Free Proposed Jury Instructions - District Court of Colorado - Colorado

Case 1:01-cv-02056-JLK

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No.

01-K-2056

(consolidated with 03-K-1203)

UNITED STATES AVIATION UNDERWRITERS, INC., a New York corporation; PAUL LEADABRAND, an Idaho resident; and JEFLYN AVIATION, INC. dba ACCESS AIR, an Idaho corporation, Plaintiffs, vs. PILATUS BUSINESS AIRCRAFT, LTD., a Colorado corporation; PILATUS FLUGZEUGWERKE AKTIENGESELLSCHAFT, a Swiss corporation; PILATUS AIRCRAFT, LTD., a Swiss corporation; PRATT & WHITNEY CANADA, INC., a Canadian corporation; and DOES 1 through 500, Inclusive, Defendants.

JOINT PROPOSED JURY INSTRUCTIONS AND JURY VERDICT FORMS

USAU v. Pilatus

Proposed Jury Instructions
Access Air 0NR/WO Lg24153/20061109b

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TABLE OF CONTENTS Section 1.0 Section 2.0 Section 3.0 Section 4.0 Section 5.0 General Instructions Instructions for Use During Trial Substantive Instructions Final Instructions Jury Verdict Form(s)

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Section 1.0 General Instructions

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Plaintiffs X

Pratt & Whitney

Pilatus

Stipulated

INSTRUCTION NO. 1.1 Description of the Case In order to help you understand this case, I will give you a brief summary of the claims and defenses. This lawsuit has been brought by the plaintiffs. According to the plaintiffs, a single-engine airplane was flying off the eastern coast of Russia when the pilot heard unusual sounds coming from the airplane's engine. The pilot elected to shut down the engine. When the engine would not restart, the pilot made an emergency landing in the water. The pilot and his three passengers exited the aircraft, and got into a floating life raft. After floating in the ocean for about fifteen hours, the pilot and passengers were rescued by a passing ship. Although no one suffered any serious personal injuries during the incident, the airplane itself sank to the bottom of the ocean, and it has never been recovered. There are three plaintiffs in this lawsuit. Plaintiff Jeflyn Aviation, Inc. d/b/a Access Air is the company that leased and operated the airplane. This company will be called "Access Air." Access Air presented a claim to its insurance company for the loss of the airplane, and that claim was paid by plaintiff United States Aviation Underwriters, Inc., a company I will call "USAU." Access Air and USAU seek to recover damages for the loss of the airplane. The third plaintiff is Mr. Paul Leadabrand, an owner and employee of Access Air. Mr. Leadabrand seeks to recover damages for the loss of his own personal property that was on the airplane when it sank, and other expenses he incurred as a result of the incident. The three plaintiffs ­ USAU, Access Air, and Mr. Leadabrand ­ have sued three different companies, who are known as the defendants.

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The first defendant is Pratt & Whitney Canada, Inc., a Canadian company I will refer to as "Pratt & Whitney." The second defendant is Pilatus Aircraft Ltd., a Swiss company that will be called "Pilatus Switzerland." Finally, the third defendant is Pilatus Business Aircraft, Ltd., a Colorado company that I will call "Pilatus Colorado." The plaintiffs say that the airplane and its engine were defective and unreasonably dangerous. All three of the defendants deny these allegations. Source or authority: Court's approved general stock instruction no. 1.1.

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DEFENDANTS' COUNTER PROPOSED INSTRUCTION In order to help you understand this case, I will give you a brief summary of the claims and defenses. This lawsuit has been brought by the plaintiffs. According to the plaintiffs, a single-engine airplane was flying off the eastern coast of Russia when the pilot heard unusual sounds coming from the airplane's engine. The pilot elected to shut down the engine and made an emergency landing in the water. The pilot and his three passengers exited the aircraft, and got into a floating life raft. After floating in the ocean for about fifteen hours, the pilot and passengers were rescued by a passing ship. Although no one suffered any serious personal injuries during the incident, the airplane has never been recovered. There are three plaintiffs in this lawsuit. Plaintiff Jeflyn Aviation, Inc. d/b/a Access Air is the company that leased and operated the airplane. This company will be called "Access Air." Access Air presented a claim to its insurance company for the loss of the airplane, and that claim was paid by plaintiff United States Aviation Underwriters, Inc., a company I will call "USAU." Access Air and USAU seek to recover damages for the loss of the airplane. The third plaintiff is Mr. Paul Leadabrand, a former owner and employee of Access Air. Mr. Leadabrand seeks to recover damages for the loss of his own personal property that was on the airplane when it sank, and other expenses he incurred as a result of the incident. The three plaintiffs, USAU, Access Air, and Mr. Leadabrand, have sued three different companies, who are known as the defendants. The first defendant is Pratt & Whitney Canada, Inc., a Canadian company I will refer to as "Pratt & Whitney." The second defendant is Pilatus Aircraft Ltd., a Swiss company and the third defendant is Pilatus Business Aircraft, Ltd., a Colorado company. The two Pilatus companies will jointly be referred to as "Pilatus." -6Access Air 0NR/WO Lg24153/20061109b

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The plaintiffs say that the airplane and its engine were defective and unreasonably dangerous. All three of the defendants deny these allegations.

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PLAINTIFFS' REPLY Plaintiffs object to this proposed counter instruction. The Court's order and its memo entitled "Submission of Proposed Jury Instructions" specifies that defendants were required to exchange proposed jury instructions no later than November 2, 2006. Plaintiffs complied with this order by providing defendants with plaintiffs' proposed instructions in advance of the meeting of counsel on October 23, 2006. The defendants did not comply with the Court's order. These instructions, and all other instructions proposed by defendants, were not provided to plaintiffs' counsel until after 3:30 p.m. Denver time on November 9, 2006, only minutes before the jury instructions were to be filed with the Court. This was the first and only time the defendants' proposed instructions were ever provided to plaintiffs' counsel. Because the defendants did not comply with the Court's order, plaintiffs have not had time to formulate a response and objection to this proposed counter instruction. The parties are working diligently to resolve these issues, and expect to have amended responses filed on Monday, November 13, 20006.

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Plaintiffs

Pratt & Whitney

Pilatus

Stipulated X

INSTRUCTION NO. 1.2 Description of the Case

The plaintiffs and defendants have agreed to the following facts: 1. The airplane was a model PC-12/45, serial number 356, registration number N660NR. 2. The airplane was designed by Pilatus Switzerland which manufactured it in Switzerland in 2000. 3. The airplane was manufactured with a single model PT6A-67B engine, serial number PCE-PR0217. 4. The engine was designed and manufactured by Pratt & Whitney which sold the engine to Pilatus Switzerland. 5. 6. 7. 8. Pilatus Switzerland installed the engine in the airplane. Pilatus Switzerland sold the airplane to Pilatus Colorado in 2000. Pilatus Colorado is a wholly-owned subsidiary of Pilatus Switzerland. Pilatus Colorado sold the airplane to Western Aircraft in December 2000. Western Aircraft, a company located in Boise, Idaho, is not a party to this lawsuit. -9Access Air 0NR/WO Lg24153/20061109b

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9.

Western Aircraft sold the airplane to DJS Aviation, LLC in December 2000. DJS Aviation, a company located in Boise, Idaho, is not a party to this lawsuit.

10.

DJS Aviation leased the airplane to Access Air, a company located in Boise, Idaho, in December, 2000.

11. 12. 13.

The incident occurred on July 8, 2001. At the time of the incident, the aircraft was owned by DJS Aviation, LLC. At the time of the incident, the aircraft was insured under a policy of insurance issued by plaintiff United States Aviation Underwriters, Inc., which provided coverage for any damage to or the loss of the aircraft.

14.

At the time of the incident, the airplane was flown by pilot Mike Smith, an employee of Access Air acting in the course and scope of his employment. Mr. Smith is not a party to this lawsuit.

15.

At the time of the incident, there were three passengers on board, Mr. Katsuyoshi Ida, Mr. Ari Yamagata and Ms. Haruko Kikukawa. These three passengers, who all reside in Japan, are not parties to this lawsuit.

16.

At the time of the incident, the airplane had less than 400 hours of total flight time.

17.

At the time of the incident, the reasonable fair market value of the airplane was $3.1 million ($3,100,000.00.) - 10 Access Air 0NR/WO Lg24153/20061109b

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18.

After the incident, plaintiff United States Aviation Underwriters, Inc. paid Access Air and DJS Aviation the full agreed amount for the loss of the aircraft. DJS Aviation received the full amount of this payment as the owner of the aircraft.

19. 20.

The airplane was never recovered. Pratt & Whitney is engaged in the business of designing, manufacturing, assembling, testing, and selling airplane engines.

21.

Pilatus Switzerland is engaged in the business of designing, manufacturing, assembling, testing, and selling airplanes.

22.

Pilatus Colorado is engaged in the business of selling airplanes manufactured by Pilatus Switzerland.

23.

The airplane and engine were expected to reach plaintiffs without substantial change in the condition in which they were designed, manufactured, assembled, tested, and sold.

24.

The airplane and engine did reach plaintiffs without substantial change in the condition in which they were designed, manufactured, assembled, tested, and sold.

25.

Plaintiffs are persons reasonably expected to use or be affected by the airplane and engine.

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26.

The Federal Aviation Administration, usually called the FAA, issues regulations called Federal Aviation Regulations or FARs that prescribe safety standards that all manufacturers, pilots and operators are required by law to comply with.

27.

Certain FARs are applicable to the design, manufacture and testing of aircraft such as the PC-12/45 and its engine.

28.

Before an aircraft such as the PC-12/45 may be sold in the U.S., the aircraft and engine manufacturers must be issued Type Certificates and the specific aircraft must be issued an Airworthiness Certificate.

29.

An aircraft or engine manufacturer is entitled to a Type Certificate if the FAA finds upon examination of the aircraft or engine design that the design complies with all applicable FARs and that no feature or characteristic makes the aircraft or engine unsafe.

30.

An aircraft may be issued an Airworthiness Certificate if the FAA finds that the aircraft conforms to its approved design including the engine's approved design and is in condition for safe operation.

31.

Pilatus Switzerland is the holder of a Type Certificate for the PC-12/45 issued by the FAA.

32.

Pratt and Whitney is the holder of a Type Certificate for the PT6A-67B engine issued by the FAA.

33.

Just prior to reaching the plaintiffs, the subject PC-12/45 including its engine was issued an Airworthiness Certificate. - 12 Access Air 0NR/WO Lg24153/20061109b

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34.

At the time the airplane was manufactured and sold, it was required to comply with FARs 14 C.F.R. §§ 23.903(e)(3), 23.1581(a), 23.1583(h), 23.1583(m), 23.1585(a)(4) and 23.1585(j).

This agreement makes the presentation of any evidence to prove these facts unnecessary. The agreement means that you must accept these facts as true. Source or authority: Colorado Jury Instructions, 4th - Civil, 1:11

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Plaintiffs

Pratt & Whitney

Pilatus

Stipulated X

INSTRUCTION NO. 1.3 Equality of Parties All persons are equal before the law regardless of race, national origin, citizenship, or even whether the party is a corporation. I tell you that all parties are equal before the law to remind you that you must base any decision in this case on the law and facts, not outside factors such as race, national origin, citizenship, or corporate status.

Source or authority: Court's approved general stock instructions.

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Plaintiffs

Pratt & Whitney

Pilatus

Stipulated X

INSTRUCTION NO. 1.4 Multiple Defendants Although there are three defendants in this action, it does not follow from that fact alone that if one defendant is liable, then all defendants are liable. Each defendant is entitled to a fair consideration of the evidence. None of the defendants are to be prejudiced should you find against the other defendants. Unless otherwise stated, all instructions I give you govern the case as to each defendant. At the conclusion of all of the evidence, you will be asked to consider and reach separate verdicts for all three defendants: Pratt & Whitney; Pilatus Switzerland; and Pilatus Colorado.

Source or authority: Court's approved general stock instructions.

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Plaintiffs

Pratt & Whitney X

Pilatus X

Stipulated

INSTRUCTION NO. 1.5 Employer and Employee, Insurer and Insured

Mike Smith was an employee of the plaintiff Access Air at and before the time of this occurrence. Therefore, any act or omission of the employee was in law the act or omission of the plaintiff Access Air. Plaintiff Access Air was an insured of plaintiff USAU and was fully compensated for any loss it incurred. Therefore, any act or omission of plaintiff Access Air or its employee Mike Smith was in law the act or omission of the plaintiff USAU. Source or Authority: Colorado Jury Instructions 8:2

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PLAINTIFFS' OBJECTION Plaintiffs object to this proposed jury instruction. The Court's order and its memo entitled "Submission of Proposed Jury Instructions" specifies that defendants were required to exchange proposed jury instructions no later than November 2, 2006. Plaintiffs complied with this order by providing defendants with plaintiffs' proposed instructions in advance of the meeting of counsel on October 23, 2006. The defendants did not comply with the Court's order. These instructions, and all other instructions proposed by defendants, were not provided to plaintiffs' counsel until after 3:30 p.m. Denver time on November 9, 2006, only minutes before the jury instructions were to be filed with the Court. This was the first and only time the defendants' proposed instructions were ever provided to plaintiffs' counsel. Because the defendants did not comply with the Court's order, plaintiffs have not had time to formulate a response and objection to this proposed instruction. The parties are working diligently to resolve these issues, and expect to have amended responses filed on Monday, November 13, 20006.

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Plaintiffs

Pratt & Whitney

Pilatus

Stipulated X

INSTRUCTION NO. 1.6 Status of a Corporation All persons are equal before the law. A corporation is considered by the law to be a person. Corporations are entitled to the same fair and conscientious consideration by you as any physical person. Corporations can act only through their officers and employees. Any act or omission of an officer or employee while acting within the scope of his or her employment or authority is the act or omission of the corporation. Source or authority: Court's approved general stock instructions.

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Plaintiffs

Pratt & Whitney

Pilatus

Stipulated X

INSTRUCTION NO. 1.7 Knowledge of a Corporation Knowledge of, or notice to, a corporation's director, officer, or employee received while he or she is acting within the scope of his or her authority, is the knowledge of, or notice to, the corporation. Source or authority: Court's approved general stock instructions.

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Plaintiffs

Pratt & Whitney

Pilatus

Stipulated X

INSTRUCTION NO. 1.8 Evidence ­ General It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judges of the facts. You will hear the evidence, decide what the facts are, and then apply those facts to the law I give you. That is how you will reach your verdict. In doing so, you must follow the law whether you agree with it or not. At no time during the trial will I suggest what I think your verdict should be nor do I want you to guess or speculate about my views of what verdict you should render. You will decide what the facts are from the evidence that the parties will present to you during the trial. That evidence will consist of the sworn testimony of witnesses on both direct and cross-examination, regardless of who called the witness; documents and other things received into evidence as exhibits; and any facts on which the lawyers agree or which I may instruct you to accept as true. The following things are not evidence and you must not consider them as evidence in deciding the facts of this case:

1.

Statements and arguments by lawyers are not evidence. The lawyers are not witnesses. What they say in their opening statements, closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of the facts controls.

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2.

Questions and objections by the lawyers are not evidence. Lawyers have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by my ruling on it.

3.

Testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered.

4.

Anything you may see or hear when the Court is not in session is not evidence, even if what you see or hear is done or said by one of the parties or by one of the witnesses.

You are to consider only the evidence in the case. But in your consideration of the evidence, you are not limited solely to what you see and hear as the witnesses testify. You are permitted to draw, from facts that you find have been proved, such reasonable inferences as seem justified in the light of your experience. Inferences are inductions or conclusions your reason and common sense lead you to draw from the facts established by the evidence in the case. Source or authority: Court's approved general stock instruction no. 1.3.

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Plaintiffs

Pratt & Whitney

Pilatus

Stipulated X

INSTRUCTION NO. 1.9 Evidence ­ Direct and Circumstantial Evidence can be either direct or circumstantial. Direct evidence is testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is indirect evidence; that is, it is proof of one or more facts from which one can find that another fact exists or is true. You should consider both kinds of evidence in deciding this case. It is for you to decide how much weight to give to any evidence, direct or circumstantial. The rules of evidence control the facts you may consider. When one lawyer asks a question or offers an exhibit and an opposing lawyer thinks that it is not permitted by the rules of evidence, the opposing lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered and the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer might have been.

Sometimes I may order that evidence be stricken from the record and that you disregard or ignore such evidence. That means that when you are deciding the case, you must not consider the evidence that I told you to disregard. Source or authority: Court's approved general stock instruction no. 1.4.

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Plaintiffs

Pratt & Whitney

Pilatus

Stipulated X

INSTRUCTION NO. 1.10 Inference--Constructive Knowledge Based on Duty to Inquire You must find that a person knew a fact, if he had information that would have led a reasonable person to inquire further and that inquiry would have revealed that fact.

