Free Proposed Jury Instructions - District Court of Arizona - Arizona

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A. James Clark, #002901 CLARK & ASSOCIATES 256 South Second Avenue, #E Yuma, AZ 85364 Telephone (928) 783-6233 Attorneys for Plaintiff Rubecca Mikkelsen, et al. John A. Micheaels -- 05917 BEALE, MICHEAELS & SLACK, P.C. 1440 E. Missouri Avenue, #150 Phoenix, Arizona 85014 (602) 285-1444 Attorneys for Plaintiff Dennis Mikkelsen UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA RUBECCA MIKKELSEN, as surviving spouse of Kelly Mikkelsen, deceased, and as Personal Representative of the Estate of Kelly Mikkelsen, on behalf of MILES MIKKELSEN, JERRET MIKKELSEN and ALLISON MIKKELSEN, the minor children of Kelly Mikkelsen, deceased, and on behalf of DENNIS MIKKELSEN, natural father of Kelly Mikkelsen, deceased; TAYLOR R. FOX, a minor, by her next friend and natural mother, TRACY FOX-TANGA, Plaintiff, v. CORRECTIONAL HEALTH RESOURCES, INC., a foreign corporation; KENNETH L. FAIVER and JANE DOE FAIVER, husband and wife; JOSEPH EDWARD RICH, M.D. and JANE DOE RICH, husband wife; DOES I through V, inclusive, Defendants. ... No. CIV 02-2252-PHX-JAT

JOINT PROPOSED JURY INSTRUCTIONS (November 14, 2005 Revision at 4:20 p.m.)

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RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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DATED this 14th day of November, 2005. BEALE, MICHEAELS & SLACK, P.C.

By s/ John A. Micheaels John A. Micheaels 1440 East Missouri Avenue, #150 Phoenix, Arizona 85014 Attorneys for Plaintiff Dennis Mikkelsen CLARK & ASSOCIATES

By s/ John A. Micheaels (w/permission) A. James Clark 256 S. Second Ave., Suite E Yuma, AZ 85364 Attorneys for Rubecca Mikkelsen, et al. RENAUD COOK DRURY MESAROS, PA

By s/ James W. Barnhouse James W. Barnhouse One North Central, Suite 900 Phoenix, AZ 85004 Attorneys for Defendants Correctional Health Resources, Inc., Faiver and Rich PAUL G. ULRICH, PC

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By s/ Paul G. Ulrich Paul G. Ulrich Melinda K. Cekander 131 East El Caminito Drive Phoenix, Arizona 85020-3503 Co-counsel for Correctional Health Resources, Inc, Kenneth Faiver and Joseph E. Rich, M.D.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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ABOUD & ABOUD

By s/ John A. Micheaels (w/permission) Michael J. Aboud 100 N. Stone Ave., Suite 303 Tucson, AZ 85701 Co-Counsel for Plaintiff Fox BOYTE & MINORE, P.C.

By s/ John A. Micheaels (w/permission) Mary K. Boyte 150 W. Second Street Yuma, AZ 85364 Co-counsel for Plaintiff Fox E-Filed with the U.S. District Court this 14th day of November, 2005. COPY of the foregoing delivered this 14th day of November, 2005, to: Hon. James A. Teilborg U.S. District Court of Arizona 401 West Washington Suite 523 SPC 51 Phoenix, Arizona 85003-0001 s/ Bobby Doisher

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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SECTION I. MODEL JURY INSTRUCTIONS. ST § 1.1 DUTY OF JURY Ladies and gentlemen: You are now the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some instructions. At the end of the trial, I will give you more detailed instructions. Those instructions will control your deliberations. You should not take anything I may say or do during the trial as indicating what I think of the evidence or what your verdict should be. Comment See Instruction 3.1 (Duties of Jury to Find Facts and Follow Law) for an instruction at the end of the case.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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CLAIMS AND DEFENSES (as modified)

To help you follow the evidence, I will give you a brief summary of the positions of the parties: Plaintiffs claim that Defendants CHR, Faiver and Rich fell below the standard of care applicable to correctional healthcare providers and are liable to Plaintiffs under state law claims of medical negligence and negligence for the wrongful death of Kelly Mikkelsen. Plaintiffs claim that they are entitled to compensatory damages under their state law wrongful death claim. Plaintiffs also claim that Defendants CHR, Faiver and Rich violated Kelly Mikkelsen's Eighth Amendment right to appropriate medical care while he was in the custody of the Yuma County Detention Center. Plaintiffs claim that Rubecca Mikkelsen, as the Personal Representative of the Estate of Kelly Mikkelsen is entitled to compensatory and punitive damages for Defendants' deprivation of Kelly's Eighth Amendment right to appropriate medical care and right to life.

