Free Other Notice - District Court of Arizona - Arizona

1 Sharon S. Moyer No. 013341 [email protected] 2 Mark D. Dillon No. 014393 [email protected] 3 SACKS TIERNEY P.A. 4250 N. Drinkwater Blvd., 4th Floor 4 Scottsdale, AZ 85251-3693 Telephone: (480) 425-2600 5 Attorneys for Defendant 6 7 8 9 10 11 CONNIE PAPPAS,
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

12 13 vs.

Plaintiff,

No. CV03 1449 PHX PGR DEFENDANT'S AMENDED PROPOSED JURY INSTRUCTIONS

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14 J.S.B. HOLDINGS, INC., AN ARIZONA CORPORATION, DBA 15 R&D SPECIALTY/MANCO, 16 17 18 Defendant.

Pursuant to this Court's May 8, 2006, Trial Order and LRCiv 51.1, Defendant

19 proposes the following jury instructions. By the submission of jury instructions relating to 20 punitive damage, Defendant does not intend to waive its objection to the presentation of 21 punitive damages evidence to the jury. 22 23 24 25 26 27 28
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P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

MODEL INSTRUCTIONS--NO MODIFICATIONS

Duty of Jury What Is Evidence What Is Not Evidence Evidence for Limited Purpose Direct and Circumstantial Evidence Ruling on Objections Credibility of Witnesses Conduct of the Jury No Transcript Available to Jury Taking Notes Burden of Proof ­Preponderance Burden of Proof- Clear and Convincing Evidence Bench Conferences and Recesses Stipulations of Fact What Is Evidence Direct and Circumstantial Evidence Credibility of Witnesses Duty to Deliberate Use of Notes Return of Verdict Burden of Proof- Preponderance of Evidence Burden of Proof- Clear & Convincing Evidence Complete Affirmative Defense Damages--Mitigation

12 1.11 13 1.13 14 1.14 15 2.2 16 2.4 17 3.2 18 3.5 19 3.6 20 4.1 21 4.2 22 4.4 23 5.1 24 5.2 25 5.3 26 7.3 27 28
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REQUESTED/MODIFIED JURY INSTRUCTIONS (full text to follow) 1.2 Claims and Defenses 1.12 Outline of Trial 2.1 Cautionary Instruction--First Recess 2.6 Deposition As Substantive Evidence 2.10 Limited Purpose Evidence 3.1 Duties of Jury to Find Facts and Follow Law 3.3 What is Not Evidence 3.12 Impeachment Evidence--Witness 4.3 Communication with Court 4.4 Return of Verdict

3 Defendant's Request Instruction 1: 4 Defendant's Request Instruction 2: 5 Defendant's Request Instruction 3: 6 Defendant's Request Instruction 4: 7 Defendant's Request Instruction 5: 8 Defendant's Request Instruction 6: 9 Defendant's Request Instruction 7: 10 Defendant's Request Instruction 8:
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

11 Defendant's Request Instruction 9: 12 Defendant's Request Instruction 10:

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13 Defendant's Request Instruction 11: 7.5 Punitive Damages 14 Defendant's Request Instruction 12: 12.2A Hostile Work Environment--Harassment 15 Because of Protected Characteristics--Elements 12.2C Hostile Work Environment Caused by 16 Defendant's Request Instruction 13: Non-Immediate Supervisor or By Co-Worker--Claim Based on Negligence 17 Defendant's Requested Instruction 14 : Punitive Damages--Affirmative Defense 18 19 20 21 22 23 24 25 26 27 28
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DEFENDANT'S REQUESTED INSTRUCTION 1. 1.2 CLAIMS AND DEFENSES

3 To help you follow the evidence, I will give you a brief summary of the positions of the parties: 4 The plaintiff claims that she was sexually harassed. 5 The defendant denies this claim. 6 7 8 9 10 11
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

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DEFENDANT'S REQUESTED INSTRUCTION 2. 1.12 OUTLINE OF TRIAL

3 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 4 that party expects the evidence will show. A party is not required to make an opening statement. 5 The plaintiff will then present evidence, and counsel for the defendant may cross-examine. 6 Then the defendant may present evidence, and counsel for the plaintiff may cross-examine. 7 After the evidence has been presented, [I will instruct you on the law that applies to the case and the attorneys will make closing arguments] [the attorneys will make closing 8 arguments and I will instruct you on the law that applies to the case].* 9 10 11
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

After that, you will go to the jury room to deliberate on your verdict.

