1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOY WRIGHT, Case No. 20-cv-01079-EMC
8 Plaintiff, ORDER RE COURT’S PROPOSED 9 v. JURY INSTRUCTIONS
10 UNITED AIRLINES, INC., 11 Defendant.
12 13 14 The Court’s proposed jury instructions are reproduced below. The Court intends to give 15 these instructions subject to modifications based on evidence and developments at trial. Any 16 objections are due by 12:00 Noon on July 22, 2021. 17 18 IT IS SO ORDERED. 19 20 Dated: July 19, 2021 21 22 ______________________________________ EDWARD M. CHEN 23 United States District Judge
24 25 26 27 1 PRELIMINARY JURY INSTRUCTIONS 2 (GIVEN AT THE BEGINNING OF TRIAL) 3 4 JURY INSTRUCTION NO. ____ [1.3] 5 DUTY OF JURY 6 7 Jurors: You now are the jury in this case, and I want to take a few minutes to tell you 8 something about your duties as jurors and to give you some preliminary instructions. At the end 9 of the trial, I will give you more detailed instructions that will control your deliberations. 10 When you deliberate, it will be your duty to weigh and to evaluate all the evidence 11 received in the case and, in that process, to decide the facts. To the facts as you find them, you 12 will apply the law as I give it to you, whether you agree with the law or not. You must decide the 13 case solely on the evidence and the law before you. 14 Perform these duties fairly and impartially. You should not be influenced by any person’s 15 race, color, religious beliefs, national ancestry, sexual orientation, gender identity, likes or 16 dislikes, sympathy, prejudice, fear, public opinion, or biases, including unconscious biases. 17 Unconscious biases are stereotypes, attitudes, or preferences that people may consciously reject 18 but may be expressed without conscious awareness, control, or intention. Like conscious bias, 19 unconscious bias can affect how we evaluate information and make decisions. 20 Do not be afraid to examine any assumptions you or other jurors have made which are not 21 based on the evidence presented at trial. Please do not take anything I may say or do during the 22 trial as indicating what I think of the evidence or what your verdict should be – that is entirely up 23 to you. 24 25 Court Notes: 9th Cir. Model Civil Jury Instruction No. 1.3 as modified.
26 27 1 JURY INSTRUCTION NO. ___ 2 IMPLICIT/UNCONSCIOUS BIAS 3 We all have feelings, assumptions, perceptions, fears, and stereotypes about others. Some 4 biases we are aware of, and others we might not be fully aware of, which is why they are called 5 implicit or unconscious biases. No matter how unbiased we think we are, our brains are hard‐ 6 wired to make unconscious decisions. We look at others and filter what they say through our own 7 personal experience and background. Because we all do this, we often see life and evaluate 8 evidence in a way that tends to favor people who are like ourselves, or who have had life 9 experiences like our own. We can also have biases about people like ourselves. One common 10 example is the automatic association of male with career and female with family. Bias can affect 11 our thoughts, how we remember what we see and hear, whom we believe or disbelieve, and how 12 we make important decisions. 13 As jurors, you are being asked to make an important decision in the case. You must one, 14 take the time you need to reflect carefully and thoughtfully about the evidence. 15 Two, think about why you are making the decision you are making and examine it for bias. 16 Reconsider your first impressions of the people and the evidence in this case. If the people 17 involved in this case were from different backgrounds, for example, richer or poorer, more or less 18 educated, older or younger, or of a different gender, gender identity, race, religion or sexual 19 orientation, would you still view them, and the evidence, the same way? 20 Three, listen to one another. You must carefully evaluate the evidence and resist, and help 21 each other resist, any urge to reach a verdict influenced by bias for or against any party or witness. 22 Each of you have different backgrounds and will be viewing this case in light of your own 23 insights, assumptions and biases. Listening to different perspectives may help you to better 24 identify the possible effects these hidden biases may have on decision making. 25 And four, resist jumping to conclusions based on personal likes or dislikes, generalizations, 26 gut feelings, prejudices, sympathies, stereotypes, or unconscious biases. 27 /// 1 The law demands that you make a fair decision based solely on the evidence, your 2 individual evaluations of that evidence, your reason and common sense, and these instructions. 3 4 Court Notes: The Court has independently proposed this instruction. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 2 JURY INSTRUCTION NO. ____ [1.5] 3 CLAIMS AND DEFENSES 4 To help you follow the evidence, I will give you a brief summary of the positions of the 5 parties: 6 The parties agree that Plaintiff was injured by another passenger’s falling luggage while a 7 passenger on an airplane and that the Defendant is liable for her injuries. The parties disagree as 8 to the extent of the injuries Plaintiff suffered and the amount of damages to which Plaintiff is 9 entitled from Defendant. 10 11 Court Notes: 9th Cir. Model Civil Jury Instruction No. 1.5. The parties stipulated to this 12 instruction. The Court has made modifications to the stipulated instruction using the parties’ 13 proffered statements to the Jury as a predicate. 14 15 16
17 18 19 20 21 22 23 24 25 26 27 1 JURY INSTRUCTION NO. ____ 2 DEFENDANT’S LIABILITY 3 The parties in this case agree that an accident occurred on board the aircraft when a piece 4 of baggage fell out of the overhead storage bin and landed on JOY WRIGHT. That fact creates 5 liability on UNITED AIRLINES, INC. for damages sustained by JOY WRIGHT. You are not to 6 consider any issue concerning either party’s negligence, because negligence is not an issue in this 7 case. The only issues are what damages were caused to JOY WRIGHT by the accident and the 8 amount of those damages to which she is entitled. 9 10 Court Notes: [Montreal Convention Article 17(1) as modified]. Plaintiff’s proposed 11 instruction contains excessive and irrelevant language. 12
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 JURY INSTRUCTION NO. ____ [1.6] 2 BURDEN OF PROOF – PREPONDERANCE OF THE EVIDENCE 3 When a party has the burden of proving any claim by a preponderance of the evidence, it 4 means you must be persuaded by the evidence that the claim is more probably true than not true. 5 You should base your decision on all of the evidence, regardless of which party presented 6 it. 7 8 Court Notes: 9th Cir. Model Jury Instruction 1.6 as modified. The parties stipulated to 9 this instruction.
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 JURY INSTRUCTION NO. ____ [1.9] 2 WHAT IS EVIDENCE 3 The evidence you are to consider in deciding what the facts are consists of: 4 (1) the sworn testimony of any witness; 5 (2) the exhibits that are admitted into evidence; 6 (3) any facts to which the lawyers have agreed; and 7 (4) any facts that I [may instruct] [have instructed] you to accept as proved. 8 9 Court Notes: 9th Cir. Model Civil Jury Instruction No. 1.9. The parties stipulated to this 10 instruction.
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 JURY INSTRUCTION NO. ____ [1.10] 2 WHAT IS NOT EVIDENCE 3 In reaching your verdict, you may consider only the testimony and exhibits received into 4 evidence. Certain things are not evidence, and you may not consider them in deciding what the 5 facts are. I will list them for you: 6 (1) Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. 7 What they [may say] [have said] in their opening statements, closing arguments and at 8 other times is intended to help you interpret the evidence, but it is not evidence. If the 9 facts as you remember them differ from the way the lawyers have stated them, your 10 memory of them controls. 11 (2) Questions and objections by lawyers are not evidence. Attorneys have a duty to their 12 clients to object when they believe a question is improper under the rules of evidence. 13 You should not be influenced by the objection or by the court’s ruling on it. 14 (3) Testimony that is excluded or stricken, or that you [are] [have been] instructed to 15 disregard, is not evidence and must not be considered. In addition some evidence [may 16 be] [was] received only for a limited purpose; when I [instruct] [have instructed] you to 17 consider certain evidence only for a limited purpose, you must do so and you may not 18 consider that evidence for any other purpose. 19 (4) Anything you may [see or hear] [have seen or heard] when the court was not in session 20 is not evidence. You are to decide the case solely on the evidence received at the trial. 21 22 Court Notes: 9th Cir. Model Civil Jury Instruction No. 1.10 as modified. The parties 23 stipulated to this instruction. 24 25
26 27 1 JURY INSTRUCTION NO. ____ [1.11] 2 EVIDENCE FOR LIMITED PURPOSE 3 Some evidence may be admitted only for a limited purpose. 4 When I instruct you that an item of evidence has been admitted only for a limited purpose, 5 you must consider it only for that limited purpose and not for any other purpose. 6 [The testimony [you are about to hear] [you have just heard] may be considered only for 7 the limited purpose of [describe purpose] and not for any other purpose.] 8 9 Court Notes: 9th Cir. Model Civil Jury Instruction No. 1.11 as modified. The parties 10 stipulated to this instruction.
