Free Proposed Jury Instructions - District Court of Colorado - Colorado

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INSTRUCTION NO. _____ Claims and Defenses The positions of the parties may be summarized as follows: The Plaintiff's Claims Dr. Bramlet asserts three claims against the Hospital. They are: 1. A claim for age discrimination in violation of the Age Discrimination in Employment Act, or "ADEA;" 2. A claim for violation of his civil rights under the Civil Rights Act of 1871, 42 U.S.C. § 1983, also known as § 1983; and 3. A claim for breach of contract.

For his age discrimination claim, Dr. Bramlet contends that he applied for and was qualified for medical staff privileges at the Hospital and that physicians who are granted medical staff privileges at the Hospital are employees of the Hospital. Dr. Bramlet asserts that the Hospital denied his applications for medical staff privileges and that the Hospital's decision to deny his applications for medical staff privileges was motivated, in part, by his age, and that his age was a determinative factor in the Hospital's decision. Dr. Bramlet alleges that he suffered damages as a result of the Hospital's age discrimination against him. Dr. Bramlet also alleges that the Hospital's age discrimination against him, in violation of the ADEA, was willful. Dr. Bramlet's § 1983 claim has two parts. First, Dr. Bramlet asserts that the Hospital's Board of Directors, acting under color of State law, violated his Constitutional right not to be deprived of a Constitutionally protected property interest by: (1) denying his applications to obtain medical staff privileges at the Hospital; and (2) denying his request for a practice development loan. Dr. Bramlet asserts that he had a Constitutional right to be granted medical

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staff privileges at the Hospital and that that he had a Constitutional right to be granted a practice development loan from the Hospital. Dr. Bramlet claims that he met the Hospital's criteria for being granted medical staff privileges and a practice development loan. Dr. Bramlet alleges that the Hospital's Board of Directors had no discretion to deny his applications for medical staff privileges or to deny his request for a practice development loan. Dr. Bramlet asserts that the Hospital's Board of Directors, acting under color of State law, violated his Constitutional right to be granted medical staff privileges by denying his applications for medical staff privileges. Dr. Bramlet also asserts that the Hospital's Board of Directors, acting under color of State law, violated his Constitutional right to be granted a practice development loan by denying his request for a practice development loan. Dr. Bramlet claims that, as a result of the Board's denial of his applications for medical staff privileges and a practice development loan, he suffered damages in the form lost compensation and emotional distress. As a second ground for his § 1983 claim, Dr. Bramlet asserts that the Hospital's Board of Directors, acting under color of State law, denied his applications for medical staff privileges, and that: (1) his good name, reputation, honor, or integrity were impugned by the Board's denial of his applications for medical staff privileges; (2) the Board's denial of his applications for medical staff privileges foreclosed him from obtaining work elsewhere as a cardiologist; (3) the Board's denial of his applications for medical staff privileges was accompanied by false and stigmatizing information about him; (4) the accompanying false and stigmatizing information about him was published; and (5) he suffered damages in the form of lost compensation and emotional distress. For his breach of contract claim, Dr. Bramlet asserts that the Hospital's bylaws and credentials policy and procedure manual constitute an enforceable contract between him and the

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Hospital. Dr. Bramlet contends that he fulfilled his obligations under this contract but that the Hospital breached this contract by: (1) denying his applications for medical staff privileges; and (2) denying his request for a practice development loan. Dr. Bramlet claims that he suffered actual damages as a result of the Hospital's breach of the contract. The Defendant's Defenses The Hospital denies all of Dr. Bramlet's claims and asserts that Dr. Bramlet is not entitled to any of the relief he has requested or to any damages. The Hospital asserts the following defenses: Dr. Bramlet was not, at any time, an "employee," and the Hospital was not, at any time, an "employer," as these terms are defined and used under the ADEA. As such, the ADEA does not apply and provides no jurisdictional basis for Dr. Bramlet's ADEA claim, and Dr. Bramlet cannot establish a claim of age discrimination pursuant to the ADEA. Dr. Bramlet withdrew his application for active medical staff privileges at the Hospital and, as such, the Hospital did not grant or deny his application for active medical staff privileges at the Hospital. The Hospital denied Dr. Bramlet's application for consulting medical staff privileges for legitimate, nondiscriminatory reasons, and Dr. Bramlet failed to appeal or request a fair hearing regarding the Hospital's denial of his application for consulting medical staff privileges. By failing to provide requested information and documentation, withdrawing his application for active medical staff privileges, and failing to appeal or request a fair hearing regarding the denial of his application for consulting medical staff privileges, Dr. Bramlet failed to exhaust the administrative remedies available to him under the Hospital's applicable policies and procedures, including without limitation the Hospital's Medical Staff Bylaws, Bylaws, Credentials Policy and Procedure Manual, and Fair Hearing Plan.

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The Hospital did not deprive Dr. Bramlet of any Constitutionally protected property interest or liberty interest and did not deprive Dr. Bramlet of due process under §1983. The Hospital does not have or exercise any policy to deprive persons of Constitutionally protected property interests or liberty interests, or to deprive persons of due process. The Hospital took no state action as to Dr. Bramlet. The Hospital is entitled to qualified immunity and statutory immunity pursuant to applicable Colorado law, including without limitation Colo. Rev. Stat. §§ 12-36.5-101, et seq., and 24-10-101, et seq., and the common law. The Hospital's Board of Directors, acting under color of State law, did not deprive Dr. Bramlet of any Constitutionally protected property interest without due process of law. Dr. Bramlet had no Constitutional right to be granted medical staff privileges at the Hospital or to be granted a practice development loan by the Hospital. As such, Dr. Bramlet possessed no

Constitutionally protected property interest in medical staff privileges or a practice development loan of which he could be deprived. The Hospital had discretion to deny Dr. Bramlet's

applications for medical staff privileges and his request for a practice development loan. The Hospital had a lawful privilege to exercise its discretion under its applicable policies and procedures, including without limitation the Hospital's Medical Staff Bylaws, Bylaws, and Credentials Policy and Procedure Manual, and exercised such discretion in good faith. The Hospital's Board of Directors, which is the Hospital's final decision-maker, never granted or denied Dr. Bramlet's application for active medical staff privileges, as Dr. Bramlet failed to provide requested information and documentation regarding his application for active medical staff privileges and then withdrew his application for active medical staff privileges. The

