Free Order - District Court of Colorado - Colorado

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Section 1.0 General Instructions

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INSTRUCTION NO. 1.1 DESCRIPTION OF THE CASE

In order to help you understand this case, I will give you a brief summary of the claims and defenses. This lawsuit has been brought by the plaintiffs. According to the plaintiffs, a single-engine airplane was flying off the eastern coast of Russia when the pilot heard unusual sounds coming from the airplane's engine. The pilot elected to shut down the engine. When the pilot believed the engine would not restart, the pilot made an emergency landing in the water. The pilot and his three passengers exited the aircraft, and got into a floating life raft. After floating in the ocean for about fifteen hours, the pilot and passengers were rescued by a passing ship. Although no one suffered any serious personal injuries during the incident, the airplane presumably sank to the bottom of the ocean, and it has never been recovered. There are three plaintiffs in this lawsuit. Plaintiff Jeflyn Aviation, Inc., which does business as Access Air, is the company that leased and operated the airplane. This company will be called "Access Air." Access Air presented a claim to its insurance company, plaintiff United States Aviation Underwriters, Inc., for the loss of the airplane, and that claim was paid. I will call the

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insurance company "USAU." Access Air and USAU seek to recover damages for the loss of the airplane. The third plaintiff is Paul Leadabrand, a former owner and employee of Access Air. Mr. Leadabrand seeks to recover damages for the loss of his own personal property that was on the airplane when it sank, and other expenses he incurred as a result of the incident. The three plaintiffs ­USAU, Access Air, and Mr. Leadabrand ­have sued three different companies, who are known as the defendants. The first defendant is Pratt & Whitney Canada, Inc., a Canadian company I will refer to as "Pratt & Whitney." The second defendant is Pilatus Aircraft Ltd., a Swiss company that will be called "Pilatus Switzerland." Finally, the third defendant is Pilatus Business Aircraft, Ltd., a Colorado company that I will call "Pilatus Colorado." For purposes of this lawsuit, Pilatus Switzerland and Pilatus Colorado are legally the same entity, and you may hear them referred to collectively as " Pilatus." The plaintiffs say that the airplane and its engine were defective and unreasonably dangerous. Defendants Pratt & Whitney and Pilatus deny these allegations.

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INSTRUCTION NO. 1.2 STIPULATED FACTS

The plaintiffs and defendants have agreed to the following facts:

1.

The airplane was a model PC-12/45, serial number 356, registration number N660NR.

2.

The airplane was designed by Pilatus Switzerland which manufactured it in Switzerland in 2000.

3.

The airplane was manufactured with a single model PT6A-67B engine, serial number PCE-PR0217.

4.

The engine was designed and manufactured by Pratt & Whitney which sold the engine to Pilatus Switzerland.

5.

Pilatus Switzerland installed the engine in the airplane.

6.

Pilatus Switzerland sold the airplane to Pilatus Colorado in 2000.
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7.

Pilatus Colorado is a wholly-owned subsidiary of Pilatus Switzerland.

8.

Pilatus Colorado sold the airplane to Western Aircraft in December 2000. Western Aircraft, a company located in Boise, Idaho, is not a party to this lawsuit.

9.

Western Aircraft sold the airplane to DJS Aviation, LLC in December 2000. DJS Aviation, a company located in Boise, Idaho, is not a party to this lawsuit.

10.

DJS Aviation leased the airplane to Access Air, a company located in Boise, Idaho, in December, 2000.

11.

The incident occurred on July 8, 2001.

12.

At the time of the incident, the aircraft was owned by DJS Aviation, LLC.

13.

At the time of the incident, the aircraft was insured under a policy of insurance issued by plaintiff United States Aviation Underwriters, Inc., which provided coverage for any damage to or the loss of the aircraft.

14.

At the time of the incident, the airplane was flown by pilot Mike Smith, an
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employee of Access Air acting in the course and scope of his employment. Mr. Smith is not a party to this lawsuit.

15.

At the time of the incident, there were three passengers on board, Mr. Katsuyoshi Ida, Mr. Ari Yamagata and Ms. Haruko Kikukawa. These three passengers, who all reside in Japan, are not parties to this lawsuit.

16.

At the time of the incident, the airplane had fewer than 400 hours of total flight time.

17.

At the time of the incident, the reasonable fair market value of the airplane was $3.1 million ($3,100,000.00).

18.

After the incident, plaintiff United States Aviation Underwriters, Inc. paid Access Air and DJS Aviation the full agreed amount for the loss of the aircraft. DJS Aviation received the full amount of this payment as the owner of the aircraft.

19.

The airplane was never recovered.

20.

Pratt & Whitney is engaged in the business of designing, manufacturing,
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assembling, testing, and selling airplane engines.

21.

Pilatus Switzerland is engaged in the business of designing, manufacturing, assembling, testing, and selling airplanes.

22.

Pilatus Colorado is engaged in the business of selling airplanes manufactured by Pilatus Switzerland.

23.

The airplane and engine were expected to reach plaintiffs without substantial change in the condition in which they were designed, manufactured, assembled, tested, and sold.

24.

The airplane and engine did reach plaintiffs without substantial change in the condition in which they were designed, manufactured, assembled, tested, and sold.

25.

Plaintiffs are persons reasonably expected to use or be affected by the airplane and engine.

26.

The Federal Aviation Administration (usually called the " FAA" issues ), regulations called Federal Aviation Regulations (" FARs" that prescribe safety )
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standards with which all manufacturers, pilots and operators are required by law to comply.

