Document for ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                1 || GILBERT L. PURCELL, ESQ., 8.B. #113603
JAMES P. NEVIN, ESQ., S.B. #220816

jnevin@pbraytonlaw.com

BRA POR PURCELL LLP Sone

Attorneys at Law FILED

222 Rush Landing Road Supertor Court of Caltfomia,

P.O. Box 6169 County of San Francisco

Novato, California 94948-6169 08/11/2015

(415) 898-1555 : Clerk of the Court
BY-RONNIE OTERO

Deputy Clerk

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3

4

5

6 || Attorneys for Plaintiffs
7

8 SUPERIOR COURT OF CALIFORNIA
9

COUNTY OF SAN FRANCISCO
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11 || ROBERT ROSS and JEAN ROSS, ) ASBESTOS
) No. CGC-10-275731
12 Plaintiffs, )
fe $s ) PLAINTIFFS’ PROPOSED JURY
3 32 z 13 |] vs. } INSTRUCTIONS
aBS ¢
Bige¢ 14|| C.C. MOORE & CO. ENGINEERS;
Boeke Defendants as Reflected on Exhibit 1 Trial Date: August 10, 2015
&o—2—2 15 |) attached to the Summary Complaint Dept.: 613
Zeeose herein; and DOES 1-8500. J
Eke eg 16
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Z 8 17
18 COMES NOW plaintiffs who hereby submit the following Proposed CACI and BAJI Jury,
19 || Instructions.
20 100 Preliminary Admonitions
21 101 Overview of Trial
22 102 Taking Notes During the Trial
23 103 Multiple Parties
24 104 Nonperson party
25 105 Insurance
26 106 Evidence
27 107 Witnesses
28 111 Instruction to Alternate Jurors

K.Aljured\193491uriahprop jury instructions wpd 1 IPN
PLAIN’ 'S’ PROPOSED JU STRUCTION!Ce NY DH BF BN

RN NY NY NN NN De ee Be Se Be Be Be eB
2 IAD ARE OND HF SO wMARA AA RB wHNH ES

112
113
114
116
200
201
202
203
205
206
208
209
219
220
221
400
401
406
431
435
1200
1203

1205
1220
1221
1222

1223

KAnjured\t 93 40\trit\pro

instvetions wpd 2
PLAINTIFFS’ PROPOSED JURY INSTRUCTIONS

Questions from Jurors

Bias

Bench Conferences and Conferences in Chambers

Why Electronic Communications and Research Are Prohibited

Obligation to Prove - More Likely True Than Not True

More Likely True - Clear and Convincing Proof

Direct and Indirect Evidence

Party Having Power to Produce Better Evidence

Failure to Explain or Deny Evidence

Evidence Admitted for Limited Purpose

Deposition as Substantive Evidence

Use of Interrogatories of a Party

Expert Witness Testimony

Experts - Questions Contained Assumed Facts

Conflicting Expert Testimony

Essential Factual Elements

Basic Standard of Care

Apportionment of Responsibility

Causation: Multiple Causes

Causation: Substantial Factor

Strict Liability - Essential Factual Elements

Strict Liability - Design Defect - Consumer Expectation Test - Essential
Factual Elements

Strict Liability - Failure to Warn - Essential Factual Elements

Negligence - Essential Factual Elements

Negligence - Basic Standard of Care

Negligence - Manufacturer or Supplier - Duty to Warn - Essential Factual

Elements

’

Negligence - Recall/Retrofit

JPNCem IN DAH FF wWN

3900
3902
3903
3903A
3903C
3903E
3905
3905A

3925
3932
3946
5000
5007
5009
5010
5011
5012
5015

BAJI
BAJI 2.60
BAJI 2.62
BAJI 3.00
BAJI 3.10
BAJI 3.11
BAJI 3.76
BAJI 3.77
BAJI 3.78

K Anjured\i9349riaiprp jury instructions wpd 3
PLAINTIFFS PROPOSED JURY INSTRUCTIONS

Introduction to Tort Damages - Liability Contested

Economic and Non-economic Damages

Items of Economic Damage

Medical Expenses - Past and Future (Economic Damage)

Past and Future Lost Earnings(Economic Damage)

Loss of Ability to Provide Household Services (Economic Damage)
Items of Non-Economic Damage

Physical Pain, Mental Suffering, and Emotional Distress
(Non-economic Damages)

Arguments of Counsel Not Evidence of Damage

Life Expectancy

Punitive Damages - Entity Defendant - Bifurcated Trial (First Phase)
Duties of the Judge and Jury

Removal of Claims or Parties

Pre-deliberation Instructions

Taking Notes During Trial

Reading Back of Trial Testimony in Jury Room

Introduction to Special Verdict Form

Instruction to Alternate Jurors

Burden of Proof and Preponderance of Evidence
Burden of Proof and Clear and Convincing Evidence
Negligence - Essential Elements

Negligence and Ordinary Care - Definitions

A Test For Determining the Question of Negligence
Cause - Substantial Factor Test

