this trial.
In this case, the Plaintiff must prove his claims and the Defendant must prove his
counterclaims by a preponderance of the evidence. “A preponderance of the evidence” means that
once you have considered all the evidence in the case, you must be persuaded that the claims are
more likely true than not.
Your verdict must represent the considered judgment of each juror. In order to return a
verdict, it is necessary that each juror agree. Your verdict must be unanimous.
It is your duty as jurors to consult with one another and to deliberate with a goal of reaching
an agreement without conceding your individual judgment. You must each decide the case for
yourself, but only after an impartial consideration of the evidence in the case with your fellow

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jurors. In the course of your deliberations, do not hesitate to reexamine your own views and even
change your own opinion if you become convinced it is erroneous. But do not surrender your
honest conviction as to the weight or effect of the evidence solely because of the opinion of your
fellow jurors or for the mere purpose of returning a verdict.
During your deliberations, you must not discuss the case with anyone outside of the jury
or provide anyone outside of the jury with any information about this case. You may not use any
electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Android; or
computer, tablet, the Internet, any Internet service, or any text or instant messaging service; or any
Internet chat room, blog, or website, such as Facebook, LinkedIn, Instagram, YouTube, or Twitter
to communicate with anyone any information about this case or to conduct any research about this
case until I have accepted your verdict.
Perform these duties fairly. Do not let any bias, sympathy, or prejudice that you may feel
toward one side or the other influence your decision in any way. You should not be influenced by
any person’s race, color, religion, national ancestry, sexual orientation or sex.
Upon retiring to the jury room, you will select someone to act as your foreperson. The
foreperson will preside over your deliberations and will be your spokesperson here in Court.
If you have any questions or messages, the foreperson must write them down on a piece of
paper, sign them, and then give them to the jury officer. Do not ever write down or tell anyone,
including me, how you stand on your votes. The jury officer will give them to me, and I will
respond as soon as I can. Please understand that I may decide it would be inappropriate for me to
answer a particular question. If I do that, it is not meant as a criticism of the question, but rather
reflects my decision that the law does not permit me to answer a particular question.
A verdict form has been prepared for your convenience. You will take this form to the jury

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room and, when you have reached unanimous agreement as to your verdict, you will have your
foreperson fill in the Verdict Form with respect to each issue on which you unanimously agree.
The foreperson will then date the form and sign it with his or her name and jury number. You will
then advise the Jury Officer that you are ready to return to the courtroom with your verdict.
I will now read the specific instructions. You should consider and answer them in the order
in which they appear.

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INSTRUCTION NO. I: BARRIOS’ CLAIM OF TERRORISTIC THREATENING
Barrios claims he can recover for his mental and emotional harm because Elmore has
violated Kentucky’s terroristic threatening statutes, KRS § 508.078 and/or § 508.080.
To find for Barrios on this claim, you must find that Barrios has proven each of the
following elements by a preponderance of the evidence.
First, Elmore, with respect to a school function, threatened to commit an act likely to result
in the death or serious physical injury of a teacher, OR that Elmore threatened to commit a crime
likely to result in serious death or physical injury to another person.
Second, Barrios was injured by Elmore’s actions. Barrios must prove that Elmore’s threat
was the proximate cause of his emotional distress – i.e., that Elmore’s conduct was a substantial
factor in bringing about the harm. To satisfy this element, Barrios must show that the injury is a
natural and probable consequence of Elmore’s actions.
If you find that Barrios has proven these elements by a preponderance of the evidence, then
you must find for Barrios. However, if you find that Barrios did not prove this by a preponderance
of the evidence, then you must find for Elmore.

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INSTRUCTION NO. II: BARRIOS’ CLAIM OF ASSAULT
Barrios claims he can recover for his mental and emotional harm because Elmore
committed an assault when he threatened Barrios.
To succeed on this claim, Barrios must prove each of the following facts by a
preponderance of the evidence:
First, Elmore threatened the unwanted touching of Barrios.
Second, Barrios was injured by Elmore’s actions. Barrios must prove that Elmore’s threat
was the proximate cause of his emotional distress - i.e., that Elmore’s conduct was a substantial
factor in bringing about the harm. To satisfy this element, Barrios must show that the injury is a
natural and probable consequence of Elmore’s actions.
If you find that Barrios has proven these elements by a preponderance of the evidence, then
you must find for Barrios. However, if you find that Barrios did not prove this by a preponderance
of the evidence, then you must find for Elmore.