Hospital's Medical Executive Committee recommended to the Hospital's Board of Directors that Dr. Bramlet's application for consulting medical staff privileges be denied. The Hospital

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notified Dr. Bramlet of his right to appeal that recommendation. Dr. Bramlet chose not to appeal and, as a result, the Medical Executive Committee's recommendation to the Board ultimately became final. The Hospital's Board of Directors, acting under color of State law, did not deprive Dr. Bramlet of any Constitutionally protected liberty interest. The Hospital's Board of Directors did not deny Dr. Bramlet's application for active medical staff privileges and Dr. Bramlet chose not to appeal the Medical Executive Committee's recommendation that his application for consulting medical staff privileges be denied. The denial of Dr. Bramlet's application for consulting medical staff privileges was for administrative reasons and did not impugn Dr. Bramlet's good name, reputation, honor, or integrity. The denial of Dr. Bramlet's application for consulting medical staff privileges did not foreclose Dr. Bramlet from obtaining work elsewhere as a cardiologist. The denial of Dr. Bramlet's application for consulting medical staff privileges was not accompanied by false and stigmatizing information about him and no false and stigmatizing information about him was published by the Hospital. Dr. Bramlet suffered no damages. No contract existed between Dr. Bramlet and the Hospital and the Hospital did not breach any contract as to Dr. Bramlet. Dr. Bramlet's contract claim is barred by: (a) failure of consideration; (b) failure of any meeting of the minds; (c) lack of consideration; (d) lack of certainty as to the essential elements of a contract; (e) Dr. Bramlet's lack of substantial performance and failure to satisfy conditions precedent; and (f) the doctrine of impossibility. By failing to comply with the Hospital's request for additional information and documentation regarding his application for active medical staff privileges, by withdrawing his request for active medical staff privileges, and by failing to appeal or request a fair hearing regarding the

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denial of his application for consulting medical staff privileges, Dr. Bramlet failed to substantially perform, satisfy conditions precedent or exhaust administrative remedies available to him under the Hospital's applicable policies and procedures, including without limitation the Hospital's Medical Staff Bylaws, Bylaws, Credentials Policy and Procedure Manual, and Fair Hearing Plan. The Hospital and Dr. Bramlet never reached any meeting of the minds as to any practice development loan and there was no certainty as to the essential elements of any contract for any such loan. Neither did Dr. Bramlet substantially perform or satisfy conditions precedent with regard to any alleged contract for a practice development loan. Any alleged contract for medical staff privileges or a practice development loan is also barred by failure or lack of consideration and the doctrine of impossibility. In addition to the above, each of Dr. Bramlet's claims fails to state a claim upon which relief may be granted. Dr. Bramlet's claims are barred or diminished by his own acts, omissions, negligence or fault, which caused or contributed to the Hospital's decisions, acts, and/or omissions about which Dr. Bramlet complains, and for which the Hospital is not responsible or liable. Dr. Bramlet has failed to mitigate his damages, if any. Dr. Bramlet's claims are barred by the doctrines of waiver, estoppel, laches and/or unclean hands.

Authority: K. O'Malley, J. Grenig, & W. Lee, Federal Jury Practice and Instructions, 5th, § 101.03, Civil.

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INSTRUCTION NO. ___ ADEA: AGE DISCRIMINATION IN EMPLOYMENT ACT--- ELEMENTS Dr. Bramlet has brought an age discrimination claim against the Hospital under the Age Discrimination in Employment Act, also called the ADEA. The ADEA makes it unlawful for an employer to discriminate against an individual who is 40 years of age or older because of his or her age. To establish his claim that the Hospital discriminated against him because of his age, Dr. Bramlet must prove, by a preponderance of the evidence: 1. That the Hospital did not hire him, in that it denied his applications for medical staff privileges; 2. That he was 40 years of age or older at the time he was not hired by the Hospital; 3. That he was qualified for the medical staff privileges he sought; 4. That his age was a "motivating factor" for the Hospital's decision to deny his application for medical staff privileges; 5. That his age was a "determinative factor" in the Hospital's decision to deny his application for medical staff privileges; 6. That the Hospital's explanation of why it denied his application for medical staff privileges is a pretext or cover up for age discrimination. The burden of proving age discrimination is always on the plaintiff, Dr. Bramlet. If you determine that Dr. Bramlet has proven all of the above elements, by a preponderance of the evidence, your verdict must be for Dr. Bramlet on his age discrimination claim. If you determine that Dr. Bramlet has failed to prove any one, or more, of the above elements by a preponderance of the evidence, your verdict must be for the Hospital on Dr. Bramlet's age discrimination claim. Authority: U.S.C. § 623 (a) (1)- (2); Messina v. Kroblin Transportation Systems, Inc., 903 F.2d 1306 (10th Cir. 1990); Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1226 (10th Cir.2000); 29 U.S.C.A. § 623; O'Connor v. Consolidated Coin Caterers Corp., 116 S. Ct. 1307 (1996); Colorado Employment Law and Practice Handbook, Vol. 16A § 8.1 (West 1998)(modified); Reeves v. Sanderson Plumbing Products, Inc., 120 S. Ct. 2097, 2106, 2108, 147 L.Ed. 105 (2000); Jones v. Unisys Corp., 54 F.3d 624, 630-31 (10th Cir. 1995); Smith v. Consolidated Mutual Water Co., 787 F.2d 1441, 1442 (10th Cir. 1986); Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1425-26 (10th Cir. 1993).

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INSTRUCTION NO._______ Motivating and Determinative Factor To establish a claim of age discrimination, Dr. Bramlet must prove by a preponderance of the evidence that his age was a motivating and determinative factor in the Hospital's decision not to hire him. Dr. Bramlet's age was a "motivating factor" if his age played a part or role in the Hospital's decision not to hire him. Dr. Bramlet's age need not have been the only reason for the Hospital's decision not to hire him, but must have been a determinative factor in the decision. Plaintiff's age was a "determinitive factor" if you conclude that his age made a difference in the Hospital's decision not to hire him. To be a determinitive factor, age must have made a difference in the Hospital's decision not to hire Dr. Bramlet, in the sense that, "but for" Dr. Bramlet's age, the Hospital would have hired him.

Model Jury Instructions (Civil) Eighth Circuit 5.96 (2005), modified; Considine v. Newspaper Agency Corp., 43 F.3d 1349, 1366 (10th Cir. 1994); Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003); Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Elmore v. Capstan, Inc., 58 F.3d 525, 530 (10th Cir.1995); Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2104, 2106, 2108-09 (2000); Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1426 (10th Cir. 1993); Jones v. Unisys Corp., 54 F.3d 624, 630-31 (10th Cir. 1995); Smith Consolidated Mutual Water Co., 787 F.2d 1441, 1442 (10th Cir. 1986).

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INSTRUCTION NO. _______ ADEA: PRETEXT ---DEFINITION Dr. Bramlet must prove, by a preponderance of the evidence, that the Hospital's reason for not hiring him was a pretext for age discrimination. A "pretext" is a reason that is phony, contrived or otherwise unworthy of belief. If Dr. Bramlet proves that the Hospital's reason for denying his applications for medical staff privileges was phony, contrived or otherwise unworthy of belief, you may, but are not required to, find that the Hospital's reason for denying Dr. Bramlet's applications for medical staff privileges was a "pretext" for age discrimination.

Authority: Reeves v. Sanderson Plumbing Products, Inc., 120 S. Ct. 2097, 2106, 2108, 147 L.Ed. 105 (2000)

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INSTRUCTION NO. ___ [ADEA: Damages and Mitigation] If you find in favor of Dr. Bramlet on his age discrimination claim, then you must award him such sum as you find, by a preponderance of the evidence, will fairly and justly compensate him for any compensation and other benefits you find he would have earned in his employment with the Hospital from the time the Hospital denied his application for medical staff privileges until the date of this trial, minus the amount of compensation and other benefits he received from other work or employment during that same time period. Dr. Bramlet has a duty under the law to "mitigate" his damages--that is, to exercise reasonable diligence under the circumstances to minimize his damages. Therefore, if you find by a preponderance of the evidence that Dr. Bramlet failed to seek out or take advantage of any employment or other work opportunity that was reasonably available to him, you must reduce his damages by the amount of compensation and other benefits he reasonably would have earned if he had sought out or taken advantage of such employment or other work opportunity. In determining what amount, if any, to award Dr. Bramlet for damages on his ADEA claim, you must not consider any evidence which might have been presented at trial on the issue of lost future wages. Any award of damages for lost future wages is an issue which the law leaves to the Court, not the jury. Therefore, you will not be called upon to decide what amount, if any, to award Dr. Bramlet for lost future wages. In determining what amount, if any, to award Dr. Bramlet for damages on his ADEA claim, you also may not consider or award Dr. Bramlet any damages for emotional distress or pain or suffering, because such damages are not recoverable for age discrimination claims under the ADEA. Remember, throughout your deliberations, you must not engage in any speculation, guess, or conjecture and you must not award damages under this instruction by way of punishment or through sympathy. Authority: 29 U.S.C.A. § 626; Spulak v. K Mart Corp., 894 F.2d 1150, 1158 (10th Cir. 1990); Commissioner v. Schleier, 515 U.S. 323, 325-26 (1995)

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INSTRUCTION NO. ___ EXHAUSTION OF REM EDIES; MITIGATION OF DAMAGES

Dr. Bramlet has a duty under the law to "mitigate" his damages--that is, to exercise reasonable diligence under the circumstances to minimize his damages. Dr. Bramlet had a duty to pursue and exhaust all of the remedies available to him under the Hospital's applicable policies and procedures, including without limitation the Hospital's Medical Staff Bylaws, Bylaws, Credentials Policy and Procedure Manual, and Fair Hearing Plan, with regard to his applications for medical staff privileges. If you find, by a preponderance of the evidence, that Dr. Bramlet failed to pursue and exhaust the remedies available to him under the Hospital's applicable policies and procedures, by failing to provide requested information and documentation, withdrawing his application for active medical staff privileges, and failing to appeal or request a fair hearing regarding the denial of his application for consulting medical staff privileges, then Dr. Bramlet failed to mitigate any of his claimed damages resulting from the denial of his applications for medical staff privileges.

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INSTRUCTION NO. ___ [Mitigation of Damages---Economic Damages] If you find in favor of Dr. Bramlet on any of his claims and determine that he suffered any lost compensation or other benefits as a direct result of the Hospital's actions, then you must consider whether the Hospital has proved its affirmative defense that Dr. Bramlet failed to mitigate or minimize his damages for lost compensation and other benefits. Dr. Bramlet must make every reasonable effort to minimize or reduce his damages for lost compensation and other benefits. This is referred to as "mitigation of damages." The Hospital bears the burden of proof, by a preponderance of the evidence, to show that Dr. Bramlet failed to mitigate his damages. If you determine Dr. Bramlet is entitled to lost compensation and other benefits, you must reduce the amount of any award by: 1. The amount that Dr. Bramlet actually earned from other employment and work from the date he was denied medical staff privileges or a practice development loan, or the date the Hospital breached its contract with him, until the date of trial; and 2. The amount that Dr. Bramlet could reasonably have earned from other employment or work opportunities if he had made reasonable efforts to obtain other employment or work opportunities, from the date he was denied medical staff privileges or a practice development loan, or the date the Hospital breached its contract with him, until the date of trial. Plaintiff must seek and accept employment or other work that is "of a like nature." In determining whether employment or other work is "of a like nature," you may consider: 1. The type of work; 2. The hours worked; 3. The compensation; 4. The job security; 5. The working conditions; and 6. Other conditions of the work or employment. You must decide whether Dr. Bramlet acted reasonably in not seeking or accepting other employment or work opportunities. If you find that the Hospital has not proved, by a preponderance of the evidence, that Dr. Bramlet failed to mitigate his damages, then you shall make no deduction from his damages for lost compensation and other benefits. If you find the Hospital has proved, by a preponderance of the evidence, that Dr. Bramlet did not make reasonable efforts to obtain other employment or work opportunities, you must decide whether his failure to do so increased his amount of lost compensation and other benefits. If so, you must not compensate Dr. Bramlet for any portion of his lost compensation or other benefits that results from his failure to make reasonable efforts to reduce the amount of his lost compensation and other benefits. Authority: Spulak v. K Mart Corp., 894 F.2d 1150, 1158 (10th Cir. 1990); Hansard v. PepsiCola Metro. Bottling Co., 865 F.2d 1461, 1468 (5th Cir.), cert. denied, 493 U.S. 842, 110 S.Ct. 129, 107 L.Ed.2d 89 (1989) (no entitlement to back pay where employee failed to use reasonable diligence to mitigate his damages); Excel Corp. v. Bosley, 165 F.3d 635, 639 (8th Cir.1999) (Title VII claimant seeking either back pay or front pay damages has duty to mitigate those damages by exercising reasonable diligence); Rodriguez v. Taylor, 569 F.2d 1231, 1243 (3d Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978)]; CJI-Civ. 5:2 (CLE

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ed. 2000)(modified); Wilson v. Union Pacific Railroad Co., 56 F.3d 1226 (10th Cir. 1995); Spulak v. Kmart Corp., 894 F.2d 1150 (10th Cir. 1990); Fair v. Red Lion Inn, 943 P.2d 431 (Colo. 1997); Manning v. McGraw-Hill, Inc., 64 F.Supp. 2d 996 (D.C. Colo. 1998).

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INSTRUCTION NO. ___ [Mitigation of Damages---Non-economic] If you find in favor of Dr. Bramlet on his § 1983 claim and determine that he suffered emotional distress or pain and suffering damages as a direct result of the Hospital's deprivation of his constitutionally protected property or liberty interest without due process of law, then you must consider whether the Hospital has proved its affirmative defense that Dr. Bramlet failed to mitigate or minimize such damages. Dr. Bramlet must make every reasonable effort to minimize or reduce his damages for emotional distress or pain and suffering. This is referred to as "mitigation of damages." The Hospital bears the burden of proof, by a preponderance of the evidence, to show that Dr. Bramlet failed to mitigate his damages, in that he: 1. Failed to seek such medical or psychological care or treatment for his claimed injury as a reasonable person would have sought under the same or similar circumstances; or 2. Failed to disclose to his doctors or psychologists such information as a reasonable person would have disclosed under the same or similar circumstances. If you find that the Hospital has not proved, by a preponderance of the evidence, that Dr. Bramlet failed to mitigate his damages, then you shall make no deduction from his damages. On the other hand, if you find that the Hospital has proved, by a preponderance of the evidence, one or both of paragraphs 1 and 2, above, then you must determine the amount of damages caused by Dr. Bramlet's failure to take such reasonable steps. This amount must be deducted from Dr. Bramlet's damages and must not be included in your award of damages to Dr. Bramlet. Please remember that you may not award Dr. Bramlet any damages for emotional distress or pain and suffering in connection with his age discrimination claim or his breach of contract claim, because such damages are not recoverable under either of these claims. Authority: Spulak v. K Mart Corp., 894 F.2d 1150, 1158 (10th Cir. 1990); Hansard v. PepsiCola Metro. Bottling Co., 865 F.2d 1461, 1468 (5th Cir.), cert. denied, 493 U.S. 842, 110 S.Ct. 129, 107 L.Ed.2d 89 (1989) (no entitlement to back pay where employee failed to use reasonable diligence to mitigate his damages); Excel Corp. v. Bosley, 165 F.3d 635, 639 (8th Cir.1999) (Title VII claimant seeking either back pay or front pay damages has duty to mitigate those damages by exercising reasonable diligence); Rodriguez v. Taylor, 569 F.2d 1231, 1243 (3d Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978)]; CJI-Civ. 5:2 (CLE ed. 2000)(modified); Wilson v. Union Pacific Railroad Co., 56 F.3d 1226 (10th Cir. 1995); Spulak v. Kmart Corp., 894 F.2d 1150 (10th Cir. 1990); Fair v. Red Lion Inn, 943 P.2d 431 (Colo. 1997); Manning v. McGraw-Hill, Inc., 64 F.Supp. 2d 996 (D.C. Colo. 1998).

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INSTRUCTION NO. ___ Business Judgment You may not return a verdict for Dr. Bramlet just because you might disagree with Hospital's decision or believe it to be harsh or unreasonable. The ADEA is not a vehicle for reviewing the wisdom of business decisions. The ADEA requires only that employers not discriminate against job applicants because of their age. An employer may decide not to hire an applicant for any other reason, good or bad, fair or unfair. You must not second guess the Hospital's decision or otherwise substitute your judgment for that of the Hospital, even if you personally may not favor the Hospital's decision or would have made a different decision under the circumstances. Neither does the law require the Hospital to extend any special or favorable treatment to Dr. Bramlet because of his age. The ultimate burden of proving that the Hospital intentionally discriminated against Dr. Bramlet because of his age remains, at all times, with the plaintiff, Dr. Bramlet. In other words, it is not enough to disbelieve the Hospital; you must find that Dr. Bramlet's explanation of intentional discrimination is correct in order to find in his favor on his age discrimination claims. The Hospital is not required to prove that its decisions were actually motivated by its stated reasons. If Dr. Bramlet fails to prove, by a preponderance of the evidence, that age was a motivating and determinative factor in the Hospital's decision not to hire him, then your verdict must be for the Hospital.

Authority: ABA Model Jury Instruction 1.02[3][b]; West's Colorado Practice Series, Colorado Employment Law and Practice Handbook (1999); Section 5.94, Eighth Circuit Manual of Model Jury Instructions Civil, 1998 West; Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct.

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2097, 2104, 2106, 2108-09 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 519, 524, 113 S. Ct. 2742 (1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 255, 101 S. Ct. 1089 (1981); Messina v. Kroblin Transportation Systems, Inc. 903 F.2d 1306 (10th Cir. 1990); Mason v. Avaya Communications, Inc., 357 F.3d 1114, 1129 (10th Cir. 2004)];Archuleta v. Colorado Dept. of Institutions, 936 F.2d 483, 487 (10th Cir. 1991); Furr v. Seagate Technology, Inc., 82 F.3d 980, (10th Cir. 1996); Branson v. Price River Coal Co., 853 F.2d 768 (10th Cir. 1988); Smith v. Consolidated Mutual Water Co., 787 F.2d 1441 (10th Cir. 1986); Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1426 (10th Cir. 1993); Doan v. Seagate Technology, Inc., 82 F.3d 974, 976-77 (10th Cir. 1996); Scraggs v. Sun Oil Co., 2000 U.S. LEXIS 10694 (2000).