Defendants' Objection Plaintiffs' statement of their claims contains incorrect statements of the law. Plaintiffs cannot assert a claim for medical negligence or negligence. Their only claim is for wrongful death. See A.R.S. §§ 14-3110 and 12-611, et seq. Plaintiffs cannot assert a claim for alleged violation of Kelly Mikkelsen's Eighth Amendment rights. See Correctional Health Resources, Inc., et al. Suggestion Concerning Lack of Jurisdiction and Motion to Remand to State Court and CHR's other related pleadings. Neither the First, Second, nor Third Amended Complaints contained any claim asserted by Rubecca Mikkelsen, as the Personal Representative of the Estate of Kelly Mikkelsen, for compensatory or punitive damages. These Complaints only contained a federal claim that Plaintiffs were entitled to damages for the alleged violation of Kelly Mikkelsen's Eighth Amendment rights. Plaintiffs have never alleged the estate is entitled to damages. No claim has been asserted in any of Plaintiffs' Complaints for alleged deprivation of Kelly's alleged constitutional "right to life." Although defendants do not agree plaintiffs can assert an Eighth Amendment claim, defendants propose an alternative Model Jury Instruction 1.2.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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1.2 CLAIMS AND DEFENSES

To help you follow the evidence, I will give you a brief summary of the positions of the parties: Plaintiffs claim that Defendants CHR, Dr. Rich and Kenneth Faiver are liable to them under state law for the alleged wrongful death of Kelly Mikkelsen. Plaintiffs claim they are entitled to their damages arising out of the death of Kelly Mikkelsen. Plaintiffs also claim Defendants CHR, Dr. Rich and Kenneth Faiver are liable for allegedly violating Kelly Mikkelsen's Eighth Amendment right by allegedly being deliberately indifferent to his need for medical care. Plaintiffs claim they are entitled to damages arising out of the alleged deprivation of Kelly Mikkelsen's Eighth Amendment rights. Defendants CHR, Dr. Rich and Kenneth Faiver deny Plaintiffs' claims. Defendants CHR, Dr. Rich and Kenneth Faiver further assert they are not liable under state law pursuant to A.R.S. §§ 12-711. Defendants further assert that Rubecca Mikkelsen, Kelly Mikkelsen and/or Yuma County and its employees are wholly, exclusively and/or comparatively at fault for causing Kelly Mikkelsen's death. Plaintiffs deny Defendants' claims.

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Plaintiffs' Objection Defendants' statement of claims contains incorrect statements of law and is incomplete (omitting plaintiffs' punitive damages claim for violation of Kelly Mikkelsen's Eighth Amendment rights). Defendants cannot assert the defense of A.R.S. § § 12-711 and/or comparative fault. Defendants did not timely raise the affirmative defenses set forth under A.R.S. § § 12-711, and defendants' comparative fault claims are barred as set forth in Plaintiffs' Motion in Limine No. 2, Plaintiffs' Motion in Limine No. 6 and Plaintiffs' Motion in Limine No. 7. Defendants' Objection to Plaintiffs' Objection This Court ordered the parties to complete jury instructions and objections to jury instructions by October 17, 2005. Plaintiffs were provided copies of Defendants' proposed jury instructions on October 14, 2005 and on that date modified some of their jury instructions in response to receiving Defendants' jury instructions. However, Plaintiffs did not submit any objections to Defendants' jury instructions so that they could be included in the proposed joint jury instructions to be filed on October 17, 2005. Plaintiffs thus have waived those objections. See Defendants' Cross-Motion to Enforce Order Setting Pretrial Conference which will be filed on October 31, 2005.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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§ 1.3 WHAT IS EVIDENCE The evidence you are to consider in deciding what the facts are consists of: (1) the sworn testimony of any witness; (2) the exhibits which are received into evidence; and (3) any facts to which the lawyers stipulate.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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§ 1.4 WHAT IS NOT EVIDENCE

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 of the attorneys;

4 (2) questions and objections of the attorneys; 5 (3) testimony that I instruct you to disregard; and 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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(4) anything you may see or hear when the court is not in session even if what you see or hear is done or said by one of the parties or by one of the witnesses. Comment See Instruction 3.3 (What Is Not Evidence) for an instruction at the end of the case.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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§ 1.5 EVIDENCE FOR LIMITED PURPOSE

Some evidence may be 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. Comment As a rule, limiting instructions need only be given when requested and need not be given sua sponte by the court. United States v. McLennan, 563 F.2d 943, 947­48 (9th Cir.1977), cert. denied, 435 U.S. 969 (1978). See United States v. Marsh, 144 F.3d 1229, 1238 (9th Cir.1998) (when the trial court fails to instruct the jury in its final instructions regarding the receipt of evidence for a limited purpose, the Ninth Circuit examines the trial court's preliminary instructions to determine if the court instructed the jury on this issue). See also Instructions 2.10 (Limited Purpose Evidence), 2.11 (Impeachment by Conviction of Crime), and 3.3 (What Is Not Evidence).

