Thomas-King v. Summers, Inc. et al

Filing 33

MEMORANDUM AND ORDER scheduling pretrial conference, trial and related deadlines. Signed by Magistrate Judge Charles B. Day on 11/4/11. (cms, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
CHARLES B. DAY
UNITED STATES MAGISTRATE JUDGE

U.S. COURTHOUSE
6500 CHERRYWOOD LANE
GREENBELT, MARYLAND 20770
[phone]
FAX [phone]

November 4, 2011
TO:

Counsel

RE:

Lena Thomas-King v. Summers, Inc., et al.
Civil Action No. CBD-10-399

Dear Counsel:
This case is scheduled for a three-day jury trial beginning at 9:00 a.m. on Tuesday,
March 6, 2012 in a courtroom to be assigned. On or before February 2, 2012, counsel are
instructed to provide a joint statement of facts (no more than one short paragraph) for use as an
introduction to voir dire, a Pretrial Order and a copy of all exhibits in an exhibit binder for the
bench. The documents in the exhibit binder should be pre-marked and with an index. The Court
prefers to use the standard jury instructions found in the latest edition of the Federal Jury
Practice and Instructions series, where appropriate. Attached you will find the standard jury
instructions that I will be using, and it is not necessary to include these instructions in your
submission.
Motions in limine are to be filed on or before January 16, 2012. Opposition to motions
in limine are to be filed on or before February 2, 2012. Similarly, the deadline for raising a
Daubert challenge to the admissibility of expert evidence is January 16, 2012, a worksheet is
attached for your use. Opposition to said challenges are to be filed on or before, February 2,
2012.
The pretrial conference has been scheduled for 9:30 a.m. on Thursday, February 9,
2012 in my chambers. Counsel shall bring all original exhibits to the conference. Following the
conference, the parties shall prepare an official exhibit binder to be given to the courtroom
deputy on the first day of trial. At least one of the attorneys from each party participating in the
conference shall have the authority to enter into stipulations and to make admissions regarding
all matters that the participants may reasonably anticipate may be discussed, including the
admissibility of trial exhibits. The Court intends to rule upon the admissibility of trial exhibits at
the pretrial conference. Counsel are ordered to inspect and exchange all trial exhibits no later
than February 2, 2012. Counsel are also instructed to comply with Local Rule 106 regarding
pretrial procedures.

Thomas-King v. Summers, Inc., et al.
November 4, 2011
Page 2 of 2

Despite the informal nature of this letter, it is nonetheless an order of the Court and the
Clerk is directed to docket it as such.
Sincerely yours,
/s/
Charles B. Day
United States Magistrate Judge
Attachments

Daubert/Kumho Worksheet
1.

Name of Expert Challenged.

2.

Brief summary of opinion(s) challenged (if more than one, designate separately),
including reference to the source of the opinion (i.e., Rule 26(a)(2)(B) disclosure,
deposition transcript references, interrogatory answers). Attach highlighted copy of
source materials as exhibit.

3.

Briefly describe methodology/reasoning used by expert to reach each opinion which is
challenged. Include reference to source of challenged methodology/reasoning, and attach
a highlighted copy as an exhibit.

4.

Briefly describe the basis for the challenge to the reasoning/methodology used by the
expert (for example, methodology unreliable; methodology reliable, but not valid for
application to this case; failure to use standardized or accepted methodology (for
example, with a standardized test); etc.) Attach a highlighted copy of affidavit or other
source material supporting challenge to methodology/reasoning as an exhibit.

5.

Is the challenged methodology/reasoning subject to a known or potential error rate? If
so, briefly describe it, and attach a highlighted copy of any relevant source material as an
exhibit.

6.

Summarize relevant peer review materials relating to methodology/reasoning challenged,
and attach a highlighted copy of any relevant source material as an exhibit.

7.

If the challenge to the opinion is based upon a contention that the methodology/reasoning
has not been generally accepted within the relevant scientific or technical community,
briefly explain the basis for this contention. Attach highlighted copy of any relevant
supporting materials as an exhibit.