Concurring Causes

Asbestos Causation0 Om IY DA WD BF WN

10

BAJI 9.00
BAJI 9.01
BAJI 9.00.5
BAJI 9.00.7
BAJI 9.19
BAJI 9.20
BAJI 9.21
BAJI 9.22
BAJI 12.72
BAJI 12.88
BAJI 14.69
BAJI 14.72.2

Dated:

Products Liability - Introductory
Products Liability - Transition Instruction - Strict Liability in Tort
Design Defect - Essential Elements
Failure to Warn - Essential Elements
Products Liability - Transition Instruction Negligence Liability
Products Liability - Negligence - Supplier’s Duty to Warn
Products Liability - Negligence - Duty of Manufacturer

‘oducts Liability - Negligence - Duty of Maker of a Component Part
Emotional Distress - Defined

Damages - Emotional Distress

Damages - Life Expectancy

Punitive Damages - Measure Of

BRAYTON*PURCELL LLP

By: _/s/ James P. Nevin
James P. Nevin.
Attorneys for Plaintiffs

K Mpjured\19349\rialprop jury instructions wpd 4 IPN
PLAINTIFFS’ PROPOSED JURY INSTRUCTIONSCACTI 100

You have now been sworn as jurors in this case. I want to impress on you the seriousness and
importance of serving on a jury. Trial by jury is a fundamental right in California. The parties
have a right to a jury that is selected fairly, that comes to the case without bias, and that will
attempt to reach’a verdict based on the evidence presented. Before we begin, I need to explain
how you must conduct yourselves during the trial.

Do not allow anything that happens outside this courtroom to affect your decision. During the
trial do not talk about this case or the people involved in it with anyone, including family and
persons living in your household, friends and co-workers, spiritual leaders, advisors, or
therapists. You may say you are on a jury and how long the trial may take, but that is all. You
must not even talk about the case with the other jurors until after I tell you that it is time for you
to decide the case.

This prohibition is not limited to face-to-face conversations. It also extends to all forms of
electronic communications. Do not use any electronic device or media, such as a cell phone or
smart phone, PDA, computer, the Internet, any Internet service, any text or instant-messagin;
service, any Internet chat room, blog, or website, including social networking websites or online
diaries, to send or receive any information to or from anyone about this case or your experience
as a juror until after you have been discharged from your jury duty.

During the trial you must not listen to anyone else talk about the case or the people involved in
the case. You must avoid any contact with the parties, the lawyers, the witnesses, and anyone
else who may have a connection to the case. If anyone tries to talk to you about this case, tell
that person that you cannot discuss it because you are a juror. If he or she keeps talking to you,
simply walk away and report the incident to the court attendant as soon as you can.

After the trial is over and I have released you from jury duty, you may discuss the case with
anyone, but you are not required to do so.

During the trial, do not read, listen to, or watch any news reports about this case I have no
information that there will be news reports concerning this case. This prohibition extends to the
use of the Internet in any way, including reading any blog about the case or about anyone
involved with it. If you receive information about this case from any source outside of the
courtroom, promptly report it to the court attendant. It is important that all jurors see and hear the
same evidence at the same time.

Do not do any research on your own or as a group. Do not use dictionaries, the Internet, or other
reference materials. Do not investigate the case or conduct any experiments. Do not contact
anyone to assist you, such as a family accountant, doctor, or lawyer. Do not visit or view the
scene of any event involved in this case or use any Internet maps or mapping programs or any
other program or device to search for or to view any place discussed in the testimony. If you
happen to pass by the scene, do not stop or investigate. If you do need to view the scene during
the trial, you will be taken there as a group under proper supervision.

[If you violate any of these prohibitions on communications and research, including prohibitions
on electronic communications and research, you may be held in contempt of court or face other
sanctions. That means that you may have to serve time in jail, pay a fine, or face other
punishment for that violation.]

It is important that you keep an open mind throughout this trial. Evidence can only be presented
a piece at a time. Do not form or express an opinion about this case while the trial is going on.

‘ou must not decide on a verdict until after you have heard all the evidence and have discussed it
thoroughly with your fellow jurors in your deliberations.

Do not concern yourselves with the reasons for the rulings I will make during the course of the
trial. Do not guess what I may think your verdict should be from anything I might say or do.When you begin your deliberations, you may discuss the case only in the jury room and only
when all the jurors are present.

You must decide what the facts are in this case. Do not let bias, sympathy, prejudice, or public
opinion influence your verdict.

At the end of the trial, I will explain the law that you must follow to reach your verdict. You
must follow the law as IJ explain it to you, even if you do not agree with the law.CACI 101

To assist you in your tasks as jurors, I will now explain how the trial will proceed. I will begin by
identifying the parties to the case. ** filed this lawsuit. He/She is called the plaintiff. He/She
seeks damages from [name of defendant], who is called a defendant).

First, each side may make an opening statement, but neither side is required to do so. An
opening statement is not evidence. It is simply an outline to help you understand what that party
expects the evidence will show. Also, because it is often difficult to give you the evidence in the
order we would prefer, the opening statement allows you to keep an overview of the case in mind
during the presentation of the evidence.