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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§ 1.6 DIRECT AND CIRCUMSTANTIAL EVIDENCE

Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence. Comment

6 See Instruction 3.5 (Direct and Circumstantial Evidence) for an instruction at the end of 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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case. It may be helpful to include an illustrative example in the instruction: By way of example, if you wake up in the morning and see that the sidewalk is wet, you may find from that fact that it rained during the night. However, other evidence, such as a turned on garden hose, may explain the presence of water on the sidewalk. Therefore, before you decide that a fact has been proved by circumstantial evidence, you must consider all the evidence in the light of reason, experience, and common sense.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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§ 1.7 RULING ON OBJECTIONS

There are rules of evidence that control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that 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. 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 the evidence. That means that when you are deciding the case, you must not consider the evidence that I told you to disregard. Comment See Instruction 3.3 (What Is Not Evidence) for an instruction at the end of the case.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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§ 1.8 CREDIBILITY OF WITNESSES

In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it. In considering the testimony of any witness, you may take into account: (1) the opportunity and ability of the witness to see or hear or know the things testified to; (2) the witness' memory;

7 (3) the witness' manner while testifying; 8 (4) the witness' interest in the outcome of the case and any bias or prejudice; 9 (5) whether other evidence contradicted the witness' testimony; 10 (6) the reasonableness of the witness' testimony in light of all the evidence; and 11 (7) any other factors that bear on believability. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify. Comment See Instruction 3.6 (Credibility of Witnesses) for an instruction at the end of the case.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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§ 1.9 CONDUCT OF THE JURY I will now say a few words about your conduct as jurors.

First, you are not to discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case please let me know about it immediately; Second, 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 it; Third, do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials, and do not make any investigation about the case on your own; Fourth, if you need to communicate with me simply give a signed note to the [bailiff] [clerk] [law clerk] [matron] to give to me; and Fifth, do not make up your mind about what the verdict should be until after you have gone to the jury room to decide that case and you and your fellow jurors have discussed the evidence. Keep an open mind until then. Comment An abbreviated instruction should be repeated before the first recess and as needed before other recesses. See Instruction 2.1 (Cautionary Instruction at First Recess). The practice in federal court of instructing jurors not to discuss the case until deliberations is widespread. See, e.g., United States v. Pino­Noriega, 189 F.3d 1089, 1096 (9th Cir.) ("There is a reason that most judges continually admonish their juries during trials not to discuss the evidence or begin deliberations until told to do so, after all of the evidence, argument, and instruction on the law has been received."), cert. denied, 528 U.S. 989 (1999).

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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§ 1.10 NO TRANSCRIPT AVAILABLE TO JURY

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 transcript of the trial. I urge you to pay close attention to the testimony as it is given. Comment The previous version of this instruction has been modified to delete the suggestion that readbacks are either unavailable or highly inconvenient. The practice of discouraging readbacks has been criticized in United States v. Damsky, 740 F.2d 134, 138 (2d Cir.), cert. denied, 469 U.S. 918 (1984). See also JURY COMMITTEE OF THE NINTH CIRCUIT, A MANUAL ON JURY TRIAL PROCEDURES, § 5.1.F (1998). The court may wish to repeat this instruction in the instructions at the end of the trial.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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§ 1.11 TAKING NOTES

If you wish, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. Do not let note-taking distract you so that you do not hear other answers by witnesses. When you leave, your notes should be left in the [courtroom] [jury room] [envelope in the jury room]. Whether or not you take notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes. Comment

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It is well settled in this circuit that the trial judge has discretion to allow jurors to take notes. United States v. Baker, 10 F.3d 1374, 1402 (9th Cir.1993), cert. denied, 513 U.S. 934 (1994). See also JURY COMMITTEE OF THE NINTH CIRCUIT, A MANUAL ON JURY TRIAL PROCEDURES, § 3.4 (1998).

