Free Proposed Jury Instructions - District Court of Colorado - Colorado

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INSTRUCTION NO. _____ [Plaintiff's 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 ADEA claim, Dr. Bramlet contends that he applied for and was qualified for a position as an employee and cardiologist with Aspen Valley Hospital. Dr. Bramlet asserts that Aspen Valley Hospital's decision not to hire him was motivated, at least in part, by his age and that his age was a determinative factor in AVH's decision. As a result, Dr. Bramlet suffered damages. Dr. Bramlet asserts that AVH's 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 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

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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 AVH decided not to hire him based on false information and that AVH either made that false information public, resulting in a stigmatizing effect in the community, or that the false information had a stigmatizing effect such that he was denied other employment opportunities based upon it. As a result, Dr. Bramlet 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 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.

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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, non-discriminatory 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

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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 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

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(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 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.

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

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INSTRUCTION NO. ______ [Plaintiff's ADEA definition] It shall be unlawful for an employer to fail or refuse to hire an individual because of such individual's age.

Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§622, 623(a), 631 (1997).

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INSTRUCTION NO. ___ [Plaintiff's ADEA definition] Under the Age Discrimination in Employment Act, it is unlawful for an employer to make an employment decision on the basis of an individual's age when that individual is 40 years of age or older.

Draft Model Jury Instructions (Civil) Eighth Circuit § 5.11 (2004)

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INSTRUCTION NO. ______ [Plaintiff's ADEA elements] In order to prevail on his claim that AVH discriminated against him, on the basis of his age, under the ADEA, Plaintiff must prove all of the following are more likely than not: 1. The plaintiff, Dr. Bramlet, was not hired as an employee at Aspen Valley Hospital; 2. Dr. Bramlet was 40 years of age or older at the time Defendant, Aspen Valley Hospital, refused to hire him; and 3. Dr. Bramlet's age was a motivating factor in the Hospital's decision not to hire him.

Model Jury Instructions (Civil) Ninth Circuit §12.1.1 (1997), Draft Model Jury Instructions (Civil)Eighth Circuit § 5.01 (2004)

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INSTRUCTION NO. ______ [Plaintiff's "employer" definition] An "employee" is "an individual employed by an employer." In determining whether the position Plaintiff applied for was one of an "employee" of AVH and protected by the ADEA, you must consider AVH's right to control the manner and means by which the employment is accomplished. Among other factors relevant to this inquiry are: 1. The kind of occupation at issue, with reference to whether a specialist usually performs the work, without supervision; 2. 3. The skill required in the particular occupation; Whether the employer or the employee furnished the equipment used and the place of work; 4. 5. 6. 7. 8. 9. 10. 11. The length of time the individual was to work in the position, The method of payment; The manner in which the work relationship could be terminated; Whether annual leave is afforded; Whether the work is an integral part of the business of the employer; Whether the worker accumulates retirement benefits; Whether the employer pays social security taxes; and The intention of the parties.

If you find that the position as a cardiologist with AVH would not have made Dr. Bramlet an "employee" of AVH, your verdict must be for AVH on the ADEA claim. However, if you find that Dr. Bramlet would have been an "employee," you need to

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consider whether Dr. Bramlet has proven the other elements of the ADEA discrimination claim by a preponderance of the evidence. Lambertsen v. Utah Dep't of Corrections, 79 F.3d 1024, 1028 (10th Cir. 1996).

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JURY INSTRUCTION NO. ______ [Plaintiff's discriminatory animus] A plaintiff may raise an inference of discriminatory animus under the ADEA by offering evidence, either directly or indirectly, comparing himself to similarly situated individuals not protected under the ADEA, who are treated more favorably or, by offering evidence of remarks that are:

1. 2. 3.

Age-related, Proximate in time to the employment decision at issue, Made by an individual with authority over the employment decision at issue, and Related to the employment decision at issue.

4.

Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996)(citing Turner v. North American Rubber, Inc., 979 F.2d 55, 59 (5th Cir. 1992), Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992).

