D.P. MARSHALL, JR., District Judge.
The Court is attaching working drafts of its (1) voir dire, (2) preliminary instructions, (3) final instructions, and (4) verdict. We will discuss the voir dire and preliminary instructions at the pretrial conference Monday morning. And we will work on the final instructions and verdict throughout trial.
So Ordered.
Ladies and gentlemen, I will take a few moments now to give you some initial instructions about this case and about your duties as jurors. At the end of the trial I will give you further instructions. I may also give you instructions during the trial. 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.
I am the judge of the law and you are the judges of the facts. As judges of the facts, it's your duty to determine the truth from the evidence and the reasonable inferences arising from the evidence. In making your factual decisions, you must not engage in guess work or speculation.
This is a civil case, not a criminal case. While driving on Interstate 55 in Marion, Arkansas, Nicholas McGuire ran into the back of a tractor-trailer owned by J.E. Phillips & Sons and driven by its employee Richard Carl Adams. The tractor-trailer was stopped on the interstate in a line of traffic in a construction zone. Nicholas McGuire, his wife Jessica McGuire, and their 2-year-old daughter Brinley McGuire died in the accident. Six-year-old Cadence McGuire survived. Kenny and Mary Lou Herron are the guardians of their granddaughter, Cadence. Mary Lou Herron is the administrator of the estates of Jessica and Brinley McGuire. Charles Jeff Gardner is the administrator of the estate of Nicholas McGuire. The Herrons and Gardner claim that I.E. Phillips's negligence caused the wrongful deaths of Nicholas, Jessica, and Brinley McGuire, and the injuries and losses of Cadence. Phillips denies liability. Phillips claims that Nicholas McGuire's negligence caused the accident. Phillips also claims that a company who manufactured its trailer, Wabash, and a company who extended the trailer, Best, are responsible for the trailer's design and condition. The jury will have to decide what happened.
From all the evidence, you will decide what the truth is. You are entitled to consider all the evidence in the light of your own observations and experiences in the affairs of life. You may use reason and common sense to draw conclusions from facts that have been established by the evidence. You will then apply those facts to the law that I give you in these instructions 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.
Do not allow any sympathy or any 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. Evidence includes any facts that have been stipulated— that is, formally agreed—by the parties. Evidence also includes any facts that have been judicially noticed— that is, facts which I say you must accept as true even without evidence.
Certain things are not evidence:
1. Statements, arguments, questions, and comments by lawyers representing the parties in the case are not evidence.
2. Objections are not evidence. Lawyers have a right to object when they believe something is improper. You should not be influenced by the objection. If I sustain an objection to a question, you must ignore the question and must not try to guess what the answer might have been.
3. Testimony that I strike from the record, or tell you to disregard, is not evidence. Ignore it.
4. Anything you see or hear about this case outside the courtroom is not evidence. Ignore it.
A particular item of evidence is sometimes received for a limited purpose only. That is, it can be used by you only for one particular purpose, and not for any other purpose. I will tell you when that occurs, and instruct you on the purposes for which the item can and cannot be used.
Finally, some of you may have heard the terms "direct evidence" and "circumstantial evidence." Don't be concerned with those terms. The law makes no distinction between direct and circumstantial evidence. Give all evidence the weight and value you believe it is entitled to receive.
In deciding what the facts are, you will 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 of any witness to believe, consider several things: the witness's intelligence; the opportunity the witness had to have seen or heard the things testified about; the witness's memory; any motives that witness may have for testifying a certain way; the manner of the witness while testifying; whether that witness said something different at an earlier time; the general reasonableness of the testimony; and the extent to which the testimony is consistent with other evidence that you believe.
A caution about considering a witness's demeanor while testifying. Many folks are nervous just being in court. And there are bold liars and shy truth-tellers. Use your common sense and be discerning when judging someone's credibility based on their demeanor on the stand.
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 or lapse of memory or a lie. That may depend on whether it has to do with an important fact or only a small detail.
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 a "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. The preponderance of the evidence is not necessarily established by the greater number of witnesses or exhibits a party has presented. If the plaintiffs — those who brought this case — have the burden of proof on a fact, and the evidence is equally balanced, then the plaintiffs have not carried their burden. If J.E. Phillips has the burden of proof on a fact, and the evidence is equally balanced, then J.E. Phillips has not carried its burden.