Next, the jury will start hearing the evidence. Plaintiff will present evidence first. When he/she
is finished, each defendant will have an opportunity to present evidence.

Each witness will first be questioned by the side that asked the witness to testify. This is called
direct examination. Then the other side is permitted to question the witness. This is called cross-
examination.

Documents or objects referred:to during the trial are called exhibits. Exhibits are given a number
so that they may be clearly identified. Exhibits are not evidence until I admit them into evidence.
During your deliberations, you will be able to look at all exhibits admitted into evidence.

There are many rules that govern whether something will be admitted into evidence. As one side
presents evidence, the other side has the right to object and to ask me to decide if the evidence is
permitted by the rules. Usually, I will decide immediately, but sometimes I may have to hear
arguments outside of your presence.

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. What the parties say in closing argument is not
ae The arguments are offered to help you understand the evidence and how the law
applies to it.CACTI 102

You have been given notebooks and may take notes during the trial. Do not take the notebooks
out of the courtroom or jury room at any time during the trial. You may take your notes into the
jury room during deliberations.

You should use your notes only to remind yourself of what happened during the trial. Do not let
your note-taking interfere with your ability to listen carefully to all the testimony and to watch
the witnesses as they testify. Nor should you allow your impression of a witness or other
evidence to be influenced by whether or not other jurors are taking notes. Your independent
recollection of the evidence should govern your verdict, and you should not allow yourself to be
influenced by the notes of other jurors if those notes differ from what you remember.

The court reporter is making a record of everything that is said. If during deliberations you have
a question about what the witness said, you should ask that the court reporter’s records be read to
you. You must accept the court reporter’s record as accurate.

At the end of the trial, your notes will be collected and destroyed.CACTI 103

There is/are ** defendant(s) in this trial. You should decide the case against each defendant
separately as if it were a separate lawsuit. Each defendant is entitled to separate consideration of
his or her own defenses. Unless I tell you otherwise, all instructions apply to each defendant.CACI 104

A corporation is a party in this lawsuit. [Name of entity] is entitled to the same fair and impartial
treatment that you would give to an individual. You must decide this case with the same fairness
that you would use if you were deciding the case between individuals.

When I use words like “person” or “he” or “she” in these instructions to refer to a party, those
instructions also apply to [name of entity].CACI 105

You must not consider whether any of the parties in this case has insurance. The presence or
absence of insurance is totally irrelevant. You must decide this case based only on the law and
the evidence.CACI 106

You must decide what the facts are in this case only from the evidence you see or hear during the
trial. Sworn testimony, documents, or anything else may be admitted into evidence. You may not
consider as evidence anything that you see or hear when court is not in session, even something
done or said by one of the parties, attorneys, or witnesses.

What the attorneys say during the trial is not evidence. In their opening statements and closing
arguments, the attorneys will talk to yu about the law and the evidence. What the lawyers say
may help you understand the law and the evidence, but their statements and arguments are not

evidence.

The attorneys’ questions are not evidence. Only the witnesses’ answers are evidence. You
should not think that something is true just because an attorney’s question suggests that it is true.
However, the attorneys for both sides can agree that certain facts are true. This agreement is
cut a “stipulation.” No other proof is needed and you must accept those facts as true in this
trial.

Each side has the right to object to evidence offered by the other side. If 1 do not agree with the
objection, I will say it is overruled. If I overrule an objection, the witness will answer and you
may consider the evidence. If I agree with the objection, I will say it is sustained. If I sustain an
objection, you must ignore the question. If the witness did not answer, you must not guess what
he or she might have said or why I sustained the objection. If the witness has already answered,
you must ignore the answer. :

An attorney may make a motion to strike testimony that you have heard. If] grant the motion,
you must totally disregard that testimony. You must treat it as though it did not exist.CACI 107

A witness is a person who has knowledge related to this case. You will have to decide whether
you believe each witness and how important each witness’s testimony is to the case. You may
believe all, part, or none of a witness’s testimony.

In deciding whether to believe a witness’s testimony, you may consider, among other factors, the
following:

(a) How well did the witness see, hear, or otherwise sense what he or she
described in court?

(b) — How well did the witness remember and describe what happened?
8 How did the witness look, act, and speak while testifying?

d) Did the witness have any reason to say something that was not true? For
example, did the witness show any bias or prejudice or have a personal
relationship with any of the parties involved in the case or have a personal stake in
how this case is decided?

(e) What was the witness’s attitude toward this case or about giving
testimony?

Sometimes a witness may say something that is not consistent with something else he or she said.
Sometimes different witnesses will give different versions of what happened. People often forget
things or make mistakes in what they remember. Also, two people may see the same event but
remember it differently. You may consider these differences, but do not decide that testimony is
untrue just because it differs from other testimony. :

However, if you decide that a witness has deliberately testified untruthfully about something
important, you may choose not to believe anything that witness said. On the other hand, if you
think the witness testified untruthfully about some things but told the truth about others, you may
accept the part you think is true-and ignore the rest.