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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ST § 1.12

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 defendants may cross-examine. Then the defendants may present evidence, and counsel for the Plaintiff may cross-examine. After the evidence has been presented, [I will instruct you on the law that applies to the case and the attorneys will make closing arguments] [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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RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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§ 1.13 BURDEN OF PROOF ­ PREPONDERANCE OF THE EVIDENCE

When a party has the burden of proof on any claim [or affirmative defense] by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim [or affirmative defense] is more probably true than not true. You should base your decision on all of the evidence, regardless of which party presented it. Comment

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See Chapter 5 regarding instructions on burdens of proof. This instruction may not apply to cases based on state law.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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§ 2.1 CAUTIONARY INSTRUCTION ­ FIRST RECESS

We are about to take our first break during the trial, and I want to remind you of the instruction I gave you earlier. Until the trial is over, you are not to discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case, please let me know about it immediately. Do not read or listen to any news reports of the trial. Finally, you are reminded to keep an open mind until all the evidence has been received and you have heard the arguments of counsel, the instructions of the court, and the views of your fellow jurors. If you need to speak with me about anything, simply give a signed note to the [marshal] [bailiff] [clerk] [law clerk] to give to me. I will not repeat these admonitions each time we recess or adjourn, but you will be reminded of them on such occasions.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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ST § 2.2

BENCH CONFERENCES AND RECESSES

From time to time during the trial, it may become necessary for me to talk with the attorneys out of the hearing of the jury, either by having a conference at the bench when the jury is present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is not to keep relevant information from you, but to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum. I may not always grant an attorney's request for a conference. Do not consider my granting or denying a request for a conference as any indication of my opinion of the case or of what your verdict should be.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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ST § 2.4

STIPULATIONS OF FACT

The parties have agreed to certain facts that have been stated to you. You should therefore treat these facts as having been proved. Comment

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When parties enter into stipulations as to material facts, those facts will be deemed to have been conclusively proved, and the jury may be so instructed. United States v. Mikaelian, 168 F.3d 380, 389 (9th Cir.) (citing United States v. Houston, 547 F.2d 104, 107 (9th Cir.1976)), amended by 180 F.3d 1091 (9th Cir.1999)).

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ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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ST § 2.6 DEPOSITION AS SUBSTANTIVE EVIDENCE [When a person is unavailable to testify at trial, the deposition of that person may be used at the trial.] A deposition is the sworn testimony of a witness taken before trial. The witness is placed under oath to tell the truth and lawyers for each party may ask questions. The questions and answers are recorded. The deposition of [witness], which was taken on [date], is about to be presented to you. Deposition testimony is entitled to the same consideration and is to be judged, insofar as possible, in the same way as if the witness had been present to testify. [Do not place any significance on the behavior or tone of voice of any person reading the questions or answers.] Comment This instruction should be used only when testimony by deposition is offered as substantive evidence. The committee recommends that it be given immediately before a deposition is to be read. It need not be repeated if more than one deposition is read. If the judge prefers to include the instruction as a part of his or her instructions before evidence, it should be modified appropriately.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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DF

2.10 LIMITED PURPOSE EVIDENCE

The testimony [you are about to hear] [you have just heard] may be considered only for the limited purpose of determining whether or not Nurse Bragan, Nurse Kinsley, Ofel Diaz, Dr. Rich and/or Kenneth Faiver was acting in the course and scope of his/her employment with Defendant CHR for the purposes of determining whether or not Defendant CHR is liable for the conduct of these individuals under state law and for no other purpose. Comment If this instruction is given during the trial, the committee recommends giving the bracketed material in paragraph 3 of Instruction 3.3 (What Is Not Evidence) with the concluding instructions. See also Instruction 2.11 (Impeachment By Conviction of Crime). Plaintiffs' Objection Defendants have stipulated that Faiver, Rich, Bragan, Kinsley and Diaz were all acting in the course and scope of their employment with CHR. unnecessary. Defendants' Response to Plaintiffs' Objection CHR's liability, if any, under state law is different than its liability, if any, under federal law. Under state law, CHR is vicariously liable for the conduct of Nurses Bragan and Kinsley and Ofel Diaz. Under federal law, CHR is not vicariously liable for the conduct of these individuals. Thus, although the jury may consider what these individuals did when considering CHR's liability under state law, the jury's determination of CHR's liability under federal law must be based upon CHR's policies and customs and not upon what these individuals did or did not do. As such, this instruction is

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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ST § 3.O COVER SHEET IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA RUBECCA MIKKELSEN, surviving spouse of Kelly Mikkelsen, deceased, and as Personal Representative of the Estate of Kelly Mikkelsen, on behalf of MILES MIKKELSEN, JERRET MIKKELSEN AND ALLISON MIKKELSEN, the minor children of Kelly Mikkelsen, deceased, and on behalf of DENNIS MIKKELSEN, natural father of Kelly Mikkelsen, deceased; TAYLOR R. FOX, a minor, by her next of friend and natural mother, TRACY FOX-TANGA, Plaintiffs, v. CORRECTIONAL HEALTH RESOURCES, INC., a foreign corporation; KENNETH L. FAIVER and JANE DOE FAIVER, husband and wife; JOSEPH EDWARD RICH, M.D. and JANE DOE RICH, husband and wife, DOES I through V, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CIV 02-2252-PHX-JAT ) ) ) ) (Assigned to the Honorable James A. Teilborg) ) ) ) ) )