ROLE OF THE JURY
As members of the jury, you are the sole and exclusive judges of the facts, You pass upon
the evidence. You determine the credibility of the witnesses. You resolve such conflicts as there
may be in the testimony. You draw whatever reasonable inferences you decide to draw from the
facts as you have determined them, and you determine the weight of the evidence.
I also ask you to draw no inference from the fact that upon occasion I asked questions of
certain witnesses. You are expressly to understand that the court has no opinion as to the verdict
you should render in this case.
As to the facts, ladies and gentlemen, you are the exclusive judges. You are to perform
the duty of finding the facts without bias or prejudice to any party.
CONDUCT OF COUNSEL
It is the duty of the attorney on each side of a case to object when the other side offers
testimony or other evidence which the attorney believes is not properly admissible. Counsel also
have the right and duty to ask the Court to make rulings of law and to request conferences at the
side bar out of the hearing of the jury. All questions of law must be decided by the Court. You
should not show any prejudice against an attorney or his client because the attorney objected to
the admissibility of evidence, or asked for a conference out of the hearing of the jury or asked
the Court for a ruling on the law.
REPRIMAND OF COUNSEL
During the course of the trial, I may have admonished an attorney. You should draw no
inference against the attorney or the client. It is the duty of the attorneys to offer evidence and
press objections on behalf of their side. It is my function to cut off counsel from an improper line
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of argument or questioning, to strike offending remarks and to correct counsel when I think it is
necessary. But you should draw no inference from that. It is irrelevant whether you like a lawyer
or whether you believe I like a lawyer.
IMPROPER CONSIDERATION:
RACE, RELIGION, NATIONAL ORIGIN, SEX OR AGE
Your verdict must be based solely upon the evidence developed at this trial, or the lack of
evidence.
It would be improper for you to consider any personal feelings you may have about one
of the parties' race, religion, national origin, sex or age.
The parties in this case are entitled to a trial free from prejudice. Our judicial system
cannot work unless you reach your verdict through a fair and impartial consideration of the
evidence.
BURDEN OF PROOF--PREPONDERANCE OF THE EVIDENCE
The party with the burden of proof on any given issue has the burden of proving every
disputed element of his or her claim to you by a preponderance of the evidence. If you conclude
that the party bearing the burden of proof has failed to establish his or her claim by a
preponderance of the evidence, you must decide against him or her on the issue you are
considering.
What does a ''preponderance of evidence'' mean? To establish a fact by a preponderance
of the evidence means to prove that the fact is more likely true than not true. A preponderance of
the evidence means the greater weight of the evidence. It refers to the quality and persuasiveness
of the evidence, not to the number of witnesses or documents. In determining whether a claim