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INSTRUCTION NO . _____ ADEA INSTRUCTION: WILLFUL ­ DEFINED

If you find that the Hospital discriminated against Dr. Bramlet based on his age, you must determine whether the Hospital's violation of the ADEA was "willful." If you find that Hospital's violation of the ADEA was "willful," the Court, not the jury, may award Dr. Bramlet additional damages under the law. A defendant acts "willfully" if it either knew or showed reckless disregard for whether its discriminatory conduct was prohibited by the ADEA. Authority: 29 U.S.C. § 626(b)(7)(b); Hazen Paper Co. v. Biggins, 507 U.S. 604, 616, 113 S. Ct. 1701, 1709 (1993); Colorado Employment Law and Practice Handbook, Vol. 16A, § 8.4 (West 1998).

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INSTRUCTION NO. ___ [Fourteenth Amendment] Dr. Bramlet claims the Hospital denied him medical staff privileges and a practice development loan in violation of his substantive and procedural due process rights under the Fourteenth Amendment to the United States Constitution. The Fourteenth Amendment to the United States Constitution provides that: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Authority: 3B Federal Jury Practice & Instructions, Civil, §168.90 (5th Ed.)

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INSTRUCTION NO. ___ [Section 1983] Dr. Bramlet has sued the Hospital under a federal civil rights act, 42 U.S.C. § 1983, which was enacted by Congress to enforce violations of the Fourteenth Amendment to the United States Constitution by state actors. Section 1983 provides that a person may seek relief in this court by way of damages against any person or persons who, under color of any state law or custom, subjects such person to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.

Authority: 42 U.S.C. § 1983

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INSTRUCTION NO. ___ [§ 1983: Due Process; Property Interest] Dr. Bramlet alleges that the Hospital, under color of state law, deprived him of a constitutional right to medical staff privileges and a practice development loan by denying his applications for medical staff privileges and his request for a practice development loan without due process of law. To prove that the Hospital, under color of state law, deprived him of a constitutional right to medical staff privileges at the Hospital without due process of law, Dr. Bramlet must prove all of the following elements by a preponderance of the evidence: 1. the Hospital; 2. That the Hospital's Board of Directors, under color of state law, denied his That he applied for and met the requirements to obtain medical staff privileges at

applications for medical staff privileges; 3. That he exhausted all remedies provided by the Hospital to challenge the Hospital

Board's denial of his applications for medical staff privileges; and 4. That as a result of the Hospital Board's denial of his applications for medical staff

privileges, he suffered damages. To prove that the Hospital, under color of state law, deprived him of a constitutional right to a practice development loan from the Hospital without due process of law, Dr. Bramlet must prove all of the following elements by a preponderance of the evidence: 1. That he applied for and met the requirements to obtain practice development loan;

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2.

That the Hospital's Board of Directors, under color of state law, denied his

application for a practice development loan; 3. That he exhausted all remedies provided by the Hospital to challenge the Board's

denial of his application for a practice development loan; and 4. That as a result of the Board's denial of his application for a practice development

loan, he suffered damages. The Hospital may be liable under § 1983 for depriving Dr. Bramlet of a constitutionally protected property interest in medical staff privileges or a practice development loan only if you find that Dr. Bramlet's constitutional rights were violated and that such violation was done pursuant to a decision made by the Hospital. A constitutional violation was done by the Hospital only if it was done by an official of the Hospital who had the authority to act as a final decision maker on the particular matter that was involved in the decision. In this case, the Hospital's Board of Directors was the only official of the Hospital that had final decision-making authority to deny Dr. Bramlet's application for medical staff privileges or a practice development loan. Therefore, you are not to consider the decision making or conduct of any person other than the Hospital's Board of Directors.

Authority: 42 U.S.C. 1983; Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Randle v. City of Aurora, 69 F.3d 441, 447 (10th Cir. 1995); 3B Fed. Jury Prac. & Instr. § 168.100 (5th ed.); Hahn v. Star Bank, 190 F.3d 708 (6th Cir. 1999) (citing Zinermon v. Burch, 494 U.S. 113, 125-26 (1990)]

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INSTRUCTION NO. ___ [§ 1983--Due Process Claim--Liberty Interest] To prove that the Hospital, under color of state law, deprived him of a constitutionally protected liberty interest, Dr. Bramlet must prove all of the following elements by a preponderance of the evidence: 1. That the Hospital's Board of Directors, under color of state law, denied his

applications for medical staff privileges or for a practice development loan; 2. That his good name, reputation, honor, or integrity were impugned by the

Hospital Board's denial of his applications for medical staff privileges or for a practice development loan; 3. That the Board's denial of his applications for medical staff privileges or for a

practice development loan foreclosed him from obtaining any other jobs or employment opportunities as a cardiologist; 4. That the Board's denial of his applications for medical staff privileges or a

practice development loan was accompanied by false and stigmatizing information about him; 5. That the Hospital published the accompanying false and stigmatizing information

to a third-party without having any privilege or right to do so, or in bad faith; 6. That each of the foregoing elements was done under color of state law by an

official of the Hospital with final decision-making authority; and 7. That Dr. Bramlet was damaged as a result.

The Hospital may be liable under § 1983 for depriving Dr. Bramlet of a constitutionally protected liberty interest only if you find that Dr. Bramlet's constitutional rights were violated

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under color of state law and that such violation was done pursuant to a decision made by the Hospital. A constitutional violation was done by the Hospital only if it was done by an official of the Hospital who had the authority to act as a final decision maker on the particular matter that was involved in the decision. Therefore, you are not to consider the decision making or conduct of any person other than the Hospital's final decision maker. [Workman v. Jordan, 32 F.3d 475, 480 (10th Cir.1994); Dickeson v. Quarberg, 844 F.2d 1435, 1440 (10th Cir.1988); Pfenninger v. Exempla, Inc., 116 F.Supp.2d 1184 (D. Colo. 2000).]