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 JURY INSTRUCTION NO. ____ [1.12] 2 DIRECT AND CIRCUMSTANTIAL EVIDENCE 3 Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as 4 testimony by a witness about what that witness personally saw or heard or did. Circumstantial 5 evidence is proof of one or more facts from which you could find another fact. You should 6 consider both kinds of evidence. The law makes no distinction between the weight to be given to 7 either direct or circumstantial evidence. It is for you to decide how much weight to give to any 8 evidence. 9 By way of example, if you wake up in the morning and see that the sidewalk is wet, you 10 may find from that fact that it rained during the night. However, other evidence, such as a turned 11 on garden hose, may provide a different explanation for the presence of water on the sidewalk. 12 Therefore, before you decide that a fact has been proved by circumstantial evidence, you must 13 consider all the evidence in the light of reason, experience and common sense. 14 15 Court Notes: 9th Cir. Model Civil Jury Instruction No. 1.12. The parties stipulated to this 16 instruction. The Court has added the example (also from the Model Civil Jury Instructions) as it 17 may be helpful to the jury. 18 19
20 21 22 23 24 25 26 27 1 JURY INSTRUCTION NO. ____ [1.13] 2 RULING ON OBJECTIONS 3 There are rules of evidence that control what can be received into evidence. When a 4 lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that 5 it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the 6 question may be answered or the exhibit received. If I sustain the objection, the question cannot 7 be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, 8 you must ignore the question and must not guess what the answer might have been. 9 Sometimes I may order that evidence be stricken from the record and that you disregard or 10 ignore that evidence. That means when you are deciding the case, you must not consider the 11 stricken evidence for any purpose. 12 13 Court Notes: 9th Cir. Model Civil Jury Instruction No. 1.13. The parties stipulated to this 14 instruction. 15
16 17 18 19 20 21 22 23 24 25 26 27 1 JURY INSTRUCTION NO. ____ [1.14] 2 CREDIBILITY OF WITNESSES 3 In deciding the facts in this case, you may have to decide which testimony to believe and 4 which testimony not to believe. You may believe everything a witness says, or part of it, or none 5 of it. 6 In considering the testimony of any witness, you may take into account: 7 (1) the opportunity and ability of the witness to see or hear or know the things testified to; 8 (2) the witness’s memory; 9 (3) the witness’s manner while testifying; 10 (4) the witness’s interest in the outcome of the case, if any; 11 (5) the witness’s bias or prejudice, if any; 12 (6) whether other evidence contradicted the witness’s testimony; 13 (7) the reasonableness of the witness’s testimony in light of all the evidence; and 14 (8) any other factors that bear on believability. 15 You must avoid bias, conscious or unconscious, based on a witness’s race, color, religious 16 beliefs, national ancestry, sexual orientation, gender identity, gender, or economic circumstances 17 in your determination of credibility. 18 Sometimes a witness may say something that is not consistent with something else he or 19 she said. Sometimes different witnesses will give different versions of what happened. People 20 often forget things or make mistakes in what they remember. Also, two people may see the same 21 event but remember it differently. You may consider these differences, but do not decide that 22 testimony is untrue just because it differs from other testimony. 23 However, if you decide that a witness has deliberately testified untruthfully about 24 something important, you may choose not to believe anything that witness said. On the other 25 hand, if you think the witness testified untruthfully about some things but told the truth about 26 others, you may accept the part you think is true and ignore the rest. 27 /// 1 The weight of the evidence as to a fact does not necessarily depend on the number of 2 witnesses who testify. What is important is how believable the witnesses were, and how much 3 weight you think their testimony deserves. 4 5 Court Notes: 9th Cir. Model Civil Jury Instruction No. 1.14 as modified. 6
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 JURY INSTRUCTION NO. ____ [1.15] 2 CONDUCT OF THE JURY 3 I will now say a few words about your conduct as jurors. 4 First, keep an open mind throughout the trial, and do not decide what the verdict should be 5 until you and your fellow jurors have completed your deliberations at the end of the case. 6 Second, because you must decide this case based only on the evidence received in the case 7 and on my instructions as to the law that applies, you must not be exposed to any other 8 information about the case or to the issues it involves during the course of your jury duty. Thus, 9 until the end of the case or unless I tell you otherwise: 10 Do not communicate with anyone in any way and do not let 11 anyone else communicate with you in any way about the merits of 12 the case or anything to do with it. This includes discussing the case 13 in person, in writing, by phone or electronic means, via email, text 14 messaging, or any internet chat room, blog, website or application, 15 including but not limited to Facebook, YouTube, Twitter, Instagram, 16 LinkedIn, Snapchat, or any other forms of social media. This 17 applies to communicating with your fellow jurors until I give you 18 the case for deliberation, and it applies to communicating with 19 everyone else including your family members, your employer, the 20 media or press, and the people involved in the trial, although you 21 may notify your family and your employer that you have been 22 seated as a juror in the case, and how long you expect the trial to 23 last. But, if you are asked or approached in any way about your jury 24 service or anything about this case, you must respond that you have 25 been ordered not to discuss the matter and report the contact to the 26 court. 