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has been proved by a preponderance of the evidence, you may consider the relevant testimony of
all witnesses, regardless of who may have called them, and all the relevant exhibits received in
evidence, regardless of who may have produced them.
If you find that the credible evidence on a given issue is evenly divided between the
parties--that it is equally probable that one side is right as it is that the other side is right--then
you must decide that issue against the party having this burden of proof. That is because the
party bearing this burden must prove more than simple equality of evidence--he or she must
prove the element at issue by a preponderance of the evidence. On the other hand, the party with
this burden of proof need prove no more than a preponderance. So long as you find that the
scales tip, however slightly, in favor of the party with this burden of proof--that what the party
claims is more likely true than not true--then that element will have been proved by a
preponderance of evidence.
Some of you may have heard of proof beyond a reasonable doubt, which is the proper
standard of proof in a criminal trial. That requirement does not apply to a civil case such as this
and you should put it out of your mind.
"INFERENCES" DEFINED
You are to consider only the evidence in the case. However, you are not limited to the
statements of the witnesses. In other words, you are not limited to what you see and hear as the
witnesses testify. You may draw from the facts that you find have been proved such reasonable
inferences as seem justified in light of your experience.
"Inferences" are deductions or conclusions that reason and common sense lead you to
draw from facts established by the evidence in the case.
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WHAT IS AND IS NOT EVIDENCE
The evidence in this case is the sworn testimony of the witnesses, the exhibits received in
evidence, stipulations, and judicially noticed facts.
By contrast, the question of a lawyer is not to be considered by you as evidence. It is the
witnesses' answers that are evidence, not the questions. At times, a lawyer on cross-examination
may have incorporated into a question a statement which assumed certain facts to be true, and
asked the witness if the statement was true. If the witness denied the truth of a statement, and if
there is no direct evidence in the record proving that assumed fact to be true, then you may not
consider it to be true simply because it was contained in the lawyer's question.
The famous example of this is the lawyer's question of a married witness: ''When did you
stop beating your wife?'' You would not be permitted to consider as true the assumed fact that he
ever beat his wife, unless the witness himself indicated he had, or unless there was some other
evidence in the record that he had beaten his wife.
Testimony that has been stricken or excluded is not evidence and may not be considered
by you in rendering your verdict. Also, if certain testimony was received for a limited purpose-such as for the purpose of assessing a witness' credibility--you must follow the limiting
instructions I have given.
Arguments by lawyers are not evidence, because the lawyers are not witnesses. What
they have said to you in their opening statements or what they may say in their summations is
intended to help you understand the evidence to reach your verdict. However, if your
recollection of the facts differs from the lawyers' statements, it is your recollection which
controls.
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Finally, statements which I may have made concerning the quality of the evidence do not
constitute evidence.
It is for you alone to decide the weight, if any, to be given to the testimony you have
heard and the exhibits you have seen.
INTERROGATORIES
You may have heard and seen evidence in this case which is in the form of
interrogatories.
Interrogatories are written questions posed by one side which call for written answers
under oath from the other side. Both the questions and answers are made prior to trial, and each
side is entitled to seek answers to interrogatories from the other.
You may consider a party's answers to interrogatories as evidence against a party who
made the answer, just as you would any other evidence which has been admitted in this case.
In this regard, you are not required to consider a party's answers to interrogatories as true,
nor are you required to give them more weight than any other evidence. It is up to you to
determine what weight, if any, should be given to the interrogatory answers which have been
admitted as evidence.
DEPOSITIONS
Some of the testimony before you is in the form of depositions which have been received
in evidence. A deposition is simply a procedure where the attorneys for one side may question a
witness or a party under oath before a court stenographer prior to trial. Each side is entitled to
take depositions. You may consider the testimony of a witness given at a deposition according to
the same standards you would use to evaluate the testimony of a witness given at trial.
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DIRECT AND CIRCUMSTANTIAL EVIDENCE
There are two types of evidence which you may properly use in reaching your verdict.
One type of evidence is direct evidence. Direct evidence is when a witness testifies about
something he knows by virtue of his own senses--something he has seen, felt, touched, or heard.
Direct evidence may also be in the form of an exhibit such as a copy of a contract where the fact
to be proved is that the parties had a contract.
Circumstantial evidence is evidence which tends to prove a disputed fact by proof of
other facts. Here is a simple example of circumstantial evidence which is often used in this
courthouse.
Assume that when you came into the courthouse this morning the sun was shining and it
was a nice day. As you were sitting here, someone walked in with an umbrella which was
dripping wet. Then a few minutes later another person also entered with a wet umbrella. Now,
you cannot look outside of the courtroom and you cannot see whether or not it is raining. So you
have no direct evidence of that fact. But on the combination of facts which I have asked you to
assume, it would be reasonable and logical for you to conclude that it had been raining.
That is all there is to circumstantial evidence. You infer on the basis of reason and
experience and common sense from one established fact the existence or non-existence of some
other fact.
Circumstantial evidence is of no less value than direct evidence; for, it is a general rule
that the law makes no distinction between direct evidence and circumstantial evidence but
simply requires that your verdict must be based on a preponderance of all the evidence
presented.
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STIPULATION OF FACTS
STIPULATION OF FACTS
A stipulation of facts is an agreement among the parties that a certain fact is true. You
must regard such agreed facts as true.
BURDEN OF PROOF
When a party has the burden to prove any matter by a preponderance of the evidence, it
means that you must be persuaded by the testimony and exhibits that the matter sought to be
proved is more probably true than not true. You should base your decision on all of the evidence,
regardless of which party presented it.
CREDIBILITY OF WITNESSES
You are the sole judges of the credibility of the witnesses and the weight their testimony
deserves. You may be guided by the appearance and conduct of the witness, or by the manner in
which the witness testifies, or by the character of the testimony given, or by evidence contrary to
the testimony.
You should carefully examine all the testimony given, the circumstances under which
each witness has testified, and every matter in evidence tending to show whether a witness is
worthy of belief. Consider each witness' intelligence, motive and state of mind, and demeanor or
manner while testifying.
Consider the witness' ability to observe the matters as to which the witness has testified,
and whether the witness impresses you as having an accurate recollection of these matters. Also,
consider any relation each witness may have with either side of the case, the manner in which
each witness might be affected by the verdict, and the extent to which the testimony of each
witness is either supported or contradicted by other evidence in the case.
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Inconsistencies or discrepancies in the testimony of a witness, or between the testimony
of different witnesses may or may not cause you to discredit such testimony. Two or more
persons seeing an event may see or hear it differently.
In weighing the effect of a discrepancy, always consider whether it pertains to a matter of
importance or an unimportant detail, and whether the discrepancy results from innocent error or
intentional falsehood.
After making your own judgment, you will give the testimony of each witness such
weight, if any, that you may think it deserves. In short, you may accept or reject the testimony of
any witness, in whole or in part.
In addition, the weight of the evidence is not necessarily determined by the number of
witnesses testifying to the existence or nonexistence of any fact. You may find that the testimony
of a small number of witnesses as to any fact is more credible than the testimony of a larger
number of witnesses to the contrary.
EXPERT WITNESS
The rules of evidence ordinarily do not permit witnesses to testify as to opinions or
conclusions. An exception to this rule exists for "expert witnesses." An expert witness is a
person who, by education and experience has become expert in some art, science, profession, or
calling. Expert witnesses may state their opinions as to matters in which they profess to be
expert, and may also state their reasons for their opinions.
You should consider each expert opinion received in evidence in this case, and give it
such weight as you think it deserves.