Source or authority: Colorado Jury Instructions, 4th - Civil, 3:6

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Plaintiffs

Pratt & Whitney

Pilatus

Stipulated X

INSTRUCTION NO. 1.11 Filing of Lawsuit and Pleadings The fact that a claimant files a lawsuit is not evidence that the other party did anything wrong. The fact that a claimant complains that he has been damaged is not evidence that he has been damaged or that the other party violated the law. You cannot say, "Well, there must be something wrong here or the case would not be in court." This would be improper. By the same reasoning, the fact that an answer to the complaint has been filed is not evidence that the other party has not been damaged or that the answering party did not violate the law. The filing of a lawsuit and the pleading, including the complaint and the answer, are merely the mechanisms by which the case is brought to court for you to decide. Source or authority: Court's approved general stock instruction no. 1.5.

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Plaintiffs

Pratt & Whitney

Pilatus

Stipulated X

INSTRUCTION NO. 1.12 Credibility of Witnesses In deciding the facts of this case, you will have to decide which witnesses to believe and which witnesses not to believe. You may believe everything a witness says, only part of it, or none of it. In considering the testimony of any witness, you may consider: 1. The witness's opportunity and ability to see or hear or know the things to which the witness testified; 2. The quality of the witness's memory; 3. The witness's manner while taking the oath and while testifying; 4. Whether the witness had an interest in the outcome of the case or any motive, bias or prejudice; 5. Whether the witness's testimony is contradicted by anything the witness said or did at another time, by the testimony of other witnesses, or by other evidence; 6. How reasonable the witness's testimony was in light of all the evidence; and, 7. Any other facts that bear on believability. The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify to that fact. If you believe a witness has willfully - 25 Access Air 0NR/WO Lg24153/20061109b

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lied regarding any material fact, you have the right to disregard all or any part of that witness's testimony. Source or authority: Court's approved general stock instruction no. 1.6.

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Plaintiffs

Pratt & Whitney

Pilatus

Stipulated X

INSTRUCTION NO. 1.13 Single Witness The testimony of a single witness that produces in your minds belief in the likelihood of truth is sufficient for the proof of any fact, and would justify a verdict in accordance with such testimony, even though a number of witnesses may have testified to the contrary, if, after consideration of all the evidence in the case, you hold greater belief in the accuracy and reliability of the one witness. Source or authority: Court's approved general stock instruction no. 1.7.

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Plaintiffs

Pratt & Whitney

Pilatus

Stipulated X

INSTRUCTION NO. 1.14 Preponderance Not Determined by Number of Witnesses

The weight of evidence is not necessarily determined by the number of witnesses testifying to a particular fact.

Source or authority: Colorado Jury Instructions, 4th - Civil, 3:11

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Plaintiffs

Pratt & Whitney

Pilatus

Stipulated X

INSTRUCTION NO. 1.15 Burden of Proof This is a civil case. Therefore, the plaintiffs have the burden of proving their claims by what is called a preponderance of the evidence. That means that no matter who produces the evidence, when you consider each of plaintiffs' claims in light of all the facts, you believe that claim is more likely true than not true. To put it differently, if you were to put all of the evidence in favor of plaintiffs and all of the evidence in favor of defendants on opposite sides of the scales, plaintiffs would have to make the scale tip to their side. If plaintiffs fail to meet this burden on any of their claims, your verdict on that claim must be for defendants. In defense to one or more of plaintiffs' claims, defendants have asserted affirmative defenses, which will be described to you more fully later. An affirmative defense is more than a denial of the claim. In terms of applying the burden of proof, you should treat defendant's' affirmative defenses in the same way you treat plaintiffs' claims. That is, defendants, as the asserting parties, have the burden of proving that the affirmative defense is more likely true than not true. In evaluating whether plaintiffs and defendants have met their respective burdens on their claims and defenses, you should also know that the law does not require parties to call as witnesses all persons who may have been present at any time or place involved in the case, or who may appear to have some knowledge of the matter in issue at this trial. Nor does the law require parties to produce as exhibits all papers or other things mentioned in the evidence in the case. Source or authority: Court's approved general stock instruction no. 1.8.

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Plaintiffs

Pratt & Whitney

Pilatus

Stipulated X

INSTRUCTION NO. 1.16 Juror Conduct Your conduct as jurors is of the utmost importance. First, do not talk with one another about this case or about anyone who has anything to do with it until the end of the case when you go the jury room to decide on your verdict. Second, do not talk with anyone else about this case or about anyone who has anything to do with it until the trial has ended and you have been discharged as jurors. "Anyone else" includes members of your family and your friends. You may tell them that you are a juror in a case and that I have ordered you not to tell them anything else about it until the case is over. Third, do not let anyone talk to you about the case or about anyone who has anything to do with it. If someone tries to talk to you, please report it to me immediately. Fourth, do not read any news stories or articles or listen to any radio or television reports about the case or about anyone who has anything to do with the case. Fifth, do not do any research, such as consulting dictionaries or other reference materials, and do not make any investigation about the case on your own. Sixth, do not make up your mind about what the verdict should be until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence. Keep an open mind until then. Seventh, each of you will have one or more notebooks containing the names of the witnesses and copies of exhibits. You are free to take notes in order to enhance your memory or assist you in recollecting during your deliberations. I caution you, however, not to become a slave to your notes. It is most important that you observe - 30 Access Air 0NR/WO Lg24153/20061109b

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the witnesses and listen to their testimony. Your note taking should merely assist you. Source or authority: Court's approved general stock instruction no. 1.9.

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Plaintiffs

Pratt & Whitney

Pilatus

Stipulated X

INSTRUCTION NO. 1.17 Outline of Trial The next phase of the trial will now begin. First, each side may make an opening statement. An opening statement is not evidence. It is simply an outline to help you understand what that party expects the evidence will show. A party is not required to make an opening statement. The plaintiff will then present evidence, and counsel for the defendant may cross-examine. Then the defendant may present evidence, and counsel for the plaintiff may cross-examine. After the evidence has been presented, the attorneys will make closing arguments and I will instruct you on the law that applies to the case. After that, you will go to the jury room to deliberate on your verdict. Source or authority: U.S. Ninth Circuit Court of Appeals Manual of Model Civil Jury Instructions, No. 1.12.