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JURY INSTRUCTIONS 21 DATED: ___________ 22 23 24 25 26
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________________________________ UNITED STATES DISTRICT JUDGE

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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ST § 3.1 DUTIES OF JURY TO FIND FACTS AND FOLLOW LAW Members of the jury, now that you have heard all the evidence [and the arguments of the attorneys], it is my duty to instruct you on the law which applies to this case. A copy of these instructions will be available in the jury room for you to consult if you find it necessary. It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. You must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath promising to do so at the beginning of the case. In following my instructions, you must follow all of them and not single out some and ignore others; they are all equally important. You must not read into these instructions or into anything the court may have said or done any suggestion as to what verdict you should return--that is a matter entirely up to you. Comment See JURY COMMITTEE OF THE NINTH CIRCUIT, A MANUAL ON JURY TRIAL PROCEDURES, § 4.3.B and § 4.3.C (1998). See also Fed. R. Civ. P. 51.

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ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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ST § 3.2 WHAT IS EVIDENCE The evidence from which you are to decide what the facts are consists of: (1) the sworn testimony of any witness; (2) the exhibits which have been received into evidence; and (3) any facts to which the lawyers have agreed or stipulated. Comment See United States v. Mikaelian, 168 F.3d 380, 389 (9th Cir.) (material facts to which the parties voluntarily stipulate are to be treated as "conclusively established") (citing United States v. Houston, 547 F.2d 104, 107 (9th Cir.1976)), amended by 180 F.3d 1091 (9th Cir.1999).

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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ST §3.3 WHAT IS NOT EVIDENCE In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you: (1) Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they have said in their opening statements, [will say in their] closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls. (2) Questions and objections by lawyers are not evidence. Attorneys 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 the court's 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. [In addition some testimony and exhibits have been received only for a limited purpose; where I have given a limiting instruction, you must follow it.] (4) Anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial. Comment With regard to the bracketed material in paragraph 3, see Instructions 1.5 (Evidence for Limited Purpose), 2.10 (Limited Purpose Evidence), and 2.11 (Impeachment by Conviction of Crime).

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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ST § 3.5 DIRECT AND CIRCUMSTANTIAL EVIDENCE Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what the witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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ST § 3.6 CREDIBILITY OF WITNESSES In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it. In considering the testimony of any witness, you may take into account: (1) the opportunity and ability of the witness to see or hear or know the things testified to; (2) the witness' memory;

7 (3) the witness' manner while testifying; 8 (4) the witness' interest in the outcome of the case and any bias or prejudice; 9 (5) whether other evidence contradicted the witness' testimony; 10 (6) the reasonableness of the witness' testimony in light of all the evidence; and 11 (7) any other factors that bear on believability. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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ST § 3.7 OPINION EVIDENCE, EXPERT WITNESSES You have heard testimony from [a] person[s] who, because of education or experience, [is] [are] permitted to state opinions and the reasons for those opinions. 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 opinion, and all the other evidence in the case. Comment

6 See Fed. R. Evid. 602, 701­05. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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The committee recommends that this instruction be given only upon request. Since expert testimony is so common in modern jury trials, there is no good reason why it should be treated differently from other testimony.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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ST

3.11 TWO OR MORE PARTIES--DIFFERENT LEGAL RIGHTS

You should decide the case as to each plaintiff and each defendant separately. Unless otherwise stated, the instructions apply to all parties.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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ST § 4.1 DUTY TO DELIBERATE When you begin your deliberations, you should elect one member of the jury as your presiding juror. That person will preside over the deliberations and speak for you here in court. You will then discuss the case with your fellow jurors to reach agreement 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 of the evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinion if the discussion persuades you that you should. 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 and effect of the evidence simply to reach a verdict.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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ST § 4.2 USE OF NOTES Some of you have taken notes during the trial. Whether or not you took notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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ST § 4.3 COMMUNICATION WITH COURT If it becomes necessary during your deliberations to communicate with me, you may send a note through the [marshal] [bailiff], signed by your presiding juror or by one or more members of the jury. No member of the jury should ever attempt to communicate with me except by a signed writing; and I will communicate with any member of the jury on anything concerning the case only in writing, or here in open court. If you send out a question, I will consult with the parties before answering it, which may take some time. You may continue your deliberations while waiting for the answer to any question. Remember that you are not to tell anyone--including me--how the jury stands, numerically or otherwise, until after you have reached a unanimous verdict or have been discharged. Do not disclose any vote count in any note to the court.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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PL § 4.4

