Free Motion to Enforce - District Court of Arizona - Arizona

A. James Clark, #002901 CLARK & ASSOCIATES 2 256 South Second Avenue, #E Yuma, AZ 85364 3 Telephone (928) 783-6233
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Attorneys for Plaintiff Rubecca Mikkelsen, etc.

John A. Micheaels -- 05917 BEALE, MICHEAELS & SLACK, P.C. 6 1440 E. Missouri Avenue, #150 Phoenix, Arizona 85014 7 (602) 285-1444
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Attorneys for Plaintiff Dennis Mikkelsen UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA
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RUBECCA MIKKELSEN, surviving) spouse of Kelly Mikkelsen, deceased,) 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; and on behalf of TAYLOR) R. FOX, a minor, by her next friend) and natural mother, TRACY FOX-) TANGA, ) ) Plaintiffs, ) ) vs. ) ) C O R R E C T I O N A L H E A L T H) 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 JOINT PROPOSED SET OF JURY INSTRUCTIONS

(Assigned to the Honorable James A. Teilborg)

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DATED this

day of October, 2005. BEALE, MICHEAELS & SLACK, P.C.

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

By A. James Clark 256 S. Second Ave., Suite E Yuma, AZ 85364 Attorneys for Rubecca Mikkelsen, et al. RENAUD, COOK, DRURY & MESAROS, P.A.

By James W. Barnhouse One N. Central, Suite 900 Phoenix, AZ 85004 Attorneys for Defendants Correctional Health Resources, Inc., Faiver and Rich ABOUD & ABOUD

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By
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Michael J. Aboud 100 N. Stone Ave., Suite 303 Tucson,AZ 85701 Co-Counsel for Plaintiff Fox BOYTE & MINORE, P.C.

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By
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Mary K. Boyte 150 W. Second Street Yuma, AZ 85364 Co-counsel for Plaintiff Fox

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Original/Copy of the foregoing mailed/ delivered this ___ day of October, 2005, to: Clerk of the U.S. District Court 401 West Washington Street Phoenix, Arizona 85003

Honorable James A. Teilborg U. S. District Court 401 West Washington Street 6 Phoenix, Arizona 85003
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By____________________________
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1 2 3 4 5 6 7 PL § 1.1 DUTY OF JURY

SECTION I. MODEL JURY INSTRUCTIONS.

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

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Case 2:02-cv-02252-JAT Document 242-6 Filed 10/17/2005 Page 4 of 45 See Instruction 3.1 (Duties of Jury to Find Facts and Follow Law) for an instruction at the end of the case.

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PL § 1.2 parties:

CLAIMS AND DEFENSES (as modified)

To help you follow the evidence, I will give you a brief summary of the positions of the

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Case 2:02-cv-02252-JAT Document 242-6 Filed 10/17/2005 Page 5 of 45 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 they are entitled to compensatory damages for Defendants' deprivation of Kelly's Eighth Amendment right to appropriate medical care. Defendants CHR, Faiver and Rich deny Plaintiffs' claims. 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 death of Kelly Mikkelsen. Plaintiffs claim that they are entitled to compensatory damages under their state law medical negligence and negligence claims.

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PL

§ 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.

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PL

§ 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 27 28 7 Case 2:02-cv-02252-JAT Document 242-6 Filed 10/17/2005 Page 7 of 45 (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.

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PL

§ 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).

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PL

§ 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 See Instruction 3.5 (Direct and Circumstantial Evidence) for an instruction at the end of 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.

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PL

§ 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

8 See Instruction 3.3 (What Is Not Evidence) for an instruction at the end of the case. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Filed 10/17/2005

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PL

§ 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; (3) the witness' manner while testifying; (4) the witness' interest in the outcome of the case and any bias or prejudice; (5) whether other evidence contradicted the witness' testimony; (6) the reasonableness of the witness' testimony in light of all the evidence; and (7) any other factors that bear on believability. The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify. Comment

14 See Instruction 3.6 (Credibility of Witnesses) for an instruction at the end of the case. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 Filed 10/17/2005

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PL

§ 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).

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PL

§ 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.

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PL

§ 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 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).

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PL § 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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PL

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

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PL

§ 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.

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PL § 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.

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PL § 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 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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PL § 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.

