IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF

NEBRASKA

SALLY WITHERS, ) 8:01CV626)

Plaintiff, ))

vs. ) FINAL) JURY INSTRUCTIONS

MUTUAL PROTECTIVE INSURANCE ) COMPANY, )

) Defendant. )

INSTRUCTION NO. 1

DUTY

It will be your duty to decide from the evidence whether the plaintiff is entitled to

a verdict against the defendant. From the evidence, you will decide what the facts are.

You are entitled to consider the evidence in the light of your own observations and

experiences in life. You may use reason and common sense to draw deductions from

facts established by the evidence. You will then apply those facts to the law which I give

you in these and the other instructions. In that way, you will reach your verdict. You are

the sole judges of the facts; but you must follow the law as stated in my instructions,

whether you agree or disagree with the law stated in the instructions.

Do not allow sympathy or prejudice to influence you. The law requires that your verdict

be unaffected by anything except the evidence, your common sense, and the law stated

in these and other instructions.

Anything that I may say or do during the trial must not be taken by you as an indication

of what I think of the evidence or what I think your verdict should be.

INSTRUCTION NO. 2

EVIDENCE

The word "evidence" includes the testimony of witnesses; documents and other

things received as exhibits; any facts that have been stipulated, that is, formally agreed to

by the parties; and any facts that have been judicially noticed, that is, facts which I say

you must accept as true.

The following things are not evidence:

1. Statements, arguments, questions and comments by lawyers

are not evidence.

2. Objections are not evidence.

Lawyers have an obligation to their clients to object when they believe that the

evidence being offered is improper under the rules of evidence. You should not be

influenced by the lawyer’s objection or by my ruling on it. If I sustain an objection to a

question, ignore the question. If I overrule the objection, treat the answer like any other

answer. If so, do not attempt to draw any inference in favor of either side as the result of

any ruling I make. Finally, if I instruct you that some item of evidence is received for a

limited purpose only, you must follow that instruction. Pay particularly close attention to

this sort of limiting instruction, because it may not be available to you in writing later in the

jury room.

3. Testimony that I strike from the record or tell you to disregard is

not evidence and must not be considered.

4. Anything you see or hear about this case outside this courtroom is

not evidence and must be disregarded.

Finally, some of you may have heard the phrases or terms "direct evidence" and

"circumstantial evidence." Direct evidence is direct proof of a fact, such as testimony by

an eye witness. Circumstantial evidence is proof of facts from which you may infer or

conclude that other facts exist. The law makes no distinction between the weight to be

given to either direct or circumstantial evidence. You should give the evidence the weight

that you believe the evidence is entitled to receive.

INSTRUCTION NO. 3

BENCH CONFERENCES AND RECESSES

During the trial it may become necessary for me to talk with the lawyers outside

your hearing, either by having a bench conference while you are present in the courtroom,

or by calling a recess. Please understand that while you are waiting, the court and

counsel are working. The purpose of these conferences is to decide how certain evidence

is to be treated under the rules of evidence or to decide a particular procedure to be

followed in the case. We will, of course, do what we can to minimize the number and

length of these conferences.

INSTRUCTION NO. 4

JURY QUESTIONS

While evidence is being presented, you are not allowed to raise your hands to

ask questions about that evidence. However, if you do have questions about something

you hear during the examination of a witness, you may write your questions down on a

piece of paper. When attorneys have finished examining that witness, you may submit

your written question or questions. I will review each question with the attorneys. You may

not receive an answer to your question because I may decide that the question is not

proper under the rules of evidence. The attorneys may choose to answer your questions

by asking more questions of the witness. But even if the question is proper, you may not

get an immediate answer to your question. For instance, a witness or an exhibit that you

will see later in the trial may answer your question.

INSTRUCTION NO. 5

NOTE-TAKING

If you wish, you may take notes to help you remember what witnesses said. Notes

may be helpful to you because 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, and it

may not be practicalfor the court reporter to read back lengthy testimony. Therefore, you

should pay close attention to the testimony as it is given.

If you do take notes, please keep them to yourself until you and the other jurors go

to the jury room to decide this case. However, do not let note-taking distract you to the

point that you miss hearing other testimony from the witness.

During the trial, documents or other physical items may be received into evidence.

At the present, however, you will not be supplied with a list of exhibits which are

received in evidence. Therefore, you may wish to make notes about the exhibits,

especially their description and number, so that you can refer to those exhibits while you

are deliberating.

When we take our recess each day for the lunchtime break and when we take

our recess each night, please take your notes to the jury room and leave your notes

there. The courtroom deputy will take custody of your notes and secure them.

No one will read your notes but you. Your notes will be destroyed after the trial is over.

INSTRUCTION NO. 6

IMPARTIALITY

This case should be considered and decided by you as an action between

persons of equal standing in the community and of equal worth. A large corporation is

entitled to the same fair trial as a small corporation. All parties stand equal before the law

and are to be dealt with as equals in a court of justice.

INSTRUCTION NO. 7

PREPONDERANCE OF EVIDENCE

Your verdict depends on whether you find certain facts have been proven. The

burden of proving a fact is upon the party whose claim or defense depends on that fact.

The party who has the burden of proving a fact must prove it by the greater weight of the

evidence, also known as a “preponderance of the evidence.”

By a "preponderance of the evidence," I mean the greater weight of credible

evidence. This is not determined by which party has the greater number of witnesses

testifying about the facts and circumstances or by the number of exhibits. Preponderance

of the evidence is determined by the amount of evidence which on the whole, when fully,

fairly and impartially considered, makes the stronger impression on your mind and is

more convincing as to its truth when weighed against the evidence the other party has

presented.

To prove something by a preponderance of evidence is to prove that it is more

likely true than not. Each party is entitled to the benefit of any evidence tending to

establish a claim, even though the other party introduced that evidence. If the evidence is

equally balanced, a preponderance is not established.

You may have heard the term “proof beyond a reasonable doubt.” That is a stricter

standard that applies in criminal cases. It does not apply in civil cases such as this one.

You should, therefore, put the term out of your minds.

INSTRUCTION NO. 8

WITNESSES

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, consider 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 any 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 or 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.

The fact that one side may use a greater number of witnesses or present a

greater quantity of evidence should not affect your decision. Rather, determine which

witness or witnesses and which evidence appears accurate and trustworthy. It is the

weight of the evidence that counts -- not the number of witnesses.

If the testimony of a single witness produces in your minds a belief in the likely truth of

any fact and would justify a verdict in accordance with the witness’s testimony, even

though a number of witnesses may have testified to the contrary, and you have

considered all of the

evidence in the case, then you hold greater belief in the accuracy and reliability of this singlewitness.

INSTRUCTION NO. 9

CONDUCT OF THE JURY

To insure fairness, jurors are asked to obey the following rules:

First, do not talk among yourselves about this case, or about anyone involved with

this case, until the end of the case 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 trial has ended and you have been discharged as jurors.

Third, during this trial when you are outside this courtroom, do not listen to or let

anyone try to tell you anything about this case. Do not let anyone talk to you about anyone

involved with this case until the trial has ended and I have accepted your verdict. If anyone

tries to talk to you about this case during the trial, please promptly report the matter to me.

Fourth, during the trial you should not talk with or speak to any of the parties,

lawyers or witnesses involved in this case, which means that you should not even pass

the time of day with any of them. If a person from one side of the lawsuit sees you talking

to a person from the other side, even if it is on a matter unconnected with this trial or

simply to pass the time of day, such contact might arouse an unwarranted suspicion about

your fairness. If a lawyer, party or witness does not speak to you when you pass in the

hall, ride the elevator, or encounter each other elsewhere while this trial is taking place,

do not think he or she is being rude. Those persons are not supposed to talk or visit with

you, either.

Fifth, you must decide this case on the basis of evidence presented in the courtroom.

Therefore, do not read any news stories or articles about the case, or about anyone

involved with this case, or listen to any radio or television reports about the case or about

anyone involved with it. In fact, until the trial is over youshould probably avoid reading any

INSTRUCTION NO. 9newspapers

or news journals, and avoid listening to any TV or radio newscasts. There might not be

any news reports of this case, but, if there are, you might find yourself inadvertently

reading or listening to something before you realize what you are doing.

Sixth, do not do any research or make any investigation on your own concerning

this case. Do not use or refer to a dictionary or any law books concerning any aspect of

this case, including any evidence introduced. Do not visit the scene of any incident that

may have been mentioned in this case.

Seventh, do not form an opinion about any fact or issue in the case until you

have received the entire evidence, have heard arguments of counsel, have been

instructed as to the law of the case, and have retired to the jury room. Consequently, do

not make up your mind during the trial about what the verdict should be. Keep an open

mind until after you have gone to the jury room to decide the case and have discussed

the evidence with the other jurors.

Finally, do not be influenced by sympathy or prejudice. Do not indulge in any

speculation, guess, or conjecture. And do not make any inferences which are not

supported by the evidence.

INSTRUCTION NO. 10

OUTLINE OF TRIAL

The trial will proceed in the following manner:

First, the attorney for the plaintiff may make an opening statement. Next, the

attorney for the defendant may make an opening statement. An opening statement is not

evidence or argument. It is an outline of what the party intends to prove, a summary of

what the attorney expects the evidence to be.

The plaintiff's attorney will then present evidence through a direct examination of a

witness. The defendant’s attorney may then cross-examine that witness. After the cross-

examination, the plaintiff’s attorney may ask additional questions on re-direct. The

defendant’s attorney may also ask questions on re-cross. After the plaintiff has presented

all her witnesses, the plaintiff will rest. The defendant will then present its case. The

defendant may present evidence through direct examination of witnesses and plaintiff’s

attorney may cross-examine those witnesses. Re-direct and re-cross examinations may

also take place.

After the evidence is completely presented, the attorneys will make their closing

arguments to summarize and interpret the evidence for you. Just as with opening

statements, these closing arguments are not evidence. I will then instruct you further on

the law. After that you will retire to the jury room to deliberate on your verdict.

STATEMENT OF THE CASE

The plaintiff, Sally Withers, alleges that her former employer, the defendant Mutual

Protective Insurance Company, discriminated against her in violation of the federal Age

Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (ADEA), and the Nebraska

Act Prohibiting Unjust Discrimination Because of Age, Neb. Rev. Stat. §§ 48-1001 et

seq., and Neb. Rev. Stat. § 20-148.

Withers worked for Mutual Protective Insurance Company for twenty-three years.

During the time relevant to this lawsuit, Withers was the administrative assistant to the

president of Medico Life, William Busch. She also worked as the director of policy

inquiries. When Busch became ill in 1996, he greatly reduced the number of hours he

worked. In 1998, the company assigned Withers additional duties, processing life

insurance claims, reporting to the Director of Claims Joe Koerner.

Busch died on January11, 2001. On February23, 2001, Executive Vice-president

Tim Hall notified Withers that the company was terminating her, effective February 28,

2001. Mutual Protective Insurance Company did not notify Withers of other administrative

assistant positions open in the company. It did not rehire her when she applied for a

vacant administrative assistant position in December 2001. All individuals hired to fill

administrative positions after Withers’s termination were younger than Withers and no

experience working for Mutual Protective Insurance Company. Mutual Protective Insurance

Company claims that it had legitimate, non-discriminatory reasons for terminating

Withers. The company claims to have undergone a reduction in force following Busch’s

death, and Withers was discharged because most of her work for Busch had been

personal in nature. The remaining work Withers performed could be assigned to other

employees. The company did not offer Withers a transfer to other positions because

either her qualifications did not match the position or she was too highly paid. The

company also suggests that Withers had personality conflicts with other employees.

INSTRUCTION NO. 12

UNCONTROVERTED FACTS

Pursuant to the order on pretrial conference, the parties have stipulated to the

following set of facts:

1. Sally Withers is a citizen and resident of Omaha, Nebraska. She is 63 years of age, born February 19, 1940.

2. The defendant Mutual Protective Insurance Company is a Nebraska corporation which sells health, life, and long-term care insurance policies throughout the United States.

3. In May 1978, at age 38, Sally Withers was hired by Mutual Protective Insurance Company as a copy prep typist. In the following years, Withers received commendations and promotions, and eventually rose to the position of executive assistant to WiIlliam Busch, who was executive vi ce-president of Mutual Protective Insurance Company and was also president of Medico Life Insurance Company, a related business. In the early 1980s, Withers was assigned the task of handling complaints filed by State insurance departments, and was given the title of director of policy inquiries. In the early 1980s, Withers was appointed an assistant vice-president.

4. In 1996, Busch became seriously ill and he significantly reduced his hours of work. As a result, in approximately 1998, Withers took on the additional duties of processing life insurance claims, reporting to Director of Claims Joe Koerner.

5. Busch died on January 11, 2001.

6. After Busch’s death, Withers continued to work, processing life insurance claims and handling complaints filed with state insurance departments.

7. In January 2001, Nina Hunt, executive administrative assistant to Michael Murnane, an executive vice-president of Mutual Protective Insurance Company, transferred to another department, creating a vacancy for an administrative assistant.

8. On February 11, 2001, Mutual Protective Insurance Company ran an ad in the

Omaha World-Herald for an executive administrative assistant position.

9. During the week of February 12-16, 2001, Mutual Protective InsuranceCompany interviewed several people for the position and offered the job to

Julie Heeb, age 33. Mutual Protective Insurance Company did not interview or consider Withers for the position.

10. On February 23, 2001, Withers was notified by Mutual Protective Insurance Company Executive Vice-President Tim Hall that she was being terminated effective February 28, 2001, with one month severance pay. On February 26,2001, Withers again spoke with Hall regarding the termination, but he stated thedecision was final. At the time of her termination, Withers was earning$3,686.00 per month. In December 2000, Withers had received a year-end bonus of $4,589.16, resulting in total salary plus bonus of $49,093 for the year2000.

11. In mid-March 2001, Julie Heeb notified Mutual Protective Insurance Company that she would not start work as Michael Murnane’s administrative assistant, and the position became vacant. Withers was not considered for the position.

12. On March 26, 2001, Withers filed an age discrimination charge with the Nebraska Equal Opportunity Commission and the federal Equal Employment Opportunity Commission.

13. On April 2, 2001, Mutual Protective Insurance Company hired Tina Thompson, age 44, for the vacant administrative assistant position for Michael Murnane.

14. On September 21, 2001, the Nebraska EqualOpportunity Commission issued a Determination of Reasonable Cause to believe that Withers had been discriminated against because of age. Withers has exhausted her administrative remedies and this lawsuit is appropriate for determination by the Court.

15. Tina Thompson resigned in October 2001. Mutual Protective Insurance Company did not advertise for the position. Murnane contacted Mary Beth Francis, age 40, interviewed her, and offered her the vacant administrative assistant position. Withers was not considered for this position.

16. Withers was out of work until January 8, 2003, when she began work atSedgwick Claims Company at a salary of $21,000 a year.

INSTRUCTION NO. 13

ADEA (DISPARATE TREATMENT)

TERMINATION: ESSENTIAL ELEMENTS

Your verdict must be for the plaintiff and against the defendant on plaintiff's claim

that she was discriminated against based upon her age in connection with her termination

from employment with the defendant if both of the following elements have been proved

by the greater weight of the evidence:

1. The defendant terminated the plaintiff; and

2. The plaintiff's age was a motivating factor in the defendant's decision.

However, your verdict must be for defendant if either element has not been proved by

the greater weight of the evidence, or if it has been proved by the greater weight of the

evidence that defendant would have terminated plaintiff regardless of her age.

INSTRUCTION NO. 14

ADEA (DISPARATE TREATMENT)

FAILURE TO REHIRE: ESSENTIAL ELEMENTS

Your verdict must be for the plaintiff and against the defendant on plaintiff's claim

that she was discriminated against based upon her age in connection with the

defendant’s failure to rehire the plaintiff if both of the following elements have been proved

by the greater weight of the evidence:

1. The defendant failed to rehire the plaintiff; and

2. The plaintiff's age was a motivating factor in the defendant's decision.

However, your verdict must be for defendant if either of these elements has not been

proved by the greater weight of the evidence.

INSTRUCTION NO. 15

ADEA (DISPARATE TREATMENT)

TERMINATION: WILLFULNESS

If you find in favor of the plaintiff under Instruction No. 13, then you must decide

whether the conduct of the defendant was "willful." You must find defendant's conduct was

willful if you find by the greater weight of the evidence that, when the defendant terminated

the plaintiff, the defendant knew the termination was in violation of the federal law

prohibiting age discrimination, or that the defendant acted with reckless disregard of that

law.

INSTRUCTION NO. 16

ADEA (DISPARATE TREATMENT)

FAILURE TO REHIRE: WILLFULNESS

If you find in favor of the plaintiff under Instruction No. 14, then you must decide

whether the conduct of the defendant was "willful." You must find defendant's conduct was

willful if you find by the greater weight of the evidence that, when the defendant failed to

rehire the plaintiff, the defendant knew the failure to rehire was in violation of the federal

law prohibiting age discrimination, or that the defendant acted with reckless disregard of

that law.

INSTRUCTION NO. 17

PRETEXT

You may find that plaintiff's age was a motivating factor in defendant's decisions to

terminate and/or to not rehire the plaintiff if it has been proven by the greater weight of

the evidence that defendant's stated reason for either of its decisions was not the true

reason, but was a "pretext" to hide age discrimination.

INSTRUCTION NO. 18

DEFINITION OF MOTIVATING FACTOR

As used in these instructions, the plaintiff’s age was a "motivating factor," if the

plaintiff’s age played a part in the defendant’s decision to terminate and/or not to rehire

the plaintiff. However, the plaintiff’s age need not have been the only reason for the

defendant’s decisions.

INSTRUCTION NO. 19

INTRODUCTION

Now that you have heard the evidence and the attorneys’ arguments, it is my duty

to inform you of the legal principles and considerations you are to use in arriving at a

proper verdict.

It is your duty to follow the law given you in this charge and to apply these rules

of law to the facts as you find them from the evidence. Do not single out one instruction

alone as stating the law, but consider the instructions as a whole.

Do not be concerned with the wisdom of any rule of law that the court states.

Regardless of any opinion you may have about what the law ought to be, it would

violate your sworn duty to base a verdict upon a view of the law different from the one

given in these instructions, just as it would violate your sworn duty as judges of the

facts to base a verdict upon anything but the evidence in the case and the reasonable

inferences arising from such evidence.

INSTRUCTION NO. 20

JUDGE’S OPINION

In the trial of this case and in these instructions, I have in no way attempted to

express my opinion about who should prevail upon the issues submitted to you. You

must not construe any statement, action, or ruling on my part during the trial as an

indication of my opinion about the proper outcome of your verdict. During the course of

a trial, I might have occasionally asked questions of a witness to bring out facts not fully

covered in the testimony. Do not assume that I hold any opinion on the matters to which

the questions related.

INSTRUCTION NO. 21

EVIDENCE AND OBJECTIONS

During the trial I have ruled on objections to certain evidence. You must not

concern yourselves with the reason for such rulings since they are controlled by rules of

law.

You must not speculate or form or act upon any opinion about how a witness

might have testified in answer to questions which I rejected during the trial, or upon any

subject matter to which I forbade inquiry.

In coming to any conclusion in this case, you must be governed by the

evidence before you and by the evidence alone. You may not indulge in speculation,

conjecture or inference not supported by the evidence.

The evidence from which you are to find the facts consists of the following: (1)

the testimony of the witnesses; (2) documents and other things received as exhibits;

and (3) any facts that have been stipulated -- that is, formally agreed to by the parties.

The following things are not evidence: (1) statements, comments, questions and

arguments by lawyers for the parties; (2) questions by jurors; (3) objections to

questions; (4) any testimony I told you to disregard; and (5) anything you may have

seen or heard about this case outside the courtroom.

INSTRUCTION NO. 22

REASONABLE INFERENCES

While you should consider only the evidence in the case, you are permitted to

draw such reasonable inferences from the testimony and exhibits as you feel are

justified in the light of common experience. In other words, you may make deductions

and reach conclusions which reason and common sense lead you to draw from the facts

which have been established by the testimony and evidence in the case.

INSTRUCTION NO. 23

ADEA: PROTECTED AGE

Under state and federal law, persons over the age of 40 are protected from

discrimination because of their age. A person over 40 who is terminated and/or not

rehired may be the victim of age discrimination even though the person actually selected

is also 40 or over.

INSTRUCTION NO. 24

ADEA: NEBRASKA EQUAL OPPORTUNITY COMMISSION

While the Nebraska Equal Opportunity Commission findings are relevant to the

issues in this case, you should not consider those findings to be binding upon you. You

must make your own determination based upon your review of all the evidence

presented to you.

INSTRUCTION NO. 25

ADEA (DISPARATE TREATMENT)

TERMINATION: ACTUAL DAMAGES

If you find in favor of the plaintiff under Instruction No. 13, then you must award

the plaintiff such sum as you find by the greater weight of the evidence will fairly and

justly compensate the plaintiff for any wages and fringe benefits you find the plaintiff

would have earned in her employment with the defendant if she had not been

terminated on February

23, 2001, minus the amount of earnings and benefits from other employment received

by the plaintiff during that time.

Remember that throughout your deliberations, you must not engage in any

speculation, guess, or conjecture, and you must not award damages under this

Instruction through sympathy.