RETURN OF VERDICT

Verdict forms have been prepared for you. You will be given verdict forms for Plaintiffs' state law claims and verdict forms for Plaintiffs' federal claims. After you have reached your unanimous agreement on a verdict on both the state law claims and federal claims, your presiding juror will fill in the forms that have been given to you, sign and date each of them, and advise the court that you are ready to return to the courtroom. Comment The judge may also wish to explain to the jury the particular form of verdict being used and just how to "advise the court" of a verdict.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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4.4 RETURN OF VERDICT

Verdict forms have been prepared for you. You will be given verdict forms for the state law claim and verdict forms for the federal claims. After you have reached unanimous agreement on a verdict, your presiding juror will fill in one form for the state law claim and one form for the federal claim. Your presiding juror will sign and date each form, and advise the court that you are ready to return to the courtroom. Comment The judge may also wish to explain to the jury the particular form of verdict being used and just how to "advise the court" of a verdict. Plaintiffs' Objection With regard to Defendants' Model Instruction 4.4 Return of Verdict, defendants' return of verdict instruction suggests that the jury will reach only one verdict, as opposed to separate verdicts on plaintiffs' state law claims and federal claims. Defendants have not provided a federal claim form of verdict finding for plaintiffs and against Defendants Faiver and/or Rich. Defendants' Objection to Plaintiffs' Objection This Court ordered the parties to complete jury instructions and objections to jury instructions by October 17, 2005. Plaintiffs were provided copies of Defendants' proposed jury instructions on October 14, 2005 and on that date modified some of their jury instructions in response to receiving Defendants' jury instructions. However, Plaintiffs did not submit any objections to Defendants' jury instructions so that they could be included in the proposed joint jury instructions to be filed on October 17, 2005. Plaintiffs thus have waived those objections. See Defendants' Cross-Motion to Enforce Order Setting Pretrial Conference which will be filed on October 31, 2005.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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ST § 5.1 BURDEN OF PROOF--PREPONDERANCE OF THE EVIDENCE When a party has the burden of proof on any claim [or affirmative defense] by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim [or affirmative defense] is more probably true than not true. You should base your decision on all of the evidence, regardless of which party presented it.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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DF

5.3 COMPLETE AFFIRMATIVE DEFENSE

On any claim, if you find that each of the elements on which the plaintiff has the burden of proof has been proved, your verdict should be for the plaintiff on that claim, unless you also find that the defendant has proved an affirmative defense, in which event your verdict should be for the defendant on that claim. Comment

5 6 7 8 9 Plaintiffs' Objection 10 11 12 13 Defendants' Objection to Plaintiffs' Objection 14 15 16 17 18 19 20 21 22 23 24 25 26
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There may be occasions when a unanimity instruction needs to be added for a claim or affirmative defense. See Jazzabi v. Allstate Ins. Co. 278 F.3d 979 ("Liability cannot be established until after the jurors unanimously agree that the elements are satisfied and they unanimously reject the affirmative defenses."). Rev. 3/2002

Defendants have not properly raised and/or preserved any "complete affirmative defense." Further, there is no such "complete" affirmative defense to plaintiffs' state law wrongful death claim under Arizona law, nor to plaintiffs' federal civil rights claim under federal law.

This Court ordered the parties to complete jury instructions and objections to jury instructions by October 17, 2005. Plaintiffs were provided copies of Defendants' proposed jury instructions on October 14, 2005 and on that date modified some of their jury instructions in response to receiving Defendants' jury instructions. However, Plaintiffs did not submit any objections to Defendants' jury instructions so that they could be included in the proposed joint jury instructions to be filed on October 17, 2005. Plaintiffs thus have waived those objections. See Defendants' Cross-Motion to Enforce Order Setting Pretrial Conference which will be filed on October 31, 2005.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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ST § 6.1 CORPORATIONS AND PARTNERSHIPS - FAIR TREATMENT All parties are equal before the law and a corporation is entitled to the same fair and conscientious consideration by you as is any party.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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PL § 7.1 DAMAGES--PROOF and 7.2 MEASURES OF TYPES OF DAMAGES (State law wrongful death claim) It is the duty of the Court to instruct you about the measure of damages on the state law and federal law claims. By instructing you on damages, the Court does not mean to suggest for which party your verdict should be rendered. If you find for the Plaintiffs on plaintiffs' state law claims of negligence or medical negligence for the wrongful death of Kelly Mikkelsen, you must then decide the full amount of money that will reasonably and fairly compensate Plaintiffs Miles Mikkelsen, Jerret Mikkelson, Allison Mikkelson, Dennis Mikkelsen and Taylor Fox for each of the following elements of damages proved by the evidence to have resulted from the death of Kelly Mikkelsen: 1. The loss, affection, companionship, care, protection and guidance since Kelly Mikkelsen's death and in the future. The pain, grief, sorrow, anguish, stress, shock and mental suffering already experienced, and reasonably probably will be experienced in the future as the result of Kelly Mikkelsen's death. The reasonable value of financial support and household services lost as a result of Kelly Mikkelsen's death, and that are reasonably probably will be lost in the future. The reasonable expenses of funeral and burial.