27.

Certain FARs are applicable to the design, manufacture and testing of aircraft such as the PC-12/45 and its engine.

28.

Before an aircraft such as the PC-12/45 may be sold in the U.S., the aircraft and engine manufacturers must be issued Type Certificates and the specific aircraft must be issued an Airworthiness Certificate.

29.

An aircraft or engine manufacturer is entitled to a Type Certificate if the FAA finds upon examination of the aircraft or engine design that the design complies with all applicable FARs and that no feature or characteristic makes the aircraft or engine unsafe.

30.

An aircraft may be issued an Airworthiness Certificate if the FAA finds that the aircraft conforms to its approved design including the engine' approved design s and is in condition for safe operation.

31.

Pilatus Switzerland is the holder of a Type Certificate for the PC-12/45 issued
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by the FAA.

32.

Pratt and Whitney is the holder of a Type Certificate for the PT6A-67B engine issued by the FAA.

33.

Just prior to reaching the plaintiffs, the subject PC-12/45 including its engine was issued an Airworthiness Certificate.

This agreement makes the presentation of any evidence to prove these facts unnecessary. The agreement means that you must accept these facts as true.

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INSTRUCTION NO. 1.3 EQUALITY OF PARTIES

All persons are equal before the law regardless of race, national origin, citizenship, or even whether the party is a corporation. I tell you that all parties are equal before the law to remind you that you must base any decision in this case on the law and facts, not outside factors such as race, national origin, citizenship, or corporate status.

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INSTRUCTION NO. 1.4 MULTIPLE DEFENDANTS

Although there are two defendant entities in this action, it does not follow from that fact alone that if one defendant is liable, then all defendants are liable. Each defendant is entitled to a fair consideration of the evidence. Neither Pratt & Whitney nor the Pilatus entities are to be prejudiced should you find for one or against the other. Unless otherwise stated, all instructions I give you govern the case as to each defendant. At the conclusion of all of the evidence, you will be asked to consider and reach separate verdicts for Defendants Pratt & Whitney and Pilatus Switzerland/Colorado.1

Judge' Note: Reflects the court' ruling at the 5/31 Final Trial Preparation s s Conference on Document 111, Pilatus Defendants' Motion in Limine asking to be treated as one for all purposes. 11

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INSTRUCTION NO. 1.52 EMPLOYER AND EMPLOYEE, INSURER AND INSURED

In this lawsuit, USAU stands in the shoes of Access Air, and is entitled to assert Access Air's rights, if any, against the defendants. In this lawsuit, the defendants are also entitled to assert against USAU any defenses they are able to assert against Access Air.

Judge' Note: Plaintiffs'objection is SUSTAINED and Pls'counter-proposed s instruction on p. 20 of the Nov. 11 submission forms the basis for this instruction. 12

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INSTRUCTION NO. 1.6 STATUS OF A CORPORATION

All persons are equal before the law. A corporation is considered by the law to be a person. Corporations are entitled to the same fair and conscientious consideration by you as any physical person. Corporations can act only through their officers and employees. Any act or omission of an officer or employee while acting within the scope of his or her employment or authority is the act or omission of the corporation.

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INSTRUCTION NO. 1.7 KNOWLEDGE OF A CORPORATION

Knowledge of, or notice to, a corporation's director, officer, or employee received while he or she is acting within the scope of his or her authority, is the knowledge of, or notice to, the corporation.

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INSTRUCTION NO. 1.8 EVIDENCE ­GENERAL

It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judges of the facts. You will hear the evidence, decide what the facts are, and then apply those facts to the law I give you. That is how you will reach your verdict. In doing so, you must follow the law whether you agree with it or not. At no time during the trial will I suggest what I think your verdict should be nor do I want you to guess or speculate about my views of what verdict you should render. You will decide what the facts are from the evidence that the parties will present to you during the trial. That evidence will consist of the sworn testimony of witnesses on both direct and cross-examination, regardless of who called the witness; documents and other things received into evidence as exhibits; and any facts on which the lawyers agree or which I may instruct you to accept as true. The following things are not evidence and you must not consider them as evidence in deciding the facts of this case:

1.

Statements and arguments by lawyers are not evidence.

The lawyers are not witnesses. What they say in their opening statements, closing arguments, and at other times is intended to help you interpret the evidence, but it is not
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evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of the facts controls.

2.

Questions and objections by the lawyers are not evidence.

Lawyers have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by my ruling on it.

3.

Testimony that has been excluded or stricken, or that you

have been instructed to disregard, is not evidence and must not be considered.

4.

Anything you may see or hear when the Court is not in

session is not evidence, even if what you see or hear is done or said by one of the parties or by one of the witnesses.

You are to consider only the evidence in the case. But in your consideration of the evidence, you are not limited solely to what you see and hear as the witnesses testify. You are permitted to draw, from facts that you find have been proved, such reasonable inferences as seem justified in the light of your experience. Inferences are inductions or
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conclusions your reason and common sense lead you to draw from the facts established by the evidence in the case.

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INSTRUCTION NO. 1.9 EVIDENCE ­DIRECT AND CIRCUMSTANTIAL Evidence can be either direct or circumstantial. Direct evidence is testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is indirect evidence; that is, it is proof of one or more facts from which one can find that another fact exists or is true. You should consider both kinds of evidence in deciding this case. It is for you to decide how much weight to give to any evidence, direct or circumstantial. The rules of evidence control the facts you may consider. When one lawyer asks a question or offers an exhibit and an opposing lawyer thinks that it is not permitted by the rules of evidence, the opposing lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered and the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer might have been.

