Free Proposed Jury Instructions - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-01056-EWN-OES CONNIE J. REYNOLDS, Plaintiff, v. COBE CARDIOVASCULAR, INC., Defendant. ___________________________________________________________________________ STIPULATED JURY INSTRUCTIONS ___________________________________________________________________________ Plaintiff Connie J. Reynolds, by her attorney, John R. Olsen of Olsen & Brown, L.L.C., and Defendant COBE Cardiovascular, Inc., by its attorney, Michael D. Nosler of Rothgerber Johnson & Lyons LLP, respectfully submit their stipulated jury instructions as follows:

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JURY INSTRUCTION NO. 1 OPENING INSTRUCTIONS We are about to begin the trial of the case you heard about during the jury selection. Before the trial begins, I am going to give you instructions that will help you to understand what will be presented to you and how you should conduct yourself during the trial. During the trial you will hear me use a few terms that you may not have heard before. Let me briefly explain some of the most common to you. The party who sues is called the plaintiff. In this action, the plaintiff is Connie J. Reynolds. The party being sued is called the defendant. In this action, the defendant is COBE Cardiovascular, Inc. You will sometimes hear me refer to "counsel." "Counsel" is another way of saying "lawyer" or "attorney." I will sometimes refer to myself as the "Court." When I "sustain" an objection, I am excluding that evidence from this trial for a good reason. When you hear that I have "overruled" an objection, I am permitting that evidence to be admitted. When I say "admitted into evidence" or "received into evidence," I mean that this particular statement or the particular exhibit may be considered by you in making the decisions you must make at the end of the case. By your verdict, you will decide disputed issues of fact. I will decide all questions of law that arise during the trial. Before you begin your deliberation at the close of the case, I will instruct you in more detail on the law that you must follow and apply. Because you will be asked to decide the facts of this case, you should give careful attention to the testimony and evidence presented. Keep in mind that I will instruct you at the end of the trial about determining the credibility or "believability" of the witnesses. During

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the trial you should keep an open mind and should not form or express any opinion about the case until you have heard all of the testimony and evidence, the lawyers' closing arguments, and my instructions to you on the law. While the trial is in progress, you must not discuss the case in any manner among yourselves or with anyone else. In addition, you should not permit anyone to discuss the case in your presence. From time-to-time during the trial, I may make rulings on objections or motions made by the lawyers. It is a lawyer's duty to object when the other side offers testimony or other evidence that the lawyer believes is not admissible. You should not be unfair or partial against a lawyer or the lawyer's client because the lawyer has made objections. If I sustain or uphold an objection to a question that goes unanswered by the witness, you should not draw any inferences or conclusions from the question. You should not infer or conclude from any ruling or other comment I may make that I have any opinions on the merits of the case favoring one side or the other. I do not favor one side or the other. The trial lawyers are not allowed to speak with you during this case. When you see them at a recess or pass them in the halls and they do not speak to you, they are not being rude or unfriendly, they are simply following the law. During the trial, it may be necessary for me to talk with the lawyers out of your hearing about questions of law or procedure. Sometimes, you may be excused from the courtroom during these discussions. I will try to limit these interruptions as much as possible, but you should remember the importance of the matter you are here to determine and should be patient even though the case may seem to go slowly.

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FEDERAL JURY PRACTICE AND INSTRUCTIONS (5th Ed.) § 101.01.

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JURY INSTRUCTION NO. 2 EVIDENCE IN THE CASE The evidence in the case will consist of the following: 1. 2. The sworn testimony of the witnesses, no matter who called a witness. All exhibits received in evidence, regardless of who may have produced the exhibits. 3. All facts that may have been judicially noticed and that you must take as true for purposes of this case. Depositions may also be received in evidence. Depositions contain sworn testimony, with the lawyers for each party being entitled to ask questions. In some cases, a deposition may be played for you on videotape. Deposition testimony may be accepted by you, subject to the same instructions that apply to witnesses testifying in open court. Statements and arguments of the lawyers are not evidence in the case, unless made as an admission or stipulation of fact. A "stipulation" is an agreement between both sides that certain facts are true. When the lawyers on both sides stipulate or agree to the existence of a fact, you must, unless otherwise instructed, accept the stipulation as evidence, and regard that fact as proved. I may take judicial notice of certain facts or events. When I declare that I will take judicial notice of some fact or event, you must accept that fact as true. If I sustain an objection to any evidence or if I order evidence stricken, that evidence must be entirely ignored.

