Free Proposed Jury Instructions - District Court of Colorado - Colorado

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 1 of 46

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00560-OES-BNB

GEORGE M. BULL, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Defendant.

DEFENDANT'S TENDERED JURY INSTRUCTIONS AND SPECIAL VERDICT FORMS (WITHOUT CITES)

Defendant requests that the attached instructions, in addition to the general or standard instructions, be given to the jury. UNION PACIFIC RAILROAD COMPANY By s/Mark C. Hansen________ MARK C. HANSEN Union Pacific Railroad Company 1331 17th Street, Suite 406 Denver, CO 80202 (303)964-4583 Donald C. Sinclair II Sinclair Kelly Jackson Reinhart & Hayden, LLC 501 Corporate Drive, Suite 200 Canonsburg, PA 15317 (724) 873-8660 Attorneys for the Defendant UNION PACIFIC RAILROAD COMPANY

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 2 of 46

INSTRUCTION NO. ___ You have heard some testimony concerning the Plaintiff having pain in his neck, upper back, and cervical spine. I have previously ruled that as a matter of law, Plaintiff has no claim against the Defendant for any injuries to his neck, upper back, and cervical spine, either due to the cumulative claim or the alleged injury of February 28, 2003. If you find for the Plaintiff, you cannot award Plaintiff any damages based upon the condition of his neck, upper back, and cervical spine. This includes damages for pain and suffering and loss of enjoyment of life.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 3 of 46

INSTRUCTION NO. ___ The positions of the parties can be summarized as follows: Plaintiff George Bull claims an acute injury to his back arising out of a February 28, 2003, incident wherein he was thrown about the cab of a rough riding locomotive. Plaintiff further claims that Union Pacific locomotive #6263 was defective, violated the Locomotive Inspection Act, was negligently maintained, and was negligently used in a lead position. These are career ending injuries, and Plaintiff is seeking lost wages and future loss of earning capacity, in addition to general damages. Plaintiff also claims cumulative trauma injuries to his back caused by a career of operating rough riding Union Pacific locomotives with poorly maintained and inadequate seats over poorly maintained track. This Court granted summary judgment on those neck injuries

suffered by Plaintiff prior to March 23, 2001, and to those neck injury claims which the proofs show to be mere temporary aggravations of these preexisting injuries, and not new injuries. Union Pacific denies that there was any injury causing accident on February 28, 2003. Union Pacific affirmatively states that it fulfilled its legal duties to the Plaintiff at the time of this claimed incident and, therefore, was not negligent, did not violate the Locomotive Inspection Act and did not violate any other Federal statutes or regulations. The Defendant further claims that the Plaintiff's injuries, damages and losses, if any, which arose after the February 28, 2003 incident was caused by pre-existing non-work related medical conditions. With regard to Plaintiff's cumulative trauma claim,

Defendant denies that it was negligent, denies that it violated the Locomotive Inspection

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 4 of 46

Act and denies that it violated any Federal statutes or regulations. Defendant further contends that Plaintiff's cumulative trauma claim may be barred by the three year statute of limitations under the FELA. With regard to both claims, Defendant contends that Plaintiff was contributorily negligent and that Plaintiff's injuries, if any, were an aggravation of a pre-existing condition. With regard to both claims Defendant

affirmatively asserts that Plaintiff failed to mitigate his damages by failing to take advantage of the vocational rehabilitation opportunities which Defendant offered to Plaintiff, by geographically limiting his job prospects, and by failing to undergo treatment as recommended by his doctors. On January 13, 2005, Defendant filed Motion for Summary Judgment on the statute of limitations with regard to the neck, upper back and cervical spine injuries sustained by Plaintiff as a result of a work related incident which occurred on February 9, 1987. Since the day of this incident Plaintiff has had pain in his neck, upper back and cervical spine. Plaintiff admitted that any claims arising out of the February 9, 1987 incident are time barred. However, Plaintiff argued that he sustained new injuries to his neck, upper back and cervical spine in late 2001 or early 2002 as a result of cumulative trauma at work and that he sustained an additional new injury to his neck, upper back and cervical spine as a result of the alleged February 28, 2003 rough ride at Medicine Bow, Wyoming. The Court granted Defendant's Motion for Summary Judgment with regard to all injuries sustained as a result of the February 9, 1987 incident and any subsequent aggravation of the injuries sustained in the February 9, 1987 incident. Plaintiff's treating physicians will testify that the alleged cumulative trauma and whole