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NUMBER OF WITNESSES
The weight of the evidence is not necessarily determined by the number of witnesses
testifying to the existence or nonexistence of any fact. You may find that the testimony of a
small number of witnesses as to any fact is more credible than the testimony of a larger number
of witnesses to the contrary.
The test is not which side brings the greater number of witnesses or takes the most time
to present its evidence, but which witnesses and what evidence appeal to your minds as being
most accurate and otherwise trustworthy.
USE OF NOTES
You may use the notes taken by you during the trial. However, the notes should not be
substituted for your memory. Remember, notes are not evidence. If your memory should differ
from your notes, then you should rely on your memory and not on your notes.
RETURN OF VERDICT
After you have reached a verdict, your foreperson will fill in the form that has been given
to you, sign and date it and advise the marshal outside your door that you are ready to return to
the courtroom.
I will stress that you should be in agreement with the verdict which is announced in
court. Once your verdict is announced by your foreperson in open court and officially recorded,
it cannot ordinarily be revoked.
DUTY TO DELIBERATE
The verdict must represent the considered judgment of each of you. In order to return a
verdict, it is necessary that each juror agree. Your verdict must be unanimous.
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It is your duty, as jurors, to consult with one another, and to deliberate with a view to
reaching an agreement, if you can do so without disregard of 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 jurors. In the course of your deliberations, do not hesitate to reexamine
your own views, and change your opinion, if convinced it is erroneous. But do not surrender
your honest conviction as to the weight or effect of evidence, solely because of the opinion of
your fellow jurors, or for the mere purpose of returning a verdict.
Remember at all times that you are not partisans. You are judges--judges of the facts.
Your sole interest is to seek the truth from the evidence in the case.
CONCLUSIONCUNANIMOUS VERDICT
In order to reach a verdict in this case, each of you must agree upon it. Your verdict must
be unanimous.

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