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PL § 3.O COVER SHEET IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 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. ) ) ______________________________)

RUBECCA MIKKELSEN, surviving spouse of Kelly Mikkelsen, deceased, 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; and on behalf of TAYLOR R. FOX, a minor, by her next of friend and natural mother, TRACY FOXTANGA,

No. CIV 02-2252-PHX-JAT

(Assigned to the Honorable James A. Teilborg)

JURY INSTRUCTIONS 23 DATED: ___________ 24 25 26 27 28 21 Filed 10/17/2005 ________________________________ UNITED STATES DISTRICT JUDGE

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PL § 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

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 Filed 10/17/2005 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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PL § 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).

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PL §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).

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PL § 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.

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PL § 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; (3) the witness' manner while testifying; (4) the witness' interest in the outcome of the case and any bias or prejudice; (5) whether other evidence contradicted the witness' testimony; (6) the reasonableness of the witness' testimony in light of all the evidence; and (7) any other factors that bear on believability. The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify.

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PL § 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 27 28 27 Filed 10/17/2005 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.

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PL § 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.

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PL § 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.

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PL § 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.

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PL § 4.4

RETURN OF VERDICT

A verdict form has been prepared for you. [Any explanation of the verdict form may be given at this time.] After you have reached your unanimous agreement on a verdict, your presiding juror will fill in the form that has been given to you, sign and date it, 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.

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PL § 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.

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Pl § 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.

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PL § 7.1 DAMAGES--PROOF and 7.2 MEASURES OF TYPES OF DAMAGES (combined model and RAJI instructions,as modified) It is the duty of the Court to instruct you about the measure of damages. 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' claim of negligence, on plaintiffs' claim of medical negligence and/or on plaintiffs' Eighth Amendment inadequate medical care claim, 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 for each of the following elements of damages proved by the evidence to have resulted from the death of Kelly Mikkelsen: 1. 2. 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.

10 11 3. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4.

The Plaintiffs have the burden of proving damages by the preponderance of the evidence, and it is for you to determine what damages, if any, have been proved. Your award must be based upon evidence and not upon speculation, guesswork or conjecture.

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PL § 7.5 PUNITIVE DAMAGES (as modified) If you find for the Plaintiffs, 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. Plaintiffs have 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 defendants' conduct was malicious, or in reckless disregard of Kelly Mikkelsen'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 Kelly Mikkelsen's rights if, under the circumstances, it reflects complete indifference to Kelly Mikkelsen's safety, rights, or the defendants' acts in the face of a perceived risk that its actions will violate Kelly Mikkelsen'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 defendants' conduct and the relationship of any award of punitive damages to any actual harm inflicted on Plaintiffs. 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 defendants' 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 (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 Document 242-6 35 Filed 10/17/2005 Page 35 of 45

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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

ST § 11.11 VIOLATION OF PRISONER'S FEDERAL CIVIL RIGHTS--EIGHTH 36 Filed 10/17/2005

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AMENDMENT--MEDICAL CARE (as modified) On the Plaintiffs' Eighth Amendment inadequate medical care claim, the Plaintiffs have the burden of proving each of the following elements by a preponderance of the evidence: 1. 2. 3. the defendant(s) acted with deliberate indifference to a serious medical need; the defendant(s) acted under color of law; and the deliberate indifference of the defendant(s) caused harm to Kelly Mikkelsen.

A serious medical need exists if the failure to treat an inmate's condition could result in further significant injury or death. "Deliberate indifference" is the conscious or reckless disregard of the consequences of one's acts or omissions. To establish deliberate indifference, the Plaintiffs must prove that the defendant(s) knew that Kelly Mikkelsen faced a substantial risk of serious harm or death and disregarded that risk by failing to take reasonable measures to correct it. Mere medical malpractice or even gross negligence is not enough to establish deliberate indifference. The parties have agreed that Defendants CHR, Faiver and Rich acted under color of law. If you find that each of the elements on which the Plaintiffs have the burden of proof has been proved, your verdict should be for the Plaintiffs on Plaintiffs' civil rights claim. If, on the other hand, the Plaintiffs have failed to prove any of these elements, your verdict should be for the Defendants on Plaintiffs' civil rights claim. SOURCE: Court order dated September 7, 2005. Comment Regarding deliberate indifference, see Estelle v. Gamble, 429 U.S. 97, 106 (1976) (only deliberate indifference to serious medical needs violates the Eighth Amendment; "a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner."); Wakefield v. Thompson, 177 F.3d 1160, 1164­65 (9th Cir.1999) (noting that delayed or intentional interference with medical treatment can amount to deliberate indifference); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.1996) (finding difference of opinion between the physician and prisoner concerning the appropriate course of treatment does not amount to deliberate indifference); O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir.1990) (isolated occurrences of neglect are not sufficient to show deliberate indifference); Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.1990) ("[w]hile poor medical treatment will at a certain point rise to the level of a constitutional violation, mere malpractice, or even gross negligence, does not suffice"); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989) (finding difference of opinion between medical professionals concerning the appropriate course of treatment does not amount to deliberate indifference); Shapley v. Nevada Bd. of State Prison Comm'rs, 766 Document 242-6 37 Filed 10/17/2005 Page 37 of 45

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F.2d 404, 407 (9th Cir.1985) (holding that prisoner must show delay led to further injury). Regarding medical needs, see Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir.1994) (serious medical conditions are those a reasonable doctor would think worthy of comment, those which significantly affect the prisoner's daily activities, and those which are chronic and accompanied by substantial pain); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992) (a "serious" medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the "unnecessary and wanton infliction of pain"), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.1997) (en banc); Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir.1982) (medical needs include those related to "physical, dental, and mental health"). As to pretrial detainees, see Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.1998) (while Eighth Amendment applies only to convicted persons, courts look to Eighth Amendment standards when considering medical care claims raised by pretrial detainees).

ST § 11.12 MUNICIPAL LIABILITY (AS MODIFIED) 38 Filed 10/17/2005

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When a plaintiff is deprived of a constitutional right as a result of the official policy of a corporation, the corporation is liable for damages caused by the deprivation. In order to recover on the Eighth Amendment claim against Defendant CHR, the Plaintiffs must prove CHR had an official policy or custom that caused the deprivation of Kelly Mikkelsen's Eighth Amendment rights. "Official policy" means: (1) (2) a rule or regulation promulgated, adopted, or ratified by the corporation; a policy statement or decision that is officially made by the corporation's policymaking official; a custom that is a permanent, widespread, well-settled practice that constitutes a standard operating procedure of the corporation; or an act or omission ratified by the corporation's policy-making official.

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (4) Comment (3)

These definitions are selected examples of official policy drawn from the cited cases. This instruction may need to be modified depending on the facts of a particular case. The court may need to instruct the jury about who are policy-makers as a matter of law. See Instruction 11.13 (Official Policy Makers). See also St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988) (determination of who is a final policy-maker is a legal issue to be determined by the court based on state and local law). A municipality may be held liable for an official policy or informal custom, Monell v. Department of Social Servs. of New York, 436 U.S. 658, 690-94 (1978), for acts or decisions of officials with final policy-making authority, Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989), or for consciously ratifying the conduct of another, Gillette v. Delmore, 979 F.2d 1342, 1347 (9th Cir. 1992). See also Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (finding that liability for an improper custom may not be predicated on isolated or sporadic incidents); Redman v. County of San Diego, 942 F.2d 1435, 1443-44 (9th Cir. 1991) (finding that the repeated contravention of official written policy may itself constitute a custom or practice giving rise to liability), cert. denied, 502 U.S. 1074 (1992).

ST § 11.13 OFFICIAL POLICY-MAKERS The parties agree that Defendants Faiver and Rich are policy-making officials of Defendant

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CHR. Comment The court must decide which officials have the power to make official or final policy on a particular issue or subject area. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737-38 (1989). That determination depends upon an analysis of state law. See McMillian v. Monroe County, 520 U.S. 781, 786 (1997). In Lytle v. Carl, 382 F.3d 978, 982-83 (9th Cir. 2004), the Ninth Circuit applied these principles as follows: To determine whether a school district employee is a final policymaker, we look first to state law. Jett, 491 U.S. at 737, 109 S.Ct. 2702. A municipal employee may act as a de facto policymaker under § 1983 without explicit authority under state law, but we are ordinarily "not justified in assuming that municipal policymaking authority lies somewhere else than where the applicable law purports to put it." City of St. Louis v. Praprotnik, 385 U.S. 112, 126, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). Depending on the circumstances, however, we may also look to the way a local government entity operates in practice. Jett, 491 U.S. at 737, 109 S.Ct. 2702 (trial judge must identify official policymakers based on "state and local positive law, as well as custom or usage having the force of law" (citation and quotation marks omitted). While "[a]uthority to make municipal policy may be granted directly by a legislative enactment," it may also be "delegated by an official who possesses such authority." Pembaur v. Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986).

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SECTION II. NON-MODEL INSTRUCTIONS TO WHICH THE PARTIES HAVE STIPULATED

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NON-MODEL INSTRUCTIONS REQUESTED BY PLAINTIFF MEDICAL NEGLIGENCE Plaintiffs claim that Defendant CHR and its agents were at fault for medical negligence.

4 5 6 7 8 9 10 11 12 1. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs contend that Defendants CHR, Faiver and Rich were at fault in failing to provide Case 2:02-cv-02252-JAT Document 242-6 42 Filed 10/17/2005 Page 42 of 45 SOURCE: RAJI (CIVIL) 3d Medical Malpractice 1 and 2; RAJI (CIVIL) 3d Negligence 2, 3 and 4; A.R.S. §§ 12-563 and 12-561(2); McGuire v DeFrancesco, 168 Ariz. 88, 811 P.2d 340 (Ct. App. 1990); Kronke v. Danielson, 108 Ariz. 400, 499 P.2d 156 (1972); Pollard v. Goldsmith, 117 Ariz. 363, 572 P.2d 1201 (Ct. App. 1977); Potter v. Wisner, 170 Ariz. 331, 823 P.2d 1339 (1991); Gregg v Nat'l. Med. Health Care Servs., Inc., 699 P.2d 925 (Ct. App. 1985). 2. NEGLIGENCE. If you find that each of these elements has been proved, then your verdict should be for Plaintiffs on their medical negligence claim. If, on the other hand, you find that Plaintiffs have failed to prove any of these elements, then your verdict should be for Defendants on Plaintiffs' medical negligence claim. 2. The negligence of Defendant CHR and/or its agents was a cause of Kelly Mikkelsen's death; and Plaintiffs' damages. Defendant CHR and/or its agents were negligent; Fault is medical negligence that was a cause of injury or death to Kelly Mikkelsen. Before you can find Defendant CHR at fault, for medical negligence, you must find that negligence on the part of Defendant CHR, and/or its agents was a cause of Kelly Mikkelsen's death. Negligence causes an injury or death if it helps produce the injury or death, and if the injury or death would not have happened without the negligence. On the claim for fault of medical negligence, Plaintiffs have the burden of proving: Medical negligence is the failure to comply with the applicable standard of care. To comply with the applicable standard of care, a correctional healthcare provider must exercise that degree of care, skill and learning that would be expected under similar circumstances of a reasonably prudent correctional healthcare provider within this state.

3.

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sufficient and/or competent medical personnel at the Yuma County Detention Center. Fault is negligence that was a cause of Kelly Mikkelsen's death. Negligence is the failure to use reasonable care. Negligence may consist of action or inaction. Negligence is the failure to act as a reasonably careful person would act under the circumstances. Before you can find Defendants CHR, Faiver and/or Rich at fault, you must find that their negligence was a cause of Kelly Mikkelsen's death. Negligence helps cause an injury or death if it helps produce the injury or death and if the injury or death would not have happened without the negligence. On Plaintiffs' claim of fault for negligence on the part of Defendants CHR, Faiver and Rich, Plaintiffs have the burden of proving: 1. 2. Defendant CHR, Faiver and/or Rich were negligent; The negligence on the part of Defendant CHR, Faiver and/or Rich was a cause of Kelly Mikkelsen's death; and Plaintiffs' damages.

3.

If you find that each of these elements has been proved, then your verdict should be for Plaintiffs on their negligence claim. If, on the other hand, you found that Plaintiffs have failed to prove any of these elements, then your verdict should be for Defendants on Plaintiffs' negligence claim.

SOURCE: RAJI (CIVIL) 3d Medical Malpractice 1 and 2; RAJI (CIVIL) 3d Negligence 2, 3 and 4; A.R.S. §§ 12-563 and 12-561(2); McGuire v DeFrancesco, 168 Ariz. 88, 811 P.2d 340 (Ct. App. 1990); Kronke v. Danielson, 108 Ariz. 400, 499 P.2d 156 (1972); Pollard v. Goldsmith, 117 Ariz. 363, 572 P.2d 1201 (Ct. App. 1977); Potter v. Wisner, 170 Ariz. 331, 823 P.2d 1339 (1991); Gregg v Nat'l. Med. Health Care Servs., Inc., 699 P.2d 925 (Ct. App. 1985).

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3.

VICARIOUS LIABILITY ­ STATE LAW.

With respect to Plaintiffs' state law claims of medical negligence and negligence for wrongful death, Defendant CHR is liable for the conduct of Faiver, Rich, Bragan, Kingsley and Diaz.

SOURCE: Stipulation of the parties. SECTION IV. 44 Filed 10/17/2005

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NON-MODEL INSTRUCTIONS REQUESTED BY DEFENDANTS

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