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 5 of 46

body vibration and the alleged rough ride at Medicine Bow, Wyoming, merely aggravated the previous injury to Plaintiff's upper back, neck and cervical spine. As such, Plaintiff is barred from asserting any claim for injury or pain in his upper back, neck or cervical spine by the Statute of Limitations and the Court's Order Granting Defendant's Motion for Summary Judgment on the Statute of Limitations.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 6 of 46

INSTRUCTION NO. ___ After all the evidence has been heard and arguments and instructions are finished, you will meet to make your decision. You will determine the facts from all the testimony and other evidence that is presented. You are the sole and exclusive judge of the facts. I must stress that you are required to accept the rules of law that I give you, whether or not you agree with them.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 7 of 46

INSTRUCTION NO. ___ In order to prove the essential elements of Plaintiff's claim against Defendant under the FELA, the burden is on Plaintiff to establish, by a preponderance of the evidence in the case, the following facts: First: That Defendant was negligent in one or more of the particulars alleged; and Second: That Defendant's negligence caused or contributed, whole or in part, to some injury and consequent damage sustained by Plaintiff.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 8 of 46

INSTRUCTION NO. ___ Plaintiff has the burden in a civil action, such as this, to provide every essential element of Plaintiff's claim by a preponderance of the evidence. If Plaintiff should fail to establish any essential element of Plaintiff's claim by a preponderance of the evidence, you should find for Defendant as to that claim. The Defendant has the burden of establishing every essential element of its affirmative defenses. "Establish by a preponderance of the evidence" means to prove that something is more likely so than not so. In other words, a preponderance of the evidence means evidence as, when considered and compared with the evidence opposed to it, has more convincing force, and produces in your minds belief that what is sought to be proved is more likely true than not true. This standard does not require proof to an absolute certainty, since proof to an absolute certainty is seldom possible in any case. In determining whether any fact in issue has been proved by a preponderance of the evidence you may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them. You may have heard of the term "proof beyond a reasonable doubt." That is a stricter standard that applies in criminal cases. It does not apply in civil cases such as this. You should, therefore, put it out of your minds.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 9 of 46

INSTRUCTION NO. ___ If you should find: (1) that Defendant was not negligent; or (2) that Defendant was negligent, but such negligence was not a cause of injury or damage sustained by Plaintiff, then your verdict should be for Defendant.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 10 of 46

INSTRUCTION NO. ___ "Negligence" is the doing of some act that a reasonably prudent person would not do, or the failure to do something that a reasonably prudent person would do when prompted by considerations that ordinarily regulate the conduct of human affairs. It is the failure to use ordinary care under the circumstances in the management of one's person or property. The definition of "negligence" under FELA requires Defendant to guard against those risks or dangers of which it knew or by the exercise of due care should have known. In other words, Defendant's duty is measured by what a reasonably prudent person would anticipate or foresee resulting from particular circumstances. In determining whether Defendant knew or through the exercise of reasonable care, should have known of a particular risk or danger, you may consider: First, any evidence presented concerning any knowledge of Defendant or its supervisors or agents; Second, any evidence presented concerning whether the risk was brought to the attention of Defendant, its supervisors or agents, by such means as statements, complaints or protests that a particular condition or assignment was dangerous; and Third, whether a reasonably prudent person would have performed inspections that would have brought the dangerous condition to Defendant's attention or otherwise would have known of the condition. If you find by a preponderance of the evidence that a reasonably prudent person would have taken reasonable precautions against the risk based on such actual

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 11 of 46

knowledge, statements, complaints, or protests, or reasonable inspection, and you find that Defendant failed to take such reasonable precautions, then you may find that Defendant was negligent.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 12 of 46

INSTRUCTION NO. ___ The mere fact that an accident happened, standing alone, does not permit the jury to draw the inference that the accident was caused by anyone's negligence.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 13 of 46

INSTRUCTION NO. ___ In addition to denying that any negligence of the Defendant caused injury or damage to the Plaintiff, Defendant alleges, as a further defense, that some contributory negligence on the part of Plaintiff was a cause of any injuries and damages Plaintiff may have sustained. Contributory negligence is fault on the part of a person injured, which cooperates in some degree with the negligence of another, and so helps to bring about the injury. By the defense of contributory negligence, Defendant in effect, alleges that, even though Defendant may have been guilty of some negligent act or omission, which was a cause of Plaintiff's injuries, Plaintiff, by his own failure to use ordinary care under the circumstances for his own safety, at the time and place in question, also caused any injuries and damages Plaintiff may have suffered. The burden is on Defendant to establish by a preponderance of the evidence that Plaintiff was also at fault, and that such fault contributed to the injuries and damages Plaintiff may have sustained.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 14 of 46