27 1 instruction you properly may consider to return a verdict: do not 2 read, watch or listen to any news or media accounts or commentary 3 about the case or anything to do with it, although I have no 4 information that there will be news reports about this case; do not do 5 any research, such as consulting dictionaries, searching the Internet, 6 or using other reference materials; and do not make any 7 investigation or in any other way try to learn about the case on your 8 own. Do not visit or view any place discussed in this case, and do 9 not use Internet programs or other devices to search for or view any 10 place discussed during the trial. Also, do not do any research about 11 this case, the law, or the people involved – including the parties, the 12 witnesses or the lawyers – until you have been excused as jurors. If 13 you happen to read or hear anything touching on this case in the 14 media, turn away and report it to me as soon as possible. 15 These rules protect each party’s right to have this case decided only on evidence that has 16 been presented here in court. Witnesses here in court take an oath to tell the truth, and the 17 accuracy of their testimony is tested through the trial process. If you do any research or 18 investigation outside the courtroom, or gain any information through improper communications, 19 then your verdict may be influenced by inaccurate, incomplete or misleading information that has 20 not been tested by the trial process. Each of the parties is entitled to a fair trial by an impartial 21 jury, and if you decide the case based on information not presented in court, you will have denied 22 the parties a fair trial. Remember, you have taken an oath to follow the rules, and it is very 23 important that you follow these rules. 24 /// 25 /// 26 /// 27 /// 1 A juror who violates these restrictions jeopardizes the fairness of these proceedings, and a 2 mistrial could result that would require the entire trial process to start over. If any juror is exposed 3 to any outside information, please notify the court immediately. 4 5 Court Notes: 9th Cir. Model Civil Jury Instruction No. 1.15. The parties stipulated to this 6 instruction.
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 JURY INSTRUCTION NO. ____ [1.17] 2 NO TRANSCRIPT AVAILABLE TO JURY 3 I urge you to pay close attention to the trial testimony as it is given. During deliberations 4 you will not have a transcript of the trial testimony. 5 6 Court Notes: 9th Cir. Model Civil Jury Instruction No. 1.17. The parties stipulated to this 7 instruction. 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 JURY INSTRUCTION NO. ____ [1.18] 2 TAKING NOTES 3 If you wish, you may take notes to help you remember the evidence. If you do take notes, 4 please keep them to yourself until you go to the jury room to decide the case. Do not let 5 notetaking distract you. When you leave, your notes should be left in the [courtroom] [jury room] 6 [envelope in the jury room]. No one will read your notes. 7 Whether or not you take notes, you should rely on your own memory of the evidence. 8 Notes are only to assist your memory. You should not be overly influenced by your notes or those 9 of other jurors. 10 11 Court Notes: 9th Cir. Model Civil Jury Instruction No. 1.18. The parties stipulated to this 12 instruction. 13
14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 2 JURY INSTRUCTION NO. ____ [1.19] 3 QUESTIONS TO WITNESSES BY JURORS DURING TRIAL 4 Only the lawyers and I are allowed to ask questions of witnesses. A juror is not permitted 5 to ask questions of witnesses. If, however, you are unable to hear a witness or a lawyer, please 6 raise your hand and I will correct the situation. 7 8 Court Notes: Ninth Circuit Model Jury Instruction 1.19. The parties stipulated to this 9 instruction.
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 JURY INSTRUCTION NO. ____ [1.20] 2 BENCH CONFERENCES AND RECESSES 3 From time to time during the trial, it may become necessary for me to talk with the 4 attorneys out of the hearing of the jury, either by having a conference at the bench when the jury is 5 present in the courtroom, or by calling a recess. Please understand that while you are waiting, we 6 are working. The purpose of these conferences is not to keep relevant information from you, but 7 to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion 8 and error. 9 Of course, we will do what we can to keep the number and length of these conferences to a 10 minimum. I may not always grant an attorney’s request for a conference. Do not consider my 11 granting or denying a request for a conference as any indication of my opinion of the case or of 12 what your verdict should be. 13 14 Court Notes: 9th Cir. Model Civil Jury Instruction No. 1.20. The parties stipulated to this 15 instruction.