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INSTRUCTION NO. III: BARRIOS’ CLAIM OF INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS
Barrios claims he can recover for his mental and emotional harm because Elmore
intentionally inflicted emotional distress on Barrios.
To succeed on this claim, Barrios must prove each of the following elements by a
preponderance of the evidence:
First, Elmore’s conduct was intentional or reckless.
Second, Elmore’s conduct was outrageous and intolerable in that it offends against the
generally accepted standards of decency and morality.
Third, Barrios’ emotional distress was caused by Elmore’s conduct. To satisfy this element
of this claim, Barrios must present medical or scientific proof to support the claimed injury or
impairment.
Fourth, the distress suffered by Barrios was severe. To satisfy this element, Barrios must
suffer distress that is substantially more than mere sorrow. Distress that does not significantly
affect Barrios’ everyday life or require significant treatment will not suffice.
If you find that Barrios has proven these elements by a preponderance of the evidence, then
you must find for Barrios. However, if you find that Barrios did not prove this by a preponderance
of the evidence, then you must find for Elmore.

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INSTRUCTION NO. IV: BARRIOS’ COMPENSATORY DAMAGES
If you find that Barrios has proven all the required elements of any of his claims, you should
then consider what, if any, compensatory damages Barrios should receive. If you do not find for
Barrios on the question of liability for any of his claims, then you should not consider the question
of damages for Barrios.
When considering Barrios’ compensatory damages, you should determine what amount, if
any, has been proven by a preponderance of the evidence as full, just, and reasonable compensation
for all Barrios’ damages as a result of Elmore’s actions, no more and no less. Compensatory
damages are not allowed as a punishment and must not be imposed or increased to penalize
Elmore. Compensatory damages also must not be based on speculation or guesswork.
In determining the amount of damages, if any, due to Barrios you should not award any
damages related to his loss of employment. Barrios is only entitled to damages for emotional
distress, if any, caused by Elmore’s actions.
You should consider the following elements of damages, to the extent you find that Barrios
has proven them by a preponderance of the evidence, and no others: emotional pain and mental
anguish. To determine whether and how much Barrios should recover for emotional pain and
mental anguish, you may consider both the mental and physical aspects of injury, tangible and
intangible.
You will determine what amount fairly compensates Barrios for his claims. There is no
exact standard to apply, but the award should be fair in light of the evidence.
The fact that I have given you instructions concerning the issue of Barrios’ damages should
not be interpreted in any way as an indication that I believe Barrios should, or should not, prevail
in this case.

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INSTRUCTION NO. V: BARRIOS’ PUNITIVE DAMAGES
If you find that Barrios is entitled to compensatory damages, you should then proceed to
consider what, if any, punitive damages Barrios should receive. Punitive damages are available
only if you have found that Barrios has proven all the required elements of his claim for assault or
his claim for mental and emotional harm because Elmore intentionally inflicted emotional distress
on Barrios. If you do not find Barrios has proven all the required elements for assault or intentional
infliction of emotional distress, then you may not award punitive damages. Even if you find for
Barrios on his terroristic threatening claim, you may not award punitive damages on that claim
specifically.
Punitive damages may be awarded upon Barrios’ showing by clear and convincing
evidence that Elmore acted toward him with either oppression or malice. Clear and convincing
evidence is a higher standard of proof than preponderance of the evidence. “Clear and convincing”
means evidence that provides your mind a firm belief or conviction as to the facts sought to be
established. “Oppression” means conduct which is specifically intended by Elmore to subject
Barrios to cruel and unjust hardship. “Malice” means intentionally cruel and unjust or intentionally
injurious behavior. Malice may be implied from outrageous conduct and need not be express so
long as the conduct is sufficient to evidence conscious wrongdoing.
If you determine that punitive damages should be awarded, you should consider the
following elements in determining the amount:
(a) the likelihood at the relevant time that serious harm would arise from Elmore’s
misconduct;
(b) the degree of Elmore’s awareness of that likelihood;
(c) the profitability of the misconduct to Elmore;
(d) the duration of the misconduct and any concealment of it by Elmore; and
(e) any actions by Elmore to remedy the misconduct once it became known to him.
The fact that I have given you instructions concerning punitive damages should not be
interpreted in any way as an indication that I believe Barrios should, or should not, prevail in this
case.

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INSTRUCTION NO. VI: ELMORE’S CLAIM OF INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS
Elmore claims he can recover for his mental and emotional harm because Barrios
intentionally inflicted emotional distress on Elmore.
To succeed on this claim, Elmore must prove each of the following elements by a
preponderance of the evidence:
First, Barrios’ conduct was intentional or reckless.
Second, Barrios’ conduct was outrageous and intolerable in that it offends against the
generally accepted standards of decency and morality.
Third, Elmore’s emotional distress was caused by Barrios’ conduct. To satisfy this element
of this claim, Elmore must present medical or scientific proof to support the claimed injury or
impairment.
Fourth, the distress suffered by Elmore was severe. To satisfy this element, Elmore must
suffer distress that is substantially more than mere sorrow. Distress that does not significantly
affect Elmore’s everyday life or require significant treatment will not suffice.
If you find that Elmore has proven these elements by a preponderance of the evidence, then
you must find for Elmore. However, if you find that Elmore did not prove this by a preponderance
of the evidence, then you must find for Barrios.