INSTRUCTION NO. ___ If you find for Plaintiff but also find that Plaintiff's own negligence was a cause of Plaintiff's injury, you must specify the percentage of negligence you attribute to Plaintiff.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 15 of 46

INSTRUCTION NO. ___ You have been instructed as to how Plaintiff's contributory negligence may limit the right to recover damages. However, it should be noted that, in certain

circumstances, the Plaintiff's own negligence may be a complete bar to recovery for example, if you find that Plaintiff was guilty of negligence, and that Plaintiff's negligence was the sole cause of his injury, then you must return your verdict in favor of the Defendant.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 16 of 46

INSTRUCTION NO. ___ For purposes of this action, damage is said to be caused or contributed by an act or failure to act when it appears from a preponderance of the evidence in the case that the act or omission played any part, no matter how small, in bringing about or actually causing the injury or damage. So if you should find from the evidence in the case that any negligence of Defendant contributed in any way toward any injury or damage suffered by Plaintiff you may find that such injury or damage was caused by Defendant's act or omission. In addition, if you should find from the evidence in the case that any negligence of the Plaintiff contributed in any way toward any in jury or damages suffered by Plaintiff you may find that such injury or damage was caused by Plaintiff's act or omission. Stated another way, an act or omission is the cause of injury or damage if the injury or damage would not have happened but for the act or omission, even though the act or omission combined with other causes. This does not mean that the law recognizes only one cause of an injury or damage, consisting of only one factor or thing, or the conduct of only one person. On the contrary, many factors or things, or the conduct of two or more persons, may operate at the same time, either independently or together, to cause injury or damage. In such a case, each may be a cause for the purpose of determining liability.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 17 of 46

INSTRUCTION NO. ___ If you find in favor of Plaintiff, then you must award Plaintiff such sum as you find by the preponderance of the evidence will fairly and justly compensate Plaintiff for any damages you find Plaintiff sustained and is reasonably certain to sustain in the future as a direct result of the occurrence described in the evidence. You should consider the following elements of damages: 1. The physical pain and mental and emotional suffering Plaintiff has

experienced and is reasonably certain to experience in the future; 2. permanent; 3. The earnings Plaintiff has lost to date and the present value of earnings The nature and extent of Plaintiff's injury whether the injury is temporary or

Plaintiff is reasonably certain to lose in the future. Remember, throughout your deliberations you must not engage in any speculation, guess, or conjecture and you must not award any damages by way of punishment or through sympathy. You may not include in your award any sum for court costs or attorney fees. If you assess a percentage of negligence to Plaintiff, do not diminish the total amount of damages by the percentage of negligence you assess to Plaintiff. I will do this where appropriate.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 18 of 46

INSTRUCTION NO. ___ It is the duty of any person who has been injured to use reasonable diligence and reasonable means under the circumstances, in order to prevent the aggravation of such injuries and to effect a recovery from such injuries. If you should find that Defendant has proved that Plaintiff, within the limitations of any disability the Plaintiff may have sustained, failed to seek out or take advantage of a business or employment opportunity that was reasonably available to Plaintiff under all the circumstances shown by the evidence, then you should reduce the amount of the Plaintiff's damages by the amount Plaintiff could have reasonably realized if Plaintiff had taken advantage of such opportunity.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 19 of 46

INSTRUCTION NO. ___ If you find for Plaintiff you should compensate Plaintiff for any aggravation of an existing disease or physical defect or activation of any such latent condition, resulting from such injury. If you find that there was such an aggravation, you should determine, what portion of Plaintiff's condition resulted from the aggravation and make allowance in your verdict only for the aggravation. However, if you cannot make that determination or if it cannot be said that Plaintiff's condition would have existed apart from the injury, you should consider and make allowance in your verdict for the entire condition.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 20 of 46

INSTRUCTION NO. ___ You are not to award damages for any injury or condition from which Plaintiff may have suffered, or may now be suffering, unless it has been established by a preponderance of the evidence in the case that such injury or condition was caused by the accident in question.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 21 of 46