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Some evidence is admitted for a limited purpose only. When I instruct you that an item of evidence has been admitted for a limited purpose, you must consider it only for that limited purpose and for no other purpose. You are to consider only the evidence in the case. But in your consideration of the evidence you are not limited to the statements of the witness. In other words, you are not limited solely to what you see and hear as the witnesses testified. You may draw from the facts that you find have been provided, such reasonable inferences or conclusions as you feel are justified in light of your experience. At the end of the trial you will have to make your decision based on what you recall of the evidence. You will not have a written transcript to consult, and it is difficult and time consuming for the reporter to read back lengthy testimony. I urge you to pay close attention to the testimony as it is given.

FEDERAL JURY PRACTICE AND INSTRUCTIONS (5th Ed.) § 101.40.

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JURY INSTRUCTION NO. 3 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.

FEDERAL JURY PRACTICE AND INSTRUCTIONS (5th Ed.) § 101.41.

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JURY INSTRUCTION NO. 4 You should consider and decide this case as a dispute between persons of equal standing in the community, of equal worth, and holding the same or similar stations in life. A corporation is entitled to the same fair trial as a private individual. All persons, including corporations, and other organizations stand equal before the law, and are to be treated as equals.

FEDERAL JURY PRACTICE AND INSTRUCTIONS (5th Ed.) § 103.12.

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JURY INSTRUCTION NO. 5 If a lawyer asks a witness a question that contains an assertion of fact, you may not consider the assertion as evidence of that fact. The lawyer's questions and statements are not evidence.

FEDERAL JURY PRACTICE AND INSTRUCTIONS (5th Ed.) § 103.34.

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JURY INSTRUCTION NO. 6 CREDIBILITY OF WITNESSES In deciding the facts, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, part of it, or none of it. In considering the testimony of any witness, you may take into account many factors, including the witness' opportunity and ability to see or hear or know the things the witness testified about; the quality of the witness' memory; the witness' appearance and manner while testifying; the witness' interest in the outcome of the case; any bias or prejudice the witness may have; other evidence that may have contradicted the witness' testimony; and the reasonableness of the witness' testimony in light of all the evidence. The weight of the evidence does not necessarily depend upon the number of witnesses who testify.

FEDERAL JURY PRACTICE AND INSTRUCTIONS (5th Ed.) § 101.43

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JURY INSTRUCTION NO. 7 Unless and until outweighed by evidence to the contrary, you may find that official duty has been regularly performed, that private transactions have been fair and regular, that the ordinary course of business or employment has been followed, that things have happened according to the ordinary course of nature and the ordinary habits of life, and that the law has been obeyed.

FEDERAL JURY PRACTICE AND INSTRUCTIONS (5th Ed.) § 104.21.

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JURY INSTRUCTION NO. 8 RULING ON OBJECTION When a lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question may be answered or the exhibit received into evidence. If I sustain the objection, the question cannot be answered and the exhibit cannot be received into evidence. If I sustain an objection to a question or the admission of an exhibit, you must ignore the question and must not guess what the answer to the question might have been. In addition, you must not consider evidence that I have ordered stricken from the record.

FEDERAL JURY PRACTICE AND INSTRUCTIONS (5th Ed.) § 101.49

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JURY INSTRUCTION NO. 9 GENERAL INTRODUCTION Now that you have heard the evidence and the argument, it is my duty to instruct you about the applicable law. It is your duty to follow the law as I will state it and to apply it to the facts as you can find them from the evidence in the case. Do not single out one instruction as stating the law, but consider the instructions as a whole. You are not to be concerned about the wisdom of any rule of law stated by me. You must follow and apply the law.

FEDERAL JURY PRACTICE AND INSTRUCTIONS (5th Ed.) § 103.01

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JURY INSTRUCTION NO. 10 INFERENCES AND PRESUMPTIONS ­ "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.

FEDERAL JURY PRACTICE AND INSTRUCTIONS (5th Ed.) § 104.20

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JURY INSTRUCTION NO. 11 NATURE OF THE CLAIM UNDER TITLE VII 42 U.S.C. § 2000e-2, commonly known as Title VII, makes it unlawful for an employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . . sex." Title VII also prohibits an employer from retaliating against an employee because the employee has opposed any practice made unlawful by the statute.