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Plaintiffs

Pratt & Whitney

Pilatus

Stipulated X

INSTRUCTION NO. 1.18 Evidence ­ NO SPECULATION

Any finding of fact you make must be based on probabilities, not possibilities. You should not guess or speculate about a fact. Source or Authority: Colorado Jury Instructions 3:4

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Section 2.0 Instructions for Use During Trial

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Plaintiffs

Pratt & Whitney

Pilatus

Stipulated X

INSTRUCTION NO. 2.1 Use of Interrogatories of a Party. Evidence is now to be presented to you in the form of answers of one of the parties to written interrogatories submitted by the other side. These answers have been given in writing and under oath, before the actual trial, in response to questions which were submitted in writing under established court procedures. The answers are entitled to the same consideration and are to be judged as to credibility and weight, and otherwise considered by you insofar as possible, as if the answers were made from the witness stand. Source or authority: U.S. Ninth Circuit Court of Appeals Manual of Model Civil Jury Instructions, No. 2.13.

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Pilatus

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INSTRUCTION NO. 2.2 Consideration of Deposition Testimony

A deposition is testimony taken under oath before the trial and preserved in writing or on videotape. Deposition testimony can be read into evidence or shown by videotape. You are to give the same consideration to deposition testimony as to live testimony presented here in the courtroom. That is, you are to judge the credibility of the witness and determine the weight to be given to the testimony to the best of your ability under the circumstances, as if the witness had been before you on the witness stand when he or she made the statement under oath.

Source or authority: Court's approved general stock instruction no. 2.1.

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INSTRUCTION NO. 2.3 Opinion Evidence and Expert Witnesses

You will hear opinion evidence from people described as experts. People who by knowledge, skill, experience, training or education, have become expert in some field may state their opinions on matters in that field and may also state the reasons for their opinions. Expert opinion testimony should be judged just like any other testimony. You may accept it or reject it and give it as much weight as you think it deserves, considering the witness' education and experience, the reasons given for the opinions, and all of the other factors that you consider when determining the credibility of the other witnesses. Experts generally rely upon some assumptions in developing their opinions. These assumptions are likewise subject to your evaluation and should be considered along with the rest of the evidence. In resolving the conflict in the testimony of expert witnesses, you should weigh the opinion of one expert against that of another. In doing this, you should consider the qualifications and believability of each witness, the reasons for each opinion and the matter upon which it is based. Source or authority: Court's approved general stock instruction no. 2.2.

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INSTRUCTION NO. 2.4 Charts, Summaries and Graphic Materials

A number of charts, summaries and other graphic materials will be shown to you in order to help explain the facts and documents in evidence in the case. However, such charts, summaries and materials are not in and of themselves evidence or proof of any facts. If such materials do not correctly reflect facts or figures shown by the evidence in the case, you should disregard them. Source or authority: Court's approved general stock instruction no. 2.3.

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INSTRUCTION NO. 2.5 Highlighted Exhibits

The lawyers have highlighted certain parts of some exhibits. However, it is for you to determine the significance of the highlighted parts.

Source or authority: Colorado Jury Instructions, 4th - Civil, 3:17

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Section 3.0 Substantive Instructions

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INSTRUCTION NO. 3.1 Nature of Plaintiff's Claim

The plaintiffs' claim in this case is known as a "product liability" claim. To understand the nature of this claim, you need to know that the plaintiffs allege that both of the products (the airplane and the engine) were in a defective and unreasonably dangerous condition when they were designed, manufactured and sold, and that those defective and unreasonably dangerous products were a cause of the incident. There are specific elements that must be proved with regard to this claim. I will now tell you more about those elements.

Source or authority: Court's approved general stock instruction no. 3.1.

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INSTRUCTION NO. 3.2 Elements of Liability For plaintiffs to recover from any of the defendants on their claim of sale of a defective product, you must find all of the following have been proved by a preponderance of the evidence as to each defendant: 1. The airplane or engine was in a defective condition unreasonably

dangerous to plaintiffs or plaintiffs' property; 2. The airplane or engine was defective at the time it was manufactured,

constructed, assembled, installed, tested, or sold by the defendants or left defendants' custody or control; 3. 4. Plaintiffs had damages or losses; The defect was a cause of plaintiffs' damages or losses.

Source or authority: Order, 9/29/06 (Doc. 88), fn. 6; Colorado Jury Instructions, 4th Civil, 14:1

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DEFENDANTS' COUNTER PROPOSED INSTRUCTION For plaintiffs to recover from any of the defendants on their claim of sale of a defective product, you must find all of the following have been proved by a preponderance of the evidence as to each defendant: 1. The airplane or engine was defective and because of the defect the airplane or engine was unreasonably dangerous to plaintiffs' property; 2. The airplane or engine was defective at the time it was sold by the defendants or left defendants' custody or control; 3. Plaintiffs had damages; 4. The defect in the airplane or engine was a cause of plaintiffs' damages. If you find that any one or more of these four statements has not been proved, then your verdict must be for the defendants. On the other hand, if you find that all of these four statements have been proved, then you must consider the defendant's affirmative defense of misuse. If you find that this affirmative defense has been proved by a preponderance of the evidence, then your verdict must be for the defendant. Source or authority: Order, 9/29/06 (Doc. 88), fn. 6; Colorado Jury Instructions, 4th Civil, 14:1

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PLAINTIFFS' REPLY Plaintiffs object to this proposed counter instruction. The Court's order and its memo entitled "Submission of Proposed Jury Instructions" specifies that defendants were required to exchange proposed jury instructions no later than November 2, 2006. Plaintiffs complied with this order by providing defendants with plaintiffs' proposed instructions in advance of the meeting of counsel on October 23, 2006. The defendants did not comply with the Court's order. These instructions, and all other instructions proposed by defendants, were not provided to plaintiffs' counsel until after 3:30 p.m. Denver time on November 9, 2006, only minutes before the jury instructions were to be filed with the Court. This was the first and only time the defendants' proposed instructions were ever provided to plaintiffs' counsel. Because the defendants did not comply with the Court's order, plaintiffs have not had time to formulate a response and objection to this proposed counter instruction. The parties are working diligently to resolve these issues, and expect to have amended responses filed on Monday, November 13, 20006.