Do not make any decision simply because there were more witnesses on one side than on the
other. If you believe it is true, the testimony of a single witness is enough to prove a fact.CACI 111

As alternate jurors, you are bound by the same rules that govern the conduct of the jurors who are
sitting on the panel. You will observe the same trial and should pay attention to all of my
instructions just as if you were sitting on the panel. Sometimes a juror needs to be excused during
a trial for illness or some other reason. If that happens, an alternate will be selected to take that

juror’s place.CACI 112

Tf, during the trial, you have a question that you believe should be asked of a witness, you may
write out the question and send it to me through my courtroom staff. I will share your question
with the attorneys and decide whether it may be asked.

Do not feel disappointed if your question is not asked. Your question may not be asked for a
variety of reasons. For example, the question may call for an answer that is not allowed for legal
reasons. Also, you should not try to guess the reason why a question is not asked or speculate
about what the answer might have been. Because the decision whether to allow the question is
mine. alone, do not hold it against any of the attorneys or their clients if your question is not
asked.

Remember that you are not an advocate for one side or the other. Each of you is an impartial
judge of the facts. Your questions should be posed in as neutral a fashion as possible. Do not
discuss any question asked by any juror with any other juror until after deliberations begin.CACI 113

Each one of us has biases about or certain perceptions or stereotypes of other people. We may be
aware of some of our biases, though we may not share them with others. We may not be fully
aware of some of our other biases.

Our biases often affect how we act, favorably or unfavorably, toward someone. Bias can affect
our thoughts, how we remember, what we see and hear, whom we believe or disbelieve, and how
we make important decisions.

As jurors you are being asked to make very important decisions in this case. You must not let
bias, prejudice, or public opinion influence your decision. You must not be biased in favor of or
against any party or witness because of his or her disability, gender, race, religion, ethnicity,
sexual orientation, age, national origin, or socioeconomic status.

Your verdict must be based solely on the evidence presented. You must carefully evaluate the
evidence and resist any urge to reach a verdict that is influenced by bias for or against any party
or witness.CACI 114

From time to time during the trial, it may become necessary for me to talk with the attorneys out
of the hearing of the jury, either by having a conference at the bench when the jury is present in
the courtroom, or by calling a recess to discuss matters outside of your presence. The purpose of
these conferences is not to Keep relevant information from you, but to decide how certain
evidence is to be treated under the rules of evidence. Do not be concerned about our discussions
or try to guess what is being said.

I may not always grant an attorney’s request for a conference. Do not consider my granting or
denying a request for a conference as any indication of my opinion of the case or of my view of
the evidence.CACI 116

I know that many of us are used to communicating and Perhaps even learning by electronic
communications and research. However, there are good reasons why you must not electronically
communicate or do any research on anything having to do with this trial or the parties.

In court, jurors must make important decisions that have consequences for the parties. Those
decisions must be based only on the evidence that you hear in this courtroom.

The evidence that is presented in court can be tested; it can be shown to be right or wrong by
either side; it can be questioned; and it can be contradicted by other evidence. What you might
read or hear on your own could easily be wrong, out of date, or inapplicable to this case.

The parties can receive a fair trial only if the facts and information on which you base your
decisions are presented to you as a group, with each juror having the same opportunity to see,
hear, and evaluate the evidence.

Also, a trial is a public process that depends on disclosure in the courtroom of facts and evidence.
Using information gathered in secret by one or more jurors undermines the public process and
violates the rights of the parties.CACTI 200

A party must persuade you, by the evidence presented in court, that what he or she is required to
prove is more likely to be true than not true. This is referred to as “the burden of proof.”

After weighing all of the evidence, if you cannot decide that something is more likely to be true
than not true, you must conclude that the party did not prove it. You should consider all the
evidence, no matter which party produced the evidence.

In criminal trials, the prosecution must prove facts showing that the defendant is guilty beyond a
reasonable doubt. But in civil trials, such as this one, the party who is required to prove
something need prove only that it is more likely to be true than not true.CACTI 201

Certain facts must be proved by clear and convincing evidence, which is a higher burden of
proof. This means the party must persuade you that it is highly probable that the fact is true. I
will tell you specifically which facts must be proved by clear and convincing evidence.CACTI 202

Evidence can come in many forms. It can be testimony about what someone saw or heard or
smelled. It can be an exhibit admitted into evidence. It can be someone’s opinion.

Direct evidence can prove a fact by itself. For example, if a witness testifies she saw a jet plane
flying across the sky, that testimony is direct evidence that a plane flew across the sky. Some
evidence proves a fact indirectly. For example, a witness testifies that he saw only the white trail
that jet planes often leave. This indirect evidence is sometimes referred to as “circumstantial
ee In either instance, the witness’s testimony is evidence that a jet plane flew across the
sky. “

As far as the law is concerned, it makes no difference whether evidence is direct or indirect. You
may choose to believe or disbelieve either kind. Whether it is direct or indirect, you should give
every piece of evidence whatever weight you think it deserves.CACI 203

You may consider the ability of each party to provide evidence. Ifa party provided weaker
evidence when it could have provided stronger evidence, you may distrust the weaker evidence.CACI 205

If a party failed to explain or deny evidence against him/her/it when he/she/it could reasonably be
expected to have done so based on what he/she/it knew, you may consider his/her/its failure to
explain or deny in evaluating that evidence.