42 U.S.C. § 2000e-(2)(a) and (3)(a).

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JURY INSTRUCTION NO. 12 NATURE OF THE CLAIM UNDER ADEA The Age Discrimination in Employment Act, commonly referred to as the ADEA, makes it unlawful for an employer to discharge, or lay off, or otherwise discriminate against any employee because of that employee's age, when the employee is 40 years of age or older. The same law also makes it illegal for an employer to retaliate against an employee because that employee has opposed any practice made unlawful by the ADEA.

FEDERAL JURY PRACTICE AND INSTRUCTIONS (5th Ed.) § 173.10 (modified); 29 U.S.C. § 623(d).

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JURY INSTRUCTION NO. 13 RETALIATION -- ELEMENTS OF CLAIM Plaintiff claims that defendant retaliated against her because plaintiff opposed a practice made unlawful by Title VII and/or the ADEA. In order to prevail on a claim of retaliation under Title VII or the ADEA, the plaintiff must show all of the following: 1. Plaintiff engaged in protected opposition to discrimination under either the ADEA, Title VII or both; 2. Plaintiff was subjected to an adverse employment action at the time, or after, she engaged in this protected activity; and 3. Defendant took the adverse employment action because of the plaintiff's protected activity.

FEDERAL JURY PRACTICE AND INSTRUCTIONS (5th Ed.) § 173.23 (modified).

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JURY INSTRUCTION NO. 14 CAUSATION The plaintiff must establish by a preponderance of the evidence that her complaint of discrimination was a determinative factor in the action taken by the defendant. The Plaintiff is not required to prove that her complaints were the sole motivation for the defendant's actions. Rather, plaintiff's complaints were a determinative factor if plaintiff shows that "but for" her complaining about discrimination, defendant would not have taken the adverse action that it took.

MOORE'S FEDERAL JURY INSTRUCTIONS, INST. 88-29 (2005) (modified); Septimus v. University of Houston, 399 F.3d 601, 607-08 (5th Cir. 2005); Connor v. Schnuck Markets, Inc., 121 F.3d 1390, 1394 (10th Cir. 1997).

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JURY INSTRUCTION NO. 15 CAUSATION -- GENERAL INSTRUCTION Plaintiff has the burden of proving each and every element of plaintiff's claims of retaliation by a preponderance of the evidence. If you find that plaintiff has not proved any one of the elements of a claim by a preponderance of the evidence, you must return a verdict for the defendant on that claim.

FEDERAL JURY PRACTICE AND INSTRUCTIONS (5th Ed.) § 171.60 (modified).

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JURY INSTRUCTION NO. 16 BUSINESS JUDGMENT In reaching your verdict, you should keep in mind that Title VII and the ADEA do not ensure that employees will always be treated fairly, but only prohibit an employer from making decisions for illegal reasons. It is therefore not your function to try to second-guess defendant's business decisions, such as the treatment of plaintiff and defendant's decision to terminate her in the way it did, unless you find that this business decision was motivated by retaliation under Title VII or the ADEA.

§ 8.41 MODEL FEDERAL JURY INSTRUCTIONS, COLORADO EMPLOYMENT LAW AND PRACTICE HANDBOOK (2001) (modified).

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JURY INSTRUCTION NO. 17 COMPENSATORY DAMAGES - TITLE VII If you find defendant retaliated against plaintiff because plaintiff complained about sex discrimination, then you must determine an amount that is fair compensation for plaintiff's damages. You may award compensatory damages only for injuries that plaintiff proves were caused by defendant's allegedly wrongful conduct. You should not consider any economic losses as part of this evaluation. Should you find that the plaintiff was subjected to retaliation for complaining about sex discrimination, I will award damages for any economic losses. The damages that you award must be fair compensation ­ no more and no less. You may award damages for any pain, suffering or mental anguish that plaintiff experienced as a consequence of defendant's retaliation. No evidence of the monetary value of such intangible things as pain and suffering has been, or need be, introduced into evidence. There is no exact standard for fixing the compensation to be awarded for these elements of damage. Any award you make should be fair in light of the evidence presented at the trial. In determining the amount of any damages that you decide to award, you should be guided by common sense. You must use sound judgment in fixing an award of damages, drawing reasonable inferences from the facts in evidence. You may not award damages based on sympathy, speculation, or guesswork. On the other hand, the law does not require that plaintiff prove the amount of plaintiff's losses with mathematical precision, but only with as much definiteness and accuracy as circumstances permit.