16 17 18 19 20 21 22 23 24 25 26 27 1 JURY INSTRUCTION NO. ____ [1.21] 2 OUTLINE OF TRIAL 3 Trials proceed in the following way: First, each side may make an opening statement. An 4 opening statement is not evidence. It is simply an outline to help you understand what that party 5 expects the evidence will show. A party is not required to make an opening statement. 6 The plaintiff will then present evidence, and counsel for the defendant may cross-examine. 7 Then the defendant may present evidence, and counsel for the plaintiff may cross-examine. 8 After the evidence has been presented, I will instruct you on the law that applies to the case 9 and the attorneys will make closing arguments. 10 After that, you will go to the jury room to deliberate on your verdict. 11 12 Court Notes: 9th Cir. Model Civil Jury Instruction No. 1.21. The parties stipulated to this 13 instruction.
14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 INSTRUCTIONS DURING TRIAL 2 3 JURY INSTRUCTION NO. ____ [2.2] 4 STIPULATIONS OF FACT 5 The parties have agreed to certain facts (listed below). You must therefore treat these facts 6 as having been proved. 7 (1) Plaintiff purchased a round-trip ticket for travel to Johannesburg, South Africa on United 8 consisting of four United flights. The first flight was from San Francisco International 9 Airport to Washington Dulles International Airport. 10 (2) During the United flight from San Francisco International Airport to Washington Dulles 11 International Airport, an overhead storage bin opened and a canvas bag fell from the bin 12 and struck Plaintiff's right side of her face, right shoulder and arm, causing immediate pain. 13 (3) United Flight Attendants provided Plaintiff with ice and six aspirin and other United 14 personnel offered medical assistance upon landing at IAD. 15 (4) On January 8, 2020, Dr. Garg performed arthroscopic surgery on Plaintiff's right rotator 16 cuff at Kaiser Hospital. On February 14, 2020, Plaintiff fell onto her right side in the 17 parking garage at her residence. 18 19 Court Notes: 9th Cir. Model Civil Jury Instruction No. 2.2. The Court has modified this 20 instruction based on statements made in the parties’ Joint Pretrial Conference Statement (page 3). 21 22
23 24 25 26 27 1 JURY INSTRUCTION NO. ____ [2.13] 2 EXPERT OPINION 3 You [have heard] [are about to hear] testimony from [name] who [testified] [will testify] to 4 opinions and the reasons for [his] [her] opinions. This opinion testimony is allowed, because of 5 the education or experience of this witness [these witnesses]. 6 Such opinion testimony should be judged like any other testimony. You may accept it or 7 reject it, and give it as much weight as you think it deserves, considering the witness’s education 8 and experience, the reasons given for the opinion, and all the other evidence in the case. 9 10 Court Notes: 9th Cir. Model Civil Jury Instruction No. 2.13 as modified. The parties 11 stipulated to this instruction. 12 13 14
15 16 17 18 19 20 21 22 23 24 25 26 27 1 JURY INSTRUCTION NO. ____ [5.1-5.2] 2 DAMAGES 3 It is the duty of the Court to instruct you about the measure of damages. 4 You must determine JOY WRIGHT’s damages. JOY WRIGHT has the burden of proving 5 damages by a preponderance of the evidence. Damages means the amount of money that will 6 reasonably and fairly compensate JOY WRIGHT for any injury you find was caused by UNITED 7 AIRLINES, INC. You should consider the following: 8 9 Noneconomic Damages: 10 The nature and extent of the injuries; 11 The disability, and loss of enjoyment of life experienced and that with reasonable 12 probability will be experienced in the future; 13 The mental, physical, emotional pain and suffering experienced and that with reasonable 14 probability will be experienced in the future; 15 The inconvenience, anxiety and humiliation experienced and that with reasonable 16 probability will be experienced in the future. 17 18 Economic Damages: 19 The reasonable value of necessary medical care, treatment, and services received to the 20 present time; 21 The reasonable value of necessary medical care, treatment, and services that with 22 reasonable probability will be required in the future; 23 The reasonable value of earnings lost up to the present time; 24 The reasonable value of earnings that with reasonable probability will be lost in the future. 25 /// 26 /// 27 /// 1 It is for you to determine what damages, if any, have been proved. 2 Your award must be based upon evidence and not upon speculation, guesswork or 3 conjecture. 4 5 Court Notes: Ninth Circuit Model Jury Instruction 5.1 and 5.2 as modified. The parties 6 stipulated to this instruction. 7