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*Court to determine which option.

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DEFENDANT'S REQUESTED INSTRUCTION 3. 2.1 CAUTIONARY INSTRUCTION--FIRST RECESS

3 We are about to take our first break during the trial, and I want to remind you of the instruction I gave you earlier. Until the trial is over, you are not to discuss this case with 4 anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone 5 approaches you and tries to talk to you about the case, please let me know about it immediately. Do not read or listen to any news reports of the trial. Finally, you are 6 reminded to keep an open mind until all the evidence has been received and you have heard the arguments of counsel, the instructions of the court, and the views of your fellow jurors. 7 If you need to speak with me about anything, simply give a signed note to the [marshal] 8 [bailiff] [clerk] [law clerk]* to give to me. 9 I will not repeat these admonitions each time we recess or adjourn, but you will be reminded of them on such occasions. 10 11
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

12 *Court to determine which option. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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DEFENDANT'S REQUESTED INSTRUCTION 4. 2.6 DEPOSITION AS SUBSTANTIVE EVIDENCE

3 [When a person is unavailable to testify at trial, the deposition of that person may be used at the trial.] A deposition is the sworn testimony of a witness taken before trial. The witness 4 is placed under oath to tell the truth and lawyers for each party may ask questions. The questions and answers are recorded. 5 The deposition of James Dennis, which was taken on July 19, 2004 *, is about to be 6 presented to you. Deposition testimony is entitled to the same consideration and is to be judged, insofar as possible, in the same way as if the witness had been present to testify. 7 Do not place any significance on the behavior or tone of voice of any person reading the 8 questions or answers. 9 10 11
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

*Court to complete name before first deposition is read.

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DEFENDANT'S REQUESTED INSTRUCTION 5. 2.10 LIMITED PURPOSE EVIDENCE

3 The testimony [you are about to hear] [you have just heard] may be considered only for the limited purpose of [describe 4 5 *Court to utilize instruction as necessary. 6 7 8 9 10 11
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

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DEFENDANT'S REQUESTED INSTRUCTION 6. 3.1 DUTIES OF JURY TO FIND FACTS AND FOLLOW LAW

Members of the jury, now that you have heard all the evidence [and the arguments of the 4 attorneys],* it is my duty to instruct you on the law which applies to this case. A copy of these instructions will be available in the jury room for you to consult if you find it 5 necessary. 6 It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. You must follow the law as I give it to you whether you 7 agree with it or not. You must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence 8 before you. You will recall that you took an oath promising to do so at the beginning of the case. 9 In following my instructions, you must follow all of them and not single out some and 10 ignore others; they are all equally important. You must not read into these instructions or into anything the court may have said or done any suggestion as to what verdict you should 11 return--that is a matter entirely up to you.
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

12 13 *Court to determine whether to include this phrase based upon the order of proceedings. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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DEFENDANT'S REQUESTED INSTRUCTION 7. 3.3 WHAT IS NOT EVIDENCE