INSTRUCTION NO. ___ The issues to be determined by you are as follows: First: Did the Plaintiff know, or in the exercise of reasonable care, should the Plaintiff have known, prior to March 24, 2001, that over the course of his employment with the Defendant he had suffered an injury to his low back and that it was workrelated? If your unanimous answer to that question is "Yes," you will sign the Special Verdict Form A and tell the Bailiff that you have reached a verdict. unanimous answer is "No," then you have a second question, namely: Second: Was Defendant negligent over the course of Plaintiff's employment with the Defendant? If your answer to Question No. 2 is "Yes," then you will answer Question No. 3. If your answer to Question No. 2 is "No," you will skip Question No. 3 and go to Question No. 4. Third: Did the negligence of Defendant over the course of Plaintiff's employment with Defendant cause or contribute to a low back injury, which Plaintiff may have sustained over the course of his employment with the Defendant? Whether you answered Question No. 3 "Yes" or "No," you will then answer Question No. 4. Fourth: Did the Defendant violate the provisions of the Locomotive Inspection Act over the course of Plaintiff's employment with the Defendant? If your answer to Question No. 4 is "Yes," then you will answer Question No. 5. But if your

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 22 of 46

If your unanimous answer to either Questions Nos. 2 or 3 is "No," and your answer to Question No. 4 is "No," then all of the jurors will sign and date Special Verdict Form A, and tell the Bailiff you have reached a verdict. If your answers to both Question No. 2 and Question No. 3 are "Yes," and your answer to Question No. 4 is "No," you will then go to Question No. 6. Fifth: Was the violation of the Locomotion Inspection Act over the course of the Plaintiff's employment with Defendant a cause of a low back injury, which Plaintiff may have sustained over the course of his employment with Defendant? Whether you answered Question No. 5 "Yes" or "No," you will then answer Question No. 6. Sixth: Was the Plaintiff negligent over the course of his employment with the Defendant? If your unanimous answer to that question is "Yes," you will proceed to the seventh question. If your unanimous answer to that question is "No," you will skip the seventh and eighth questions set forth below and proceed to the Ninth question set forth below. Seventh: Did the contributory negligence of Plaintiff over the course of his

employment with Defendant cause or contribute to a low back injury, which Plaintiff may have sustained over the course of his employment with the Defendant? If your unanimous answer to that question is "Yes," you will proceed to the eighth question. If your unanimous answer to that question is "No," you will skip the eighth question set forth below and proceed to the ninth question.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 23 of 46

Eighth: To what extent, expressed in a percentage, did Plaintiff's contributory negligence cause or contribute to a low back injury, which Plaintiff may have sustained over the course of his employment with the Defendant? Ninth: What amount do you find, without any reduction for contributory

negligence which you may find on the Plaintiff's part, will fairly and adequately compensate the Plaintiff for the low back injury, which Plaintiff may have sustained over the course of his employment with the Defendant? Tenth: What percentage of the damages determined in Question No. 9 above are attributable to a preexisting condition?

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 24 of 46

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00560-OES-BNB

GEORGE M. BULL, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Defendant.

SPECIAL VERDICT FORM A (Course of Employment)

QUESTION NO. 1: Did the Plaintiff know, or in the exercise of reasonable care should the Plaintiff have known, prior to March 24, 2001, that over the course of Plaintiff's employment with the Defendant he had suffered an injury to his low back and that it was work-related? ANSWER: _______________ (YES or NO)

If your answer to Question No. 1 is "Yes," then do not answer any more questions on Special Verdict Form A. Verdict Form A. If your answer to Question No. 1 is "No," please go to Question No. 2. All of the jurors shall sign and date Special

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 25 of 46

QUESTION NO. 2: Was the Defendant negligent over the course of Plaintiff's employment with Defendant? ANSWER: _______________ (YES or NO)

If your answer to Question No. 2 is "Yes," then answer Question No. 3. If your answer to Question No. 2 is "No," please go to Question No. 4. QUESTION NO. 3: Did the negligence of the Defendant over the course of Plaintiff's employment with Defendant cause or contribute to a low back injury, which Plaintiff may have sustained over the course of his employment with Defendant? ANSWER: _______________ (YES or NO)

Whether you answered Question No. 3 "Yes" or "No," please go to Question No. 4. QUESTION NO. 4: Did the Defendant violate the provisions of the Locomotive Inspection Act over the course of Plaintiff's employment with Defendant? ANSWER: _______________ (YES or NO)