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INSTRUCTION NO. ___ [§ 1983 Protected Property Interest] To have a constitutionally protected property interest in medical staff privileges at the Hospital or a practice development loan from the Hospital, Dr. Bramlet must have more than an abstract need or desire for medical staff privileges or a practice development loan, or more than a unilateral expectation of being granted medical staff privileges or a practice development loan. Dr. Bramlet must have a legitimate constitutional claim of entitlement to medical staff privileges at the Hospital or a practice development loan from the Hospital. Property interests are not created by the Constitution; rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of a Constitutional entitlement to those benefits. [3B Federal Jury Practice & Instructions, Civil, §168.110 (5th Ed.); Perry v. Sindermann, 408 U.S. 593, 602-03 (1972); Board of Regents v. Roth, 408 U.S. 564, 576-77 (1972); Connell v. Higginbotham, 403 U.S. 207, 208 (1971)]

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INSTRUCTION NO. ___ [§ 1983 Protected Liberty Interest] A person has a protected liberty interest in his reputation, good name, honor, and integrity, as well as in being free to move about, live, and practice his profession without the burden of an unjustified label of infamy. To establish deprivation of a constitutionally protected liberty interest, a person must demonstrate stigmatizing governmental action which so negatively affects his reputation that it effectively forecloses the opportunity to practice a chosen profession. Mere damage to

reputation is insufficient; rather, a loss of reputation must be coupled with some other tangible element, such as loss of any opportunity for employment or work in his profession, in order to rise to the level of a constitutionally protected liberty interest. [McGhee v. Draper, 639 F.2d 639, 642-43 (10th Cir. 1981); Paul v. Davis, 424 U.S. 693, 711-12, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Sandoval v. Boulder Reg'll Communications Ctr., 388 F.3d 1312, 1329 (10th Cir.2004)]

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INSTRUCTION NO. ___ [§ 1983 Under Color of State Law] Acts are done "under color of state law" not only when state officials act within the bounds or limits of their lawful authority, but also when such officers act without and beyond the bounds of their lawful authority. The phrase "under color of state law," includes acts done under color of any state law, or county or municipal ordinance, or any regulation issued thereunder, or any state or local custom. In order for unlawful acts of an official to be done "under color of state law," the unlawful acts must be done while the official is purporting or pretending to act in the performance of the official's official duties. The unlawful acts must consist of an abuse or misuse of power possessed by the official only because the person is an official. The unlawful acts must be of such a nature, and be committed under such circumstances, that they would not have occurred but for the fact that the person committing them was an official, purporting to exercise official powers. The act of a public official in pursuit of the official's personal aims that is not accomplished by virtue of the official's official authority is not action under color of state law merely because the individual happens to be a public official. An otherwise private person acts "under color of state law" when the person engages in a conspiracy with state officials to deprive another of rights protected by Section 1983. Authority: American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999); David v. City & County of Denver, 101 F.3d 1344, 1352 (10th Cir.1996)

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INSTRUCTION NO. ___ [§ 1983 Actual Damages] If you find in favor of Dr. Bramlet on his § 1983 claim, then you must award him such sum as you find, by a preponderance of the evidence, will fairly and justly compensate him for any actual damages you find that he sustained as a direct result of the Hospital's conduct in violation of § 1983. Actual damages include the back pay, including compensation and other benefits, that Dr. Bramlet would have earned if the Hospital had granted his applications for medical staff privileges or his request for a practice development loan. This amount consists of the

compensation and other benefits Dr. Bramlet would have received from the Hospital from the date the Hospital denied his applications for medical staff privileges or a practice development loan through the date of this trial. From this amount, you must subtract the total amount of compensation and other benefits that Dr. Bramlet has actually earned during the same time period. If you determine that Dr. Bramlet failed to make reasonable efforts to find other work, or to otherwise mitigate his back pay losses, you must also subtract any amount Dr. Bramlet could reasonably have earned during this period . In determining what amount, if any, to award Dr. Bramlet for damages on his § 1983 claim, you must not consider any evidence which might have been presented at trial on the issue of lost future wages. Any award of damages for lost future wages is an issue which the law leaves to the Court, not the jury. Therefore, you will not be called upon to decide what amount, if any, to award Dr. Bramlet for lost future wages. You may award Dr. Bramlet damages for emotional distress or pain and suffering, if you find that he suffered such damages and that they were directly caused by the Hospital's conduct

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in violation of § 1983. Dr. Bramlet has a duty under the law to "mitigate" his emotional distress or pain and suffering damages--that is, to exercise reasonable diligence under the circumstances to minimize such damages. Therefore, if you find by the preponderance of the evidence that Dr. Bramlet failed to mitigate his emotional distress or pain and suffering damages, you must reduce your award of such damages by the amount he reasonably could have avoided if he had taken reasonable steps to minimize such damages. Remember, throughout your deliberations, you must not engage in any speculation, guess, or conjecture and you must not award any back pay or damages by way of punishment or through sympathy.

Authority: 42 U.S.C. 1983; 42 U.S.C. 2000e-5(g); Civil Rights Act of 1991; 42 U.S.C. 1981a(1) and (2); Gomez v. Martin Marietta Corp., 50 F.3d 1511 (10th Cir. 1995); Berry v. Stevinson Chevrolet, 804 F.Supp. 121 (D.Colo. 1992); 42 U.S.C. 1983. See also, West, Eighth Circuit Manual of Model Jury Instructions, Civ. 5.72; [Federal Jury Practice & Instructions, Pattern & Model Jury Instructions -- Civil Manual of Model Civil Jury Instructions for the District Courts of the Eighth Circuit, 2005 Edition, 5.27A]

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INSTRUCTION NO. ___ [§ 1983 Mitigation of Damages] If you find Dr. Bramlet was injured as a result of conduct by the Hospital in violation of Section 1983, you must determine whether he could have done something to lessen the harm he suffered. The Hospital has the burden to prove by a preponderance of the evidence that Dr. Bramlet could have lessened or reduced the harm done to him and that he failed to do so. If the Hospital establishes by a preponderance of the evidence that Dr. Bramlet could have reduced the harm done to him, but failed to do so, Dr. Bramlet is entitled only to damages sufficient to compensate him for the injury that he would have suffered had he taken appropriate action to lessen or reduce the harm done to him. [Meyers. v. City of Cincinnati, 14 F.3d 1115, 1119 (6th Cir.1994); Fleming v. County of Kane, 898 F.2d 553, 561 (7th Cir.1990).]

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INSTRUCTION N O. ____ FORMATION OF A CONTRACT A contract is an agreement between two or more persons or entities. A contract consists of an offer and an acceptance of that offer, and must be supported by consideration. If any one of these three elements is missing, there is no contract. Each party to the contract must have understood and agreed to the essential terms of the claimed contract. You may conclude that there was an understanding and agreement from the contracting parties' conduct, statements and writings. The essential terms of the contract must be definite and complete enough to allow the parties to know and understand their rights and duties under the claimed contract. If the terms are not certain, there is no contract.

Authority: CJI - Civil 30:2 (4th Ed.)

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INSTRUCTION N O. ____ OFFER--DEFINED An offer is a proposal which by its terms is intended to become binding if the one to whom it is made accepts it. Authority: CJI - Civ. 30:3 (CLE Ed. 2000)

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INSTRUCTION N O. ___ ACCEPTANCE ---DEFINED; MUST BE IN TERMS OF OFFER The acceptance of an offer must be of the identical terms of the offer (and in the manner, if any, specified in the offer), without any changes whatever. If the claimed acceptance changes the offer in any way, it amounts to a counter offer and is not an acceptance which will result in a contract.

Authority: CJI - Civ. 30.4 (CLE Ed. 2000); CJI - Civil 30:4 (4th Ed.)

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INSTRUCTION N O. ___ CONSIDERATION Consideration is a benefit received or something given up as agreed upon between the parties. For a contract to exist, it is necessary that it be supported by consideration. If you find that, in exchange for promises contained in the Hospital's bylaws and credentials policy and procedures manual, Dr. Bramlet agreed to relocate to Aspen, Colorado, and to practice cardiology in Aspen, Colorado, then you must find that there was consideration.

Authority: CJI - Civ. 30:5 (CLE Ed. 2000); CJI - Civil 30:5 (4th Ed.)

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INSTRUCTION N O. ___ MEETING OF THE MINDS For a contract to exist, each party to the contract must have understood and agreed to the essential terms of the claimed contract. That understanding and agreement, if any, may be inferred from the contracting parties' conduct, statements and writings.

Authority: CJI - Civ. 30:6 (CLE Ed. 2000)

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INSTRUCTION N O. ____ CERTAINTY The essential terms of a contract must be sufficiently definite and complete to permit the parties to know and understand their rights and duties under the claimed contract. If they are not, there is no contract.

Authority: CJI - Civ. 30:7 (CLE Ed. 2000)

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INSTRUCTION N O. ___ SUBSTANTIAL PERFORMANCE--DEFINED SATISFACTION OF CONDITIONS PRECEDENT; EXHAU STION OF REMEDIES A party has "substantially performed" or "substantially complied with" the terms of a contract if anything that was changed or not done according to the exact terms of the contract was minor, and the other party received substantially what he or it contracted for. If a party has failed to substantially perform or substantially comply with the terms of the claimed contract, the other party may be relieved of any obligation to perform under the claimed contract. Dr. Bramlet is obligated to pursue and exhaust all of the remedies available to him under the claimed contract. If you find, by a preponderance of the evidence, that Dr. Bramlet failed to pursue and exhaust the remedies available to him under the claimed contract, by withdrawing his application for active medical staff privileges or by not appealing the denial of his application for consulting medical staff privileges, the Hospital may be relieved of any obligation to perform under the claimed contract with regard to Dr. Bramlet's applications for medical staff privileges.

Authority: CJI - Civ. 30:8 (CLE Ed. 2000) (modified)

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INSTRUCTION N O. ___ ORAL OR WRITTEN AMENDMENT OF ORAL OR WRITTEN CONTRACT An oral or written contract may be changed or cancelled by oral or written agreement with the consent of all parties to the contract.

Authority: CJI - Civ. 30:9 (CLE Ed. 2000)

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INSTRUCTION N O. ____ INTERPRETATION BY CONDUCT OF PARTIES The interpretation of a contract by the parties, as shown by their conduct before any dispute arose between them, is one of the best indications of their intent at the time the contract was formed.

Authority: CJI - Civ. 30:11 (CLE Ed. 2000)

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INSTRUCTION N O. ___ DETERMINATION OF PARTIES' INTENT In determining the intent of the parties you may consider their conduct, statements and writings.

Authority: CJI - Civ. 30:12 (CLE Ed. 2000)

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INSTRUCTION N O. ____ IMPOSSIBILITY OF PERFORMANCE--GENERALLY The Hospital is not legally responsible to Dr. Bramlet on his claim of breach of contract if the affirmative defense of impossibility of performance is proved. This defense is proved if you find all of the following: 1. The Hospital's performance of its promise was made impossible as a result of the

exclusive contracts in cardiology awarded to Dr. Gerson and Dr. Cohen, by Dr. Bramlet's failure to join Dr. Cohen's medical practice or another existing medical practice, and/or by Dr. Bramlet's failure to pursue his available remedies under the contract by failing to provide requested documentation, withdrawing his application for active medical staff privileges, and failing to appeal the denial of his application for consulting medical staff privileges; 2. These events could not have been reasonably foreseen by the Hospital at the time

any promises were made; and 3. These events were not caused by the Hospital.

Authority: CJI - Civ. 31:3 (CLE Ed. 2000)

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INSTRUCTION N O. ____ IMPOSSIBILITY OF PERFORMANCE--DEFINED A person's performance of a contract is considered impossible if the contract cannot be performed physically, or without violating the law, or without incurring extreme and unreasonable difficulty, expense, or risk of injury or loss to persons or property.

Authority: CJI - Civ. 31:4 (CLE Ed. 2000)

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INSTRUCTION N O. ___ Waiver or estoppel The Hospital is not legally responsible to Dr. Bramlet on his beach of contract claim if the affirmative defense of waiver or estoppel is proved. This affirmative defense is proved if you find both of the following: 1. By words or conduct, or both, Dr. Bramlet caused the Hospital not to perform its

obligations as required by the claimed contract; and 2. Dr. Bramlet actually knew, or knew there was a substantial likelihood, that his

words or conduct, or both, would have that result.

CJI - Civil 30:23 (4th Ed.)

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INSTRUCTION N O. ____ CONTRACT DAMAG ES If you find in favor of Dr. Bramlet on his breach of contract claim, then you must award him actual or nominal damages. To award actual damages, you must find by a preponderance of the evidence that Dr. Bramlet had actual damages as a result of the breach, and you must determine the amount of those damages. If you find in favor of Dr. Bramlet, but do not find any actual damages, you shall nonetheless award Dr. Bramlet nominal damages in the sum of one dollar. CJI - Civil 30:33 (4th Ed.)

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INSTRUCTION N O. ___ ACTUAL DAMAGES FOR BREACH OF CONTRACT To the extent Dr. Bramlet has proved actual damages, you shall award as actual damages the amount of compensation and benefits Dr. Bramlet would have received under the terms of the contract during the full term of the contract: (1) less any expenses arising from the contract which he did not have to pay because the contract was breached; (2) less any compensation or amount he earned from any replacement employment or other work; and (3) less any compensation or amount he reasonably could have earned from any replacement employment or other work. You may award these damages if you find that they were the natural and probable consequence of the Hospital's breach of the contract and that the Hospital reasonably could have foreseen, at the time the parties entered into the contract, that the damages would probably occur if it breached the contract. If you find in favor of Dr. Bramlet on his breach of contract claim, but do not find any actual damages, you shall nonetheless award him nominal damages in the sum of one dollar. Authority: CJI - Civ. 30:34 (CLE Ed. 2000); CJI - Civil 30:34 (4th Ed.)

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INSTRUCTION NO . _____ BURDEN OF PROOF AND PREPONDERANCE OF EVIDENCE--DEFINED "Burden of proof" means the obligation a party has to prove his or its claims or defenses by a preponderance of the evidence. The party with the burden of proof can use evidence produced by any party to persuade you. When a party has the burden to prove any matter by a preponderance of the evidence, it means that you must be persuaded by the testimony and exhibits that the matter sought to be proved is more probably true than not true. You should base your decision on all of the evidence, regardless of which party presented it. In this case, the plaintiff, Dr. Bramlet, has the burden of proving his age discrimination, § 1983 and breach of contract claims by a preponderance of the evidence. The defendant, the Hospital, has the burden of proving its affirmative defenses by a preponderance of the evidence. If a party meets his or its burden of proof as to any claim or defense, you must accept that claim or defense. If a party fails to meet his or its burden of proof as to any claim or defense or if the evidence weighs so evenly that you are unable to say that there is a preponderance on either side, you must reject that claim or defense.

Authority: K. O'Malley, J. Grenig, & W. Lee, Federal Jury Practice and Instructions, 5th, § 101.41, Civil; CJI-Civ. 3:1 (CLE ed. 2000). .

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INSTRUCTION NO. ____ No Duplicate Recovery of Damages Dr. Bramlet has sued the Hospital for many of the same damages on one or more of his claims for relief. Dr. Bramlet has brought three claims for relief against the Hospital: (1) A claim that the Hospital discriminated against him because of his age, in violation of the ADEA; (2) A claim that the Hospital deprived him of a constitutionally protected property interest or liberty interest, under color of state law, in violation of § 1983; and (3) A claim that the Hospital breached its contract with him. If you find for Dr. Bramlet on more than one claim for relief, you may award him damages only once for the same losses.

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INSTRUCTION NO . _____ NO SPECULATION Any finding of fact you make must be based on probabilities, not possibilities. You should not guess or speculate about any fact. Authority: CJI-Civ. 3:4 (CLE ed. 2000).

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INSTRUCTION NO . _____ DIRECT AND INDIRECT (CIRCUMSTANTIAL) EVIDENCE--DEFINED Evidence may be either direct or circumstantial. Circumstantial evidence is the proof of facts or circumstances from which the existence or nonexistence of other facts may reasonably be inferred. All other evidence is direct evidence. The law makes no distinction between the effect of direct evidence and circumstantial evidence. Authority: CJI-Civ. 3:8 (CLE ed. 2000).

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INSTRUCTION NO . _____ SYMPATHY--PREJUDICE You must not be influenced by sympathy, bias, or prejudice for or against any party in this case. Authority: CJI-Civ. 3:14 (CLE ed. 2000).

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INSTRUCTION NO . _____ EXPERT WITNESSES A witness qualified as an expert by education, training, or experience may state opinions. You should judge expert testimony just as you would judge any other testimony. You may accept it or reject it, in whole or in part. You should give the testimony the importance you think it deserves, considering the witness's qualifications, the reasons for the opinions, and all of the other evidence in the case. Authority: CJI-Civ. 3:15 (CLE ed. 2000).

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INSTRUCTION NO. _____ HIGHLIGHTED EXHIBITS The lawyers have highlighted certain parts of some exhibits. However, it is for you to determine the significance of the highlighted and un-highlighted parts of each exhibit. Authority: CJI-Civ. 3:17 (CLE ed. 2000).

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INSTRUCTION NO. _____ REDACTED EXHIBITS Some exhibits have been "redacted" or, in other words, had some portions deleted or blacked out. You must not assume or try to speculate as to the purpose or content of the redacted information.

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INSTRUCTION NO. ___ DAMAGES INSTRUCTION: PLAINTIFF NOT ENTITLED TO LITIGATION-RELATED STRESS A party cannot recover damages for stress that results from litigation. If you find that Dr. Bramlet's damages are a result of the litigation, wholly or in part, you must not include in your computation any damages that you have determined arise out of the litigation itself, rather than from the underlying facts.

Autho rity: Runiks v. Peterson, 392 P.2d 59 0, 59 0 (Colo. 1 964 ); Pico gna v. B d. Of Education of Cherry H ill, 671 A.2d 103 5, 1036 (N .J. 1996).

De nver:11 530 .1