Sometimes I may order that evidence be stricken from the record and that you disregard or ignore such evidence. That means that when you are deciding the case, you must not consider the evidence that I told you to disregard.

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INSTRUCTION NO. 1.10 INFERENCE-- CONSTRUCTIVE KNOWLEDGE BASED ON DUTY TO INQUIRE

You must find that a person knew a fact, if he had information that would have led a reasonable person to inquire further and that inquiry would have revealed that fact.

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INSTRUCTION NO. 1.11 FILING OF LAWSUIT AND PLEADINGS

The fact that a claimant files a lawsuit is not evidence that the other party did anything wrong. The fact that a claimant complains that he has been damaged is not evidence that he has been damaged or that the other party violated the law. You cannot say, " Well, there must be something wrong here or the case would not be in court." This would be improper. By the same reasoning, the fact that an answer to the complaint has been filed is not evidence that the other party has not been damaged or that the answering party did not violate the law. The filing of a lawsuit and the pleading, including the complaint and the answer, are merely the mechanisms by which the case is brought to court for you to decide.

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INSTRUCTION NO. 1.12 CREDIBILITY OF WITNESSES

In deciding the facts of this case, you will have to decide which witnesses to believe and which witnesses not to believe. You may believe everything a witness says, only part of it, or none of it. In considering the testimony of any witness, you may consider:

1.

The witness's opportunity and ability to see or hear or know the things to which the witness testified;

2.

The quality of the witness's memory;

3.

The witness's manner while taking the oath and while testifying;

4.

Whether the witness had an interest in the outcome of the case or any motive, bias or prejudice;

5.

Whether the witness's testimony is contradicted by anything the witness said or did at another time, by the testimony of other witnesses, or by other evidence;
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6.

How reasonable the witness's testimony was in light of all the evidence; and,

7.

Any other facts that bear on believability.

The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify to that fact. If you believe a witness has willfully lied regarding any material fact, you have the right to disregard all or any part of that witness's testimony.

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INSTRUCTION NO. 1.13 SINGLE WITNESS

The testimony of a single witness that produces in your minds belief in the likelihood of truth is sufficient for the proof of any fact, and would justify a verdict in accordance with such testimony, even though a number of witnesses may have testified to the contrary, if, after consideration of all the evidence in the case, you hold greater belief in the accuracy and reliability of the one witness.

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INSTRUCTION NO. 1.14 PREPONDERANCE NOT DETERMINED BY NUMBER OF WITNESSES

The weight of evidence is not necessarily determined by the number of witnesses testifying to a particular fact.

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INSTRUCTION NO. 1.15 BURDEN OF PROOF

This is a civil case. Therefore, the plaintiffs have the burden of proving their claims by what is called a preponderance of the evidence. That means that no matter who produces the evidence, when you consider each of plaintiffs' claims in light of all the facts, you believe that claim is more likely true than not true. To put it differently, if you were to put all of the evidence in favor of plaintiffs and all of the evidence in favor of defendants on opposite sides of the scales, plaintiffs would have to make the scale tip to their side. If plaintiffs fail to meet this burden on any of their claims, your verdict on that claim must be for defendants. In defense to one or more of plaintiffs' claims, defendants have asserted affirmative defenses, which will be described to you more fully later. An affirmative defense is more than a denial of the claim. In terms of applying the burden of proof, you should treat defendant' affirmative defenses in the same way you treat plaintiffs' claims. s' That is, defendants, as the asserting parties, have the burden of proving that the affirmative defense is more likely true than not true. In evaluating whether plaintiffs and defendants have met their respective burdens on their claims and defenses, you should also know that the law does not require parties to call as witnesses all persons who may have been present at any time or place involved
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in the case, or who may appear to have some knowledge of the matter in issue at this trial. Nor does the law require parties to produce as exhibits all papers or other things mentioned in the evidence in the case.

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INSTRUCTION NO. 1.16 JUROR CONDUCT

Your conduct as jurors is of the utmost importance. First, do not talk with one another about this case or about anyone who has anything to do with it until the end of the case when you go the jury room to decide on your verdict. Second, do not talk with anyone else about this case or about anyone who has anything to do with it until the trial has ended and you have been discharged as jurors. " Anyone else"includes members of your family and your friends. You may tell them that you are a juror in a case and that I have ordered you not to tell them anything else about it until the case is over. Third, do not let anyone talk to you about the case or about anyone who has anything to do with it. If someone tries to talk to you, please report it to me immediately. Fourth, do not read any news stories or articles or listen to any radio or television reports about the case or about anyone who has anything to do with the case. Fifth, do not do any research, such as consulting dictionaries or other reference materials, and do not make any investigation about the case on your own. Sixth, do not make up your mind about what the verdict should be until after you have gone to the jury room to decide the case and you and your fellow jurors have
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discussed the evidence. Keep an open mind until then. Seventh, each of you will have one or more notebooks containing the names of the witnesses and copies of exhibits. You are free to take notes in order to enhance your memory or assist you in recollecting during your deliberations. I caution you, however, not to become a slave to your notes. It is most important that you observe the witnesses and listen to their testimony. Your note taking should merely assist you.