It is up to you to decide the meaning and importance of the failure to explain or deny evidence
against the party.CACI 206

During the trial, I explained to you that certain evidence was admitted for a limited purpose. You
may consider that evidence only for the limited purpose that I described, and not for any other
purpose.CACI 208

During the trial, you received deposition testimony that was read from the deposition transcript
or shown by video. A deposition is the testimony of a person taken before trial. At a deposition
the person is sworn to tell the truth and is questioned by the attorneys. You must consider the
deposition testimony that was presented to you in the same way as you consider testimony given
in court.CACI 209

Before trial, each party has the right to ask the other parties to answer written questions. These
questions are called interrogatories. The answers are also in writing and are given under oath.
You must consider the questions and answers that were read to you the same as if the questions
and answers had been given in court.CACI 219

During the trial you heard testimony from expert witnesses, The law allows an expert to state
opinions about matters in his or her field of expertise even if he or she has not witnessed any of
the events involved in the trial.

You do not have to accept an expert’s opinion. As with any other witness, it is up to you to
decide whether you believe the expert’s testimony and choose to use it as a basis for your
decision. You may believe all, part, or none of an expert’s testimony. In deciding whether to
believe an expert’s testimony, you should consider:

1. the expert’s training and experience;
2. the facts the expert relied on; and
3. the reasons for the expert’s opinion.CACI 220

The Jaw allows expert witnesses to be asked questions that are based on assumed facts. These
are sometimes called "hypothetical questions."

In determining the weight to give to the expert's opinion that is based on the assumed facts, you
should consider whether the assumed facts are true.CACI 221

If the expert witnesses disagreed with one another, you should weigh each opinion against the
others. You should examine the reasons given for each opinion and the facts or other matters
that each witness relied on. You may also compare the experts’ qualifications.CACTI 400

* Plaintiff claims that ** was harmed by defendants’ negligence. To establish this claim, plaintiff
must prove all of the following:

1. That defendants were negligent;
2. That ** was harmed; and

3. That defendants’ negligence was a substantial factor in causing **’s harm.CACI 401
Negligence is the failure to use reasonable care to prevent harm to oneself or to others.
A person can be negligent by acting or by failing to act. A person is negligent if he or she does
something that a reasonably careful person would not do in the same situation or fails to do
something that a reasonably careful person would do in the same situation.

You must decide how a reasonably careful person would have acted in the plaintiff's and
defendants’ situation.CACI 406

Defendants claim that the negligence of others contributed to **’s harm. To succeed on this
claim, these defendants must prove both of the following:

1. that others were negligent or otherwise at fault; and
2. that the negligence or fault of others was a substantial factor in causing
**s harm.

If you find that the negligence or fault of others was a substantial factor in causing plaintiff's
harm, you must then decide how much responsibility each has by assigning percentages of
responsibility to each person listed on the verdict form. The percentages must total 100 percent.

You will make a separate finding of plaintiff's total damages, if any. In determining an amount
of damages, you should not consider any person’s assigned percentage of responsibility.CACI 431

A person’s negligence may combine with another factor to cause harm. If you find that a
defendant’s negligence was a substantial factor in causing **’s harm, then that defendant is
responsible for the harm. A defendant cannot avoid responsibility just because some other
person, condition, or event was also a substantial factor in causing **’s harm.CACTI 435

A substantial factor in causing harm is a factor that a reasonable person would consider to have
contributed to the harm. It does not have to be the only cause of the harm.

Plaintiffs may prove that exposure to asbestos from a defendant’s product or conduct was a
substantial factor causing his/her illness by showing, through expert testimony, that there is a
reasonable medical probability that the exposure was a substantial factor contributing to his/her
tisk of developing cancer.CACTI 1200

Plaintiff ** claims that he/she was harmed by an asbestos-containing product manufactured,
distributed or sold by defendants that:

were defectively designed or;

did not include sufficient instructions or warning of potential safety hazardsCACTI 1203

Plaintiff ** claims the defendants’ asbestos-containing products’ design was defective because
the products did not perform as safely as an ordinary consumer would have expected it to
perform. To establish this claim, plaintiff **, must prove all of the following:

1. that the defendant manufactured, distributed or sold the products;

2. that the products did not perform as safely as an ordinary consumer would
have expected it to perform when used or misused in an intended or reasonably
foreseeable way;

3. that plaintiff ** was harmed; and
4. that the © product’ s failure to perform safely was a substantial factor in
causing plaintiff **’s harm.CACTI 1205

Plaintiff ** claims that the asbestos-containing product lacked sufficient instructions or warning
of tential risks or side effects. To establish this claim, plaintiff ** must prove all of the
‘ollowing:

1. that the defendants manufactured, distributed or sold the product;

2. that the product had potential risks or side effects that were known or
knowable in lig t of the of the scientific knowledge available at the time of
manufacture, distribution or sale;

3. that the potential risks or side effects presented a substantial danger when
the product is used or misused in an intended or reasonably foreseeable way;

4. that ordinary consumers would not have recognized the potential risks or
side effects;