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2.

3.

4.

Defendants' Objections These instructions should not be given because they are incorrect statements of the law. Plaintiffs do not have claims for negligence, medical negligence or violation of Kelly Mikkelsen's Eighth Amendment rights. See Correctional Health Resources, et al. Suggestion Concerning Lack of Jurisdiction and Motion to Remand to State Court; see also A.R.S. § 14-3110. Plaintiffs are not entitled to recover damages in their own right for the alleged violation of Kelly Mikkelsen's Eighth Amendment rights. (Id.). Thus, Plaintiffs' jury instruction is an incorrect statement of the law and should not be given.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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PL § 7.1 DAMAGES--PROOF and 7.2 MEASURES OF TYPES OF DAMAGES (Federal civil rights claims) If you find for plaintiff Rubecca Mikkelson, as Personal Representative of the Estate of Kelly Mikkelsen, on Plaintiffs' Eighth Amendment inadequate medical care claim, then you must decide the full amount of money that will reasonably and fairly compensate Plaintiff Rubecca Mikkelsen for each of the following elements of damages proved by the evidence to have resulted from Defendants' violation of Kelly Mikkelsen's Eighth Amendment rights: 1. 2. The deprivation of Kelly Mikkelsen's constitutional right to life, including the loss of enjoyment of life. The physical and mental pain and suffering experienced by Kelly Mikkelsen prior to his death. The reasonable value of Kelly Mikkelsen's earnings or earning capacity lost to the present time and which will with reasonable probability be lost in the future. The reasonable value of Kelly Mikkelsen's household services lost to the present time and which will with reasonable probability be lost in the future. Comment

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Insert only the appropriate bracketed items into Instruction 7.1 (Damages-Proof). Additional paragraphs may have to be drafted to fit other types of damages. Particular claims may have special rules on damages. See, e.g., Instructions 99 (Negligence or Unseaworthiness ­ Damages ­ Proof), 9.1 (Jones Act ­ Maintenance and Cure), and 14.10 (Age Discrimination ­ Damages). Punitive and compensatory damages are subject to caps in Title VII cases. See Gotthardt v. National Railroad Passenger Corp., 191 F.3d 1148 (9th Cir.1999). The cap does not apply to front pay and back pay. See Pollard v. E.I. du Pont de Nemours & Company, __ U.S. __, 121 S.Ct. 1946 (2001). See also Caudle v. Bristow Optical Co., 224 F.3d 1014, 1020 (9th Cir.2000) (includes the definition of front pay and back pay); Introductory Comment to Chapter 12. Source: Garcia v. Whitehead, 961 F.Supp. 230, 233 (C.D.Cal. 1997); Williams v. City of Oakland, 915 F.Supp. 1074 (N.D.Cal. 1996); Guyton v. Phillips, 532 F.Supp. 1154 (N.D. Cal. 1981); Bass v. Wallenstein, 769 F.2d 1173 (9th Cir. 1985); Jackson v. Marsh, 551 F.Supp. 1091 (D.Colo. 1982). Defendants' Objection

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The Estate of Kelly Mikkelsen did not assert any claims in Plaintiffs' First, Second or Third Amended Complaints. The Estate of Kelly Mikkelsen did not seek damages in Plaintiffs' First, Second, or Third Amended Complaints.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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Plaintiffs alleged violation of Kelly Mikkelsen's Eighth Amendment rights. Plaintiffs have never alleged a violation of Kelly Mikkelsen's alleged "right to life." Plaintiffs have never disclosed any evidence to prove the elements of damage set forth in this jury instruction. As a matter of law, even assuming the estate of Kelly Mikkelsen had ever been named as a plaintiff and assuming it had asserted claims (through its personal representative), the estate would be limited to funeral expenses actually paid by the estate. See A.R.S. § 14-3110; 42 U.S.C. § 1988.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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7.5 PUNITIVE DAMAGES