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INSTRUCTION NO. 1.17 OUTLINE OF TRIAL

The next phase of the trial will now begin. First, each side may make an opening statement. An opening statement is not evidence. It is simply an outline to help you understand what that party expects the evidence will show. A party is not required to make an opening statement. The plaintiff will then present evidence, and counsel for the defendant may cross-examine. Then the defendant may present evidence, and counsel for the plaintiff may cross-examine. After the evidence has been presented, the attorneys will make closing arguments and I will instruct you on the law that applies to the case. After that, you will go to the jury room to deliberate on your verdict.

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INSTRUCTION NO. 1.18 Evidence ­NO SPECULATION3

You must arrive at your findings of fact based on the burden of proof as I have explained it to you. The burden of proof in a civil case such as this requires that factual findings are based on probabilities, not possibilities. You should not guess or speculate about a fact.

Judge' Note: This instruction was modified from the parties'Stipulated 1.18, to s tie the concept to the Burden of Proof instruction. 30

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Section 2.0

Instructions for Use During Trial

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INSTRUCTION NO. 2.1 USE OF A PARTY' INTERROGATORY RESPONSES S

Evidence is now to be presented to you in the form of answers of one of the parties to written interrogatories submitted by the other side. These answers were given in writing and under oath, before the actual trial, in response to questions submitted in writing under established court procedures. The answers are entitled to the same consideration and are to be judged as to credibility and weight, and otherwise considered by you insofar as possible, as if the answers were made from the witness stand.

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INSTRUCTION NO. 2.2 CONSIDERATION OF DEPOSITION TESTIMONY

A deposition is testimony taken under oath before the trial and preserved in writing or on videotape. Deposition testimony can be read into evidence or shown by videotape. You are to give the same consideration to deposition testimony as to live testimony presented here in the courtroom. That is, you are to judge the credibility of the witness and determine the weight to be given to the testimony to the best of your ability under the circumstances, as if the witness had been before you on the witness stand when he or she made the statement under oath.

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INSTRUCTION NO. 2.3 OPINION EVIDENCE AND EXPERT WITNESSES

You will hear opinion evidence from people described as experts. People who by knowledge, skill, experience, training or education, have become expert in some field may state their opinions on matters in that field and may also state the reasons for their opinions. Expert opinion testimony should be judged just like any other testimony. You may accept it or reject it and give it as much weight as you think it deserves, considering the witness'education and experience, the reasons given for the opinions, and all of the other factors that you consider when determining the credibility of the other witnesses. Experts generally rely upon some assumptions in developing their opinions. These assumptions are likewise subject to your evaluation and should be considered along with the rest of the evidence. In resolving the conflict in the testimony of expert witnesses, you should weigh the opinion of one expert against that of another. In doing this, you should consider the qualifications and believability of each witness, the reasons for each opinion and the matter upon which it is based.

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INSTRUCTION NO. 2.4 CHARTS, SUMMARIES AND GRAPHIC MATERIALS

A number of charts, summaries and other graphic materials will be shown to you in order to help explain the facts and documents in evidence in the case. However, such charts, summaries and materials are not in and of themselves evidence or proof of any facts. If such materials do not correctly reflect facts or figures shown by the evidence in the case, you should disregard them.

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INSTRUCTION NO. 2.5 HIGHLIGHTED EXHIBITS

The lawyers have highlighted certain parts of some exhibits. However, it is for you to determine the significance of the highlighted parts.

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Section 3.0

Substantive Instructions

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INSTRUCTION NO. 3.1 NATURE OF PLAINTIFF'S CLAIM - STRICT PRODUCTS LIABILITY4

The plaintiffs' claim in this case is known as a " strict product liability" claim. Specifically, plaintiffs claim that both of the products (Pilatus' airplane and Pratt & s Whitney' engine) were in a defective and unreasonably dangerous condition when they s were designed, manufactured or sold, and that those defective and unreasonably dangerous products were a cause of the incident and the resulting loss of the airplane. A product may be " defective and unreasonably dangerous"either in its manufacture or design, or it may become " defective and unreasonably dangerous"if adequate warnings or instructions for use are not provided by the manufacturer or seller. Plaintiffs in this case allege both kinds of defects. First, a bit of history about this type of claim. The law of strict product liability was first endorsed in Colorado in the 1970s. Before that time, actions against product manufacturers and sellers proceeded under tort theories of negligence and breach of contract or warranty. Liability for manufacturing or selling a defective product was based on fault, and therefore the manufacturer or seller could point to the user' comparative s negligence or fault as defense to the claim. With the advent of strict product liability
Judge' Note: Modified as described at FTC. Given the explanation of strict s products liability, Plaintiffs' proposed Instruction 3.4 regarding " Sellers Liability"is unnecessary and will not be given. 38
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claims, however, liability is based simply on the act of placing a defective, unreasonably dangerous product into the stream of commerce. Because liability is not based on fault, the user' comparative negligence or " s fault"is not a defense to the manufacturer or seller' liability. It is, however, something you may consider in awarding damages, if s any. You will be instructed on the concept of comparative fault for apportioning damages later in these instructions. Because liability is " strict,"i.e., existing irrespective of fault, there are specific elements that a plaintiff must prove before strict liability will be imposed. In the instructions that follow, I will tell you more about those elements and what plaintiffs must prove.

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INSTRUCTION NO. 3.2 STRICT PRODUCTS LIABILITY - ELEMENTS OF CLAIM For plaintiffs to recover from either Pratt & Whitney or Pilatus on their claim for strict products liability, you must find all of the following have been proved by a preponderance of the evidence as to each defendant:

1.