5. that the defendants failed to adequately warn or instruct of the potential
risks or side effects;

6. That ** was harmed; and

7. That the lack of sufficient instructions or warnings was a substantial factor

in causing **’s harm.CACTI 1220

Plaintiff ** also claims that he/she was harmed by defendants’ negligence and that defendants
should be held responsible for that harm. To establish this claim, plaintiff ** must prove all of
the following:

1. that the defendant designed, manufactured, supplied, installed or repaired
the product;

2. that the defendant was negligent in designing, manufacturing, supplying,
installing or repairing the product;

3. that plaintiff ** was harmed; and

4. that the defendant’s negligence was a substantial factor in causing plaintiff

*s harm.CACTI 1221

A designer, manufacturer, supplier, installer or repairer is negligent if it fails to use the amount of
care in designing, manufacturing, inspecting, installing or repairing the product that a reasonably
careful designer, manufacturer, supplier, installer or repairer would use in similar circumstances
to avoid exposing others to a foreseeable risk of harm.

In determining whether a defendant used reasonable care, you should balance what a defendant
knew or should have known about the likelihood and severity of potential harm from the product
against the burden of taking safety measures to reduce or avoid the harm.CACTI 1222

Plaintiff ** claims that defendants were negligent by not using reasonable care to warn or

instruct about the asbestos-containing products’ dangerous condition or about facts that made the

products likely to be dangerous. To establish this claim, plaintiff ** must prove all of the
following:

1. that the defendants manufactured, distributed or sold the product;

2. that the defendants knew or reasonably should have known that the
product was dangerous or was likely to be dangerous when used or misused in a
reasonably foreseeable manner;

3. that defendants knew or reasonably should have known that users would
not realize the danger;

4, that defendants failed to adequately warn of the danger or instruct on the
safe use of the product;

5. that a reasonable manufacturer, distributor or seller under the same.or
similar circumstances would have warned of the danger or instructed on the safe
use of the product.

6. that plaintiff ** was harmed; and

7. that defendants’ failure to warn or instruct was a substantial factor in
causing plaintiff **’s harm.CACI 1223

Plaintiff ** claims that the defendants were negligent because they failed to recall or retrofit the
products. To establish this claim, plaintiff ** must prove all of the following:

1. that the defendant manufactured, distributed or sold the product;
2. that the defendant knew or reasonably should have known that the product

was dangerous or was likely to be dangerous when used in a reasonably
foreseeable manner;

3. that the defendant became aware of this defect after the product was sold;
4. that the defendant failed to recall or retrofit or warn of the danger of the
product;

5. that a reasonable manufacturer, distributor or seller under the same or
similar circumstances would have recalled or retrofitted the products;

6. that plaintiff ** was harmed; and

7. that the defendant’s failure to recall or retrofit the product was a

substantial factor in causing **’s harm.CACI 3900

If you decide that plaintiff has proven his/her claims against a defendant, you also must decide
how much money will reasonably compensate plaintiff for the harm. This compensation is called
“damages.”

The amount of damages must include an award for each item of harm that was caused by
defendant’s wrongful conduct, even if the particular harm could not have been anticipated.

Plaintiff does not have to prove the exact amount of damages that will provide reasonable
compensation for the harm. However, you must not speculate or guess in awarding damages.

The following are the specific items of damages claimed by plaintiff:CACTI 3902

The damages claimed by plaintiff for the harm caused by the defendants fall into two categories
called economic damages and non-economic damages. You will be asked on the verdict form to
state the two categories of damages separately.CACTI 3903

The following are the specific items of economic damages claimed by plaintiff:CACTI 3903A

1. Past and future medical expenses.

To recover damages for past medical expenses, plaintiff must prove the reasonable cost of
reasonably necessary medical care that he/she has received.

To recover damages for future medical expenses, plaintiff must prove the reasonable cost of
reasonably necessary medical care that he/she is reasonably certain to need in the future.CACTI 3903B

2. The cost of future medical monitoring. To recover damages for this time, plaintiff must prove
both of the following:

1. that as a result of the toxic exposure, the need for future monitoring is
reasonably certain; and

2. that the monitoring is reasonable.
In deciding these issues, you should consider the following:

(a) the significance and extent of plaintiff **’s exposure to the chemical(s);
(b) the toxicity of the chemical(s);
(c) the relative increase in plaintiff **’s chance of getting the disease as a
result of the exposure, when compared to:
(i) his/her chance of developing the disease had he/she not been
exposed; and
7 (ii) the chances that members of the public at large will develop the
lisease;

(d) the seriousness of the disease that may result from the exposure; and
(e) the medical benefit of early detection and diagnosis.CACT 3903C

3. Past and future lost earnings:

- recover damages for past lost earnings, plaintiff must prove the amount of benefits lost to
ate.