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INSTRUCTION NO. ______ If you find that Defendant discriminated against Plaintiff on the basis of age, then you should further decide whether Defendant's violation of the ADEA was willful. If you find that the violation was willful, the court will award Plaintiff additional money damages. In order to recover this extra award, Plaintiff must prove by a preponderance of the evidence that Defendant's violation was willful. A violation is willful if Defendant either knew or showed reckless disregard for the matter of whether its conduct was legal. A violation is willful if it is done intentionally and deliberately instead of by accident, inadvertence, or ordinary negligence. Since willful discrimination is seldom admitted, you may consider any statements made, any acts done or omitted, and all of the evidence submitted to determine whether Defendant willfully violated the ADEA. It is not necessary to find direct evidence of intent to discriminate in order to find that the violation was willful.

Nelson v. J.C. Penney Co., Inc., 858 F. Supp. 914 (N.D. Iowa 1994); Kelly v. Matlack, Inc., 1989 U.S. Dist. Lexis 5865 (E.D. Pa. May 25, 1989).

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INSTRUCTION NO. ___ [Plaintiff's 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. 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.) The Fourteenth

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INSTRUCTION NO. ___ [Plaintiff's 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.

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JURY INSTRUCTION NO. ______ [Plaintiff's Procedural Due Process, Denial of a Property or Liberty Interest] In order to prevail on his claim that AVH violated the Civil Rights Act of 1871, plaintiff must prove the following three elements are more likely than not:

1. 2. 3.

That defendant, under color of state law, Deprived plaintiff, Dr. Bramlet, of a property or liberty interest In a manner that was arbitrary, capricious or without rational basis

Hennigh v. City of Shawnee, 155 F.3d 1249, 1256 (10th Cir. 1998), Archuleta v. Colorado Dept. Of Institutions, 936 F. 2d 483, 490 (10th Cir. 1991).

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INSTRUCTION NO. ______ [Plaintiff's §1983 Protected Property Interest] To establish a valid claim for deprivation of due process under §1983, plaintiff must establish a property interest that is more than an abstract need or desire for it; instead, plaintiff must have a legitimate claim of entitlement to the property interest. In determining whether policies, practices or protocols create a property right, the existence of a property right largely depends upon the extent to which governing policies of an institution contain mandatory language restricting the discretion of the decision maker regarding the benefit at issue. Here Plaintiff asserts that the policies of AVH established at least one of the following protected property rights: 1. The right to have his application for privileges granted or denied based on the criteria set forth by the Hospital's bylaws, rules, regulations and; 2. The right to have his application for privileges granted or denied in a timely and good faith manner; 3. The right to have his request for a practice loan granted or denied based on the practices and procedures applied to other applicants; 4. The right not to have his application for privileges granted or denied based on his age; 5. The right to have his application for the cardiologist position considered according the hospital's policies; 6. The right to have his application for privileges granted or denied based on the practices and procedures applied to other applicants.

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Gomez v. Toledo, 446 U.S. 635, 640 (1980); Pfenniger v. Exempla, Inc., 116 F.Supp. 2d 1184, 1195 (D. Colo. 2000)

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INSTRUCTION NO. ______ [Plaintiff's §1983 Protected Liberty Interest] To prove he was deprived of a protected liberty interest in violation of the Fourteenth Amendment, Plaintiff must prove that (1) he was not hired based on a reason that was false, publicized and stigmatizing to his standing or reputation in the community, or (2) he was not hired for a reason that was false and had a stigmatizing effect such that he was denied other employment opportunities as a result.

Cabrol v. Town of Youngsville, 106 F.3d 101, 107 (5th Cir. 1997); Quinn v. Shirey, 293 F.3d 315, 320 (6th Cir. 2002).

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INSTRUCTION NO. _______ [Plaintiff's § 1983 Procedural Due Process] A denial of a property or liberty interest is a deprivation made in an "arbitrary and capricious" manner if the denial is such a substantial departure from accepted professional norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.

Regents of the University of Michigan v. Ewing, 474 U.S. 214, 225 (1985).

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INSTRUCTION NO. ___ [Plaintiff's §1983: Substantive Due Process -- Property Interest] To prove that the Hospital deprived him of a constitutionally protected property interest in being granted medical staff privileges at the Hospital and in being granted a practice development loan by the Hospital, Dr. Bramlet must prove all of the following elements by a preponderance of the evidence: 1. That he had a constitutionally protected property interest in being granted

medical staff privileges at the Hospital or in being granted a practice development loan by the Hospital; 2. That the Hospital had no discretion to deny his application for medical

staff privileges or his request for a practice development loan; and 3. That the Hospital deprived him of his constitutional right to medical staff

privileges at the Hospital by denying his application for medical staff privileges, or deprived him of his constitutional right to a practice development loan by denying his request for a practice development loan.