Plaintiff Rubecca Mikkelsen, as Personal Representative of the Estate of Kelly Mikkelsen, seeks punitive damages against Defendants CHR, Faiver and Rich. If you find for Plaintiff on the federal claim, you may, but are not required to, award punitive damages. The purposes of punitive damages are to punish a defendant and to deter a defendant and others from committing similar acts in the future. The plaintiff has the burden of proving that punitive damages should be awarded, and the amount, by a preponderance of the evidence. You may award punitive damages only if you find that defendant's conduct was malicious, or in reckless disregard of the plaintiff's rights. Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring another. Conduct is in reckless disregard of the plaintiff's rights if, under the circumstances, it reflects complete indifference to the plaintiff's safety, rights, or the defendant acts in the face of a perceived risk that its actions will violate the plaintiff's rights under federal law. If you find that punitive damages are appropriate, you must use reason in setting the amount. Punitive damages, if any, should be in an amount sufficient to fulfill their purposes but should not reflect bias, prejudice or sympathy toward any party. In considering punitive damages, you may consider the degree of reprehensibility of the defendant's conduct and the relationship of any award of punitive damages to any actual harm inflicted on the plaintiff. You may impose punitive damages against one or more of the defendants and not others, and may award different amounts against different defendants. Comment Punitive damages are not available in every case. For example, punitive damages are not available against municipalities, counties, or other governmental entities unless expressly authorized by statute. City of Newport, et al. v. Fact Concerts, Inc., et al., 453 U.S. 247, 259-71 (1981). Punitive damages may, however, be available against governmental employees acting in their individual capacities. Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978); City of Newport, 453 U.S. at 254. In diversity cases, look to state law for an appropriate instruction. Regarding when punitive damages may be awarded in Title VII actions, see Kolstad v. American Dental Assn., 527 U.S. 526 (1999); Caudle v. Bristol Optical Co., 224 F.3d 1014, 1026-27 (9th Cir.2000). See also Passantino v. Johnson & Johnson Consumer Products, 212 F.3d 493, 514 (9th Cir. 2000). Punitive and compensatory damages are subject to caps in Title VII cases. See 42 U.S.C. 1981a (b)(3). Regarding the amount of damages available under Title VII, see Gotthardt v. National Railroad Passenger Corp., 191 F.3d 1148 (9th Cir.1999). The cap does not apply to front pay and back pay. See Pollard v. E.I. du Pont de Nemours & Company, 532 U.S. 843 (2001). See also Caudle v. Bristol Optical Co., 224 F.3d 1014, 1020 (9th Cir.2000) (includes the definition of front pay and back pay); Introductory Comment to Chapter 12. If punitive damages are available, and evidence of defendant's financial condition is offered in support of such damages, the judge may be requested to instruct the jury during trial and/or at the end of the case about the limited purpose of such evidence. See Instructions 1.5
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RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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(Evidence for Limited Purpose), 2.10 (Limited Purpose Evidence), and the bracketed material in 3.3 (What Is Not Evidence). Regarding degree of reprehensibility and punitive damages generally, see BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996); Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991). See State Farm Mut. Auto. Ins. Co. v Campbell, 538 U.S. 408 (2003), referring to Gore and Haslip and stating that "[s]ingle-digit multipliers are more likely to comport with due process, while still achieving the State's goals of deterrence and retribution, than awards with ratios in range of 500 to 1, or, in this case, of 145 to 1. (citation omitted) . . .. Nonetheless, because there are no rigid benchmarks that a punitive damages award may not surpass, ratios greater than those we have previously upheld may comport with due process where `a particularly egregious act has resulted in only a small amount of economic damages.'" (citing Gore, 517 U.S. at 582.) Approved 12/2004 Defendants' Objection to Plaintiffs' Objection

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The Estate of Kelly Mikkelsen did not assert any claims in Plaintiffs' First, Second or Third Amended Complaints. The Estate of Kelly Mikkelsen did not seek punitive damages in Plaintiffs' First, Second, or Third Amended Complaints. This Court ordered the parties to complete jury instructions and objections to jury instructions by October 17, 2005. Plaintiffs were provided copies of Defendants' proposed jury instructions on October 14, 2005 and on that date modified some of their jury instructions in response to receiving Defendants' jury instructions. However, Plaintiffs did not submit any objections to Defendants' jury instructions so that they could be included in the proposed joint jury instructions to be filed on October 17, 2005. Plaintiffs thus have waived those objections. See Defendants' Cross-Motion to Enforce Order Setting Pretrial Conference which will be filed on October 31, 2005.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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7.5 PUNITIVE DAMAGES Plaintiff Estate seeks punitive damages against CHR. If you find for the plaintiff esta