To recover damages for future lost earnings, plaintiff must prove the amount of benefits that
he/she/they will be reasonably certain to lose in the future as a result of the injury.CACI 3903E
4. The loss of **’s ability to provide household services.
To recover damages for the loss of the ability to provide household services, plaintiff must prove

the reasonable value of the services he/she would have been reasonably certain to provide to
his/her household if the injury had not occurred.CACI 3905

The following are the specific items of noneconomic damages claimed by plaintiff:CACI 3905A

1, Past and future physical pain, mental suffering, loss of enjoyment of life, disfigurement,
physical impairment, inconvenience, grief, anxiety, humiliation, emotional distress.

No fixed standard exists for deciding the amount of these noneconomic damages. You must use
your judgment to decide a reasonable amount based on the evidence and your common sense.

To recover for such damages in the future, plaintiff must prove that he/she is reasonably certain
to suffer that harm.

For such future damages, determine the amount in current dollars paid at the time of judgment
that will compensate plaintiff for future damages. This amount of noneconomic damages should
not be further reduced to present cash value because that reduction should only be performed
with respect to economic damages.CACI 3925

The arguments of the attorneys are not evidence of damages. Your award must be based on your
reasoned judgment applied to the testimony of the witnesses and the other evidence that has been
admitted during trial.CACTI 3932

If you decide ** has suffered damages that will continue for the rest of his/her life, you must
determine how long he/she will probably live. According to standard life expectancy tables, a
____ year old male/female is expected to live another ___years. This is the average life
expectancy. Some people live longer and others die sooner.

This published information is evidence of how long a person is likely to live but is not
conclusive. In deciding a person’s life expectancy, you should also consider, among other factors,
that person’s health, habits, activities, lifestyle, and occupation.CACI 3946

If you decide that defendants’ conduct caused ** harm, you must decide whether that conduct
justifies an assessment of punitive damages. The amount, if any, of punitive damages will be an
issue decided later.

At this time, you must decide whether plaintiff ** has proved that defendants engaged in that
conduct with malice oppression, or fraud. To do this, plaintiff ** must prove one of the
following by clear and convincing evidence:

1, that the conduct constituting malice, oppression, or fraud was committed
by one or more officers, directors, or managing agents of the defendant who acted
on behalf of the defendant; or

2. that the conduct constituting malice, oppression, or fraud was authorized
by one or more officers, directors, or managing agents of the defendant; or

3. that one or more officers, directors, or managing agents of the defendant
knew of the conduct constituting malice, oppression, or fraud and adopted or
approved that conduct after it occurred.

“Malice” means that the defendant acted with intent to cause injury or that the defendant’s
conduct was despicable and was done with a willful and knowing disregard of the rights or safety
of another. A person acts with knowing disregard when he or she is aware of the probable
dangerous consequences of his or her conduct and deliberately fails to avoid those consequences.

“Oppression” means that the defendant’s conduct was despicable and subjected plaintiff ** to
cruel and unjust hardship in knowing disregard of his/her rights.

“Despicable conduct” is conduct that is so vile, base, or contemptible that it would be looked
down on and despised by reasonable people.

“Fraud” means that defendant intentionally misrepresented or concealed a material fact and did
so intending to harm plaintiff.

“An employee is a “managing agent” if he or she exercises substantial independent authority and
judgment in his or her corporate decision making such that his or her decisions ultimately
determine corporate policy.CACTI 5000

Members of the jury, you have now heard all the evidence and the closing arguments of the
attorneys. The attorneys will have one last chance to talk to you in closing argument. But before
they do, it is my duty to instruct you on the law that applies to this case. You must follow these
instructions as well as those that I previously gave you. You will have a copy of my instructions
with you when you go to the jury room to deliberate. I have provided each of you with your own
copy of the instructions.

You must decide what the facts are. You must consider all the evidence and then decide what
you think happened. You must decide the facts based on the evidence admitted in this trial.

Do not allow anything that happens outside this courtroom to affect your decision. Do not talk
about this case or the people involved in it with anyone, including family and persons living in
your household, friends and coworkers, spiritual leaders, advisors, or therapists. Do not do any
research on your own or as a group. Do not use dictionaries or other reference materials.

These prohibitions on communications and research extend to all forms of electronic
communications. Do not use any electronic devices or media, such as a cell phone or smart
phone, PDA, computer, tablet device, the Internet, any Internet service, any text or instant-
messaging service, any Internet chat room, blog, or website, including social networking
websites or online diaries, to send or receive any information to or from anyone about this case or
your experience as a juror until after you have been discharged from your jury duty.

Do not investigate the case or conduct any experiments. Do not contact anyone to assist you,
such as a family accountant, doctor, or lawyer. Do not visit or view the scene of any event
involved in this case. If you happen to pass by the scene, do not stop or investigate. All jurors
must see or hear the same evidence at the same time. You must not let bias, sympathy, prejudice,
or public opinion influence your decision.

[If you violate any of these prohibitions on communications and research, including prohibitions
on electronic communications and research, you may be held in contempt of court or face other
sanctions. That means you may have to serve time in jail, pay a fine, or face other punishment for
that violation.]

I will now tell you the law that you must follow to reach your verdict. You must follow the law
exactly as I give it to you, even if you disagree with it. If the attorneys have said anything
different about what the law means, you must follow what I say.

In reaching your verdict, do not guess what I think your verdict should be from something I may
have said or done.