Authority: 42 U.S.C. §1983; 3B Federal Jury Practice & Instructions, Civil, §168.80 (5th Ed.)

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JURY INSTRUCTION NO. ______ (Plaintiff's Procedural Due Process) In order to prevail on his claim that AVH violated the Civil Rights Act of 1871, plaintiff must prove the following three elements are more likely than not:

1. 2. 3.

That defendant, under color of state law, Deprived plaintiff, Dr. Bramlet, of a property or liberty interest In a manner that was arbitrary, capricious or without rational basis

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INSTRUCTION NO. ____ [Plaintiff's Color of Law] Acts are done under color of law for purposes of Plaintiff's §1983 claim, when a person acts or purports to act in the performance of official duties under the bylaws or policies regulating a special district. The court has found that Defendant acted under color of law.

Adapted from Model Jury Instructions (Civil) Ninth Circuit §11.1.1 (1997).

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INSTRUCTION NO. ______ [Plaintiff's Breach of Contract] For the plaintiff, Dr. Bramlet, to recover from the defendant, Aspen Valley Hospital District, on his claim of breach of contract based on AVH's denial of one or more of his applications for privileges, you must find all of the following have been proved by a preponderance of the evidence: 1. The defendant had policies and procedures, including bylaws, in effect at

the time plaintiff was denied practice privileges by the defendant; 2 physicians; 3. The defendant demonstrated to prospective physicians a willingness to be The policies set forth procedures regarding the credentialing of

bound by such policies and procedures; 4. Plaintiff was aware of the existence of the policies and procedures before

the hospital denied his applications for privileges; 5. Plaintiff reasonably understood that the defendant was offering the

policies and procedures as part of the terms and conditions of plaintiff's application for privileges, and, with that understanding, plaintiff applied for privileges at the hospital; 6. The defendant denied plaintiff's applications for privileges without

complying with its policies and procedures 7. Until such denial, plaintiff substantially performed his part of the contract.

If you find that any of these statements has not been proved, then your verdict must be for the defendant. On the other hand, if you find that all of these statements have been proved, then your verdict must be for the plaintiff.

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Colorado Jury Instructions 31:4 (2005), modified.

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JURY INSTRUCTION NO. _____ [Plaintiff's Breach of Contract] For the plaintiff, Dr. Bramlet, to recover from the defendant, Aspen Valley Hospital District, on his claim of breach of contract for denial of his application for a practice loan, you must find all of the following have been proved by a preponderance of the evidence: 1. The defendant had policies and procedures, including bylaws, in effect at

the time plaintiff was denied a practice loan; 2 3. The policies and procedures set forth criteria for granting practice loans; The defendant demonstrated to prospective physicians a willingness to be

bound by such policies and procedures; 4. Plaintiff was aware of the existence of the policies and procedures before

the hospital denied his applications for a practice loan; 5. Plaintiff reasonably understood that the defendant was offering the

policies and procedures as part of the terms and conditions of plaintiff's application for a practice loan, and, with that understanding, plaintiff applied for a practice loan; 6. The defendant denied plaintiff's applications for a practice loan without

complying with its policies and procedures 7. Until the denial of plaintiff's application for a practice loan, plaintiff

performed his part of the contract. If you find that any of these statements has not been proved, then your verdict must be for the defendant.

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On the other hand, if you find that all of these statements have been proved, then your verdict must be for the plaintiff.

Colorado Jury Instructions 31:4 (2005), modified.

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INSTRUCTION NO. ____ [Plaintiff's Impracticability] Impracticability of performance is a legal justification or excuse for nonperformance of a contractual obligation. If you find that performance of an element of a contract is impracticable, you may still find that the party has still substantially performed on the contract. Central Kansas Credit Union v. Mutual Guarantee Corp., 102 F.3d 1097, 1192 (10th Cir. 1996), (citing Restatement (Second) of Contracts § 26 (1981).