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 JURY INSTRUCTION NO. ____ [5.3] 2 DAMAGES – MITIGATION 3 4 WRIGHT has a duty to use reasonable efforts to mitigate damages. To mitigate means to 5 avoid or reduce damages. 6 United has the burden of proving by a preponderance of the evidence: 7 1. that JOY WRIGHT failed to use reasonable efforts to mitigate damages; and 8 2. the amount by which damages would have been mitigated. 9 10 Court Notes: Ninth Circuit Model Jury Instruction 5.3 as modified. 11 Plaintiff objects to this instruction because Defendant failed to raise mitigation of damages 12 as an affirmative defense in its Answer. Thus, Plaintiff contends that Defendant has waived this 13 defense. 14 The answer raises several affirmative defenses (e.g., that Plaintiff was partially at fault 15 under comparative negligence principles, Plaintiff’s assumption of the risk), but it does not raise 16 mitigation of damages as an affirmative defense. See Answer to Complaint at 3-5 (Docket No. 9). 17 Normally, the failure to raise mitigation of damages as an affirmative defense constitutes a waiver 18 of that defense. 999 v. C.I.T. Corp., 776 F.2d 866, 870 n.2 (9th Cir. 1985). 19 However, the Ninth Circuit has “liberalized the requirement that defendants must raise 20 affirmative defenses in their initial pleadings.” Magana v. Northern Mariana Islands, 107 F.3d 21 1436, 1446 (9th Cir. 1997). A defendant may raise an affirmative defense for the first time after 22 filing a responsive pleading only if the delay does not unfairly surprise or prejudice the plaintiff. 23 See Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001). Further, the 24 Ninth Circuit has held that the affirmative defense of mitigation of damages is not waived (despite 25 a defendant’s failure to raise it in the Answer) when it is asserted in a Defendant’s pretrial filings 26 and included in the pretrial order, which has the effect of amending the pleadings. See C.I.T. 27 Corp., 776 F. 2d at 870 n.2 (“[Defendant] failed to raise mitigation of damages as an affirmative 1 the issue of mitigation was included in the pre-trial order, which has the effect of amending the 2 pleadings”); Accent Films, B.V. v. Universal City Studios, No. 92-55286, No. 92-55343, 1994 U.S. 3 App. LEXIS 10349, at *2 (9th Cir. 1994) (“a failure to raise mitigation of damages as an 4 affirmative defense in a pleading normally constitutes waiver of that defense … [h]owever, 5 inclusion of mitigation of damages in the pretrial order has the effect of amending the 6 pleadings”). See also First Card v. Hunt (In re Hunt), 238 F.3d 1098, 1101-02 (9th Cir. 2001) 7 (holding that Defendant had not waived his right to request attorney’s fees by omitting this request 8 from his Answer, because Defendant “requested attorney's fees in his pretrial conference 9 statement, and that request was incorporated by reference in the bankruptcy court's pretrial 10 order”). 11 Defendant plans to present evidence that Plaintiff’s injuries were exacerbated by her 12 decision to discontinue wearing a sling about a week after her surgery, against the 13 recommendations of her physical therapist. United’s Trial Brief at 2. Defendant’s sole witness on 14 this point, Dr. Schrumpf, will testify that Plaintiff’s poor compliance with her sling was one of the 15 factors that contributed to her poor postoperative results. Id. at 2-3. Dr. Schrumpf completed his 16 independent medical examination of Plaintiff on October 29, 2020. See Joint CMC Stmt. at 4 17 (Docket No. 34). Defendants submitted an expert report from Dr. Schrumpf as a trial exhibit. See 18 Joint Exhibit List, Docket No. 43-2 (Appendix B). Copies of Dr. Schrumpf’s reports were 19 previously served on all parties. See Joint Witness List, Docket No. 43-1 (Appendix A). 20 On February 4, 2021, the parties stated that they were in the process of scheduling the 21 deposition of designated experts. See id. On March 3, 2021, the parties stipulated to an extension 22 of the expert discovery deadline in order to schedule the depositions of all experts in the instant 23 case, and the Court granted the stipulation to extend the deadline from March 4, 2021 to April 30, 24 2021. See Docket Nos. 37 and 38. 25 Thus, Plaintiff has had an opportunity to review the independent medical evaluation of Dr. 26 Schrumpf, which asserts, inter alia, that Plaintiff’s injuries were exacerbated by her poor 27 compliance with her postoperative sling wear. Plaintiff has deposed Dr. Schrumpf and has had an 1 of Dr. Schrumpf on the witness stand. Because Plaintiff has been provided with notice that 2 Defendant will raise the defense of failure to mitigate damages, Plaintiff cannot claim that she will 3 be unfairly prejudiced by instructing the jury on this issue. 4 5 6 7