If your answer to Question No. 4 is "Yes," then answer Question No. 5. If your answer to either Question No. 2 or Question No. 3 is "No," and your answer to Question No. 4 is "No," then all of the jurors will sign and date Special Verdict Form A. If your answers to both Question No. 2 and Question No. 3 are "Yes," and your answer to Question No. 4 is "No," please go to Question No. 6.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 26 of 46

QUESTION NO. 5: Was the violation of the Locomotive Inspection Act over the course of Plaintiff's employment with Defendant a cause of a low back injury, which Plaintiff may have sustained over the course of his employment with Defendant? ANSWER: _______________ (YES or NO)

Whether you answered Question No. 5 "Yes" or "No," please go to Question No. 6. QUESTION NO. 6: employment with Defendant? Was the Plaintiff negligent over the course of his

ANSWER:

_______________ (YES or NO)

If your answer to Question No. 6 is "Yes," then answer Question No. 7. If your answer to Question No. 6 is "No," please go to Question No. 9.

QUESTION NO. 7:

Did the contributory negligence of the Plaintiff over the

course of his employment with the Defendant cause or contribute to a low back injury, which Plaintiff may have sustained over the course of his employment with Defendant?

ANSWER:

_______________ (YES or NO)

If your answer to Question No. 7 is "Yes," then answer Question No. 8. If your answer to Question No. 7 is "No," please go to Question No. 9.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 27 of 46

QUESTION NO. 8: Assuming that 100% represents the total negligence of the Defendant and the Plaintiff over the course of Plaintiff's employment with Defendant, which may have caused Plaintiff to sustain a low back injury over the course of his employment with Defendant, what percentage of this 100% is attributable to the negligence of the Defendant and what percentage is attributable to the negligence of the Plaintiff? ANSWER: To Defendant to Plaintiff TOTAL _________% _________% ___100___%

QUESTION NO. 9: What amount do you find, without any reduction for any contributory negligence, which you may find on the part of the Plaintiff, will fairly and adequately compensate the Plaintiff for the low back injury, which Plaintiff may have sustained over the course of his employment with Defendant? (Do not award any damages that duplicate any damages you may have awarded in Special Verdict Form B.) ANSWER: $_________________________.

QUESTION NO. 10: What percentage of the damages determined in Question No. 9 are attributable to a preexisting condition? ANSWER: ________________%

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 28 of 46

DATED: ________________, 2005

__________________________________ FOREPERSON

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 29 of 46

INSTRUCTION NO. ___ The issues to be determined by you are as follows: First: Did the Plaintiff know, or in the exercise of reasonable care, should the Plaintiff have known, prior to March 24, 2001, that over the course of his employment with the Defendant, he had suffered an injury to his low back and that it was workrelated? If your unanimous answer to that question is "Yes," then you will sign the Special Verdict Form A and tell the Bailiff that you have reached a verdict. But if your

unanimous answer to that question is "No," then you must answer a second question, namely: Second: Was Defendant negligent over the course of Plaintiff's employment with the Defendant? If your unanimous answer to that question is "No," you will sign the Special Verdict Form A and tell the Bailiff that you have reached a verdict. unanimous answer is "Yes," then you must answer a third question, namely: Third: Did the negligence of Defendant over the course of Plaintiff's employment with Defendant cause or contribute to a low back injury, which Plaintiff may have sustained over the course of his employment with the Defendant? If your unanimous answer to that question is "No," you will sign the Special Verdict Form A and tell the Bailiff that you have reached a verdict. But if your But if your

unanimous answer to that question is "Yes," then you must answer a fourth question, namely:

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 30 of 46

Fourth: Was the Plaintiff negligent over the course of his employment with the Defendant? If your unanimous answer to that question is "Yes," you will proceed to the fifth question. If your unanimous answer to that question is "No," you will skip the fifth and sixth questions set forth below and proceed to the seventh question set forth below. Fifth: Did the contributory negligence of Plaintiff over the course of his

employment with Defendant cause or contribute to a low back injury, which Plaintiff may have sustained over the course of his employment with the Defendant? If your unanimous answer to that question is "Yes," you will proceed to the sixth question. If your unanimous answer to that question is "No," you will skip the sixth question set forth below and proceed to the seventh question. Sixth: To what extent, expressed in a percentage, did Plaintiff's contributory negligence cause or contribute to a low back injury, which Plaintiff may have sustained over the course of his employment with the Defendant? Seventh: What amount do you find, without any reduction for contributory

negligence which you may find on the Plaintiff's part, will fairly and adequately compensate the Plaintiff for a low back injury, which Plaintiff may have sustained over the course of his employment with the Defendant? Eighth: What percentage of the damages determined in Question No. 7 above are attributable to a preexisting condition?