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INSTRUCTION NO. ______ [Plaintiff's Employer's policies and procedures] Under Colorado law, when an employer promulgates procedures and standards concerning employment, such procedures can constitute an enforceable contract.

Continental Airlines, Inc. v. Keenan, 731 P.2d 708, 711 (Colo. 1987).

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INSTRUCTION NO._____ [Plaintiff's Damages Instruction] In this case, Plaintiff is seeking money damages. It is Plaintiff's burden to prove by a preponderance of the evidence that he actually suffered damages and that such damages were directly caused by Defendant. If you find for Plaintiff on his ADEA and/or § 1983 claims, then you must award him such sum as you determine by a fair preponderance of the evidence will fairly and justly compensate him for any actual damage you find he sustained as a direct result of AVH's conduct. You must consider what is commonly referred to as "backpay." This is the amount of any compensation Plaintiff would have earned from the date AVH failed to hire him to the date of trial. If you determine that Plaintiff would have left his employment with Defendant before this trial, you should only award back damages from the date of the failure to hire to the date you determine Plaintiff would have voluntarily left. You should also reduce your award of backpay by the amount of any earnings and benefits that Plaintiff received from other employment during the time from the date of the failure to hire until the date of trial. If Defendant proves that Plaintiff failed to make reasonable efforts to try to find a job of similar nature, status and pay, then you should reduce your award of backpay by the amount you determine Plaintiff could have earned had he properly searched for new employment. Additionally, an award for compensatory damages for emotional suffering is permitted in a §1983 case. To recover damages for emotional distress, the plaintiff is

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required to convince the trier of fact that he actually suffered distress because of the denial of due process itself. Distress arising from this lawsuit, or legal expenses incurred in this lawsuit must also not be included in these damages. You must determine instead what other loss, if any, Plaintiff has suffered or will suffer in the future caused by any age discrimination that you find Defendant has committed under the instructions I have given you. We call these compensatory damages. You may award compensatory damages for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other noneconomic losses if you determine that Plaintiff has proven, by a preponderance of the evidence, that he has experienced any of these consequences as a result of age discrimination. No evidence of the monetary value of intangible things like emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other noneconomic losses is available and there is no standard I can give you for fixing any compensation to be awarded for these injuries. Even though it is obviously difficult to establish a standard of measurement for these damages, that difficulty is not grounds for denying a recovery on this element of damages. You must, therefore, make the best and most reasonable estimate you can, not from a personal point of view, but from a fair and impartial point of view, of the amount of emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other noneconomic losses you find that Plaintiff has undergone and can probably be expected to suffer in the future as a result of Defendant's conduct. And you must place a money value on this, attempting to come to a conclusion that will be fair and just to both of the parties. This will be difficult for you to measure in terms of dollars and cents, but there is no other rule I can give you for assessing this element of damages.

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If you find in favor of the plaintiff, Dr. Bramlet, on his claim of breach of contract, then you must award him actual or nominal damages. To award actual damages, you must find by a preponderance of the evidence that the plaintiff had actual damages as a result of the breach, and you must determine the amount of those damages. If you find in favor of the plaintiff on his claim for breach of contract, but do not find any actual damages, you shall nonetheless award the plaintiff nominal damages in the sum of one dollar. On Plaintiff's claim for breach of contract, actual damages are the amount you conclude would put Dr. Bramlet in the same position he would be in if the defendant had not breached the contract. You may award actual damages on the contract claim if you find that they were a natural and probable consequence of the defendant's breach of contract and the defendant reasonably could have foreseen at the time the parties entered into the contract that the damages would probably occur if it breached the contract.

Model Jury Instructions (Civil) Eighth Circuit 5.27A (2005), Carey v. Piphus, 435 U.S. 247, 263 (1978), Wilson v. Monarch Paper Co., 939 F.2d 1138 (5th Cir. 1991); Ray v. Iuka Special Muni. Separate School Dist., 51 F.3d 1246 (5th Cir. 1995), Proposed Civil Pattern Jury Instructions ­ Employment Discrimination (Disparate Treatment), Judge Hornby, United States District Court, District of Maine, §7.1 (2004), C.J.I. 30:33, 30:34.

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