You've probably 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. Put the reasonable-doubt standard out of your minds.
When the lawyers have finished questioning each witness, you may propose questions to clarify the testimony. In your questions, follow these rules:
Submit your questions in writing by passing them to the court security officer. I will review each one with the lawyers. If the question is proper, the lawyers or I will ask it.
Don't put any special weight on a question just because a juror suggested it. Don't put any special, weight on the question because I may be the one asking it. And consider the witness's answer just like any other piece of evidence.
You may not get your question answered. For example, I may decide that the question is not proper under the rules of evidence. And even if the question is proper, you may not get an immediate answer. For example, a later witness or a coming exhibit may provide the answer.
Don't feel slighted or disappointed if your question isn't asked or answered immediately. Remember, you are not advocates for either side; you are impartial judges of the facts.
At the end of the trial you must make your decisions based on what you recall of the evidence. You will not have a written transcript to consult, and it may not be practical for the court reporter to read back lengthy testimony. 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. Don't share them with your fellow jurors during the trial. When you go to the jury room to deliberate and decide the case at the end of the trial, then you can share them with each other. And do not let note taking distract you so that you do not hear other answers by the witness.
When you leave at night, your notes will be locked up. No one will read them. At the end of the trial, all notes will be destroyed.
During the trial, from time to time I'll have to talk just to the lawyers. We'll have a bench conference or a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is to discuss certain evidence questions, and to avoid confusion and error. We'll keep the number and length of these conferences to a minimum.
Finally, to ensure fairness, you as jurors must obey the following rules:
First, do not talk among yourselves about this case, or about anyone involved with it, until the end when you go to the jury room to decide on your verdict.
Second, do not talk with anyone else about this case, or about anyone involved with it, until the end of the trial after I've discharged you as jurors.
Third, when you are outside the courtroom, don't let anyone tell you anything about the case, or about anyone involved with it, until the trial has ended and I've discharged you as jurors. If someone should tries to talk to you about the case during the trial, report it to the court security officer immediately.
Fourth, during the trial don't talk with any of the parties, lawyers, or witnesses involved in this case—don't even pass the time of day with any of them. It is important not only that you do justice, but that you also appear to do justice. If a person from one side of the lawsuit sees you talking to a person from the other side of the lawsuit, a suspicion about your fairness might arise. I suspend the rules of good manners. Please ignore the lawyers, parties, witnesses, me, and my staff outside the courtroom.
Filth, you'll have to tell your family, friends, teachers, coworkers, or employer that you've been selected as a juror and must be in court. Warn them not to ask you for details. Don't name the case, the parties, or tell them what it's about. Don't listen to anything someone may say to you, or in your presence, about the case. You must not communicate with anyone about the parties, witnesses, participants, claims, evidence, or anything else about the case, or tell anyone anything about the jury's deliberations in this case, until after I accept your verdict.
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, iPad, computer, the Internet, any Internet service, any text or instant messaging service, any Internet chat room, blog, or website such as Facebook, Instagram, YouTube, or Twitter, to communicate to anyone any information about this case until I accept your verdict.
Sixth, don't do any Internet research—using Google, for example—about the case. Don't do any research using libraries, reading the newspaper, or in any other way making any investigation about this case on your own. Don't visit or view any place discussed in this case. Don't use Internet maps or Google Earth or any other program or device to search for or to view any place discussed in the testimony And don't research any information about this case, the law, or the people involved, including the parties, the witnesses, the lawyers, or me.
Seventh, don't read any news 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 report about the case or about anyone involved with it. In fact, until the trial is over I suggest that you take a news holiday: avoid reading newspapers; avoid watching TV news; avoid radio newscasts; and avoid news on the Internet. I also suggest that you avoid social media, such as Facebook and Twitter. I don't know whether there will be any news reports about this case. But if there are, you might stumble into reading or listening to something before you could do anything, about it. I assure you: by the time you've heard all the evidence in this case, you'll know more about it than anyone could learn through the news media.
The reason for all these rules is to protect the integrity of the trial.
Here is how the trial will go:
First, one of the plaintiffs' lawyers will make an opening statement. Next, one of Phillips's lawyers will make an opening statement. An opening statement is not evidence, but simply a summary of what the lawyer expects the evidence to he.
Next, the plaintiffs' lawyers will then present evidence by calling witnesses, and Phillips's lawyers may cross-examine those witnesses. After the plaintiffs' case, Phillips's lawyers will present evidence by calling witnesses, and the plaintiffs' lawyers may cross-examine those witnesses. Finally, the plaintiffs' lawyers may offer rebuttal evidence.
After presentation of evidence is completed, the Court will give you some final instructions. Then the lawyers will make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence. After the close, you'll go to the jury room to deliberate on your verdict.
Follow all the Court's instructions. Written and spoken instructions are equally important. And it doesn't make any difference when I give an instruction. Follow them all.
Your job is to decide what happened. Don't take anything I said or did as a suggestion about what your decision should be. You're the judges of the facts, not me.
Don't decide the case based on sympathy, prejudice, or emotion. Decide based on the evidence, the law, and your common sense.
The evidence is the witnesses' testimony, the exhibits, any facts agreed by the parties, and any facts I've told you that you must accept as true. Anything the lawyers said (such as questions, statements, arguments, and objections) is not evidence. If I told you to disregard something, ignore it. If you saw or heard something about this case outside the courtroom, ignore that, too. If I told you some evidence must be used only for a limited purpose, do so.
Be careful evaluating each witness's credibility. Use your life experience and your common sense in deciding what testimony you believe.
An expert is a person who has special knowledge, skill, experience, training, or education on a subject. An expert may give his or her opinion on issues in controversy. You may consider the expert's opinion in light of his or her qualifications, credibility, the reasons given for the opinion, and the basis of the opinion. You are not bound to accept an expert's opinion. You should give it whatever weight you think it should have. As with any witness, you can believe some, all, or none of what an expert says. You may disregard any expert opinion if you find it to be unreasonable.
The party with the burden of proof must prove the facts asserted by a preponderance of the evidence. That means the party must prove that something is more likely true than not true. J.E. Phillips has accepted responsibility for all the acts and omissions of its employee-driver, Richard Carl Adams. I will tell you whether Plaintiffs or J.E. Phillips has the burden of proof on particular issues. If Plaintiffs have the burden of proof on a fact, and the evidence is equally balanced, then Plaintiffs have not carried their burden. If J.E. Phillips has the burden of proof on a fact, and the evidence is equally balanced, then J.E. Phillips has not carried its burden. Neither Plaintiffs nor J.E. Phillips must prove anything beyond a reasonable doubt. That's the standard for a criminal case, not a civil case like this one.
Here are some rules of law about negligence.
First, "negligence" means 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. To be negligence, an act must be one from which a reasonably careful person would foresee such an appreciable risk of harm to others as to cause him not to do the act, or to do it in a more careful manner.
Second, a failure to exercise ordinary care is negligence. "Ordinary care" means 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.
Third, it was the duty of J.E. Phillips, Richard Adams, Wabash, Best Truck & Trailer, and Nicholas McGuire to use ordinary care for their own safety and the safety of others. Every person using ordinary care has a right to assume, until the contrary is or reasonably should he apparent, that every other person will use ordinary care. To act on that assumption is not negligence.
Fourth, the fact that an accident occurred is not, by itself, evidence of negligence on the part of anyone.
Plaintiffs claim that I.E. Phillips was negligent in maintaining and inspecting its vehicle. Plaintiffs also claim that J.E. Phillips, through Richard Carl Adams, was negligent in inspecting and operating the vehicle. The vehicle driven by Adams was owned by J.E. Phillips. Adams was a regular employee of this company. J.E. Phillips has admitted that Adams was acting within the course and scope of his employment with the company at the time of this accident. Therefore, any negligence on the part of Adams is charged to I.E. Phillips. Plaintiffs have the burden of proving three things:
First, they sustained damages;
Second, J.E. Phillips was negligent; and
Third, J.E.. Phillips's negligence was a proximate cause of Plaintiffs' damages.
If any party is found negligent regarding the rear impact guard's condition, J.E. Phillips claims that Best Truck & Trailer was negligent in its extension of the trailer involved in the accident. J.E. Phillips has the burden of proving three things:
First, Plaintiffs sustained damages;
Second, Best Truck and Trailer was negligent; and
Third, Best Truck and Trailer's negligence was a proximate cause of Plaintiffs' damages.
If any party is found negligent regarding the rear impact guard's condition, J.E. Phillips claims that Wabash is strictly liable because the rear impact guard was in a defective condition at the time it was manufactured. J.E. Phillips has the burden of proving three things:
First, Plaintiffs sustained damages;
Second, Wabash was in the business of designing and manufacturing the rear impact guard;
Third, Wabash supplied the rear impact guard in a defective condition, which rendered it unreasonably dangerous; and
Fourth, the defective condition was a proximate cause of Plaintiffs' damages.
"Defective condition" means the rear impact guard was unsafe for reasonably foreseeable use.
"Unreasonably dangerous" means the rear impact guard was dangerous to an extent beyond that which would he contemplated by the ordinary and reasonable user, assuming the ordinary knowledge of the community or similar users about the rear impact guard's characteristics, propensities, risks, dangers, and proper and improper uses.
If any party is found negligent regarding the rear impact guard's condition, J.E. Phillips claims that Wabash was negligent in designing, manufacturing, and supplying the rear impact guard. J.E. Phillips has the burden of proving three things:
First, Plaintiffs sustained damages;
Second, Wabash was negligent; and
Third, Wabash's negligence was a proximate cause of Plaintiffs' damages.
Here are some rules of law about Wabash's duties.
Wabash had a duty to use ordinary care in designing and manufacturing the rear impact guard. In general, Wabash had to protect ordinary users from an unreasonable risk of harm while the rear impact guard was being used for its intended purpose or while it was being used for any purpose which Wabash should have reasonably expected. In deciding whether Wabash was negligent, you may consider the degree of skill and care ordinarily possessed and used by other trailer manufacturers.
The law frequently uses the expression "proximate cause." Here is a definition. "Proximate cause" means a cause which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred.
This does not mean that the law recognizes only one proximate cause of damage. To the contrary, if two or more causes work together to produce damage, then you may find that each of them was a proximate cause.
J.E. Phillips contends and has the burden of proving that, after any act or omission on its part, an event intervened that in itself caused damage completely independent of this company's conduct. If you so find, then J.E. Phillips's acts or omissions were not a proximate cause of any damage resulting from the intervening event.
But, the fact that another cause (or causes) intervened between any act or omission on J.E. Phillips's part and the damage for which a claim is made, does not relieve J.E. Phillips of liability if the damage was reasonably foreseeable as a natural and probable result of J.E. Phillips's act or omission.
There were in force in the Code of Federal Regulations at the time of the occurrence five regulations which provided:
First: 49 CFR § 392.2 stated: "Every commercial motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated."
Second: 49 CFR § 392.22 stated: "Whenever a commercial motor vehicle is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver of the stopped commercial motor vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the warning devices required by . . . this section" such as emergency reflective triangles or flares.
Third: 49 CFR § 396.7 stated: "A motor vehicle shall not be operated in such a condition as to likely cause an accident or a breakdown of the vehicle."
Fourth: 49 CFR § 396.3 stated: "Every motor carrier shall systematically inspect, repair, and maintain, or cause to be systematically inspected, repaired, and maintained, all motor vehicles subject to its control."
Fifth: 49 CFR § 396.13 stated: "Before driving a motor vehicle, the driver shall be satisfied that the motor vehicle is in safe operating condition."
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 the other facts and circumstances in the case.
There was also in force at the time of the occurrence a state law, ARK. CODE. ANN. § 27-51-1302, that stated:
A violation of this law, although not necessarily negligence, is evidence of negligence to be considered by you along with all the other facts and circumstances in the case.
J.E. Phillips contends that the negligence of Nicholas McGuire was a proximate cause of Plaintiffs' injuries and damages. J.E. Phillips has the burden of proving this contention.
In determining whether Nicholas McGuire was negligent, you may consider the following three rules of the road:
First, it is the duty of the driver of a motor vehicle to keep a lookout for other vehicles or persons on the street or highway. The lookout required is that which a reasonably careful driver would keep under circumstances similar to those shown by the evidence in this case.
Second, it is the duty of the driver of a motor vehicle to keep his vehicle under control. The control required is that which a reasonably careful driver would maintain under circumstances similar to those shown by the evidence in this case. When danger would be reasonably apparent to the driver who is keeping a proper lookout or when the driver is warned of approaching imminent danger, he is required to use ordinary care to have his vehicle under such control as to be able to check its speed or stop it, if necessary, to avoid damage to himself or others.
Third, it is the duty of the driver of a motor vehicle to drive at a speed no greater than is reasonable and prudent under the circumstances, having due regard for any actual or potential hazards.
A failure to meet the standard of conduct required by any of these three rules is negligence.
When two vehicles are traveling in the same direction, the vehicle in front has the superior right to the use of the highway for the purpose of traveling and stopping in traffic, and the driver behind must use ordinary care to operate his vehicle in recognition of this superior right. This does not relieve the driver of the forward vehicle of the duty to use ordinary care and to obey the rules of the road.
You may have to compare the fault of J.E. Phillips (including Richard Adams), Best Truck & Trailer, Wabash, and Nicholas McGuire. "Fault" is a global legal term that covers many things. Fault includes negligence by any party — J.E. Phillips, Best Truck & Trailer, Wabash, or Nicholas McGuire. Fault also includes designing or supplying a product that was in a defective condition that made the product unreasonably dangerous at the time it was manufactured.
If an interrogatory requires you to assess the damages of Cadence McGuire, you must then fix the amount of money which will reasonably and fairly compensate her for any of the following elements of damage which you find were proximately caused by the fault of the defendants:
(a) The nature, extent, and duration of any injury;
(b) The reasonable expense of any necessary medical care, treatment, and services received;
(c) Any pain and suffering and mental anguish due to injuries sustained in the occurrence that she experienced in the past and is reasonably certain to experience in the future; and
(d) Any scars and visible results of her injury.
Whether any of these elements of damage has been proved by the evidence is for you to determine.
Mary Lou Herron, as administrator of the estate of Jessica M. McGuire, deceased, represents Jessica's estate. Mary Lou Herron also represents Cadence McGuire, Kenny Herron, Mary Lou Herron, Tiffany Herron, and Trey Herron.
The administrator is suing for the following elements of damage:
(a) Pecuniary injuries sustained by Cadence McGuire; and
(b) Mental anguish suffered and reasonably probable to be suffered in the future by Cadence McGuire, Kenny Herron, Mary Lou Herron, Tiffany Herron, and Trey Herron.
"Pecuniary injuries" refers to the present value of benefits, including money, goods, and services, that Jessica McGuire would have contributed to Cadence McGuire had Jessica lived. In making your determination of pecuniary injuries, you may consider the following factors concerning Jessica McGuire:
(a) What Jessica McGuire customarily contributed in the past and might have been reasonably expected to contribute had she lived;
(b) The period during which Cadence McGuire might reasonably have expected to have received contributions from Jessica McGuire;
(c) What Jessica McGuire earned and might have been reasonably expected to earn in the future;
(d) What Jessica McGuire spent for customary personal expenses and other deductions;
(e) What instruction, moral training, and supervision of education Jessica McGuire might have reasonably given Cadence McGuire had she lived;
(f) The health of Jessica McGuire prior to the accident;
(g) Jessica McGuire's habits of industry, sobriety, and thrift;
(h) Jessica McGuire's occupation;
(i) The life expectancy of Jessica McGuire and of Cadence McGuire; and
(j) The time that will elapse before Cadence McGuire reaches majority.
"Mental anguish" means the mental suffering resulting from emotions, such as grief and despair, associated with the loss of a loved one.
The administrator is also suing for the following elements of damage on behalf of Jessica McGuire's estate:
(a) Jessica McGuire's loss of life;
(b) The reasonable value of funeral expenses; and
(c) Property damage for the 2006 Nissan Murano.
If an interrogatory requires you to assess the damages of the administrator, you must fix the amount of money that will reasonably and fairly compensate Cadence McGuire and the estate of Jessica McGuire for those elements of damage sustained.
Whether any of the damages sued for on behalf of Cadence McGuire and the estate of Jessica McGuire have been proved by the evidence is for you to determine.
Charles Jeff Gardner, as administrator of the estate of Nicholas McGuire, deceased, represents Nicholas's estate and also Cadence McGuire.
The administrator is suing for the following elements of damage:
(a) Pecuniary injuries sustained by Cadence McGuire; and
(b) Mental anguish suffered and reasonably probable to be suffered in the future by Cadence McGuire.