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 31 of 46

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00560-OES-BNB

GEORGE M. BULL, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Defendant.

SPECIAL VERDICT FORM A (Course of Employment)

QUESTION NO. 1: Did the Plaintiff know, or in the exercise of reasonable care should the Plaintiff have known, prior to March 24, 2001, that over the course of his employment with Defendant he had suffered an injury to his low back and that it was work-related? ANSWER: _______________ (YES or NO)

If your answer to Question No. 1 is "Yes," then do not answer any more questions on Special Verdict Form A. Verdict Form A. If your answer to Question No. 1 is "No," please go to Question No. 2. All of the jurors shall sign and date Special

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 32 of 46

QUESTION NO. 2: Was the Defendant negligent over the course of Plaintiff's employment with Defendant? ANSWER: _______________ (YES or NO)

If your answer to Question No. 2 is "Yes," then answer Question No. 3. If your answer to Question No. 2 is "No," all jurors will sign and date Special Verdict Form A. QUESTION NO. 3: Did the negligence of the Defendant over the course of Plaintiff's employment with Defendant cause or contribute to a low back injury, which Plaintiff may have sustained over the course of his employment with Defendant? ANSWER: _______________ (YES or NO)

If your answer to Question No. 3 is "Yes," then answer Question No. 4. If your answer to Question No. 3 is "No," please sign and date the Special Verdict Form A and do not answer any more questions on Special Verdict Form A. QUESTION NO. 4: employment with Defendant? Was the Plaintiff negligent over the course of his

ANSWER:

_______________ (YES or NO)

If your answer to Question No. 4 is "Yes," then answer Question No. 5. If your answer to Question No. 4 is "No," please go to Question No. 7.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 33 of 46

QUESTION NO. 5: Did the negligence of the Plaintiff over the course of his employment with the Defendant cause or contribute to a low back injury, which Plaintiff may have sustained over the course of his employment with Defendant? ANSWER: _______________ (YES or NO)

If your answer to Question No. 5 is "Yes," then answer Question No. 6. If your answer to Question No. 5 is "No," please go to Question No. 7.

QUESTION NO. 6: Assuming that 100% represents the total negligence of the Defendant and the Plaintiff, which may have caused Plaintiff to sustain a low back injury over the course of his employment with Defendant, what percentage of this 100% is attributable to the negligence of the Defendant and what percentage is attributable to the negligence of the Plaintiff? ANSWER: To Defendant to Plaintiff TOTAL _________% _________% ___100___%

After answering Question No. 6, please answer Question No. 7. QUESTION NO. 7: What amount do you find, without any reduction for any contributory negligence, which you may find on the part of the Plaintiff, will fairly and adequately compensate the Plaintiff for the low back injury, which Plaintiff may have sustained over the course of his employment with Defendant? (Do not award any damages that duplicate any damages you may have awarded in Special Verdict Form B.)

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 34 of 46

ANSWER:

$_________________________.

After answering Question No. 7, please answer Question No. 8. QUESTION NO. 8: What percentage of the damages determined in Question No. 7 are attributable to a preexisting condition? ANSWER: ________________%

DATED: ________________, 2005

__________________________________ FOREPERSON

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 35 of 46

INSTRUCTION NO. ___ The issues to be determined by you are as follows: First: 2003? If your unanimous answer to Question No. 1 is "Yes," then you will answer Question No. 2. If your unanimous answer to Question No. 1 is "No," then you will skip the second question and go to Question No. 3. Second: Did the negligence of Defendant cause or contribute to any injury Was Defendant negligent with regard to the incident on February 28,

sustained by the Plaintiff as a result of the incident on February 28, 2003? Whether your unanimous answer to Question No. 2 is "Yes" or "No," you will then have to answer a third question, namely: Third: Did the Defendant violate the provisions of the Locomotive Inspection Act on February 28, 2003? If your unanimous answer to Question No. 3 is "Yes," then you must answer Question No. 4. If your unanimous answer to either Question No. 2 or Question No. 3 is "No," and your unanimous answer to Question No. 3 is "No," then all jurors will sign and date the Special Verdict Form B and tell the Bailiff they have reached a verdict. If your unanimous answers to both Question No. 1 and Question No. 2 are "Yes," and your unanimous answer to Question No. 3 is "No," you will skip Question No. 4 and go to Question No. 5.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 36 of 46

Fourth:

Was the violation of the Locomotive Inspection Act on February 28,

2003, a cause of injury to the Plaintiff? Whether your unanimous answer to Question No. 4 is "Yes" or "No," you will then need to answer a fifth question, namely: Fifth: Was the Plaintiff contributorily negligent with regard to the incident on February 28, 2003? If your unanimous answer to that question is "Yes," you will proceed to the sixth question. If your unanimous answer to that question is "No," you will skip the sixth and seventh questions set forth below and proceed to the eighth question set forth below. Sixth: Did the contributory negligence of Plaintiff cause or contribute to any injury sustained by Plaintiff as a result of the incident on February 28, 2003? If your unanimous answer to that question is "Yes," you will proceed to the seventh question. If your unanimous answer to that question is "No," you will skip the seventh question set forth below and proceed to the sixth question. Seventh: To what extent, expressed in a percentage, did Plaintiff's contributory negligence cause or contribute to any injury sustained by Plaintiff as a result of the incident on February 28, 2003? Eighth: What amount do you find, without any reduction for contributory

negligence which you may find on the Plaintiff's part, will fairly and adequately compensate the Plaintiff for the injury he sustained as a result of the incident on February 28, 2003?

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 37 of 46

Ninth: What percentage of the damages determined in Question No. 8 above are attributable to a preexisting condition?

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 38 of 46

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00560-OES-BNB

GEORGE M. BULL, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Defendant.

SPECIAL VERDICT FORM B (February 28, 2003)

QUESTION NO. 1: Was the Defendant negligent with regard to the incident on February 28, 2003? ANSWER: _______________ (YES or NO)

If your answer to Question No. 1 is "Yes," then go to Question No. 2. If your answer to Question No. 1 is "No," then go to Question No. 3. QUESTION NO. 2: Did the negligence of the Defendant cause or contribute to any injury sustained by Plaintiff as a result of the incident on February 28, 2003? ANSWER: _______________ (YES or NO)

Whether you answer Question No. 2 "Yes" or "No," please go to Question No. 3.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 39 of 46

QUESTION NO. 3: Did the Defendant violate the provisions of the Locomotive Inspection Act on February 28, 2003? ANSWER: _______________ (YES or NO)

If your answer to Question No. 3 is "Yes," then answer Question No. 4. If your answers to either Question No. 2 or Question No. 3 is "No," and your answer to Question No. 3 is "No," then all jurors will sign and date Special Verdict Form B. If your answers to both Question No. 1 and Question No. 2 is "Yes," and your answer to Question No. 3 is "No," please go to Question No. 5. QUESTION NO. 4: Was the violation of the Locomotive Inspection Act on

February 28, 2003, a cause of injury to the Plaintiff? ANSWER: _______________ (YES or NO)

Whether you answered Question No. 4 "Yes" or "No," please go to Question No. 5. QUESTION NO. 5: Was the Plaintiff contributorily negligent with regard to the incident of February 28, 2003. ANSWER: _______________ (YES or NO)

If your answer to Question No. 5 is "Yes," then answer Question No. 6. If your answer to Question No. 6 is "No," please go to Question No. 8.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 40 of 46

QUESTION NO. 6: Did the negligence of the Plaintiff cause or contribute to his injury of February 28, 2003? ANSWER: _______________ (YES or NO)

If your answer to Question No. 6 is "Yes," answer Question No. 7. If your answer to Question No. 6 is "No," please go to Question No. 8. QUESTION NO. 7: Assuming that 100% represents the total negligence of the Defendant and the Plaintiff, what percentage of this 100% is attributable to the negligence of the Defendant and what percentage is attributable to the negligence of the Plaintiff? ANSWER: To Defendant to Plaintiff TOTAL _________% _________% ___100___%

After answering Question No. 7, answer Question No.8. QUESTION NO. 8: What amount do you find, without any reduction for any contributory negligence which you may find on the Plaintiff's part, will fairly and adequately compensate the Plaintiff for the injury he sustained as a result of the incident on February 28, 2003? (Do not award any damages that duplicate any damages you may have awarded on Special Verdict Form A.) ANSWER: $______________

After answering Question No. 8, please answer Question No. 9. QUESTION NO. 9: What percentage of the damages determined in Question No. 8 above are attributable to a preexisting condition?