Pay careful attention to all the instructions that I give you. All the instructions are important
because together they state the law that you will use in this case. You must consider all of the
instructions together.

After you have decided what the facts are, you may find that some instructions do not apply. In
that, case, follow the instructions that do apply and use them together with the facts to reach your
verdict.

If I repeat any ideas or rules of law during my instructions, that does not mean that these ideas or
tules are more important than the others are. In addition, the order of the instructions does not
make any difference.

Most of the instructions are typed. However, some handwritten or typewritten words may have
been added, and some words may have been deleted. Do not discuss or consider why words may
have been added or deleted. Please treat all the words the same, no matter what their format.
Simply accept the instruction in its final form.CACTI 5007
is no longer a party to this case.

Do not speculate as to why this party is no longer involved in this case. You should not consider
this during your deliberationsCACI 5009
When you go to the ey, room, the first thing you should do is choose a presiding juror. The
presiding juror should see to it that your discussions are orderly and that everyone has a fair
chance to be heard.

It is your duty to talk with one another in the jury room and to consider the views of all the
jurors. Each of you must decide the case for yourself, but only after you have considered the
evidence with the other members of the jury. Feel free to change your mind if you are convinced
that your position should be different. You should all try to agree. But do not give up your
honest beliefs just because others think differently.

Please do not state your opinions too strongly at the beginning of your deliberations or
immediately announce how you plan to vote as it may interfere with an open discussion. Keep an
open mind so that you and your fellow jurors can easily share ideas about the case.

You should use your common sense and experience in deciding whether testimony is true and
accurate. However, during your deliberations, do not make any statements or provide any
information to other jurors based on any special training or unique personal experiences that you
may have had related to matters involved in this case. What you may know or have learned
through your training or experience is not a part of the evidence received in this case.

Sometimes jurors disagree or have questions about the evidence or about what the witnesses said
in their testimony. If that happens, you may ask to have testimony read back to you or ask to see
any exhibits admitted into evidence that have not already been provided to you. Also, jurors may
need further explanation about the laws that apply to the case. If this happens during your
discussions, write down your questions and give them to the court attendant, I will talk with the
attorneys before I answer so it may take some time. You should continue your deliberations while
you wait for my answer. I will do my best to answer them. When you write me a note, do not tell
me how you voted on an issue until I ask for this information in open court.

At least nine jurors must agree on a verdict. When you have finished filling out the form, your
presiding juror must write the date and sign it at the bottom and then notify the court attendant
that you are ready to present your verdict in the courtroom.

Your decision must be based on your personal evaluation of the evidence presented in the case.
Each of you may be asked in open court how you voted on each question.

While I know you would not do this, I am required to advise you that you must not base your
decision on chance, such as the flip of a coin. If you decide to award damages, you may not
agree in advance to simply add up the amounts each juror thinks is right and then, without further
deliberations, make the average your verdict.

You may take breaks, but not discuss this case with anyone, including each other, until all of you
are back in the jury room. .CACTI 5010

If you have taken notes during the trial, you may take your notebooks with you into the jury
room.

You may use your notes only to help you remember what happened during the trial. Your
independent recollection of the evidence should govern your verdict. You should not allow
yourself to be influenced by the notes of other jurors if those notes differ from what you
remember.

At the end of the trial, your notes will be collected and destroyed.CACI 5011

You may request in writing that trial testimony be read to you. I will have the court reporter read
the testimony to you. You may request that all or a part of a witness's testimony be read.

Your request should be as specific as possible. It will be helpful if you can state:

1. the name of the witness;

2. the subject matter of the testimony you would like to have read; and
3. the name of the attorney or attorneys asking the questions when the
testimony was given.

The court reporter is not permitted to talk with you when she or he is reading the testimony you
have requested.

While the court reporter is reading the testimony, you may not deliberate or discuss the case.

You may not ask the court reporter to read testimony that was not specifically mentioned in a
written request. If your notes differ from the testimony, you must accept the court reporter's
record as accurate.CACI 5012

I will give you a verdict form with questions you must answer. I have already instructed you on
the law that you are to use in answering these questions. You must follow my instructions and
the form carefully. You must consider each question separately. Although you may discuss the
evidence and the issues to be decided in any order, you must answer the questions on the verdict
form in the order they appear. After you answer a question, the form tells you what to do next.
All 12 of you must deliberate on and answer each question. At least 9 of you must agree on an
answer before you can move on to the next question. However, the same 9 or more people do
not have to agree on each answer.

When you are finished filling out the form, your presiding juror must write the date and sign it at
the bottom of the last page and then notify the court attendant that you are ready to present your
verdict in the courtroom.CACTI 5015

The jury will soon begin deliberating, but you are still alternate jurors and are bound by my
earlier instructions about your conduct.

Until the jury is discharged, do not talk about the case or about any of the people or any subject
involved in it with anyone; not even your family or friends, and not even with each other. Do not
have any contact with the deliberating jurors. Do not decide how you would vote if you were
deliberating. Do not form or express an opinion about the issues in this case, unless you are
substituted for one of the deliberating juror