INSTRUCTION NO. 26

ADEA (DISPARATE TREATMENT)

FAILURE TO REHIRE: ACTUAL DAMAGES

If you find in favor of the plaintiff under Instruction No. 14, then you must award the

plaintiff such sum as you find by the greater weight of the evidence will fairly and justly

compensate the plaintiff for any wages and fringe benefits you find the plaintiff would have

earned in her employment with the defendant if she had been rehired by the defendant on

or about April 1, 2991, October 8, 2001, or January 2, 2002, minus the amount of

earnings and benefits from other employment received by the plaintiff during that time.

Remember that throughout your deliberations, you must not engage in any

speculation, guess, or conjecture, and you must not award damages under this

Instruction through sympathy.

INSTRUCTION NO. 27

ADEA: NO PUNITIVE OR EXEMPLARY DAMAGES

If you determine that the plaintiff Sally Withers is entitled to damages, in

determining the amount of damages you may not include or add to the damages any

sum for the purpose of punishing defendant Mutual Protective Insurance Company or

serving as an example to warn others.

INSTRUCTION NO. 28

ADEA: LEGITIMATE BUSINESS REASONS

The ADEA is not a vehicle for review of employment decisions which are made

in good faith and are not motivated by age discrimination. An employer may develop its

own policies and criteria for deciding whom to employ and what to pay an employee in

the absence of an intent to discriminate. Thus, if you find that Mutual Protective

Insurance Company’s reasons for terminating Sally Withers and not rehiring her were

based on reasons in which her age was not a motivating factor, then the termination and

failure to rehire were not unlawful. You are not to consider whether Mutual Protective

Insurance Company’s decisions to terminate Withers and to not rehire her were fair,

wise, or even correct, or whether you or anyone else would have made the same

decision. The sole

focus of your consideration must be on Mutual Protective Insurance Company’s

motivation. This relates to the court’s instructions on essential elements (Instruction Nos.

13 and 14), willfulness (Instruction Nos. 15 and 16), pretext (Instruction No. 17), and

motivating factors (Instruction No. 18). However, do not single out any one instruction

alone as stating the law, but consider the instructions as a whole.

INSTRUCTION NO. 29

NOTE-TAKING

Throughout the course of the trial you have been allowed to take notes of the

testimony. You may take your notes into the jury room for use in your deliberations.

Remember, however, your notes are not evidence. The courtroom deputy is charged

with the task of keeping the official record of all exhibits received into evidence during

the trial. At the close of trial, she will deliver all exhibits you are to consider in your

deliberations.

Your notes should be used only as aids to your memory. You should not give your

notes precedence over your independent recollection of the evidence. You should rely on

your own independent recollection of the proceedings, and you should not be influenced

by the notes of other jurors. Your notes are not entitled to any greater weight than each

juror’s recollection or impression of the testimony given during this trial. After you have

reached a verdict, your notes will be destroyed.

INSTRUCTION NO. 30

DEPOSITION TESTIMONY

During the trial of this case, certain testimony will be presented to you by way of

deposition, consisting of sworn recorded answers to questions asked of the witness in

advance of the trial by one or more of the attorneys for the parties to the case. The

testimony of a witness who, for some reason, cannot be present to testify from the

witness stand may be presented in writing under oath. Such testimony is entitled to the

same consideration, and is to be judged as to credibility, and weighed, and otherwise

considered by the jury, insofar as possible, in the same way as if the witness had been

present, and had testified from the witness stand.

INSTRUCTION NO. 31

DELIBERATIONS AND VERDICT

In conducting your deliberations and returning your verdict, there are certain

rules you must follow.

First, when you retire to the jury room, first select one of your number to

be foreperson to preside over your discussions and to speak for you 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 because a verdict—whether liable or not liable

—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.

Third, you will take with you when you retire for your deliberations an official

verdict form on which you will indicate a verdict. Please follow the directions carefully

when filling it out. A verdict must be agreed to by all of you, that is, it must be

unanimous. Your verdict must be signed by the foreperson.

Fourth, if you need to communicate with me during your deliberations, you may

send a note to me through the courtroom deputy, signed by one or more jurors. I will

respond as soon as possible either in writing or orally in open court. Your answer may

not come immediately because I may need to assemble the attorneys and confer with

them before I respond. Remember that you should not tell anyone—including me—how

your votes stand numerically.

Finally, when you arrive at your verdict and the form of verdict has been

completed, you will have concluded your task. Notify my chambers and I will receive your

verdict promptly. If you do not agree on a verdict by 5:00 this evening, you may separate

and return for further deliberations tomorrow morning. You may separate for meals

whenever

you choose. If you do separate, you are not allowed to discuss this case with anyone,

even another juror.