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 41 of 46

ANSWER:

_______________% ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________

DATED: _____________, 2005 FOREPERSON

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 42 of 46

INSTRUCTION NO. ___ The issues to be determined by you are as follows: First: 2003? If your unanimous answer to that question is "No," you will sign the Special Verdict Form B and tell the Bailiff that you have reached a verdict. But if your Was Defendant negligent with regard to the incident on February 28,

unanimous answer is "Yes," then you must answer a second question, namely: Second: Did the negligence of Defendant cause or contribute to any injury

sustained by Plaintiff as a result of the incident on February 28, 2003? If your unanimous answer to that question is "No," you will sign the Special Verdict Form B and tell the Bailiff that you have reached a verdict. But if your

unanimous answer to that question is "Yes," then you must answer a third question, namely: Third: Was the Plaintiff contributorily negligent with regard to the incident on February 28, 2003? If your unanimous answer to that question is "Yes," you will proceed to the fourth question. If your unanimous answer to that question is "No," you will skip the fourth and fifth questions set forth below and proceed to the seventh question set forth below. Fourth: Did the contributory negligence of Plaintiff cause or contribute to any injury sustained by Plaintiff as a result of the incident on February 28, 2003?

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 43 of 46

If your unanimous answer to that question is "Yes," you will proceed to the fifth question. If your unanimous answer to that question is "No," you will skip the fifth question set forth below and proceed to the sixth question. Fifth: To what extent, expressed in a percentage, did Plaintiff's contributory

negligence cause or contribute to any injury sustained by Plaintiff as a result of the incident on February 28, 2003? Sixth: What amount do you find, without any reduction for contributory

negligence which you may find on the Plaintiff's part, will fairly and adequately compensate the Plaintiff for the injury he sustained as a result of the incident on February 28, 2003? Seventh: What percentage of the damages determined in Question No. 6 above are attributable to a preexisting condition?

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 44 of 46

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00560-OES-BNB

GEORGE M. BULL, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Defendant.

SPECIAL VERDICT FORM B (February 28, 2003)

QUESTION NO. 1: Was the Defendant negligent with regard to the incident on February 28, 2003? ANSWER: _______________ (YES or NO)

If your answer to Question No. 1 is "Yes," then answer Question No. 2. If your answer to Question No. 1 is "No," then do not answer any more questions on Special Verdict Form B. All the jurors shall sign and date Special Verdict Form B. QUESTION NO. 2: Did the negligence of the Defendant cause or contribute to any injury sustained by Plaintiff as a result of the incident on February 28, 2003? ANSWER: _______________ (YES or NO)

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 45 of 46

If your answer to Question No. 2 is "No," you will sign the Special Verdict Form B and do not answer any more questions on Special Verdict Form B. If your answer to Question No. is "Yes," please answer Question No. 3. QUESTION NO. 3: Was the Plaintiff contributorily negligent with regard to the incident of February 28, 2003. ANSWER: _______________ (YES or NO)

If your answer to Question No. 3 is "Yes," then answer Question No. 4. If your answer to Question No. 3 is "No," please go to Question No. 6. QUESTION NO. 4: Did the negligence of the Plaintiff cause or contribute to his injury of February 28, 2003? ANSWER: _______________ (YES or NO)

If your answer to Question No. 4 is "Yes," answer Question No. 5. If your answer to Question No. 4 is "No," please go to Question No. 6. QUESTION NO. 5: Assuming that 100% represents the total negligence of the Defendant and the Plaintiff, what percentage of this 100% is attributable to the negligence of the Defendant and what percentage is attributable to the negligence of the Plaintiff? ANSWER: To Defendant to Plaintiff TOTAL _________% _________% ___100___%

After answering Question No. 5, answer Question No. 6.

Case 1:04-cv-00560-OES-BNB

Document 85

Filed 10/27/2005

Page 46 of 46

QUESTION NO. 6: What amount do you find, without any reduction for any contributory negligence which you may find on the Plaintiff's part, will fairly and adequately compensate the Plaintiff for the injury he sustained as a result of the incident on February 28, 2003? (Do not award any damages that duplicate any damages you may have awarded on Special Verdict Form A.) ANSWER: $______________

After answering Question No. 6, please answer Question No. 7. QUESTION NO. 7: What percentage of the damages determined in Question No. 6 above are attributable to a preexisting condition? ANSWER: _______________% ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________

DATED: _____________, 2005 FOREPERSON