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Filing # 154881489 E-Filed 08/08/2022 02:54:12 PM
IN THE CIRCUIT COURT, FOURTH
JUDICIAL CIRCUIT, INAND FOR DUVAL
COUNTY, FLORIDA
MARDEN MARY LE BOUTON, CASE NO.: 2020-CA-001773
Plaintiff,
V.
SUSAN B. PROFFITT, as
Personal Representative of the Estate of
JENNIFER RAINES D'AUGUSTINIS, as
Defendant,
Defendants.
/
DEFENDANT’S NOTICE OF FILING PROPOSED
JURY INSTRUCTIONS AND VERDICT FORM
Defendant, SUSAN B. PROFFITT, AS PERSONAL REPRESENTATIVE OF THE
ESTATE OF JENNIFER RAINES D'AUGUSTINIS, AS DEFENDANT, by and through
undersigned counsel, and pursuant to Fla. R. Civ. P. 1.470(b), hereby gives notice of filing
its proposed jury instructions and verdict form for the above-styled cause.
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a true and correct copy of the foregoing had been e-filed
with the Clerk of the Court via the Florida Court's E-Filing Portal on this 8th day of August,
2022, with electronic copies issued to the attorneys listed on the service list reflected on
the Court’s E-Filing Portal.
COLE, SCOTT, KISSANE, P.A.
Counsel for Defendant SUSAN B. PROFFITT,
asPersonal Representative of the Estate of
COLE, SCOTT, KISSANE, P.A.
}ELFORT ROAD, SUITE,
JACKSONVILLE, FLORIDA 32216-1461, ~ (904) 672-4100 (904) 672-4050 FAX
ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 08/09/2022 11:10:02 AM
JENNIFER RAINES D'AUGUSTINIS, as
Defendant
4190 Belfort Road, Suite 300
Jacksonville, Florida 32216-1461
Telephone (904) 672-4118
Facsimile (904) 672-4050
Primary e-mail: michelle.malave@csklegal.com
By: s/ Brea L. Dearing
BREA L. DEARING
Florida Bar No.: 124341
0770.0038-00
DEFENDANT’S PROPOSED JURY INSTRUCTIONS
PRIOR TO VOIR DIRE
201.1 DESCRIPTION OF THE CASE
(PRIOR TO VOIR DIRE)
Welcome. [I] [The clerk] will now administer your oath.
Now that you have been sworn, I'd like to give you an idea about what we are here
to do.
This is a civil trial. A civil trial is different from a criminal case, where a defendant
is charged by the state prosecutor with committing a crime. The subject of a civil trial is a
disagreement between people where the claims of one or more of these parties have
been brought to court to be resolved. It is called “a trial of a lawsuit.”
This is a case about an automobile accident that occurred on September 7, 2018
on North US-1 in Jacksonville, Florida. Plaintiff, MARDEN LE BOUTON, claims that he
suffered permanent injuries caused by the accident. Defendant, in the interest of
JENNIFER D’AUGUSTINIS, admits that she was negligent but disputes the claim that the
subject collision caused a permanent injury and disputes the extent of the damages
claimed by MARDEN LE BOUTON.
The principal witnesses who will testify in this case are:
[READ WITNESSES]
201.2 INTRODUCTION OF PARTICIPANTS AND THEIR ROLES
Who are the people here and what do they do?
Judge/Court: 1 am the Judge. You may hear people occasionally refer to me as
“The Court.” That is the formal name for my role. My job is to maintain order and decide
how to apply the rules of the law to the trial. | will also explain various rules to you that
you will need to know in order to do your job as the jury. It is my job to remain neutral on
the issues of this lawsuit.
Parties: A party who files a lawsuit is called the Plaintiff. A party that is sued is
called the Defendant.
Attorneys: The attorneys have the job of representing their clients. That means
they speak for their client here at the trial. They have taken oaths as attorneys to do their
best and to follow the rules for their profession.
Plaintiff's Counsel: The attorney on this side of the courtroom, Mr. Antonio Luciano,
represents MARDEN LE BOUTON and is the person who filed the lawsuit here at the
courthouse. His job is to present his client’s side of things to you. He and his client will be
referred to most of the time as “the plaintiff.” Mr. Luciano, will you please introduce who
is sitting at the table with you?
Defendant’s Counsel: The attorney on this side of the courtroom, Mr. Trevor
Hawes, represents JENNIFER D’AUGUSTINIS, the one who has been sued. His job is
to present his client’s side of things to you. He and his client will usually be referred to
here as “the defendant.” Mr. Hawes, will you please introduce who is sitting at the table
with you?
Court Clerk: This person sitting in front of me, (name), is the court clerk. [He] [She]
is here to assist me with some of the mechanics of the trial process, including the
numbering and collection of the exhibits that are introduced in the course of the trial.
Court Reporter: The person sitting at the stenographic machine, (name), is the
court reporter. [His] [Her] job is to keep an accurate legal record of everything we say and
do during this trial.
Bailiff: The person over there, (name), is the bailiff. [His] [Her] job is to maintain
order and security in the courtroom. The bailiff is also my representative to the jury.
Anything you need or any problems that come up for you during the course of the trial
should be brought to [him] [her]. However, the bailiff cannot answer any of your questions
about the case. Only | can do that.
Jury: Last, but not least, is the jury, which we will begin to select in a few moments
from among all of you. The jury’s job will be to decide what the facts are and what the
facts mean. Jurors should be as neutral as possible at this point and have no fixed opinion
about the lawsuit.
In order to have a fair and lawful trial, there are rules that all jurors must follow. A
basic rule is that jurors must decide the case only on the evidence presented in the
courtroom. You must not communicate with anyone, including friends and family
members, about this case, the people and places involved, or your jury service. You must
not disclose your thoughts about this case or ask for advice on how to decide this case.
1 want to stress that this rule means you must not use electronic devices or
computers to communicate about this case, including tweeting, texting, blogging, e-
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mailing, posting information on a website or chat room, or any other means at all. Do not
send or accept any messages to or from anyone about this case or your jury service.
You must not do any research or look up words, names, [maps,] or anything else
that may have anything to do with this case. This includes reading newspapers, watching
television or using a computer, cell phone, the Internet, any electronic device, or any other
means at all, to get information related to this case or the people and places involved in
this case. This applies whether you are in the courthouse, at home, or anywhere else.
Many of you may have cell phones, tablets, laptops, or other electronic devices
with you here in the courtroom.**
Alternative A: All cell phones, computers, tablets, or other types of electronic
devices must be turned off while you are in the courtroom. Turned off means that
the phone or other electronic device is actually off and not in a silent or vibrating
mode. You may use these devices during recesses, but even then you may not use
your cell phone or electronic device to find out any information about the case or
ommunicate with anyone about the case or the people involved in the case. Do
ot take photographs, video recordings, or audio recordings of the proceedings o
of your fellow jurors. After each recess, please double check to make sure your
ell phone or electronic device is turned off. At the end of the case, while you ar
deliberating, you must not communicate with anyone outside the jury room. You
annot_have in the jury room any cell phones, computers, or other electronic
devices. If someone needs to contact you in an emergency, the court can receive
messages and deliver them to you without delay. A contact phone number will be
provided to you.
What are the reasons for these rules? These rules are imposed because jurors
must decide the case without distraction and only on the evidence presented in the
courtroom. If you investigate, research, or make inquiries on your own outside of the
courtroom, the trial judge has no way to make sure that the information you obtain is
proper for the case. The parties likewise have no opportunity to dispute or challenge the
accuracy of what you find. That is contrary to our judicial system, which assures every
party the right to ask questions about and challenge the evidence being considered
against it and to present argument with respect to that evidence. Any independent
investigation by a juror unfairly and improperly prevents the parties from having that
opportunity our judicial system promises.
Any juror who violates these restrictions jeopardizes the fairness of these
proceedings, and a mistrial could result that would require the entire trial process to start
over. A mistrial is a tremendous expense and inconvenience to the parties, the court, and
the taxpayers. If you violate these rules, you may be held in contempt of court, and face
sanctions, such as serving time in jail, paying a fine or both.
All of your communications with courtroom personnel, or me, will be part of the
record of these proceedings. That means those communications shall either be made in
open court with the court reporter present or, if they are in writing, the writing will be filed
with the court clerk. This means, if you are outside the courtroom, any communication
with me must be in writing, unsigned, and handed directly to the bailiff. Do not share the
content of the writing with anyone, including other jurors. | have instructed the courtroom
personnel that any communications you have with them outside of my presence must be
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reported to me, and | will tell the parties and their attorneys about any communication
from you that | believe may be of interest to the parties and their attorneys.
However, you may communicate directly with courtroom personnel about matters
concerning your comfort and safety, such as juror parking, location of break areas,
how and when to assemble for duty, and what personal items can be brought into
the courthouse or ju room.
If you become aware of any violation of these instructions or any other instruction
| give in this case, you must tell me by giving a note to the bailiff.
201.3 EXPLANATION OF THE VOIR DIRE PROCESS
Voir Dire:
The last thing | want to do, before we begin to select the jury, is to explain to you
how the selection process works.
Questions/Challenges: This is the part of the case where the parties and their
lawyers have the opportunity to get to know a little bit about you, in order to help them
come to their own conclusions about your ability to be fair and impartial, so they can
decide who they think should be the jurors in this case.
How we go about that is as follows: First, I'll ask some general questions of you.
Then, each of the lawyers will have more specific questions that they will ask of you. After
they have asked all of their questions, | will meet with them and they will tell me their
choices for jurors. Each side can ask that | exclude a person from serving on a jury if they
can give me a reason to believe that he or she might be unable to be fair and impartial.
That is what is called a challenge for cause. The lawyers also have a certain number of
what are called peremptory challenges, by which they may exclude a person from the jury
without giving a reason. By this process of elimination, the remaining persons are
selected as the jury. It may take more than one conference among the parties, their
attorneys, and me before the final selections are made.
Purpose of Questioning: The questions that you will be asked during this process
are not intended to embarrass you or unnecessarily pry into your personal affairs, but it
is important that the parties and their attorneys know enough about you to make this
important decision. If a question is asked that you would prefer not to answer in front of
the whole courtroom, just let me know and you can come up here and give your answer
just in front of the attorneys and me. If you have a question of either the attorneys or me,
don’t hesitate to let me know.
Response to Questioning: There are no right or wrong answers to the questions
that will be asked of you. The only thing that | ask is that you answer the questions as
frankly and as honestly and as completely as you can. You [will take] [have taken] an oath
to answer all questions truthfully and completely and you must do so. Remaining silent
when you have information you should disclose is a violation of that oath as well. If a juror
violates this oath, it not only may result in having to try the case all over again but also
can result in civil and criminal penalties against a juror personally. So, again, it is very
important that you be as honest and complete with your answers as you possibly can. If
you don’t understand the question, please raise your hand and ask for an explanation or
clarification.
In the process of selecting the jury, some of the lawyers’ questions may be meant
to help them anticipate if your beliefs, experiences, or attitudes might make it difficult for
you to apply the rules of law. Jurors take an oath to follow the law. After the jury is chosen
and sworn in, | will instruct the jury on the rules they must follow in deciding this case. It
is important for you to remember that it will not be the jury’s job to decide what the law
ought to be Rather, the jury is to determine what the facts are, then apply the law to those
facts, using the court’s instructions on the rules of law to apply—which will be fully given
to the jury at the appropriate time.
In sum, this is a process to assist the parties and their attorneys to select a fair and
impartial jury. All of the questions they ask you are for this purpose. If, for any reason,
you do not think you can be a fair and impartial juror, you must tell us.
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OPENING INSTRUCTIONS FOLLOWING VOIR DIRE
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202.1 INTRODUCTION
You have now taken an oath to serve as jurors in this trial. Before we begin, 1 am
going to tell you about the rules of law that apply to this case. It is my intention to give you
most of the rules of law but it might be that | will not know for sure all of the law that might
apply in this case until all of the evidence is presented. However, | can anticipate most of
the law and give it to you at the beginning of the trial so that you can better understand
what to be looking for as the evidence is presented. If | later decide that different law
applies to the case, | will call that to your attention. In any event, at the end of the evidence
| will give you the final instructions that you must use to decide this case and it is those
instructions on which you must base your verdict. At that time, you will have a complete
written set of the instructions so you do not have to memorize what | am about to tell you.
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401.2 SUMMARY OF CLAIMS
The claims and defenses in this case are as follows: MARDEN LE BOUTON claims
that JENNIFER D’AUGUSTINIS was negligent in the operation of the vehicle she was
driving which caused her harm. MARDEN LE BOUTON claims that the subject motor
vehicle collision caused permanent injuries and damages.
JENNIFER D’AUGUSTINIS admits that she was negligent, but disputes the claim
that the subject collision caused a permanent injury and disputes the extent of the
damages claimed by MARDEN LE BOUTON.
The Plaintiff, MARDEN LE BOUTON, must prove her claims by the greater weight
of the evidence.
1 will now define some of the terms you will use in deciding this case.
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401.3 GREATER WEIGHT OF THE EVIDENCE
“Greater weight of the evidence” means the more persuasive and convincing force
and effect of the entire evidence in the case.
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401.4 NEGLIGENCE
Negligence is the failure to use reasonable care, which is the care that a reasonably
careful person would use under like circumstances. Negligence is doing something that
a reasonably careful person would not do under like circumstances or failing to do
something that a reasonably careful person would do under like circumstances.
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401.12 LEGAL CAUSE
Negligence is a legal cause of loss or injury if it directly and in natural and continuous
sequence produces or contributes substantially to producing such loss or injury, so that it
can reasonably be said that, but for the negligence, the loss or injury would not have
occurred.
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401.13(c) PREEMPTIVE CHARGE
The Court now instructs you that Defendant, JENNIFER D’AUGUSTINIS, was
negligent. The issue for you to decide on MARDEN LE BOUTON’s claims is whether such
negligence was a legal cause of loss or injury to Plaintiff, MARDEN LE BOUTON, and, if
so, the amount of the loss or injury as is proved by a greater weight of the evidence to
have been caused by JENNIFER D’AUGUSTINIS.
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401.21 BURDEN OF PROOF ON MAIN CLAIM
If the greater weight of the evidence does not support one or more of MARDEN LE
BOUTON’s claims, your verdict should be for JENNIFER D’AUGUSTINIS on those
claims.
However, if the greater weight of the evidence supports one or more of MARDEN
LE BOUTON’s claims, then your verdict should be for MARDEN LE BOUTON on that
claim.
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501.3 MOTOR VEHICLE NO-FAULT INSTRUCTION
If your verdict is for JENNIFER D’AUGUSTINIS, you will not consider the matter of
damages.
But if the greater weight of the evidence supports Plaintiff MARDEN LE BOUTON’s
claims, you should determine and write on the verdict form, in dollars, the total amount of
money that the greater weight of the evidence shows will fairly and adequately
compensate Plaintiff MARDEN LE BOUTON for the following elements of damage,
including damage that Plaintiff MARDEN LE BOUTON is reasonably certain to incur in
the future:
a. Medical Expenses
The reasonable expense of hospitalization and medical care and treatment
necessarily or reasonably obtained by Plaintiff in the past or to be so obtained in the
future.
b. Lost earnings and lost earning capacity
Any earnings lost in the past and any loss of ability to earn money in the future.
You must next decide whether MARDEN LE BOUTON’s injury, resulting from the
incident in this case, is permanent. An injury is permanent if it, in whole or in part, consists
of an injury that the evidence shows is permanent to a reasonable degree of medical
probability.
If the greater weight of the evidence does not establish that MARDEN LE
BOUTON’s injury is permanent, then your verdict is complete.
If, however, the greater weight of the evidence shows that MARDEN LE BOUTON’s
injury is permanent, you should also award damages for this additional element of
damage:
Any bodily injury sustained by MARDEN LE BOUTON and any resulting pain and
suffering experienced in the past or to be experienced in the future. There is no exact
standard for measuring such damage. The amount should be fair and just in the light of
the evidence.
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501.6 MORTALITY TABLES
If the greater weight of the evidence shows that Plaintiff has been permanently
injured, you may consider her life expectancy. The mortality tables received in evidence
may be considered in determining how long Plaintiff may be expected to live. Mortality
tables are not binding on you but may be considered together with other evidence in the
case bearing on Plaintiff's health, age and physical condition, before and after the injury,
in determining the probable length of her life.
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501.7 REDUCTION OF DAMAGES TO PRESENT VALUE
Any amount of damages which you allow for future medical expenses or loss of the
ability to earn money in the future should be reduced to its present money value and only
the present money value of these future economic damages should be included in your
verdict.
The present money value of future economic damages is the sum of money needed
now which, together with what that sum will earn in the future, will compensate Plaintiff
for these losses as they are actually experienced in future years.
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501.8 COLLATERAL SOURCE RULE
Some expenses claimed as damages by Plaintiff may have been paid or are
payable by personal injury protection insurance. You should not make any deduction for
payments made by personal injury protection insurance payments made to Plaintiff as the
Court will make these deductions from any verdict.
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601.1 WEIGHING THE EVIDENCE
In deciding this case, it is your duty as jurors to decide the issues, and only those
issues, that | submit for your determination at the end of the case and to answer certain
questions | will ask you to answer on a special form, called a special verdict form. You
must come to an agreement about what your answers will be. Your agreed-upon answers
to my questions are called your jury verdict.
The evidence in this case consists of the sworn testimony of the witnesses, all
exhibits received in evidence, and all facts that were admitted or agreed to by the parties.
In reaching your verdict, you must think about and weigh the testimony and any
documents, photographs, or other material that has been received in evidence. You may
also consider any facts that were admitted or agreed to by the lawyers. Your job is to
determine what the facts are. You may use reason and common sense to reach
conclusions. You may draw reasonable inferences from the evidence. But you should
not guess about things that were not covered here. And, you must always apply the law
as | have explained it to you.
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601.2 BELIEVABILITY OF WITNESSES
[601.2(a)] Let me speak briefly about witnesses. In evaluating the believability of
any witness and the weight you will give the testimony of any witness, you may properly
consider the demeanor of the witness while testifying; the frankness or lack of frankness
of the witness; the intelligence of the witness; any interest the witness may have in the
outcome of the case; the means and opportunity the witness had to know the facts about
which the witness testified; the ability of the witness to remember the matters about which
the witness testified; and the reasonableness of the testimony of the witness, considered
in the light of all the evidence in the case and in the light of your own experience and
common sense.
[601.2(b)] Some of the testimony you hear may be in the form of opinions about
certain technical subjects. You may accept such opinion testimony, reject it, or give it the
weight you think it deserves, considering the knowledge, skill, experience, training, or
education of the witness, the reasons given by the witness for the opinion expressed, and
all the other evidence in the case.
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202.2 EXPLANATION OF TRIAL PROCEDURE
Now that you have heard the law, | want to let you know what you can expect as the
trial proceeds.
Opening Statements: In a few moments, the attorneys will each have a chance to
make what are called opening statements. In an opening statement, an attorney is
allowed to give you [his] [her] views about what the evidence will be in the trial and what
you are likely to see and hear in the testimony.
Evidentiary Phase: After the attorneys’ opening statements the plaintiff will bring his
witnesses and evidence to you, followed by the defendant.
Evidence: Evidence is the information that the law allows you to see or hear in
deciding this case. Evidence includes the testimony of the witnesses, documents, and
anything else that | instruct you to consider.
Witnesses: A witness is a person who takes an oath to tell the truth and then
answers attorneys’ questions for the jury. The answering of attorneys’ questions by
witnesses is called “giving testimony.” Testimony means statements that are made when
someone has sworn an oath to tell the truth.
The plaintiffs lawyer will normally ask a witness the questions first. That is called
direct examination. Then the defense lawyer may ask the same witness additional
questions about whatever the witness has testified to. That is called cross-examination.
Certain documents or other evidence may also be shown to you during direct or cross-
examination. After the plaintiff's witnesses have testified, the defendant will have the
opportunity to put witnesses on the stand and go through the same process. Then the
plaintiff's lawyer gets to do cross-examination. The process is designed to be fair to both
sides.
It is important that you remember that testimony comes from witnesses. The
attorneys do not give testimony and they are not themselves witnesses.
Objections: Sometimes the attorneys will disagree about the rules for trial procedure
when a question is asked of a witness. When that happens, one of the lawyers may make
what is called an “objection.” The rules for a trial can be complicated, and there are many
reasons for the attorneys to object. You should simply wait for me to decide how to
proceed. If | say that an objection is “sustained,” that means you should disregard the
question and the witness may not answer the question. If 1 say that the objection is
“overruled,” that means the witness may answer the question.
When there is an objection and | make a decision, you must not assume from that
decision that | have any particular opinion other than that the rules for conducting a trial
are being correctly followed. If | say a question may not be asked or answered, you must
not try to guess what the answer would have been. That is against the rules, too.
Side Bar Conferences: Sometimes | will need to speak to the attorneys about legal
elements of the case that are not appropriate for the jury to hear. The attorneys and | will
try to have as few of these conferences as possible while you are giving us your valuable
time in the courtroom. But, if we do have to have such a conference during testimony, we
will try to hold the conference at the side of my desk so that we do not have to take a
break and ask you to leave the courtroom.
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Recesses: Breaks in an ongoing trial are usually called “recesses.” During a recess
you still have your duties as a juror and must follow the rules, even while having coffee,
at lunch, or at home.
Instructions Before Closing Arguments: After all the evidence has been presented
to you, | will again instruct you on the law that you must follow. At that time you will have
a written set of the instructions for your use.
Closing Arguments: The attorneys will then have the opportunity to make their final
presentations to you, which are called closing arguments.
Final Instructions: After you have heard the closing arguments, | will instruct you
further in the law as well as explain to you the procedures you must follow to decide the
case.
Deliberations: After you hear the final jury instructions, you will go to the jury room
and discuss and decide the questions | have put on your verdict form. [You will have a
copy of the jury instructions to use during your discussions.] The discussions you have
and the decisions you make are usually called “jury deliberations.” Your deliberations are
absolutely private and neither | nor anyone else will be with you in the jury room.
Verdict: When you have finished answering the questions, you will give the verdict
form to the bailiff, and we will all return to the courtroom where your verdict will be read.
When that is completed, you will be released from your assignment as a juror.
What are the rules?
Finally, before we begin the trial, | want to give you just a brief explanation of rules
you must follow as the case proceeds.
Keeping an Open Mind. You must pay close attention to the testimony and other
evidence as it comes into the trial. However, you must avoid forming any final opinion or
telling anyone else your views on the case until you begin your deliberations. This rule
requires you to keep an open mind until you have heard all of the evidence and is
designed to prevent you from influencing how your fellow jurors think until they have heard
all of the evidence and had an opportunity to form their own opinions. The time and place
for coming to your final opinions and speaking about them with your fellow jurors is during
deliberations in the jury room, after all of the evidence has been presented, closing
arguments have been made, and | have instructed you on the law. It is important that you
hear all of the facts and that you hear the law and how to apply it before you start deciding
anything.
Consider Only the Evidence. It is the things you hear and see in this courtroom that
matter in this trial. The law tells us that a juror can consider only the testimony and other
evidence that all the other jurors have also heard and seen in the presence of the judge
and the lawyers. Doing anything else is wrong and is against the law. That means that you
cannot do any work or investigation of your own about the case. You cannot obtain on your
own any information about the case or about anyone involved in the case, from any source
whatsoever, including the Internet, and you cannot visit places mentioned in the trial.
Do not provide any information about this case to anyone, including friends or family
members. Do not let anyone, including the closest family members, make comments to
you or ask questions about the trial. Similarly, it is important that you avoid reading any
newspaper accounts or watching or listening to television or radio comments that have
anything to do with this case or its subject.
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No Mid-Trial Discussions. When we are in a recess, do not discuss anything about
the trial or the case with each other or with anyone else. If attorneys approach you, don’t
speak with them. The law says they are to avoid contact with you. If an attorney will not
look at you or speak to you, do not be offended or form a conclusion about that behavior.
The attorney is not supposed to interact with jurors outside of the courtroom and is only
following the rules. The attorney is not being impolite. If an attorney or anyone else does
try to speak with you or says something about the case in your presence, please inform the
bailiff immediately.
Only the Jury Decides. Only you get to deliberate and answer the verdict questions
at the end of the trial. | will not intrude into your deliberations at all. | am required to be
neutral. You should not assume that | prefer one decision over another. You should not try
to guess what my opinion is about any part of the case. It would be wrong for you to
conclude that anything | say or do means that | am for one side or another in the trial.
Discussing and deciding the facts is your job alone.
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202.3 NOTE-TAKING BY JURORS
If you would like to take notes during the trial, you may do so. On the other hand, of
course, you are not required to take notes if you do not want to. That will be left up to you
individually.
You will be provided with a note pad and a pen for use if you wish to take notes.
Any notes that you take will be for your personal use. However, you should not take them
with you from the courtroom. During recesses, the bailiff will take possession of your notes
and will return them to you when we reconvene. After you have completed your
deliberations, the bailiff will deliver your notes to me. They will be destroyed. No one will
ever read your notes.
If you take notes, do not get so involved in note-taking that you become distracted
from the proceedings. Your notes should be used only as aids to your memory.
Whether or not you take notes, you should rely on your memory of the evidence and
you should not be unduly influenced by the notes of other jurors. Notes are not entitled to
any greater weight than each juror’s memory of the evidence.
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202.4 JUROR QUESTIONS
Questions for the court or courtroom personnel:
During the trial, you may have a question about these proceedings. If so, please
write it down and hand it to the bailiff, who will then hand it to me. | will review your
question with the parties and their attorneys before responding.
Questions for witnesses:
You also may have a question you think should be asked of a witness. If so, there
is a way for you to request that | ask the witness a question. After all the attorneys have
completed their questioning of the witness, you should raise your hand if you have a
question. | will then give you sufficient time to write the question on a piece of paper, fold
it, and give it to the bailiff, who will pass it to me. Do not put your name on the question,
show it to anyone or discuss it with anyone.
It is important to know that if you have a question you believe should be asked of
a witness, you must raise your hand and request that | ask the witness the question before
the witness leaves the witness stand. You will not have an opportunity to ask the witness
a question once the witness leaves the courtroom. | will then review the question with the
attorneys. Under our law, only certain evidence may be considered by a jury in
determining a verdict. You are bound by the same rules of evidence that control the
attorneys’ questions. If | decide that the question may not be asked under our rules of
evidence, | will tell you. Otherwise, | will direct the question to the witness. The attorneys
may then ask follow-up questions if they wish. If there are additional questions from jurors,
we will follow the same procedure again.
By providing this procedure, | do not mean to suggest that you must or should
submit written questions for witnesses. In most cases, the lawyers will have asked the
necessary questions.
The attorneys will now present their opening statements after which you will begin
hearing the evidence.
[Opening Statements]
29
CLOSING INSTRUCTIONS PRIOR TO CLOSING ARGUMENTS
30
401.1
Members of the jury, you have now heard and received all of the evidence in this
case. | am now going to tell you about the rules of law that you must use in reaching your
verdict. When | finish telling you about the rules of law, the attorneys will present their
final arguments and you will then retire to decide your verdict.
31
401.2 SUMMARY OF CLAIMS
The claims and defenses in this case are as follows: MARDEN LE BOUTON claims
that JENNIFER D’AUGUSTINIS was negligent in the operation of the vehicle she was
driving which caused her harm. MARDEN LE BOUTON claims that the subject motor
vehicle collision caused permanent injuries and damages.
JENNIFER D’AUGUSTINIS admits that she was negligent, but disputes the claim
that the subject collision caused a permanent injury and disputes the extent of the
damages claimed by MARDEN LE BOUTON.
The Plaintiff, MARDEN LE BOUTON, must prove her claims by the greater weight
of the evidence.
1 will now define some of the terms you will use in deciding this case.
32
401.3 GREATER WEIGHT OF THE EVIDENCE
“Greater weight of the evidence” means the more persuasive and convincing force
and effect of the entire evidence in the case.
33
401.4 NEGLIGENCE
Negligence is the failure to use reasonable care, which is the care that a reasonably
careful person would use under like circumstances. Negligence is doing something that
a reasonably careful person would not do under like circumstances or failing to do
something that a reasonably careful person would do under like circumstances.
34
401.12 LEGAL CAUSE
Negligence is a legal cause of loss or injury if it directly and in natural and continuous
sequence produces or contributes substantially to producing such loss or injury, so that it
can reasonably be said that, but for the negligence, the loss or injury would not have
occurred.
35
401.21 BURDEN OF PROOF ON MAIN CLAIM
If the greater weight of the evidence does not support one or more of MARDEN LE
BOUTON’s claims, your verdict should be for JENNIFER D’AUGUSTINIS on those
claims.
However, if the greater weight of the evidence supports one or more of MARDEN
LE BOUTON’s claims, then your verdict should be for MARDEN LE BOUTON on that
claim.
36
501.3 MOTOR VEHICLE NO-FAULT INSTRUCTION
If your verdict is for JENNIFER D’AUGUSTINIS, you will not consider the matter of
damages.
But if the greater weight of the evidence supports Plaintiff MARDEN LE BOUTON’s
claims, you should determine and write on the verdict form, in dollars, the total amount of
money that the greater weight of the evidence shows will fairly and adequately
compensate Plaintiff MARDEN LE BOUTON for the following elements of damage,
including damage that Plaintiff MARDEN LE BOUTON is reasonably certain to incur in
the future:
a. Medical Expenses
The reasonable expense of hospitalization and medical care and treatment
necessarily or reasonably obtained by Plaintiff in the past or to be so obtained in the
future.
b. Lost earnings and lost earning capacity
Any earnings lost in the past and any loss of ability to earn money in the future.
You must next decide whether MARDEN LE BOUTON’s injury, resulting from the
incident in this case, is permanent. An injury is permanent if it, in whole or in part, consists
of an injury that the evidence shows is permanent to a reasonable degree of medical
probability.
If the greater weight of the evidence does not establish that MARDEN LE
BOUTON’s injury is permanent, then your verdict is complete.
If, however, the greater weight of the evidence shows that MARDEN LE BOUTON’s
injury is permanent, you should also award damages for this additional element of
damage:
Any bodily injury sustained by MARDEN LE BOUTON and any resulting pain and
suffering experienced in the past or to be experienced in the future. There is no exact
standard for measuring such damage. The amount should be fair and just in the light of
the evidence.
37
501.6 MORTALITY TABLES
If the greater weight of the evidence shows that Plaintiff has been permanently
injured, you may consider her life expectancy. The mortality tables received in evidence
may be considered in determining how long Plaintiff may be expected to live. Mortality
tables are not binding on you but may be considered together with other evidence in the
case bearing on Plaintiff's health, age and physical condition, before and after the injury,
in determining the probable length of her life.
38
501.7 REDUCTION OF DAMAGES TO PRESENT VALUE
Any amount of damages which you allow for future medical expenses or loss of the
ability to earn money in the future should be reduced to its present money value and only
the present money value of these future economic damages should be included in your
verdict.
The present money value of future economic damages is the sum of money needed
now which, together with what that sum will earn in the future, will compensate Plaintiff
for these losses as they are actually experienced in future years.
39
501.8 COLLATERAL SOURCE RULE
Some expenses claimed as damages by Plaintiff may have been paid or are
payable by personal injury protection insurance. You should not make any deduction for
payments made by personal injury protection insurance payments made to Plaintiff as the
Court will make these deductions from any verdict.
40
601.1 WEIGHING THE EVIDENCE
In deciding this case, it is your duty as jurors to decide the issues, and only those
issues, that | submit for your determination at the end of the case and to answer certain
questions | will ask you to answer on a special form, called a special verdict form. You
must come to an agreement about what your answers will be. Your agreed-upon answers
to my questions are called your jury verdict.
The evidence in this case consists of the sworn testimony of the witnesses, all
exhibits received in evidence, and all facts that were admitted or agreed to by the parties.
In reaching your verdict, you must think about and weigh the testimony and any
documents, photographs, or other material that has been received in evidence. You may
also consider any facts that were admitted or agreed to by the lawyers. Your job is to
determine what the facts are. You may use reason and common sense to reach
conclusions. You may draw reasonable inferences from the evidence. But you should
not guess about things that were not covered here. And, you must always apply the law
as | have explained it to you.
41
601.2 BELIEVABILITY OF WITNESSES
[601.2(a)] Let me speak briefly about witnesses. In evaluating the believability of
any witness and the weight you will give the testimony of any witness, you may properly
consider the demeanor of the witness while testifying; the frankness or lack of frankness
of the witness; the intelligence of the witness; any interest the witness may have in the
outcome of the case; the means and opportunity the witness had to know the facts about
which the witness testified; the ability of the witness to remember the matters about which
the witness testified; and the reasonableness of the testimony of the witness, considered
in the light of all the evidence in the case and in the light of your own experience and
common sense.
[601.2(b)] Some of the testimony you hear may be in the form of opinions about
certain technical subjects. You may accept such opinion testimony, reject it, or give it the
weight you think it deserves, considering the knowledge, skill, experience, training, or
education of the witness, the reasons given by the witness for the opinion expressed, and
all the other evidence in the case.
42
601.5 CONCLUDING INSTRUCTION BEFORE FINAL ARGUMENT
That is the law you must follow in deciding this case. The attorneys for the parties
will now present their final arguments. When they are through, | will have a few final
instructions about your deliberations.
[Proceed with Closing Arguments]
43
SECTION 700 — CLOSING INSTRUCTIONS
Members of the jury, you have now heard all the evidence, my instructions on the
law that you must apply in reaching your verdict and the closing arguments of the
attorneys. You will shortly retire to the jury room to decide this case.
During deliberations, jurors must communicate about the case only with one another
and only when all jurors are present in the jury room. You will have in the jury room all of
the evidence that was received during the trial. In reaching your decision, do not do any
research on your own or as a group. Do not use dictionaries, the Internet, or any other
reference materials. Do not investigate the case or conduct any experiments. Do not visit
or view the scene of any event involved in this case or look at maps or pictures on the
Internet. 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. Do not read, listen to, or watch any
news accounts of this trial.
You are not to communicate with any person outside the jury about this case. Until
you have reached a verdict, you must not talk about this case in person or through the
telephone, writing, or electronic communication, such as a blog, twitter, e-mail, text
message, or any other means. Do not contact anyone to assist you, such as a family
accountant, doctor, or lawyer. These communications rules apply until | discharge you at
the end of the case.
If you become aware of any violation of these instructions or any other instruction |
have given in this case, you must tell me by giving a note to the bailiff.
Any notes you have taken during the trial may be taken to the jury room for use
during your discussions. Your notes are simply an aid to your own memory, and neither
your notes nor those of any other juror are binding or conclusive. Your notes are not a
substitute for your own memory or that of other jurors. Instead, your verdict must result
from the collective memory and judgment of all jurors based on the evidence and
testimony presented during the trial.
At the conclusion of the trial, the bailiff will collect your notes, which will be
immediately destroyed. No one will ever read your notes.
In reaching your verdict, do not let bias, sympathy, prejudice, public opinion, or any
other sentiment for or against any party influence your decision. Your verdict must be
based on the evidence that has been received and the law on which | have instructed
you.
Reaching a verdict is exclusively your job. | cannot participate in that decision in any
way and you should not guess what | think your verdict should be from something | may
have said or done. You should not think that | prefer one verdict over another. Therefore,
in reaching your verdict, you should not consider anything that | have said or done, except
for my specific instructions to you.
Pay careful attention to all the instructions that | gave you, for that is the law that
you must follow. You will have a copy of my instructions with you when you go to the jury
room to deliberate. All the instructions are important, and you must consider all of them
together. There are no other laws that apply to this case, and even if you do not agree
with these laws, you must use them in reaching your decision in this case.
44
When you go to the jury room, the first thing you should do is choose a presiding
juror to act as a foreperson during your deliberations. The foreperson 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 the others think differently.
Keep an open mind so that you and your fellow jurors can easily share ideas about the
case. [I wi
Preview
Filing # 154881489 E-Filed 08/08/2022 02:54:12 PM IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, INAND FOR DUVAL COUNTY, FLORIDA MARDEN MARY LE BOUTON, CASE NO.: 2020-CA-001773 Plaintiff, V. SUSAN B. PROFFITT, as Personal Representative of the Estate of JENNIFER RAINES D'AUGUSTINIS, as Defendant, Defendants. / DEFENDANT’S NOTICE OF FILING PROPOSED JURY INSTRUCTIONS AND VERDICT FORM Defendant, SUSAN B. PROFFITT, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JENNIFER RAINES D'AUGUSTINIS, AS DEFENDANT, by and through undersigned counsel, and pursuant to Fla. R. Civ. P. 1.470(b), hereby gives notice of filing its proposed jury instructions and verdict form for the above-styled cause. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing had been e-filed with the Clerk of the Court via the Florida Court's E-Filing Portal on this 8th day of August, 2022, with electronic copies issued to the attorneys listed on the service list reflected on the Court’s E-Filing Portal. COLE, SCOTT, KISSANE, P.A. Counsel for Defendant SUSAN B. PROFFITT, asPersonal Representative of the Estate of COLE, SCOTT, KISSANE, P.A. }ELFORT ROAD, SUITE, JACKSONVILLE, FLORIDA 32216-1461, ~ (904) 672-4100 (904) 672-4050 FAX ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 08/09/2022 11:10:02 AM JENNIFER RAINES D'AUGUSTINIS, as Defendant 4190 Belfort Road, Suite 300 Jacksonville, Florida 32216-1461 Telephone (904) 672-4118 Facsimile (904) 672-4050 Primary e-mail: michelle.malave@csklegal.com By: s/ Brea L. Dearing BREA L. DEARING Florida Bar No.: 124341 0770.0038-00 DEFENDANT’S PROPOSED JURY INSTRUCTIONS PRIOR TO VOIR DIRE 201.1 DESCRIPTION OF THE CASE (PRIOR TO VOIR DIRE) Welcome. [I] [The clerk] will now administer your oath. Now that you have been sworn, I'd like to give you an idea about what we are here to do. This is a civil trial. A civil trial is different from a criminal case, where a defendant is charged by the state prosecutor with committing a crime. The subject of a civil trial is a disagreement between people where the claims of one or more of these parties have been brought to court to be resolved. It is called “a trial of a lawsuit.” This is a case about an automobile accident that occurred on September 7, 2018 on North US-1 in Jacksonville, Florida. Plaintiff, MARDEN LE BOUTON, claims that he suffered permanent injuries caused by the accident. Defendant, in the interest of JENNIFER D’AUGUSTINIS, admits that she was negligent but disputes the claim that the subject collision caused a permanent injury and disputes the extent of the damages claimed by MARDEN LE BOUTON. The principal witnesses who will testify in this case are: [READ WITNESSES] 201.2 INTRODUCTION OF PARTICIPANTS AND THEIR ROLES Who are the people here and what do they do? Judge/Court: 1 am the Judge. You may hear people occasionally refer to me as “The Court.” That is the formal name for my role. My job is to maintain order and decide how to apply the rules of the law to the trial. | will also explain various rules to you that you will need to know in order to do your job as the jury. It is my job to remain neutral on the issues of this lawsuit. Parties: A party who files a lawsuit is called the Plaintiff. A party that is sued is called the Defendant. Attorneys: The attorneys have the job of representing their clients. That means they speak for their client here at the trial. They have taken oaths as attorneys to do their best and to follow the rules for their profession. Plaintiff's Counsel: The attorney on this side of the courtroom, Mr. Antonio Luciano, represents MARDEN LE BOUTON and is the person who filed the lawsuit here at the courthouse. His job is to present his client’s side of things to you. He and his client will be referred to most of the time as “the plaintiff.” Mr. Luciano, will you please introduce who is sitting at the table with you? Defendant’s Counsel: The attorney on this side of the courtroom, Mr. Trevor Hawes, represents JENNIFER D’AUGUSTINIS, the one who has been sued. His job is to present his client’s side of things to you. He and his client will usually be referred to here as “the defendant.” Mr. Hawes, will you please introduce who is sitting at the table with you? Court Clerk: This person sitting in front of me, (name), is the court clerk. [He] [She] is here to assist me with some of the mechanics of the trial process, including the numbering and collection of the exhibits that are introduced in the course of the trial. Court Reporter: The person sitting at the stenographic machine, (name), is the court reporter. [His] [Her] job is to keep an accurate legal record of everything we say and do during this trial. Bailiff: The person over there, (name), is the bailiff. [His] [Her] job is to maintain order and security in the courtroom. The bailiff is also my representative to the jury. Anything you need or any problems that come up for you during the course of the trial should be brought to [him] [her]. However, the bailiff cannot answer any of your questions about the case. Only | can do that. Jury: Last, but not least, is the jury, which we will begin to select in a few moments from among all of you. The jury’s job will be to decide what the facts are and what the facts mean. Jurors should be as neutral as possible at this point and have no fixed opinion about the lawsuit. In order to have a fair and lawful trial, there are rules that all jurors must follow. A basic rule is that jurors must decide the case only on the evidence presented in the courtroom. You must not communicate with anyone, including friends and family members, about this case, the people and places involved, or your jury service. You must not disclose your thoughts about this case or ask for advice on how to decide this case. 1 want to stress that this rule means you must not use electronic devices or computers to communicate about this case, including tweeting, texting, blogging, e- 6 mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages to or from anyone about this case or your jury service. You must not do any research or look up words, names, [maps,] or anything else that may have anything to do with this case. This includes reading newspapers, watching television or using a computer, cell phone, the Internet, any electronic device, or any other means at all, to get information related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else. Many of you may have cell phones, tablets, laptops, or other electronic devices with you here in the courtroom.** Alternative A: All cell phones, computers, tablets, or other types of electronic devices must be turned off while you are in the courtroom. Turned off means that the phone or other electronic device is actually off and not in a silent or vibrating mode. You may use these devices during recesses, but even then you may not use your cell phone or electronic device to find out any information about the case or ommunicate with anyone about the case or the people involved in the case. Do ot take photographs, video recordings, or audio recordings of the proceedings o of your fellow jurors. After each recess, please double check to make sure your ell phone or electronic device is turned off. At the end of the case, while you ar deliberating, you must not communicate with anyone outside the jury room. You annot_have in the jury room any cell phones, computers, or other electronic devices. If someone needs to contact you in an emergency, the court can receive messages and deliver them to you without delay. A contact phone number will be provided to you. What are the reasons for these rules? These rules are imposed because jurors must decide the case without distraction and only on the evidence presented in the courtroom. If you investigate, research, or make inquiries on your own outside of the courtroom, the trial judge has no way to make sure that the information you obtain is proper for the case. The parties likewise have no opportunity to dispute or challenge the accuracy of what you find. That is contrary to our judicial system, which assures every party the right to ask questions about and challenge the evidence being considered against it and to present argument with respect to that evidence. Any independent investigation by a juror unfairly and improperly prevents the parties from having that opportunity our judicial system promises. Any juror who violates these restrictions jeopardizes the fairness of these proceedings, and a mistrial could result that would require the entire trial process to start over. A mistrial is a tremendous expense and inconvenience to the parties, the court, and the taxpayers. If you violate these rules, you may be held in contempt of court, and face sanctions, such as serving time in jail, paying a fine or both. All of your communications with courtroom personnel, or me, will be part of the record of these proceedings. That means those communications shall either be made in open court with the court reporter present or, if they are in writing, the writing will be filed with the court clerk. This means, if you are outside the courtroom, any communication with me must be in writing, unsigned, and handed directly to the bailiff. Do not share the content of the writing with anyone, including other jurors. | have instructed the courtroom personnel that any communications you have with them outside of my presence must be 7 reported to me, and | will tell the parties and their attorneys about any communication from you that | believe may be of interest to the parties and their attorneys. However, you may communicate directly with courtroom personnel about matters concerning your comfort and safety, such as juror parking, location of break areas, how and when to assemble for duty, and what personal items can be brought into the courthouse or ju room. If you become aware of any violation of these instructions or any other instruction | give in this case, you must tell me by giving a note to the bailiff. 201.3 EXPLANATION OF THE VOIR DIRE PROCESS Voir Dire: The last thing | want to do, before we begin to select the jury, is to explain to you how the selection process works. Questions/Challenges: This is the part of the case where the parties and their lawyers have the opportunity to get to know a little bit about you, in order to help them come to their own conclusions about your ability to be fair and impartial, so they can decide who they think should be the jurors in this case. How we go about that is as follows: First, I'll ask some general questions of you. Then, each of the lawyers will have more specific questions that they will ask of you. After they have asked all of their questions, | will meet with them and they will tell me their choices for jurors. Each side can ask that | exclude a person from serving on a jury if they can give me a reason to believe that he or she might be unable to be fair and impartial. That is what is called a challenge for cause. The lawyers also have a certain number of what are called peremptory challenges, by which they may exclude a person from the jury without giving a reason. By this process of elimination, the remaining persons are selected as the jury. It may take more than one conference among the parties, their attorneys, and me before the final selections are made. Purpose of Questioning: The questions that you will be asked during this process are not intended to embarrass you or unnecessarily pry into your personal affairs, but it is important that the parties and their attorneys know enough about you to make this important decision. If a question is asked that you would prefer not to answer in front of the whole courtroom, just let me know and you can come up here and give your answer just in front of the attorneys and me. If you have a question of either the attorneys or me, don’t hesitate to let me know. Response to Questioning: There are no right or wrong answers to the questions that will be asked of you. The only thing that | ask is that you answer the questions as frankly and as honestly and as completely as you can. You [will take] [have taken] an oath to answer all questions truthfully and completely and you must do so. Remaining silent when you have information you should disclose is a violation of that oath as well. If a juror violates this oath, it not only may result in having to try the case all over again but also can result in civil and criminal penalties against a juror personally. So, again, it is very important that you be as honest and complete with your answers as you possibly can. If you don’t understand the question, please raise your hand and ask for an explanation or clarification. In the process of selecting the jury, some of the lawyers’ questions may be meant to help them anticipate if your beliefs, experiences, or attitudes might make it difficult for you to apply the rules of law. Jurors take an oath to follow the law. After the jury is chosen and sworn in, | will instruct the jury on the rules they must follow in deciding this case. It is important for you to remember that it will not be the jury’s job to decide what the law ought to be Rather, the jury is to determine what the facts are, then apply the law to those facts, using the court’s instructions on the rules of law to apply—which will be fully given to the jury at the appropriate time. In sum, this is a process to assist the parties and their attorneys to select a fair and impartial jury. All of the questions they ask you are for this purpose. If, for any reason, you do not think you can be a fair and impartial juror, you must tell us. 10 OPENING INSTRUCTIONS FOLLOWING VOIR DIRE 11 202.1 INTRODUCTION You have now taken an oath to serve as jurors in this trial. Before we begin, 1 am going to tell you about the rules of law that apply to this case. It is my intention to give you most of the rules of law but it might be that | will not know for sure all of the law that might apply in this case until all of the evidence is presented. However, | can anticipate most of the law and give it to you at the beginning of the trial so that you can better understand what to be looking for as the evidence is presented. If | later decide that different law applies to the case, | will call that to your attention. In any event, at the end of the evidence | will give you the final instructions that you must use to decide this case and it is those instructions on which you must base your verdict. At that time, you will have a complete written set of the instructions so you do not have to memorize what | am about to tell you. 12 401.2 SUMMARY OF CLAIMS The claims and defenses in this case are as follows: MARDEN LE BOUTON claims that JENNIFER D’AUGUSTINIS was negligent in the operation of the vehicle she was driving which caused her harm. MARDEN LE BOUTON claims that the subject motor vehicle collision caused permanent injuries and damages. JENNIFER D’AUGUSTINIS admits that she was negligent, but disputes the claim that the subject collision caused a permanent injury and disputes the extent of the damages claimed by MARDEN LE BOUTON. The Plaintiff, MARDEN LE BOUTON, must prove her claims by the greater weight of the evidence. 1 will now define some of the terms you will use in deciding this case. 13 401.3 GREATER WEIGHT OF THE EVIDENCE “Greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case. 14 401.4 NEGLIGENCE Negligence is the failure to use reasonable care, which is the care that a reasonably careful person would use under like circumstances. Negligence is doing something that a reasonably careful person would not do under like circumstances or failing to do something that a reasonably careful person would do under like circumstances. 15 401.12 LEGAL CAUSE Negligence is a legal cause of loss or injury if it directly and in natural and continuous sequence produces or contributes substantially to producing such loss or injury, so that it can reasonably be said that, but for the negligence, the loss or injury would not have occurred. 16 401.13(c) PREEMPTIVE CHARGE The Court now instructs you that Defendant, JENNIFER D’AUGUSTINIS, was negligent. The issue for you to decide on MARDEN LE BOUTON’s claims is whether such negligence was a legal cause of loss or injury to Plaintiff, MARDEN LE BOUTON, and, if so, the amount of the loss or injury as is proved by a greater weight of the evidence to have been caused by JENNIFER D’AUGUSTINIS. 17 401.21 BURDEN OF PROOF ON MAIN CLAIM If the greater weight of the evidence does not support one or more of MARDEN LE BOUTON’s claims, your verdict should be for JENNIFER D’AUGUSTINIS on those claims. However, if the greater weight of the evidence supports one or more of MARDEN LE BOUTON’s claims, then your verdict should be for MARDEN LE BOUTON on that claim. 18 501.3 MOTOR VEHICLE NO-FAULT INSTRUCTION If your verdict is for JENNIFER D’AUGUSTINIS, you will not consider the matter of damages. But if the greater weight of the evidence supports Plaintiff MARDEN LE BOUTON’s claims, you should determine and write on the verdict form, in dollars, the total amount of money that the greater weight of the evidence shows will fairly and adequately compensate Plaintiff MARDEN LE BOUTON for the following elements of damage, including damage that Plaintiff MARDEN LE BOUTON is reasonably certain to incur in the future: a. Medical Expenses The reasonable expense of hospitalization and medical care and treatment necessarily or reasonably obtained by Plaintiff in the past or to be so obtained in the future. b. Lost earnings and lost earning capacity Any earnings lost in the past and any loss of ability to earn money in the future. You must next decide whether MARDEN LE BOUTON’s injury, resulting from the incident in this case, is permanent. An injury is permanent if it, in whole or in part, consists of an injury that the evidence shows is permanent to a reasonable degree of medical probability. If the greater weight of the evidence does not establish that MARDEN LE BOUTON’s injury is permanent, then your verdict is complete. If, however, the greater weight of the evidence shows that MARDEN LE BOUTON’s injury is permanent, you should also award damages for this additional element of damage: Any bodily injury sustained by MARDEN LE BOUTON and any resulting pain and suffering experienced in the past or to be experienced in the future. There is no exact standard for measuring such damage. The amount should be fair and just in the light of the evidence. 19 501.6 MORTALITY TABLES If the greater weight of the evidence shows that Plaintiff has been permanently injured, you may consider her life expectancy. The mortality tables received in evidence may be considered in determining how long Plaintiff may be expected to live. Mortality tables are not binding on you but may be considered together with other evidence in the case bearing on Plaintiff's health, age and physical condition, before and after the injury, in determining the probable length of her life. 20 501.7 REDUCTION OF DAMAGES TO PRESENT VALUE Any amount of damages which you allow for future medical expenses or loss of the ability to earn money in the future should be reduced to its present money value and only the present money value of these future economic damages should be included in your verdict. The present money value of future economic damages is the sum of money needed now which, together with what that sum will earn in the future, will compensate Plaintiff for these losses as they are actually experienced in future years. 21 501.8 COLLATERAL SOURCE RULE Some expenses claimed as damages by Plaintiff may have been paid or are payable by personal injury protection insurance. You should not make any deduction for payments made by personal injury protection insurance payments made to Plaintiff as the Court will make these deductions from any verdict. 22 601.1 WEIGHING THE EVIDENCE In deciding this case, it is your duty as jurors to decide the issues, and only those issues, that | submit for your determination at the end of the case and to answer certain questions | will ask you to answer on a special form, called a special verdict form. You must come to an agreement about what your answers will be. Your agreed-upon answers to my questions are called your jury verdict. The evidence in this case consists of the sworn testimony of the witnesses, all exhibits received in evidence, and all facts that were admitted or agreed to by the parties. In reaching your verdict, you must think about and weigh the testimony and any documents, photographs, or other material that has been received in evidence. You may also consider any facts that were admitted or agreed to by the lawyers. Your job is to determine what the facts are. You may use reason and common sense to reach conclusions. You may draw reasonable inferences from the evidence. But you should not guess about things that were not covered here. And, you must always apply the law as | have explained it to you. 23 601.2 BELIEVABILITY OF WITNESSES [601.2(a)] Let me speak briefly about witnesses. In evaluating the believability of any witness and the weight you will give the testimony of any witness, you may properly consider the demeanor of the witness while testifying; the frankness or lack of frankness of the witness; the intelligence of the witness; any interest the witness may have in the outcome of the case; the means and opportunity the witness had to know the facts about which the witness testified; the ability of the witness to remember the matters about which the witness testified; and the reasonableness of the testimony of the witness, considered in the light of all the evidence in the case and in the light of your own experience and common sense. [601.2(b)] Some of the testimony you hear may be in the form of opinions about certain technical subjects. You may accept such opinion testimony, reject it, or give it the weight you think it deserves, considering the knowledge, skill, experience, training, or education of the witness, the reasons given by the witness for the opinion expressed, and all the other evidence in the case. 24 202.2 EXPLANATION OF TRIAL PROCEDURE Now that you have heard the law, | want to let you know what you can expect as the trial proceeds. Opening Statements: In a few moments, the attorneys will each have a chance to make what are called opening statements. In an opening statement, an attorney is allowed to give you [his] [her] views about what the evidence will be in the trial and what you are likely to see and hear in the testimony. Evidentiary Phase: After the attorneys’ opening statements the plaintiff will bring his witnesses and evidence to you, followed by the defendant. Evidence: Evidence is the information that the law allows you to see or hear in deciding this case. Evidence includes the testimony of the witnesses, documents, and anything else that | instruct you to consider. Witnesses: A witness is a person who takes an oath to tell the truth and then answers attorneys’ questions for the jury. The answering of attorneys’ questions by witnesses is called “giving testimony.” Testimony means statements that are made when someone has sworn an oath to tell the truth. The plaintiffs lawyer will normally ask a witness the questions first. That is called direct examination. Then the defense lawyer may ask the same witness additional questions about whatever the witness has testified to. That is called cross-examination. Certain documents or other evidence may also be shown to you during direct or cross- examination. After the plaintiff's witnesses have testified, the defendant will have the opportunity to put witnesses on the stand and go through the same process. Then the plaintiff's lawyer gets to do cross-examination. The process is designed to be fair to both sides. It is important that you remember that testimony comes from witnesses. The attorneys do not give testimony and they are not themselves witnesses. Objections: Sometimes the attorneys will disagree about the rules for trial procedure when a question is asked of a witness. When that happens, one of the lawyers may make what is called an “objection.” The rules for a trial can be complicated, and there are many reasons for the attorneys to object. You should simply wait for me to decide how to proceed. If | say that an objection is “sustained,” that means you should disregard the question and the witness may not answer the question. If 1 say that the objection is “overruled,” that means the witness may answer the question. When there is an objection and | make a decision, you must not assume from that decision that | have any particular opinion other than that the rules for conducting a trial are being correctly followed. If | say a question may not be asked or answered, you must not try to guess what the answer would have been. That is against the rules, too. Side Bar Conferences: Sometimes | will need to speak to the attorneys about legal elements of the case that are not appropriate for the jury to hear. The attorneys and | will try to have as few of these conferences as possible while you are giving us your valuable time in the courtroom. But, if we do have to have such a conference during testimony, we will try to hold the conference at the side of my desk so that we do not have to take a break and ask you to leave the courtroom. 25 Recesses: Breaks in an ongoing trial are usually called “recesses.” During a recess you still have your duties as a juror and must follow the rules, even while having coffee, at lunch, or at home. Instructions Before Closing Arguments: After all the evidence has been presented to you, | will again instruct you on the law that you must follow. At that time you will have a written set of the instructions for your use. Closing Arguments: The attorneys will then have the opportunity to make their final presentations to you, which are called closing arguments. Final Instructions: After you have heard the closing arguments, | will instruct you further in the law as well as explain to you the procedures you must follow to decide the case. Deliberations: After you hear the final jury instructions, you will go to the jury room and discuss and decide the questions | have put on your verdict form. [You will have a copy of the jury instructions to use during your discussions.] The discussions you have and the decisions you make are usually called “jury deliberations.” Your deliberations are absolutely private and neither | nor anyone else will be with you in the jury room. Verdict: When you have finished answering the questions, you will give the verdict form to the bailiff, and we will all return to the courtroom where your verdict will be read. When that is completed, you will be released from your assignment as a juror. What are the rules? Finally, before we begin the trial, | want to give you just a brief explanation of rules you must follow as the case proceeds. Keeping an Open Mind. You must pay close attention to the testimony and other evidence as it comes into the trial. However, you must avoid forming any final opinion or telling anyone else your views on the case until you begin your deliberations. This rule requires you to keep an open mind until you have heard all of the evidence and is designed to prevent you from influencing how your fellow jurors think until they have heard all of the evidence and had an opportunity to form their own opinions. The time and place for coming to your final opinions and speaking about them with your fellow jurors is during deliberations in the jury room, after all of the evidence has been presented, closing arguments have been made, and | have instructed you on the law. It is important that you hear all of the facts and that you hear the law and how to apply it before you start deciding anything. Consider Only the Evidence. It is the things you hear and see in this courtroom that matter in this trial. The law tells us that a juror can consider only the testimony and other evidence that all the other jurors have also heard and seen in the presence of the judge and the lawyers. Doing anything else is wrong and is against the law. That means that you cannot do any work or investigation of your own about the case. You cannot obtain on your own any information about the case or about anyone involved in the case, from any source whatsoever, including the Internet, and you cannot visit places mentioned in the trial. Do not provide any information about this case to anyone, including friends or family members. Do not let anyone, including the closest family members, make comments to you or ask questions about the trial. Similarly, it is important that you avoid reading any newspaper accounts or watching or listening to television or radio comments that have anything to do with this case or its subject. 26 No Mid-Trial Discussions. When we are in a recess, do not discuss anything about the trial or the case with each other or with anyone else. If attorneys approach you, don’t speak with them. The law says they are to avoid contact with you. If an attorney will not look at you or speak to you, do not be offended or form a conclusion about that behavior. The attorney is not supposed to interact with jurors outside of the courtroom and is only following the rules. The attorney is not being impolite. If an attorney or anyone else does try to speak with you or says something about the case in your presence, please inform the bailiff immediately. Only the Jury Decides. Only you get to deliberate and answer the verdict questions at the end of the trial. | will not intrude into your deliberations at all. | am required to be neutral. You should not assume that | prefer one decision over another. You should not try to guess what my opinion is about any part of the case. It would be wrong for you to conclude that anything | say or do means that | am for one side or another in the trial. Discussing and deciding the facts is your job alone. 27 202.3 NOTE-TAKING BY JURORS If you would like to take notes during the trial, you may do so. On the other hand, of course, you are not required to take notes if you do not want to. That will be left up to you individually. You will be provided with a note pad and a pen for use if you wish to take notes. Any notes that you take will be for your personal use. However, you should not take them with you from the courtroom. During recesses, the bailiff will take possession of your notes and will return them to you when we reconvene. After you have completed your deliberations, the bailiff will deliver your notes to me. They will be destroyed. No one will ever read your notes. If you take notes, do not get so involved in note-taking that you become distracted from the proceedings. Your notes should be used only as aids to your memory. Whether or not you take notes, you should rely on your memory of the evidence and you should not be unduly influenced by the notes of other jurors. