D.P. MARSHALL, Jr., District Judge.
The Court appreciates the parties' work on jury instructions. Attached are the 14 March 2014 working drafts of the preliminary instructions, the final instructions, and the verdict form. Please be prepared to address all these drafts (especially the preliminary instructions) first thing Monday morning. The pretrial conference will begin at 8:30a.m. in Courtroom 1A, and voir dire should begin around 9:30 a.m.
So Ordered.
Ladies and gentlemen of the jury: I will take a few moments now to give you some initial instructions about this case and about your duties as jurors. During the trial, I will give you more instructions. And at the end of the trial, I will give you further instructions. Unless I specifically tell you otherwise, all these instructions—both those I give you now and those I give you later—are equally binding on you and must be followed.
In this case, I am the judge of the law and the jury is the judge of the facts. As the judge of the facts, it is your duty to determine the true facts from the evidence and the reasonable inferences arising from the evidence. In making your factual determinations, you must not engage in guess work or speculation.
As I explained during voir dire, this is a civil case brought by Clinton Parkison against Chesapeake Energy Corporation. Parkison fell off a tank at a Chesapeake hydraulic fracturing well site. A railing on the tank was missing a securing pin, and when Parkison leaned against the rail, it gave way and he fell. Parkison says that Chesapeake should have been more careful about the rails and pins on the tank. Chesapeake says it was careful and that Parkison knew the rail wasn't secure. The jury will decide, after hearing all the evidence, whether Chesapeake or Parkison was negligent in any way.
You are entitled to consider that evidence in the light of your own observations and experiences in the affairs of life. You will then apply those facts to the law that I give you in these and in my other instructions, and in that way reach your verdict. While you are the sole judges of the facts; you must follow the law, as stated in my instructions, whether you agree with it or not.
In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness says, or only part of it, or none of it.
In deciding what testimony to believe, consider the witnesses' intelligence, their opportunity to have seen or heard the things they testify about, their memories, any motives they may have for testifying a certain way, their manner while testifying, whether they said something different at an earlier time, the general reasonableness of their testimony, and the extent to which their testimony is consistent with other evidence that you believe.
Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you.
You should not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.
I have mentioned the word "evidence." "Evidence" includes the testimony of witnesses; documents and other things received as exhibits; and any facts that have been stipulated—which means the parties have formally agreed on some facts.
Certain things are not evidence. I will list those things for you now:
If I sustain an objection to a question or an exhibit, you must ignore the question or the exhibit and must not try to guess what the information might have been. Similarly, testimony and exhibits that I strike from the record, or tell you to disregard, are not evidence and must not be considered.
Finally, some of you may have heard the terms "direct evidence" and "circumstantial evidence." A fact is established by direct evidence when, for example, it is proved by witnesses who testify to what they saw, heard, or experienced. A fact is established by circumstantial evidence when its existence can reasonably be inferred from other facts proved in the case. The law makes no distinction between the weight to be given to direct and circumstantial evidence.
During the trial it may be necessary for me to speak with the lawyers out of your hearing, either by having a bench conference here while you are 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 to decide how certain evidence is to be treated under the Rules of Evidence, which govern the trial, 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.
At the end of the trial you must make your decision based on what you recall of the evidence. You will not have a written transcript to consult. You must pay close attention to the testimony as it is given.
If you wish, however, 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. And do not let note-taking distract you so that you do not hear other answers by the witness. The Clerk has provided each of you with a pad of paper and a pencil. At each recess, leave your notes face down in your chair.
When you leave at night, your notes will be secured and not read by anyone.
Finally, to insure fairness, you as jurors must obey the following rules:
First, as jurors, I do not want you to talk among yourselves about this case, or about anyone involved with the case, until the end of the case when you go to the jury room to deliberate and decide on your verdict.
Second, do not talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.
Third, when you are outside the courtroom, do not let anyone tell you anything about the case, or about anyone involved with it. If someone does try to talk to you about the case during the trial, please report it to me immediately.
Fourth, during the trial you should not talk with or speak to any of the parties, lawyers, or witnesses involved in this case—you should not even pass the time of day with any of them. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side —even if it is simply to pass the time of day—an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator, or the like, remember it is because they are not supposed to talk or visit with you.
Fifth, do not read any news stories or articles about the case or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it.
Sixth, do not do any research or make any investigation about the case on your own about any matter involved in this case. By way of example, that means that you must not consult the Internet (e.g., Google or Google Maps), a dictionary, textbook, encyclopedia, or talk with a person you consider knowledgeable. In fairness, you must only learn about this case from the evidence you receive here at the trial and apply those facts to the law as I give it to you.
Seventh, remember, cell phones are not permitted in the courthouse or in the jury room.
Eighth, keep an open mind during the trial about what the verdict should be. Keep an open mind until after you have heard all of the evidence. Once the trial has been completed and you have retired to the jury room to decide the case, you and your fellow jurors are free to discuss the evidence among yourselves.
Ninth, remember that you are not to be influenced in any degree by any personal feelings or sympathy or prejudice for or against any of the parties or the attorneys in the case. Each party is entitled to the same fair and impartial consideration at your hands.
Tenth, no statement, remark, or ruling that I make or question that I might ask of a witness during the course of the trial is intended to indicate how I feel about the facts of the case. You, as the jurors, are the sole judges of the facts of the case. You and you alone will have to decide upon the believability and credibility of the witnesses and the weight and value of the evidence.
Finally, from time to time during the course of the trial there will be recesses during which you will be permitted to leave the jury box and go your separate ways, and I want to advise you now, in case I forget to do so on those many different occasions, that until this case is turned over to you for your deliberations near the very end of the trial, you are not to discuss it among yourselves, or with any one else, or permit anyone to discuss it in your presence. Let me repeat that. Until this case is turned over to you for your deliberations near the end of the trial, you are not to discuss it among yourselves, or with anyone else, or permit anyone to discuss it in your presence.
Under your oaths you are obligated to keep an open mind on all of the factual issues in the case until you have heard, seen, or otherwise experienced all of the evidence, and until you have had the benefit of the arguments of the attorneys and have received the Court's final instructions as to the law.
Now it will be necessary for you to tell your family, friends, teachers, coworkers, or employer about your participation in this trial so that you can let them know you are required to be in court. You should warn them not to ask you about this case, not to tell you anything they know or think they know about this case, and not to discuss this case in your presence. You must not communicate with anyone about the parties, witnesses, participants, claims, evidence, or anything else related to this case, or tell anyone anything about the jury's deliberations in this case until after I accept your verdict or until I give you specific permission to do so.
During the trial, while you are in the courthouse and after you leave for the day, do not provide any information to anyone by any means about this case. For example, do not talk face-to-face or use any electronic device or media, such as the telephone, a cell phone, a smart phone, Blackberry, PDA, computer, the Internet, any Internet service, any text or instant messaging service, any Internet chat room, blog, or website such as Facebook, MySpace, YouTube, or Twitter, to communicate to anyone any information about this case until I accept your verdict.
Do not do any Internet research— do not go on the Internet to use Google or Bing, for example. Do not do any research by using libraries, reading the newspapers, or in any other way making any investigation about this case on your own. Do not visit or view any place discussed in this case and do not use Internet maps or Google Earth or any other program or device to search for or to view any place discussed in the testimony. Also do not research any information about this case, the law, or the people involved, including the parties, the witnesses, the lawyers, or me.
Do not read any news stories or articles in print, on the Internet, or in any blog, about the case or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it. In fact, until the trial is over I suggest that you avoid reading any newspapers or news journals at all, and avoid listening to any tv or radio newscasts at all. I do not know whether there will be any news reports of this case, but if there are, you might inadvertently find yourself reading or listening to something before you could do anything about it. If you want, you can have your spouse or a friend clip out any stories and set them aside to give you after the trial is over. I can assure you, however, that by the time you have heard the evidence in this case, you will know more about the matter than anyone will learn through the news media.
The trial will proceed in the following manner:
First, Parkison's lawyer will make an opening statement. Next, Chesapeake's lawyer will make an opening statement. An opening statement is not evidence but is simply a summary of what the lawyer expects the evidence to be.
Parkison will then present evidence by calling witnesses, and Chesapeake's lawyer may cross-examine those witnesses. Following Parkison's case, Chesapeake's lawyer will present evidence by calling witnesses, and Parkison may cross-examine those witnesses.
Finally, Parkison may offer rebuttal evidence.
After presentation of evidence is completed, the lawyers will then have a second opportunity to address you directly, and on that second occasion, they are permitted to argue to you the evidence in an attempt to persuade you that their view of the facts is the truth. As with opening statements, closing arguments are not evidence.
After the closing arguments, the Court will give you the final instructions on the law. Then you will retire to the jury room to deliberate on your verdict.
Members of the Jury, the instructions I gave you at the beginning of the trial and during the trial remain in effect. I now give you some additional instructions on the law that applies to this case. You must, of course, continue to follow all the instructions I gave you earlier, as well those I give you now.
The instructions I am about to give you now are in writing and will be available to you in writing in the jury room. I emphasize, however, that this does not mean they are more important than my earlier instructions. Again, all my instructions, whether given in writing or spoken from this bench, must be followed.
It is your duty as jurors to follow the law as stated in the instructions, and to apply the given rules of law to the facts as you find them to be from the evidence in this case.
You are not to single out one instruction alone as stating the law, but must consider the instructions as a whole.
Neither are you to be concerned with the wisdom of any rule of law as stated by the Court. Regardless of any opinion you may have as to what the law ought to be, it would be a violation of your sworn duty to base a verdict upon any other view of the law other than that given in the instructions of the Court; just as it would be a violation of your sworn duty, as judges of the facts, to base a verdict upon anything but the evidence in the case.
Nothing I say in the instructions is to be taken as an indication that I have any opinion about the facts of the case, or what that opinion is. It is not my function to determine the facts. You will determine the facts. During this trial I have occasionally asked questions of witnesses. Do not assume that because I asked questions I hold any opinion on the matters to which my questions related.
Justice through trial by jury must always depend on the willingness of each individual juror to seek the truth about the facts from the same evidence presented to all the jurors; and to arrive at a verdict by applying the same rules of law as given in the Court's instructions.
Statements and arguments of counsel are not evidence in the case. When the lawyers on both sides stipulate or agree on the existence of a fact, however, the Jury must accept the stipulation and regard that fact as proved. The evidence in the case always consists of the sworn testimony of the witnesses, regardless of who may have called them and any documents, photographs, or other items that are received by the Court, and all facts that may have been admitted or stipulated. Any evidence on which an objection was sustained by the Court—and any witness statement or tangible item that was stricken by the Court—must be entirely disregarded.
Anything you may have seen or heard outside this courtroom is not evidence, and it must be entirely disregarded.
In conducting your deliberations and returning your verdict, there are certain rules you must follow.
First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you all here in court.
Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment, because a verdict must be unanimous.
Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors.
Do not be afraid to change your opinions if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right, or simply to reach a verdict. Remember at all times that you are not partisans. You are judges—judges of the facts. Your sole interest is to seek the truth from the evidence in the case.
Third, if you need to communicate with me during your deliberations, you may send a note to me, through the court security officer, that is signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should never tell anyone—including me—how your votes stand numerically.
Fourth, your verdict must be based solely on the evidence and on the law that I have given to you in my instructions. The verdict must be unanimous. Again, nothing I have said or done is intended to suggest what your verdict should be—that is entirely for you to decide.
You are the sole judges of the credibility of the witnesses and the weight and value to be given to their testimony. In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness said, or only part of it, or none of it.
In deciding what testimony to believe, you may consider the witness's intelligence; the opportunity the witness had to see or hear the things about which he or she testified; the witness's memory; any motives a witness may have for testifying a certain way; the manner and demeanor of the witness while testifying; whether the witness said something different at an earlier time; the general reasonableness or unreasonableness of the testimony; and the extent to which the testimony is consistent with any other evidence that you believe.
In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection, lapse of memory, or an intentional falsehood—and that may depend on whether it has to do with an important fact or only a small detail.
In considering the evidence in this case you are not required to set aside your common sense or common knowledge. You have the right to consider all the evidence in light of your own observations and experiences in the affairs of life.
In these instructions you are told that one or the other party has the burden to prove certain facts. The burden of proving a fact is placed upon the party whose claim or defense depends upon that fact. The party who has the burden of proving a fact must prove it by a preponderance of the evidence. To prove something by the "preponderance of the evidence" is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more believable.
If, on any issue of fact in the case, the evidence is equally balanced, you cannot find that fact has been proved. The preponderance of the evidence is not necessarily established by the greater number of witnesses or exhibits a party has presented.
You may have heard of the term "proof beyond a reasonable doubt." This is a stricter standard, which applies in criminal cases. It does not apply in civil cases like this one. You should, therefore, put it out of your minds.
An expert witness is a person who has special knowledge, skill, experience, training, or education on the subject to which his or her testimony relates.
An expert witness may give an opinion on questions in controversy. You may consider the expert's opinion in the light of his or her qualifications and credibility, the reasons given for the opinion, and the facts and other matters upon which the opinion is based.
You are not bound to accept an expert's opinion, but should give it whatever weight you think it should have. You may disregard any opinion testimony if you find it to be unreasonable.
A fact in dispute may be proved by circumstantial evidence as well as by direct evidence. A fact is established by direct evidence when, for example, it is proved by witnesses who testify to what they saw, heard, or experienced. A fact is established by circumstantial evidence when its existence can reasonably be inferred from other facts proved in the case.
Clinton Parkison and Chesapeake Energy Corporation are both persons in the eyes of the law, and both are entitled to equal justice under the law.
Clinton Parkison claims damages from Chesapeake and has the burden of proving each of the three following elements:
If you find from the evidence in this case that each of these elements has been proved, then your verdict should be for Parkison; but if, on the other hand, you find from the evidence that any of these elements has not been proved, then your verdict should be for Chesapeake.
Chesapeake contends that there was negligence or fault on the part of Clinton Parkison, which was a proximate cause of the injury. Chesapeake has the burden of proving this contention.
The law frequently uses the expression "proximate cause," with which you may not be familiar. When I use the expression "proximate cause," I mean a cause which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred.
When I use the word "negligence" in these instructions I mean the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence in this case. It is for you to decide how a reasonably careful person would act under those circumstances. To constitute negligence, an act must be one from which a reasonably careful person would foresee an appreciable risk of harm to others as to cause him or her not to do the act, or to do it in a more careful manner. When I use the word "fault" in these instructions, I mean negligence. The fact that an accident occurred is not, of itself, evidence of negligence on the part of anyone.
In this case, Clinton Parkison was an invitee on Chesapeake's premises. Chesapeake owed Parkison a duty to use ordinary care to maintain the premises in a reasonably safe condition. The duty Chesapeake owed Parkison was to protect him not only from dangers of which Chesapeake knew, but also against those which, with reasonable care, Chesapeake might discover. No such duty exists, however, if the condition of the premises that creates the danger was known by, or obvious to, Parkison. It was the duty of Parkison, before and at the time of the occurrence, to use ordinary care for his safety.
A failure to exercise ordinary care is negligence. When I use the words "ordinary care," I mean the care a reasonably careful person would use under circumstances similar to those shown by the evidence in this case. It is for you to decide how a reasonably careful person would act under those circumstances. Every person using ordinary care has a right to assume, until the contrary is or reasonably should be apparent, that every other person will use ordinary care. To act on that assumption is not negligence.
At the time of the occurrence, OSHA regulations were in force in Arkansas. These OSHA regulations provided that:
A violation of one or more of these regulations, although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in this case.
If you decide for Clinton Parkison on the question of liability against Chesapeake, you must then fix the amount of money which will reasonably and fairly compensate Parkison for any of the following elements of damage sustained which you find were proximately caused by the negligence or fault of Chesapeake.
Whether any of these elements of damage have been proved by the evidence is for you to determine.
I have used the expression "present value" in these instructions with respect to certain elements of damage which you may find that Clinton Parkison will sustain in the future. This simply means that if you find that Parkison is entitled to recover any elements of damage which require you to determine their present value, you must take into consideration the fact that money recovered will earn interest, if invested, until the time in the future when these losses will actually occur. Therefore, you must reduce any award of these damages to compensate for the reasonable earning power of money.
This case is submitted to you on Interrogatories or questions. Your answers to these questions will be your verdict in this case. Here are the questions and related instructions.
What percentage of the fault for the accident should be attributed to Chesapeake?________________
You will take these questions to the Jury room, and when each of you has agreed on the answers, your foreperson will fill in the form for each question that you are called upon to answer to reflect your unanimous decision, sign and date it, and then advise the court security officer that you are ready to return to the Courtroom.
I add the caution that nothing said in the instructions—nothing in the form of the verdict forms prepared for your convenience—is or was intended to suggest or convey in any way or manner any intimation as to what answers I think you should find. How you choose to answer the Interrogatories shall be the sole and exclusive responsibility of you, the Jury.
If it becomes necessary during your deliberations to communicate with the Court, you may send a note by the court security officer, signed by your foreperson, or by one or more members of the Jury. No member of the Jury should ever attempt to communicate with the Court by any means other than a signed writing; and the Court will never communicate with any member of the Jury on any subject touching the merits of the case, other than in writing, or orally here in open Court.
You will note from the oath about to be taken by the court security officer to act as bailiff that he, and all other persons, are forbidden to communicate in any way or manner with any member of the Jury on any subject touching the merits of the case. Bear in mind also that you are never to reveal to any person, not even to the Court, how the Jury stands, numerically or otherwise, on the issues presented to you unless or until you reach a unanimous verdict.
Court security officer, do you solemnly swear to keep this Jury together in the jury room, and not to permit any person to speak to or communicate with them, concerning this case, nor to do so yourself unless by order of the Court or to ask whether they have agreed on a verdict, and to return them into the Courtroom when they have so agreed, or when otherwise ordered by the Court, so help you God?
What percentage of the fault for the accident should be attributed to Chesapeake?________________