The airplane or engine was in a defective condition unreasonably dangerous

to plaintiffs or plaintiffs'property; 2. The airplane or engine was defective at the time it was manufactured,

constructed, assembled, installed, tested, or sold by the defendant or left that defendant' s custody or control; 3. 4. Plaintiffs had damages or losses; The defect was a cause of plaintiffs' damages or losses.

If you find that any one or more of these four statements has not been proved, then your verdict must be for the defendant. On the other hand, if you find that each of these four statements has been proved, then you must go on to consider each defendant' affirmative defense of misuse, as well s as any comparative fault of plaintiffs. If you find a particular defendant or defendant group has proved its affirmative defense of misuse by a preponderance of the evidence, then your verdict must be for that defendant. If you find the defendant has failed to prove
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its affirmative defense of misuse, then you must go on to determine damages. As I mentioned in the previous instruction, part of any determination of damages will be the requirement to consider defendants'affirmative defense of comparative fault, i.e., defendants'assertion that plaintiffs'own negligent actions make them comparatively at fault for any loss they suffered such that damages must be reduced in proportion to their own comparative fault.

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INSTRUCTION NO. 3.35 "MANUFACTURER" DEFINED

Pratt & Whitney was a manufacturer of the engine. By operation of law, Pilatus Switzerland and Pilatus Colorado are both considered " manufacturers"of the aircraft. For purposes of this case, however, they are one and the same and will be referred to collectively as " Pilatus."

Judge' Note: By giving this instruction, defendants are on notice that no s reference to " innocent seller"is applicable or appropriate. 42

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INSTRUCTION NO. 3.5 DEFECTIVE, UNREASONABLY DANGEROUS-- DEFINED

A product is unreasonably dangerous because of a defect in its design if it creates a risk of harm to persons or property that would not ordinarily be expected. A product is defective in its design, even if it is manufactured and performs exactly as intended, if any aspect of its design makes the product unreasonably dangerous.

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INSTRUCTION NO. 3.6 " DEFECTIVE"- INADEQUATE WARNINGS OR INSTRUCTIONS

A product not otherwise defective becomes defective and unreasonably dangerous if adequate warnings or instructions for use are not provided. To be adequate, the warnings or instructions for use must inform the ordinary user of any specific risk of harm that may be involved in any intended or reasonably expected use, or in any failure properly to follow instructions when using the product for any intended or reasonably expected use. However, if a specific risk of harm would be apparent to an ordinary user from the product itself, a warning of or instructions concerning that specific risk of harm is not required.

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INSTRUCTION NO. 3.7 (was 3.8) GOVERNMENTAL STANDARDS

The United States Code of Federal Regulations states: "It must be possible to restart an engine in flight. Any techniques and associated limitations must be established and included in the Airplane Flight Manual, approved manual material, or applicable operating placards." You are instructed that this regulation does not apply to aircraft engines and thus applies only to Pilatus. It does not apply to defendant Pratt & Whitney.

Source: 14 C.F.R. § 23.903(e)(3)

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**INSTRUCTIONS 3.96 AND 3.107 Governmental Standards

Judge' Note: In light of Defendants' s expanded objection to Instruction 3.9, set forth at p. 3 of their Doc 176, the objection is SUSTAINED. This instruction is premised on 14 C.F.R. § 23.1581(a), which describes in only general terms what a flight manual must set forth and is inappropriate for establishing a presumption of defect under Colo. Rev. Stat. § 13-21-403 and C.J.I. 4th Civ. 3.14. Judge' Note: Same. This instruction is based on a general standard at 14 C.F.R. s § 23.1583(h) and is inappropriate for establishing a presumption of defect under § 13-21-403 and C.J.I. 4th Civ. 3.14. 46
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INSTRUCTION NO. 3.8 (was 3.14)8 DEFECT ­PRESUMPTIONS ­COMPLIANCE OR NONCOMPLIANCE WITH GOVERNMENTAL STANDARDS

" Presumptions"are legal rules based on experience or public policy. They are established in the law to assist you in ascertaining the truth. In general, they work like this: If you find certain preliminary facts to exist, then the law will instruct you to presume a fact that flows from them. The presumed fact is then subject to rebuttal evidence by the other side, but in the absence of such rebuttal evidence, you are to find that the presumed fact is more likely true than not true in accordance with the burden of proof. In this case, all three parties claim they are entitled to presumptions. Plaintiffs

Judge' Note: This series of instructions on presumptions of defect/nondefect s under C.R.S. 13-21-403 will be given only if there is sufficient evidence for a reasonable juror to find the factual prerequisite(s) for giving them: I.e., if plaintiffs present evidence from which the jury can find the engine and/or aircraft were not compliant with one or more specific (nongeneral), relevant operational or performance regulations, then the jury will be instructed to make that compliance determination and apply the presumption to the evidence/burden of proof accordingly. If either or both defendants present sufficient evidence from which a reasonable juror could find the engine and/or aircraft were compliant with all specific (non-general), relevant operational and performance regulations, then the jury will be instructed first to make that compliance determination and then to apply the presumption, if appropriate. As previously determined, FAA Certification, by itself, will be insufficient to warrant any instruction as to a presumption of non-defectiveness. 47

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contend the engine and/or aircraft failed to comply with applicable regulations so it must be presumed to be defective. Pilatus and Pratt & Whitney contend the aircraft (Pilatus) and engine (Pratt & Whitney) complied with all applicable regulations so that each must be presumed to be non-defective. Depending on the evidence presented and legal arguments made outside the presence of the jury, you may or may not ultimately be instructed to make the findings that give rise to these presumptions or to apply the presumptions in your deliberations. You are to draw no conclusions one way or the other by this instruction' presence or s absence at the end of the case.