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INSTRUCTION NO. 3.3 "Manufacturer" Defined

Pratt & Whitney was a manufacturer of the engine. Pilatus Switzerland was a manufacturer of the airplane and the engine. Pilatus Colorado was a manufacturer of the airplane and the engine.

Source or authority: Colorado Jury Instructions, 4th - Civil, 14:2; C.R.S. § 13-21-401(1).

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DEFENDANTS' OBJECTION This instruction is only to be used where there is a factual dispute over who is a manufacturer. It is repetitive and has been stipulated to.

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PLAINTIFFS' REPLY This instruction is necessary because defendant Pilatus Colorado contends (erroneously) that it is not a manufacturer of the airplane and engine, but only an "innocent seller."

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INSTRUCTION NO. 3.4 Seller's Liability

If you find that all of the elements of this claim for strict product liability have been proved, then your verdict must be for the plaintiffs even though the defendants may have exercised all possible care in the preparation and sale of the products, and even though the plaintiffs did not buy the products from the defendants or enter into any contractual relations with the defendants. Source or authority: Rest. (Second) Torts § 402A.

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DEFENDANTS' OBJECTION This instruction is unnecessary and confusing. The elements of strict product liability are well laid out and so are the admonitions to the jury to stick to the elements.

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PLAINTIFFS' REPLY This instruction is a correct statement of Colorado law, and is necessary to prevent the jury from mistakenly believing that the defendants' cannot be liable in the absence of negligent conduct.

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INSTRUCTION NO. 3.5 Defective, Unreasonably Dangerous--Defined

A product is unreasonably dangerous because of a defect in its design if it creates a risk of harm to persons or property that would not ordinarily be expected. A product is defective in its design, even if it is manufactured and performs exactly as intended, if any aspect of its design makes the product unreasonably dangerous. Source or authority: Colorado Jury Instructions, 4th - Civil, 14:3

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INSTRUCTION NO. 3.6 Warnings and Instructions

A product not otherwise defective becomes defective and unreasonably dangerous if adequate warnings or instructions for use are not provided. To be adequate, the warnings or instructions for use must inform the ordinary user of any specific risk of harm that may be involved in any intended or reasonably expected use or any failure to properly follow instructions when using the product for any intended or reasonably expected use. In this case, a pilot is an ordinary user of the airplane and engine. Source or authority: Colorado Jury Instructions, 4th - Civil, 14:4

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DEFENDANTS' COUNTER PROPOSED INSTRUCTION A product not otherwise defective in its design becomes defective and unreasonably dangerous if adequate warnings or instructions for use are not provided. To be adequate, the warnings or instructions for use must inform the ordinary user of any specific risk of harm that may be involved in any intended or reasonably expected use or any failure to properly follow instructions when using the product for any intended or reasonably expected use. However, if a specific risk of harm would be apparent to an ordinary user from the product itself, a warning of or instructions concerning that specific risk of harm is not required.

Source or authority: Colorado Jury Instructions, 4th - Civil, 14:4

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PLAINTIFFS' REPLY The defendants' proposed counter instruction adds a reference to risks that are known to the user. This proposed counter instruction is improper here, because there is no claim and no evidence to suggest that the pilot knew or should have known of the risks of harm involved in this case.

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INSTRUCTION NO. 3.7 AFFIRMATIVE DEFENSE -- MISUSE OF PRODUCT A manufacturer of a product is not legally responsible for damages caused by a product if: 1. 2. 3. The product was used in a manner or for a purpose other than that The unintended use could not reasonably have been expected by the The unintended use, rather than a defect, if any, in the product caused which was intended; manufacturer; and the plaintiff's claimed damages. If you find that all of these three statements have been proved, then your verdict must be for the manufacturer. On the other hand, if you find that any of these three statements has not been proved, you may still consider whether plaintiff's use of the product constitutes comparative fault, as that term is defined in these instructions. Source or authority: Colorado Jury Instructions, 4th - Civil, 14:27

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INSTRUCTION NO. 3.8 Governmental Standards

The United States Code of Federal Regulations states: "It must be possible to restart an engine in flight. Any techniques and associated limitations must be established and included in the Airplane Flight Manual, approved manual material, or applicable operating placards." Source or authority: 14 C.F.R. § 23.903(e)(3)

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DEFENDANTS' OBJECTION This regulation is taken out of context. If it is to be used, it must include the regulations, orders, advisory circulars and instructions on how it is applied in the design approval process.

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PLAINTIFFS' REPLY The parties have stipulated that this regulation applies to the products, and the jury will be asked to decide if the products complied with this regulation. This instruction accurately states the law and the applicable regulation. The jury cannot decide if a regulation has been violated without knowing what the regulation says. If the defendants have some additional contextual instruction to offer, they must say so. To date, they have not. There is no issue in this case as to whether the FAA was negligent in the design approval process, so there is no corresponding need for an instruction on how the regulation is applied in the design approval process.

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INSTRUCTION NO. 3.9 Governmental Standards

The United States Code of Federal Regulations states: "An Airplane Flight Manual must be furnished with each airplane, and it must contain ... Other information that is necessary for safe operation because of design, operating, or handling characteristics, [and] Further information necessary to comply with the relevant operating rules." Source or authority: 14 C.F.R. § 23.1581(a)

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DEFENDANTS' OBJECTION This regulation is taken out of context. If it is to be used, it must include the regulations, orders, advisory circulars and instructions on how it is applied in the design approval process.