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INSTRUCTION NO. VII: ELMORE’S CLAIM OF STALKING
Elmore claims that he can recover for his mental and emotional harm under Kentucky’s
negligence per se statute because Barrios has violated Kentucky’s anti-stalking statute, KRS §
508.150.
To succeed on this claim, Elmore must prove each of the following elements by a
preponderance of the evidence:
First, Barrios committed “stalking” as that term is defined under Kentucky law. To “stalk”
means to:
(1) engage in an intentional course of conduct;
(2) directed at a specific person or persons;
(3) which seriously alarms, annoys, intimidates, or harasses the person or persons;
and
(4) which serves no legitimate purpose.
The course of conduct must be that which would cause a reasonable person to suffer substantial
mental distress. A “course of conduct” means a pattern of conduct composed of two or more acts,
evidencing a continuity of purpose.
Second, Barrios made an explicit or implicit threat with the intent to place Elmore in
reasonable fear of sexual contact. “Sexual contact” means any touching of the sexual or other
intimate parts of a person done for the purpose of gratifying the sexual desire of either party.
If you find that Elmore has proven these elements by a preponderance of the evidence, then
you must find for Elmore. However, if you find that Elmore did not prove this by a preponderance
of the evidence, then you must find for Barrios.

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INSTRUCTION NO. VIII: ELMORE’S COMPENSATORY DAMAGES
If you find that Elmore has proven all the required elements of any of his claims, you should
then consider what, if any, compensatory damages Elmore should receive. If you do not find for
Elmore on the question of liability for any of his claims, then you should not consider the question
of damages for Elmore.
When considering Elmore’s compensatory damages, you should determine what amount,
if any, has been proven by a preponderance of the evidence as full, just, and reasonable
compensation for all Elmore’s damages as a result of Barrios’ actions, no more and no less.
Compensatory damages are not allowed as a punishment and must not be imposed or increased to
penalize Barrios. Compensatory damages also must not be based on speculation or guesswork.
You should consider the following elements of damages, to the extent you find that Elmore
has proven them by a preponderance of the evidence, and no others: emotional pain and mental
anguish. To determine whether and how much Elmore should recover for emotional pain and
mental anguish, you may consider both the mental and physical aspects of injury, tangible and
intangible.
You will determine what amount fairly compensates Elmore for his claims. There is no
exact standard to apply, but the award should be fair in light of the evidence.
The fact that I have given you instructions concerning the issue of Elmore’s damages
should not be interpreted in any way as an indication that I believe Elmore should, or should not,
prevail in this case.

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INSTRUCTION NO. IX: ELMORE’S PUNITIVE DAMAGES
If you find that Elmore is entitled to compensatory damages, you should then proceed to
consider what, if any, punitive damages Elmore should receive. Punitive damages are available
only if you have found that Elmore has proven all the required elements of his claim for mental
and emotional harm because Barrios intentionally inflicted emotional distress on Elmore. Even if
you find for Elmore on his stalking claim, you may not award punitive damages on that claim
specifically.
Punitive damages may be awarded upon Elmore’s showing by clear and convincing
evidence that Barrios acted toward him with either oppression or malice.
Clear and convincing evidence is a higher standard of proof than preponderance of the
evidence. “Clear and convincing” means evidence that provides your mind a firm belief or
conviction as to the facts sought to be established.
“Oppression” means conduct which is specifically intended by Barrios to subject Elmore
to cruel and unjust hardship. “Malice” means intentionally cruel and unjust or intentionally
injurious behavior. Malice may be implied from outrageous conduct and need not be express so
long as the conduct is sufficient to evidence conscious wrongdoing.
If you determine that punitive damages should be awarded, you should consider the
following elements in determining the amount:
(a) the likelihood at the relevant time that serious harm would arise from Barrios’
misconduct;
(b) the degree of Barrios’ awareness of that likelihood;
(c) the profitability of the misconduct to Barrios;
(d) the duration of the misconduct and any concealment of it by Barrios; and
(e) any actions by Barrios to remedy the misconduct once it became known to him.
The fact that I have given you instructions concerning punitive damages should not be
interpreted in any way as an indication that I believe Elmore should, or should not, prevail in this
case.

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