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INSTRUCTION NO. 3.9 (was 3.7) AFFIRMATIVE DEFENSE -- MISUSE OF PRODUCT9

Despite the characterization of its liability as being " strict"product liability, a manufacturer of a product is not legally responsible for damages caused by a product under strict product liability if: 1. The product was used in a manner or for a purpose other than that which was

intended; 2. and 3. It was the unintended use, rather than any defect in the product, that caused The unintended use could not reasonably have been expected by the manufacturer;

plaintiff' claimed damages. s For each defendant or defendant group, if you find that all of these three statements have been proved, then your verdict must be for that defendant. On the other hand, if you find that any of the defendants fails to prove one or more of these three statements, then your verdict must be for plaintiffs and against that defendant on plaintiffs'product liability claim.

Judge' Note: As stated at the 5/31 FTC, the final instructions to the jury before s they convene to deliberate will include instructions on the affirmative defense of misuse only if there is evidence of the unforeseeability of the misuse sufficient to support it under Schmutz. 49

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INSTRUCTION NO. 3.1510 (series combines proposed 3.15, 3.20, 21) AFFIRMATIVE DEFENSE - COMPARATIVE FAULT OF PLAINTIFF DAMAGES APPORTIONED ACCORDINGLY If you find in favor of plaintiffs on their claim for strict product liability and find against either or both defendants on their affirmative defense of misuse, then you must go on to consider any " comparative fault"of plaintiffs before awarding any damages. A form of comparative fault is the negligence, if any, of the plaintiff Access Air. Such comparative fault is an affirmative defense that is proved if you find both of the following by a preponderance of the evidence:

1.

Access Air, or the pilot * Smith, failed to do something that a reasonably careful

aircraft operator or pilot would do, or did something that a reasonably careful aircraft operator or pilot would not do, under the same or similar circumstances to protect itself from the defects in the products; and 2. That conduct was a cause of the plaintiffs' claimed injuries.

Was Stipulated Proposed Instruction 3.20. The dispute over the proper causation instructions set forth at proposed instructions 3.16 ff is best considered as part of the discussion in this case regarding comparative fault based on negligence. The concept of comparative fault will therefore be explained to the jury first, and any additional explanation for how the jury will apportion damages " caused"by the parties' respective " fault"in this case, if any, will follow after that. 50

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INSTRUCTION NO. 3.16 [from proposed instruction 3.15]11 COMPARATIVE FAULT - NEGLIGENCE " PER SE"

The unexcused violation of an applicable statute, if proven, is automatically or " se"negligent as a matter of law. In this case, defendants contend Access Air and per pilot Smith are " se"negligent because they flew in violation of certain specific rules per found in Part 135 of the FAA regulations governing operations or flights " for compensation or hire." These rules do not apply to private operations or flights under Part 91 of the FAA regulations. Plaintiffs contend the around-the-world flight at issue in this case was conducted under Access Air' Part 91 certification, so that the Part 135 s rules did not apply. Depending on the nature and amount of evidence presented at trial, this dispute regarding Access Air' compliance with Part 135 rules may or may not be submitted to s the jury. I will make the determination of whether to submit this question to you at some point before you retire to the jury room for your deliberations. You are to infer nothing one way or the other from my decision to instruct you or not to instruct you on defendants'affirmative defense based on negligence per se.

Judge' Note: This instruction will be incorporated into the instructions on the s affirmative defense of comparative fault based on negligence (Proposed Instr. 3.20, 3.21), and, in accordance with the Notes on Use under C.J.I. 4th Civ. 14:29 on which it it based, will only be given if there is sufficient evidence to support it. 51

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INSTRUCTION NO. 3.16 CAUSE

The word " cause"as used in these instructions means an act or failure to act which in natural and probable sequence produced the claimed damages or losses. It is a cause without which the claimed damages or losses would not have happened.

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INSTRUCTION NO. 3.17 SUDDEN EMERGENCY12

If you find that Pilot Smith was placed in a sudden emergency through no fault of his own, he is not chargeable with negligence for purposes of defendants'affirmative defense of comparative fault if he exercises that degree of care which a reasonably careful professional pilot would have exercised under the same or similar circumstances.

Judge' Note: modified from plaintiffs' s proposed 3.22 and defendants' counterproposal. 53

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INSTRUCTION NO. 3.18 [PREMISED ON PLS'PROPOSED 3.25]13 COMPARATIVE FAULT ­DAMAGES AND LIABILITY

If you find that all of the elements of plaintiffs' claim for strict product liability have been proved, then your verdict must be for the plaintiffs even though plaintiff Access Air may have been negligent, if at all. Any evidence offered by the defendants for the purpose of proving that plaintiff Access Air's negligence was a cause of the plaintiffs' damages shall be considered by you only for the purpose of assessing damages. That evidence is not to be considered by you in determining whether the defendants are liable, or whether the products were defective or unreasonably dangerous.