FEDERAL JURY PRACTICE AND INSTRUCTIONS (5th Ed. § 171.90) (modified).

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JURY INSTRUCTION NO. 18 ADEA DAMAGES ­ GENERALLY If you find by a preponderance of the evidence that the defendant retaliated against the plaintiff on the basis of her age, then you must determine the amount of damages that the defendant has caused the plaintiff. In a retaliation case under the ADEA, damages are meant to put the plaintiff in the economic position she would have occupied if the retaliation had not occurred. You cannot award any damages for pain, suffering, humiliation, mental anguish, or emotional distress. In determining damages, you may award the plaintiff back pay. That means that you are to award the plaintiff an amount equal to the pay and fringe benefits that she would have received from the defendant through the date of the trial had the retaliatory action not taken place minus the amount of earnings and benefits received by the plaintiff from the other employment after the retaliatory action. You are further instructed that the plaintiff has a duty to mitigate her damages ­ that is, to make reasonable efforts under the circumstances to reduce her damages. Thus, if you determine, by a preponderance of the evidence, that the plaintiff failed to seek out or take advantage of an opportunity that was reasonably available to her, you must reduce the award of damages by the amount of wages and fringe benefits that she reasonably would have earned if she had sought out or taken advantage of that opportunity. Remember, in awarding damages you must not speculate, guess, or conjecture. Neither can you award damages as punishment against the defendant or because of sympathy toward the plaintiff. Damages cannot be imposed or increased to penalize the defendant. MODEL JURY INSTRUCTIONS EMPLOYMENT LITIGATION, §§ 1.08[10]; 1.08[10][a], (Am. Bar Assoc. 1994) (modified).
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JURY INSTRUCTION NO. 19 LIQUIDATED DAMAGES ­ WILLFUL VIOLATION If you determine that the defendant has retaliated against the plaintiff for complaining about age discrimination, then you must decide whether the conduct of the defendant was willful. If you determine that the defendant's conduct was willful, then I will award plaintiff money damages in addition to the actual damages that you have awarded. The amount of money damages is an additional amount equal to the plaintiff's actual damages. A violation of the ADEA is willful if the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA. However, even if an employer knowingly relies on age in reaching its decision, a willful violation of the ADEA has not necessarily occurred. If an employer incorrectly, but in good faith and non-recklessly, believes that the statute permits a particular age-based decision, then a finding of willful misconduct is not proper. Once the plaintiff has demonstrated a willful violation of the ADEA, she need not additionally demonstrate that the employer's conduct was outrageous; provide direct evidence of the employer's motivation; or prove that age was the predominant, rather than a determinative factor in the employment decision. You may consider statements made, acts done or omitted, and all facts or circumstances that show whether the defendant acted intentionally and not by accident.

MODEL JURY INSTRUCTIONS EMPLOYMENT LITIGATION, § 1.08[10][c], (Am. Bar Assoc. 1994) (modified).

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JURY INSTRUCTION NO. 20 EFFECT OF INSTRUCTION AS TO DAMAGES The fact that I have instructed you as to the proper measure of damages should not be considered as indicating any view of mine as to which party is entitled to your verdict in this case. Instructions as to the measure of damages are given for your guidance only in the event you should find in favor of the plaintiff from a preponderance of the evidence in the case in accordance with the other instructions.

FEDERAL JURY PRACTICE AND INSTRUCTIONS (5th Ed.) § 106.02

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Respectfully submitted this 8th day of February, 2006.

/s Michael D. Nosler Michael D. Nosler Rothgerber Johnson & Lyons LLP 1200 17th Street, Suite 3000 Denver, Colorado 80202 Telephone: (303) 623-9000 Fax: (303) 623-9222 [email protected] Attorney for Defendant COBE Cardiovascular, Inc.

/s John R. Olsen John R. Olsen, Esq. Olsen & Brown LLC 8362 Greenwood Drive Niwot, CO 80503 Telephone: (303) 652-1133 Fax: (303) 652-3701 [email protected] Attorneys for Plaintiff

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