"Pecuniary injuries" refers to the present value of benefits, including money, goods, and services, that Nicholas McGuire would have contributed to Cadence McGuire had he lived. In making, your determination of pecuniary injuries, you may consider the following factors concerning Nicholas McGuire:
(a) What Nicholas McGuire customarily contributed in the past and might have been reasonably expected to contribute had he lived;
(b) The period during which Cadence McGuire might reasonably expect to have received contributions from Nicholas McGuire;
(c) What Nicholas McGuire earned and might have been reasonably expected to earn in the future;
(d) What Nicholas McGuire spent for customary personal expenses and other deductions;
(e) What instruction, moral training, and supervision of education Nicholas McGuire might have reasonably given Cadence McGuire had he lived;
(f) The health of Nicholas McGuire prior to the accident;
(g) Nicholas McGuire's habits of industry, sobriety, and thrift;
(h) Nicholas McGuire's occupation;
(i) The life expectancy of Nicholas McGuire and of Cadence McGuire; and
(j) The time that will elapse before Cadence McGuire reaches majority.
"Mental anguish" means the mental suffering resulting from emotions, such as grief and despair, associated with the loss of a loved one.
The administrator is also suing for the following elements of damage on behalf of Nicholas McGuire's estate:
If an interrogatory requires you to assess the damages of the administrator, you must fix the amount of money that will reasonably and fairly compensate Cadence McGuire and the estate of Nicholas McGuire for those elements of damage sustained.
Whether any of the damages sued for on behalf of Cadence McGuire and the estate of Nicholas McGuire have been proved by the evidence is for you to determine.
Mary Lou Herron, as administrator of the estate of Brinley M. McGuire, the deceased child, represents this child's estate and also Cadence McGuire.
If an interrogatory requires you to assess the damages of the administrator, you should also determine an amount from the evidence that would reasonably compensate Cadence McGuire for any mental anguish she has endured and that is reasonably probable to be endured in the future as a result of the death of Brinley McGuire. Mental anguish includes the mental suffering resulting from emotions, such as grief and despair, associated with the loss of a loved one.
Certain elements of damage may be awarded only to the estate of Brinley McGuire. These are her loss of life and the reasonable value of funeral expenses.
Whether any of the damages sued for have been proved by the evidence is for you to determine.
If you find that Cadence McGuire is entitled to damages arising in the future because of injuries or future medical expenses, then you must decide the amount of those damages.
If these damages are continuing but not permanent, consider how long they will continue. If they are permanent, consider how long she is likely to live.
Mortality tables are evidence of an average life expectancy of a person who has reached a certain age. But they're not conclusive. Consider them along with other evidence about Cadence's probable life expectancy, including evidence about her health, habits, and other activities. Bear in mind that some persons live longer than the average and some persons less than the average.
When explaining possible future damages, I have used the expression "present value." This simply means that you must take into account the fact that money recovered today will earn interest, if invested, until the time in the future when these losses will actually occur. Therefore, you must reduce any award of future damages to compensate for the reasonable earning power of money.
Here are some general rules for your deliberations.
First, choose a foreperson. She or he will preside over your deliberations, sign your verdict, and speak for you here in Court.
Second, talk through the case in detail. Consider all the evidence. Discuss it fully with your fellow jurors. And listen attentively to others' views.
Third, make your own conscientious decision. Don't be afraid to change your mind if you're persuaded by the discussion. But don't make a decision simply because others think it is right. And don't agree just to get done.
Fourth, try hard to reach agreement. Your verdict must be unanimous.
Fifth, if you need to communicate with me during your deliberations, send me a note through the court security officer. One or more jurors must sign the note. But, do not tell me—or anyone—how your votes stand numerically.
Sixth, your verdict will be your answers to various questions. I'll read the verdict form to you now.
Seventh, from this point forward, other than a note to the Court, do not communicate with any person other than your fellow jurors about the merits of the case.
Court security officer, do you solemnly swear or affirm to keep this jury together in the jury room, not to permit any person to speak to or communicate with them about this case, nor to do so yourself unless by order of the Court or to ask whether they have agreed on a verdict, and return them into the courtroom when they have so agreed, or when otherwise ordered by the Court?
Allen v. Brown Clinic,
"To challenge a juror for cause, a party must show actual partiality growing out of the nature and circumstances of the case. A district court is required to strike for cause any juror who is shown to lack impartiality or the appearance of impartiality, and, absent abuse of discretion, we will not interfere with the district court's determination of juror qualifications. The district court is given broad discretion in determining whether to strike jurors for cause because it is in the best position to assess the demeanor and credibility of the prospective jurors."