Judge' Note: This instruction is duplicative in light of the court' further s s explication of comparative fault above, but I will leave it in unless persuaded otherwise. 54

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INSTRUCTION NO. 3.19 DAMAGES - INTRODUCTION

You must determine damages in accordance with these instructions. The fact I will instruct you on the measure of damages does not mean I am instructing you as to which party is entitled to your verdict, or that I am instructing you to award or not award damages. The questions of whether or not damages are to be awarded, and the amount of such damages, are for your consideration alone. If you decide to award damages, you should fix the amount using calm discretion and sound reason, not sympathy, prejudice, or speculation. Difficulty or uncertainty in determining the precise amount of damages does not prevent you from deciding an amount. You should use your best judgment based on the evidence.

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INSTRUCTION NO. 3.2014 PERSONAL PROPERTY-- DIFFERENCE IN MARKET VALUE

If you find in favor of the plaintiffs, damages awarded should be based on the difference between the market value of the property immediately before and its market value immediately after the occurrence.

Judge' Note: If there is no dispute that the agreed value of the airplane is 3.1 M s this instruction may be unnecessary. There is, however, the issue of Mr. Leadabrand' personal s property and whether plaintiffs intend to offer any evidence as to its value. 56

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INSTRUCTION NO. 3.21 SUBROGATION AND COLLATERAL SOURCE RULE

One of the plaintiffs in this case is USAU. USAU represents the companies that provided insurance for the airplane when this incident occurred. USAU paid for the loss of the airplane after this incident occurred. You must not base any of your decisions on the fact that the airplane was insured when this incident occurred, or on the fact that USAU has already paid for the loss of the airplane.

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Section 4.0

Final Instructions

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INSTRUCTION NO. 4.1 JURY DELIBERATIONS - GENERAL INSTRUCTIONS

Each of you has a copy of the instructions to consult as you find it necessary. It is your duty to find the facts from all the evidence in the case. To those facts, you must apply and follow the laws contained in these instructions whether you agree with them or not. Your decision is called a verdict and is reached by applying those laws to the facts as you find them. You must not be influenced by any personal likes or dislikes, opinions, prejudices or sympathy. You have taken an oath promising to do just so. You must follow all of these instructions 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 say or do any suggestions as to what verdict you should return. Your verdict is a matter entirely for you to decide.

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INSTRUCTION NO. 4.2 JURY ­DELIBERATIONS

When you go to the jury room to begin your deliberations, you must elect one of you to serve as your Presiding Juror. He or she will preside over your deliberations and speak for you here in court. You will then discuss the case with your fellow jurors to reach agreements if you can do so. Your verdict must be unanimous. Each of you must decide the case for yourself, but you should do so only after you have considered all the evidence, discussed it with your fellow jurors, and listened to the views of your fellow jurors. I offer some suggestions on how you might do this in the next jury instruction, entitled " Jury - The Deliberations Process." Do not be afraid to change your opinion if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right. It is important that you attempt to reach a unanimous verdict, but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight of the evidence simply to reach a verdict.

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INSTRUCTION NO. 4.3 JURY ­THE DELIBERATIONS PROCESS

Once you have elected your Presiding Juror as directed by the previous instruction, you are free to proceed as you agree is appropriate. Therefore, I am not directing you how to proceed, but I offer the following suggestions that other juries have found helpful so that you can proceed in an orderly fashion, allowing full participation by each juror, and arrive at a verdict that is satisfactory to each of you. First, it is the responsibility of the Presiding Juror to encourage good communication and participation by all jurors and to maintain fairness and order. Your Presiding Juror should be willing and able to facilitate productive discussions even when disagreements and controversy arise. Second, the Presiding Juror should let each of you speak and be heard before expressing his or her own views. Third, the Presiding Juror should never attempt to promote nor permit anyone else to promote his or her personal opinions by coercion or intimidation or bullying of others. Fourth, the Presiding Juror should make certain that the deliberations are not rushed to reach a conclusion. If the Presiding Juror you select does not meet these standards, he or she should voluntarily step down or be replaced by a majority vote.
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After you select a Presiding Juror you should consider electing a secretary who will tally the votes, help keep track of who has or hasn' spoken on the various issues, t make certain that all of you are present whenever deliberations are under way and otherwise assist the Presiding Juror. Some juries are tempted to start by holding a preliminary vote on the case to " see where we stand." It is most advisable, however, that no vote be taken before a full discussion is had on the issue to be voted on, otherwise you might lock yourself into a certain view before considering alternative and possibly more reasonable interpretations of the evidence. Experience has also shown that such early votes frequently lead to disruptive, unnecessarily lengthy, inefficient debate and ineffective decision-making. Instead, I suggest the Presiding Juror begin your deliberations by directing the discussion to establishing informal ground rules for how you will proceed. These rules should assure that you will focus upon, analyze and evaluate the evidence fairly and efficiently and that the viewpoints of each of you is heard and considered before any decisions are made. No one should be ignored. You may agree to discuss the case in the order of the questions presented in the special verdict form or in chronological order or according to the testimony of each witness. Whatever order you select, however, it is advisable to be consistent and not jump from one topic to another. To move the process of deliberation along in the event you reach a controversial issue, it is wise to pass it temporarily and move on to the less controversial ones and then
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come back to it. You should then continue through each issue in the order you have agreed upon unless a majority of you agrees to change the order. It is very helpful, but certainly not required of you, that all votes be taken by secret ballot. This will help you focus on the issues and not be overly influenced by personalities. Each of you should also consider any disagreement you have with another juror or jurors as an opportunity for improving the quality of your decision and therefore should treat each other with respect. Any differences in your views should be discussed calmly and, if a break is needed for that purpose, it should be taken. Each of you should listen attentively and openly to one another before making any judgment. This is sometimes called " active listening"and it means that you should not listen with only one ear while thinking about a response. Only after you have heard and understood what the other person is saying should you think about a response. Obviously, this means that, unlike TV talk shows, you should try very hard not to interrupt. If one of your number is going on and on, it is the Presiding Juror who should suggest that the point has been made and it is time to hear from someone else. You each have a right to your individual opinion, but you should be open to persuasion When you focus your attention and best listening skills, others will feel respected and, even while they may disagree, they will respect you. It helps if you are open to the possibility that you might be wrong or at least that you might change your mind about some issues after listening to other views.
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Misunderstanding can undermine your efforts. Seek clarification if you do not understand or if you think others are not talking about the same thing. From time to time the Presiding Juror should set out the items on which you agree and those on which you have not yet reached agreement. In spite of all your efforts, it is indeed possible that serious disagreements may arise. In that event, recognize and accept that " getting stuck"is often part of the decision making process. It is easy to fall into the trap of believing that there is something wrong with someone who is not ready to move toward what may be an emerging decision. Such a belief is not helpful. It can lead to focusing on personalities rather than the issues. It is best to be patient with one another. At such times slower is usually faster. There is a tendency to set deadlines and seek to force decisions. Providing a break or more time and space, however, often helps to shorten the overall process. You may wish from time to time to express your mutual respect and repeat your resolve to work through any differences. With such a commitment and mutual respect, you will most likely render a verdict that leaves each of you satisfied that you have indeed rendered justice.