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PLAINTIFFS' REPLY The parties have stipulated that this regulation applies to the products, and the jury will be asked to decide if the products complied with this regulation. This instruction accurately states the law and the applicable regulation. The jury cannot decide if a regulation has been violated without knowing what the regulation says. If the defendants have some additional contextual instruction to offer, they must say so. To date, they have not. There is no issue in this case as to whether the FAA was negligent in the design approval process, so there is no corresponding need for an instruction on how the regulation is applied in the design approval process.

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INSTRUCTION NO. 3.10 Governmental Standards

The United States Code of Federal Regulations states: "The Airplane Flight Manual must contain ... A list of the kinds of operation to which the airplane is limited or from which it is prohibited ..." Source or authority: 14 C.F.R. § 23.1583(h)

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DEFENDANTS' OBJECTION This regulation is taken out of context. If it is to be used, it must include the regulations, orders, advisory circulars and instructions on how it is applied in the design approval process.

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PLAINTIFFS' REPLY The parties have stipulated that this regulation applies to the products, and the jury will be asked to decide if the products complied with this regulation. This instruction accurately states the law and the applicable regulation. The jury cannot decide if a regulation has been violated without knowing what the regulation says. If the defendants have some additional contextual instruction to offer, they must say so. To date, they have not. There is no issue in this case as to whether the FAA was negligent in the design approval process, so there is no corresponding need for an instruction on how the regulation is applied in the design approval process.

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INSTRUCTION NO. 3.11 Governmental Standards

The United States Code of Federal Regulations states: "The Airplane Flight Manual must contain ... Any limitations on the use of airplane systems and equipment." Source or authority: 14 C.F.R. § 23.1583(m)

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DEFENDANTS' OBJECTION This regulation is taken out of context. If it is to be used, it must include the regulations, orders, advisory circulars and instructions on how it is applied in the design approval process.

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PLAINTIFFS' REPLY The parties have stipulated that this regulation applies to the products, and the jury will be asked to decide if the products complied with this regulation. This instruction accurately states the law and the applicable regulation. The jury cannot decide if a regulation has been violated without knowing what the regulation says. If the defendants have some additional contextual instruction to offer, they must say so. To date, they have not. There is no issue in this case as to whether the FAA was negligent in the design approval process, so there is no corresponding need for an instruction on how the regulation is applied in the design approval process.

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INSTRUCTION NO. 3.12 Governmental Standards

The United States Code of Federal Regulations states: "For all airplanes, information concerning ... emergency procedures and other pertinent information necessary for safe operation and the achievement of the scheduled performance must be furnished, including-- ... Procedures for restarting any turbine engine in flight" Source or authority: 14 C.F.R. § 23.1585(a)(4)

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DEFENDANTS' OBJECTION This regulation is taken out of context. If it is to be used, it must include the regulations, orders, advisory circulars and instructions on how it is applied in the design approval process.

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PLAINTIFFS' REPLY The parties have stipulated that this regulation applies to the products, and the jury will be asked to decide if the products complied with this regulation. This instruction accurately states the law and the applicable regulation. The jury cannot decide if a regulation has been violated without knowing what the regulation says. If the defendants have some additional contextual instruction to offer, they must say so. To date, they have not. There is no issue in this case as to whether the FAA was negligent in the design approval process, so there is no corresponding need for an instruction on how the regulation is applied in the design approval process.

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INSTRUCTION NO. 3.13 Governmental Standards

The United States Code of Federal Regulations states: "Procedures for the safe operation of the airplane's systems and equipment, both in normal use and in the event of malfunction, must be furnished." Source or authority: 14 C.F.R. § 23.1585(j)

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DEFENDANTS' OBJECTION This regulation is taken out of context. If it is to be used, it must include the regulations, orders, advisory circulars and instructions on how it is applied in the design approval process.

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PLAINTIFFS' REPLY The parties have stipulated that this regulation applies to the products, and the jury will be asked to decide if the products complied with this regulation. This instruction accurately states the law and the applicable regulation. The jury cannot decide if a regulation has been violated without knowing what the regulation says. If the defendants have some additional contextual instruction to offer, they must say so. To date, they have not. There is no issue in this case as to whether the FAA was negligent in the design approval process, so there is no corresponding need for an instruction on how the regulation is applied in the design approval process.

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Pilatus

Stipulated

INSTRUCTION NO. 3.14 Presumptions--Noncompliance with Governmental Standards

"Presumptions" are legal rules based on experience or public policy. They are established in the law to assist the jury in ascertaining the truth. In this case, if you find that at the time the defendants sold the products, (1) the products did not comply with one or more applicable regulations of the United States, and (2) that the lack of compliance was a cause of the plaintiffs' claimed damages or losses, then the law presumes that the products were defective. You must consider this presumption together with all the other evidence in the case in deciding whether the products were defective. Source or authority: Colorado Jury Instructions, 4th - Civil, 14:5

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DEFENDANTS' PROPOSED COUNTER INSTRUCTION "Presumptions" are legal rules based on experience or public policy. They are established in the law to assist the jury in ascertaining the truth. In this case, if you find that at the time Pilatus sold the airplane, (1) the airplane did not comply with any applicable regulation of the United States, and (2) that the lack of compliance was a cause of the plaintiffs' claimed damages or losses, then the law presumes that the airplane was defective. Or In this case, if you find that at the time the Pilatus sold the airplane, the airplane did comply with all applicable regulations of the United States, then the law presumes that the airplane was not defective. In this case, if you find that at the time Pratt & Whitney sold the engine, (1) the engine did not comply with any applicable regulations of the United States, and (2) that the lack of compliance was a cause of the plaintiffs' claimed damages or losses, then the law presumes that the engine was defective. Or In this case, if you find that at the time the Pratt & Whitney sold the engine, the engine did comply with all applicable regulations of the United States, then the law presumes that the engine was not defective. You must consider this presumption together with all the other evidence in the case in deciding whether the products were defective. Source or authority: Colorado Jury Instructions, 4th - Civil, 14:5

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PLAINTIFFS' REPLY The defendants' proposed counter instruction should not be given because there are no specific regulations that have been identified (or that exist) that would support the presumption described in defendants' instruction. The Notes on Use to instruction 14:5 states that "the instruction should only be given when that code, standard or regulation specifically relates to the claimed defect. If the code, standard or regulation is of a general nature that does not deal with the specific nature of the claimed defect, this instruction should not be given."

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Plaintiffs

Pratt & Whitney X

Pilatus X

Stipulated

INSTRUCTION NO. 3.15 NEGLIGENCE PER SE At the time of the occurrence in question in this case, the following Federal Aviation Regulations were in effect: A flight for compensation or hire may not be operated outside the geographical area for which the operator is specifically authorized by the Federal Aviation Administration. A flight for compensation or hire may not be operated over water beyond gliding distance of land in case of an engine failure. A violation of these regulations constitutes negligence or fault. If you find such a violation you may only consider the negligence or fault of Access Air for violating these regulations if you also find that such violations were causes of the claimed damages. Source or authority: Colorado Jury Instruction 9:14; 14 CFR § 119.5(j), 14 CFR § 135.183, Colorado Flying Academy, Inc., v. The United States of America, 506 F.Supp. 1221 (1981)

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PLAINTIFFS' OBJECTION The defendants' proposed instruction should not be given because the defendants have not met their burden of proving to the Court that that this flight was operating under Part 135 (a necessary condition precedent to the application of these regulations.) To date, the defendants have not met their burden. In addition, there is no evidence in this case that any violation of these regulations was a cause of any damages, and there is no evidence that the defendants are within the class of persons the regulations are intended to protect. These regulations were not intended to protect airplane and engine manufacturers. The Notes on Use to instruction 9:14 state that "This instruction should not be given unless (1) one of the purposes of the statute or ordinance was to protect against the type of injuries or losses the plaintiff sustained, and (2) the plaintiff was a member of the group of persons the statute or ordinance was intended to protect." "This instruction does not apply when the ordinance or statute is construed as only imposing an obligation for the benefit of the public at large, rather than for individuals, as members of the public." "Nor should this instruction be given unless there is sufficient evidence that the conduct was in violation of the relevant statute or ordinance as construed by the court, and that such violation was a proximate cause of the damages being claimed."

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Stipulated

INSTRUCTION NO. 3.16 Cause When Only One Cause Is Alleged--Defined

The word "cause" as used in these instructions means an act or failure to act which in natural and probable sequence produced the claimed damages or losses. It is a cause without which the claimed damages or losses would not have happened.

Source or authority: Colorado Jury Instructions, 4th - Civil, 9:18

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DEFENDANTS' OBJECTION This instruction is inappropriate where 9:20 is given.

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PLAINTIFFS' REPLY Instruction 9:20 should not be given in this case because it is inapplicable to the facts. Therefore, this instruction is appropriate.

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Plaintiffs

Pratt & Whitney X

Pilatus X

Stipulated

INSTRUCTION NO. 3.17 CAUSE -- CONCURRENT CAUSES -- INTERVENING CAUSES

The word "cause" as used in these instructions means an act or failure to act that in natural and probable sequence produced the claimed injury. It is a cause without which the claimed injury would not have happened. If more than one act or failure to act contributed to the claimed injury, then each act or failure to act may have been a cause of the injury. A cause does not have to be the only cause or the last or nearest cause. It is enough if the act or failure to act joins in a natural and probable way with some other act or failure to act to cause some or all of the claimed injury. (One's conduct is not a cause of another's injuries, however, if, in order to bring about such injuries, it was necessary that his or her conduct combine or join with an intervening cause that also contributed to cause the injuries. An intervening cause is a cause that would not have been reasonably foreseen by a reasonably careful person under the same or similar circumstances.) Source or authority: Colorado Jury Instructions, 4th - Civil, 9:20

- 82 Access Air 0NR/WO Lg24153/20061109b

Case 1:01-cv-02056-JLK

Document 93

Filed 11/09/2006

Page 83 of 142

PLAINTIFFS' OBJECTION
Plaintiffs object to this proposed jury instruction. The Court's order and its memo entitled "Submission of Proposed Jury Instructions" specifies that defendants were required to exchange proposed jury instructions no later than November 2, 2006. Plaintiffs complied with this order by providing defendants with plaintiffs' proposed instructions in advance of the meeting of counsel on October 23, 2006. The defendants did not comply with the Court's order. These instructions, and all other instructions proposed by defendants, were not provided to plaintiffs' counsel until after 3:30 p.m. Denver time on November 9, 2006, only minutes before the jury instructions were to be filed with the Court. This was the first and only time the defendants' proposed instructions were ever provided to plaintiffs' counsel. Because the defendants did not comply with the Court's order, plaintiffs have not had time to formulate a response and objection to this proposed instruction. The parties are working diligently to resolve these issues, and expect to have amended responses filed on Monday, November 13, 20006.

- 83 Access Air 0NR/WO Lg24153/20061109b

Case 1:01-cv-02056-JLK

Document 93

Filed 11/09/2006

Page 84 of 142

Plaintiffs X

Pratt & Whitney

Pilatus

Stipulated

INSTRUCTION NO. 3.18 Concurrent Causes (Excluding Designated Nonparty Fault Cases)

More than one defective product may be responsible for causing damages or losses. If you find that one of the products