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 JURY INSTRUCTION NO. ____ [4.1] 2 CORPORATIONS AND PARTNERSHIPS—FAIR TREATMENT 3 All parties are equal before the law and a corporation, partnership, or public entity is 4 entitled to the same fair and conscientious consideration by you as any party. 5 6 Court Notes: Ninth Circuit Model Jury Instruction 4.1 as modified. The parties stipulated 7 to this instruction. 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 JURY INSTRUCTION NO. ____ [4.2] 2 LIABILITY OF CORPORATIONS—SCOPE OF AUTHORITY NOT IN ISSUE 3 Under the law, a corporation is considered to be a person. It can only act through its 4 employees, agents, directors, or officers. Therefore, a corporation is responsible for the acts of its 5 employees, agents, directors, and officers performed within the scope of authority. 6 7 Court Notes: Ninth Circuit Model Jury Instruction 4.2. The parties stipulated to this 8 instruction. 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 FINAL JURY INSTRUCTIONS 2 (GIVEN AT THE END OF THE CASE) 3 4 JURY INSTRUCTION NO. ____ 5 DUTY OF JURY 6 Members of the jury, now that you have heard all the evidence, it is my duty to instruct 7 you on the law that applies to this case. A copy of these instructions will be available in the jury 8 room for you to consult. 9 It is your duty to weigh and to evaluate all the evidence received in the case and, in that 10 process, to decide the facts. It is also your duty to apply the law as I give it to you to the facts as 11 you find them, whether you agree with the law or not. You must decide the case solely on the 12 evidence and the law. Do not allow personal likes or dislikes, opinions, prejudices, sympathy, or 13 bias, including unconscious biases, influence you. Unconscious biases are stereotypes, attitudes, 14 or preferences that people may consciously reject but may be expressed without conscious 15 awareness, control, or intention. Like conscious bias, unconscious bias, too, can affect how we 16 evaluate information and make decisions. You should also not be influenced by any person’s race, 17 color, religion, national ancestry, or gender, sexual orientation, profession, occupation, celebrity, 18 economic circumstances, or position in life or in the community. Do not be afraid to examine any 19 assumptions you or other jurors have made which are not based on the evidence presented at trial. 20 You will recall that you took an oath promising to do so at the beginning of the case. 21 You must follow all these instructions and not single out some and ignore others; they are 22 all important. Please do not read into these instructions or into anything I may have said or done 23 any suggestion as to what verdict you should return – that is a matter entirely up to you.
24 25 26 27 1 JURY INSTRUCTION NO. ____ [3.1] 2 DUTY TO DELIBERATE 3 When you begin your deliberations, elect one member of the jury as your foreperson who 4 will preside over the deliberations and speak for you here in court. 5 You will then discuss the case with your fellow jurors to reach agreement if you can do so. 6 Your verdict, whether for the plaintiff or defendant, must be unanimous. 7 Each of you must decide the case for yourself, but you should do so only after you have 8 considered all the evidence, discussed it fully with the other jurors, and listened to the views of 9 your fellow jurors. 10 Do not be afraid to change your opinion if the discussion persuades you that you should. 11 But do not come to a decision simply because other jurors think it is right. 12 It is important that you attempt to reach a unanimous verdict but, of course, only if each of 13 you can do so after having made your own conscientious decision. Do not change an honest belief 14 about the weight and effect of the evidence simply to reach a verdict. 15 Perform these duties fairly and impartially. Do not allow personal likes or dislikes, 16 sympathy, prejudice, fear, public opinion, or biases, including unconscious biases, to influence 17 you. You should also not be influenced by any person's race, color, religion, national ancestry, or 18 gender, sexual orientation, profession, occupation, celebrity, economic circumstances, or position 19 in life or in the community. 20 Do not be afraid to examine any assumptions you or other jurors have made which are not 21 based on the evidence presented at trial. Please do not take anything I may say or do during the 22 trial as indicating what I think of the evidence or what your verdict should be – that is entirely up 23 to you. 24 /// 25 /// 26 /// 27 /// 1 It is your duty as jurors to consult with one another and to deliberate with one another with 2 a view towards reaching an agreement if you can do so. During your deliberations, you should not 3 hesitate to reexamine your own views and change your opinion if you become persuaded that it is 4 wrong. 5 6 Court Notes: 9th Cir. Model Civil Jury Instruction No. 3.1 as modified.
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 JURY INSTRUCTION NO. ____ [3.2] 2 CONSIDERATION OF EVIDENCE – CONDUCT OF THE JURY 3 Because you must base your verdict only on the evidence received in the case and on these 4 instructions, I remind you that you must not be exposed to any other information about the case or 5 to the issues it involves. Except for discussing the case with your fellow jurors during your 6 deliberations: 7 Do not communicate with anyone in any way and do not let 8 anyone else communicate with you in any way about the merits of 9 the case or anything to do with it. This includes discussing the case 10 in person, in writing, by phone or electronic means, via email, via 11 text messaging, or any internet chat room, blog, website or 12 application, including but not limited to Facebook, YouTube, 13 Twitter, Instagram, LinkedIn, Snapchat, or any other forms of social 14 media. This applies to communicating with your family members, 15 your employer, the media or press, and the people involved in the 16 trial. If you are asked or approached in any way about your jury 17 service or anything about this case, you must respond that you have 18 been ordered not to discuss the matter and to report the contact to 19 the court. 20 Do not read, watch, or listen to any news or media accounts 21 or commentary about the case or anything to do with it[, although I 22 have no information that there will be news reports about this case]; 23 do not do any research, such as consulting dictionaries, searching 24 the Internet, or using other reference materials; and do not make any 25 investigation or in any other way try to learn about the case on your 26 own. Do not visit or view any place discussed in this case, and do 27 not use Internet programs or other devices to search for or view any 1 this case, the law, or the people involved – including the parties, the 2 witnesses or the lawyers – until you have been excused as jurors. If 3 you happen to read or hear anything touching on this case in the 4 media, turn away and report it to me as soon as possible. 5 These rules protect each party’s right to have this case decided only on evidence that has 6 been presented here in court. Witnesses here in court take an oath to tell the truth, and the 7 accuracy of their testimony is tested through the trial process. If you do any research or 8 investigation outside the courtroom, or gain any information through improper communications, 9 then your verdict may be influenced by inaccurate, incomplete or misleading information that has 10 not been tested by the trial process. Each of the parties is entitled to a fair trial by an impartial 11 jury, and if you decide the case based on information not presented in court, you will have denied 12 the parties a fair trial. Remember, you have taken an oath to follow the rules, and it is very 13 important that you follow these rules. 14 A juror who violates these restrictions jeopardizes the fairness of these proceedings[, and a 15 mistrial could result that would require the entire trial process to start over]. If any juror is 16 exposed to any outside information, please notify the court immediately. 17 18 Court Notes: 9th Cir. Model Civil Jury Instruction No. 3.2. The parties stipulated to this 19 instruction. 20
21 22 23 24 25 26 27 1 JURY INSTRUCTION NO. ____ [3.3] 2 COMMUNICATION WITH COURT 3 If it becomes necessary during your deliberations to communicate with me, you may send 4 a note through the Courtroom Deputy, signed by your presiding juror or by one or more members 5 of the jury. No member of the jury should ever attempt to communicate with me except by a 6 signed writing; I will communicate with any member of the jury on anything concerning the case 7 only in writing, or here in open court. If you send out a question, I will consult with the parties 8 before answering it, which may take some time. You may continue your deliberations while 9 waiting for the answer to any question. Remember that you are not to tell anyone – including me 10 – how the jury stands, numerically or otherwise, until after you have reached a unanimous verdict 11 or have been discharged. Do not disclose any vote count in any note to the court. 12 13 Court Notes: 9th Cir. Model Civil Jury Instruction No. 3.3. The parties stipulated to this 14 instruction. 15
16 17 18 19 20 21 22 23 24 25 26 27 1 JURY INSTRUCTION NO. ____ [3.5] 2 RETURN OF VERDICT 3 A verdict form has been prepared for you. After you have reached unanimous agreement 4 on a verdict, your foreperson should complete the verdict form according to your deliberations, 5 sign and date it, and advise the Courtroom Deputy that you are ready to return to the courtroom. 6 7 Court Notes: 9th Cir. Model Civil Jury Instruction No. 3.5. The parties stipulated to this 8 instruction. 9
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