3 In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what 4 the facts are. I will list them for you: 5 (1) Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they have said in their opening statements, [will say in their] closing arguments, and 6 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 7 them, your memory of them controls. 8 (2) Questions and objections by lawyers are not evidence. Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence. You 9 should not be influenced by the objection or by the court's ruling on it. 10 (3) Testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. [In addition some testimony and 11 exhibits have been received only for a limited purpose; where I have given a limiting instruction, you must follow it.]* 12 (4) Anything you may have seen or heard when the court was not in session is not 13 evidence. You are to decide the case solely on the evidence received at the trial. 14 15 16 *Court to determine whether to include these phrases based upon the order of proceedings and the events at trial. 17 18 19 20 21 22 23 24 25 26 27 28
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DEFENDANT'S REQUESTED INSTRUCTION 8. 3.12 IMPEACHMENT EVIDENCE--WITNESS

4 You have heard evidence that [witness], a witness, [e.g. has been convicted of a felony, lied under oath on a prior occasion, etc.].* You may consider this evidence, along with 5 other pertinent evidence, in deciding whether or not to believe this witness and how much weight to give to the testimony of that witness. 6 7 8 *Court to determine phrasing based upon events at trial. 9 10 11
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

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DEFENDANT'S REQUESTED INSTRUCTION 9. 4.3 COMMUNICATION WITH COURT

If it becomes necessary during your deliberations to communicate with me, you may send a 4 note through the [marshal] [bailiff],* signed by your presiding juror or by one or more members of the jury. No member of the jury should ever attempt to communicate with me 5 except by a signed writing; and I will communicate with any member of the jury on anything concerning the case only in writing, or here in open court. If you send out a 6 question, I will consult with the parties before answering it, which may take some time. You may continue your deliberations while waiting for the answer to any question. 7 Remember that you are not to tell anyone--including me--how the jury stands, numerically or otherwise, until after you have reached a unanimous verdict or have been 8 discharged. Do not disclose any vote count in any note to the court. 9 10 11 *Court to select appropriate option.
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

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DEFENDANT'S REQUESTED INSTRUCTION 10. 4.4 RETURN OF VERDICT

3 A verdict form has been prepared for you. After you have reached unanimous agreement on a verdict, your presiding juror will fill in the form that has been given to you, sign and date 4 it, and advise the court that you are ready to return to the courtroom. 5 6 7 8 9 10 11
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

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DEFENDANT'S REQUESTED INSTRUCTION 11. 7.5 PUNITIVE DAMAGES

P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

If you find for the plaintiff, you may, but are not required to, award punitive damages. The 4 purposes of punitive damages are not to compensate the plaintiff, but to punish a defendant and to deter a defendant and others from committing similar acts in the future. 5 The plaintiff has the burden of proving that punitive damages should be awarded, and the 6 amount, by a preponderance of the evidence. You may award punitive damages only if you find the following: 7 1. That those individuals who committed unlawful discrimination did so 8 with full awareness of the federal anti-discrimination laws and with intentional or reckless disregard of those laws; and 9 2. That defendant was aware of and condoned the discriminatory acts. 10 If you find that punitive damages are appropriate, you must use reason in setting the 11 amount. Punitive damages, if any, should be in an amount sufficient to fulfill their purposes but should not reflect bias, prejudice or sympathy toward any party. In considering punitive damages, you may consider the degree of reprehensibility of the defendant's conduct and 12 the relationship of any award of punitive damages to any actual harm inflicted on the plaintiff. 13 14 15 Kolstad v. American Dental Assn., 527 U.S. 526, 542-43 (1999) (citing RESTATEMENT (SECOND) OF AGENCY § 217C). 16 17 18 19 20 21 22 23 24 25 26 27 28
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DEFENDANT'S REQUESTED INSTRUCTION 12. 12.2A HOSTILE WORK ENVIRONMENT--HARASSMENT BECAUSE OF PROTECTED CHARACTERISTICS--ELEMENTS