INSTRUCTION NO. 4.4 COMMUNICATIONS WITH JUDGE

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If it becomes necessary during your deliberations to communicate with me, you may send a folded note through the court security officer, signed by one of you. Do not disclose the content of your note to the court security officer. No member of the jury should hereafter attempt to communicate with me except by signed writing; and I will communicate with any member of the jury on anything concerning the case only in writing, or orally here in open court. You are not to tell anyone ­ including me ­ how the jury stands, numerically or otherwise, until you have reached a unanimous verdict and I have discharged you. If you send a note to me containing a question or request for further direction, please bear in mind that responses take considerable time and effort. Before giving an answer or direction I must first notify the attorneys and bring them back to the court. I must confer with them, listen to arguments, research the legal authorities, if necessary, and reduce the answer or direction to writing. There may be some question that, under the law, I am not permitted to answer. If it is improper for me to answer the question, I will tell you that. Please do not speculate about what the answer to your question might be or why I am not able to answer a particular question. In some instances jurors request that certain testimony be read to them. This cannot be done as it is inappropriate for the court to single out testimony. In those circumstances you must rely upon your own recollection.
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INSTRUCTION NO. 4.5 COMMUNICATIONS WITH JUDGE

You each have copies of a document called a Jury Verdict Form. You should to answer the questions in the Jury Verdict Form as directed. You must reach unanimous agreement on the answers to each of the questions you are directed in the form to answer. Upon arriving at an agreement, your Presiding Juror will insert each answer on the Jury Verdict Form. After all of the questions have been answered as directed by the Jury Verdict Form, your Presiding Juror will date the Jury Verdict Form, sign it, and then ask all of the other jurors to sign it. After you have filled out the Jury Verdict Form in this manner, your Presiding Juror should advise the court security officer stationed outside the jury room that you have reached a verdict.

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INSTRUCTION NO. 4.6 SPECIAL VERDICT-- MECHANICS FOR SUBMITTING

You are instructed to answer the following questions. You must all agree on your answer to each question.

1. Do you find that the defendant, Pratt & Whitney, sold a defective product, that the defect made the product unreasonably dangerous and that the defective product was a cause of plaintiffs'damages under Instruction No. 3.2?

2.

Do you find that the defendant, Pilatus, sold a defective product, that the defect

made the product unreasonably dangerous and that the defective product was a cause of plaintiffs'damages under Instruction No. 3.2?

3.

Do you find that the defendants are not legally responsible for damages caused by

a product because of the plaintiffs'misuse under Instruction No. 3. ?

4.

Do you find that the plaintiffs were negligent in causing their own damages or

losses and that their fault was greater than the combined fault of the defendants as set forth in Instruction No. 3.18?
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If your answer to both questions numbered 1,and 2 is " no,"or if your answer to question 3 or 4 is " yes"then your presiding juror shall complete only Special Verdict Form A and all jurors must sign it.

On the other hand, if your answer to one or both of questions numbered 1,or 2 is " yes," and that your answer to question 3 is " then you shall answer the following no" question(s):

5.

Do you find that the plaintiffs were negligent in causing its own damages or losses

as set forth in Instruction No. 3.18?

If your answer to question No. 4 is " no,"you shall answer the following two questions, and then your presiding juror shall complete only Special Verdict Form B and all jurors must sign it.

On the other hand, if your answer to question No. 4 is " yes,"you shall answer the following two questions, and then your presiding juror shall complete only Special Verdict Form C and all jurors must sign it.

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6.

Taking as 100 percent the combined fault or negligence that caused the plaintiffs'

damages or losses, what percentage was caused by the fault or negligence, if any, of:

a. b. c.

the plaintiff, Access Air; the defendant, Pratt & Whitney; and the defendant, Pilatus;

You must enter the figure of zero, " for any defendant you have found was not at fault. 0,"

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Section 5.0

Jury Verdict Forms

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