4 The plaintiff seeks damages against the defendant for a sexually hostile work environment while employed by the defendant. In order to establish a sexually hostile work 5 environment, the plaintiff must prove each of the following elements by a preponderance of the evidence: 6 1. the plaintiff was subjected (sexual advances, requests for sexual conduct, or other 7 verbal or physical conduct of a sexual nature), 8 2. the conduct was unwelcome; 9 3. the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create a sexuallyan abusive or hostile work environment; 10 4. the plaintiff perceived the working environment to be abusive or hostile; and 11 5. a reasonable [woman] in the plaintiff's circumstances would consider the working 12 environment to be abusive or hostile. 13 Whether the environment constituted a [sexually] hostile work environment is determined by looking at the totality of the circumstances, including the frequency of the harassing 14 conduct, the severity of the conduct, whether the conduct was physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interfered with an 15 employee's work performance. 16 17 18 19 20 21 22 23 24 25 26 27 28
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DEFENDANT'S REQUESTED INSTRUCTION 13. 12.2C HOSTILE WORK ENVIRONMENT CAUSED BY NON-IMMEDIATE SUPERVISOR OR BY CO-WORKER--CLAIM BASED ON NEGLIGENCE

The plaintiff seeks damages from the defendant for a sexually hostile work environment. 4 The plaintiff has the burden of proving both of the following elements by a preponderance 5 of the evidence: 6 1. the plaintiff was subjected to a sexually hostile work environment by a [co-worker]; and 7 2. the defendant or a member of defendant's management knew or should have known of 8 the harassment and failed to take prompt, effective remedial action reasonably calculated to end the harassment. 9 10 A person is a member of management if the person has substantial authority and discretion to make decisions concerning the terms of the harasser's employment or the plaintiff's 11 employment, such as authority to counsel, investigate, suspend, or fire the accused 12 harasser, or to change the conditions of the plaintiff's employment. A person who lacks such authority is nevertheless part of management if he or she has an official or strong duty 13 in fact to communicate to management complaints about work conditions. You should consider all the circumstances in this case in determining whether a person has such a duty. 14 15 The defendant's remedial action must be reasonable and adequate. Whether the defendant's remedial action is reasonable and adequate depends upon the remedy's effectiveness in 16 stopping the individual harasser from continuing to engage in such conduct and in 17 discouraging other potential harassers from engaging in similar unlawful conduct. An effective remedy should be proportionate to the seriousness of the offense. 18 If you find that the plaintiff has proved both of the elements on which the plaintiff has the 19 burden of proof, your verdict should be for the plaintiff. If, on the other hand, the plaintiff 20 has failed to prove either of these elements, your verdict should be for the defendant. 21 22 23 24 25 26 27 28
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DEFENDANT'S REQUESTED INSTRUCTION 14. PUNITIVE DAMAGES--AFFIRMATIVE DEFENSE

3 If you find that Plaintiff has proved the elements for a punitive damages award and that you wish to award punitive damages, then you must decide whether the 4 defendant has proved by a preponderance of the evidence that defendant had a bona fide policy against discrimination and that the individuals' acts of discrimination were 5 against defendant's policy. 6 If you find that Defendant had a bona fide policy against discrimination you must find that defendant is not liable for punitive damages. 7 8 Kolstad v. American Dental Assn., 527 U.S. 226, 545(1999); Passantino v. J & J Consumer Products, 212 F.3d 493, 516 (9th Cir. 2000). 9 10 11
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

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P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

DATED this 22nd day of June, 2006. SACKS TIERNEY P.A.

By:

s/ Sharon S. Moyer Sharon S. Moyer

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on June 22, 2006, I electronically transmitted the

3 attached document to the Clerk's Office using the CM/ECF System for filing and 4 transmittal of a Notice of Electronic Filing to the following CM/ECF registrant: 5 6 7 8 9 10 11
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

David C. Larkin, Esq. DAVID C. LARKIN, P.C. 4645 S. Lakeshore Drive, Suite 6 Tempe, Arizona 85282 William P. Allen, Esq. ALLEN LAW FIRM, LLC 1650 N. First Avenue Phoenix, Arizona 85003 Attorneys for Plaintiff

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s/ Sharon S. Moyer Sharon S. Moyer

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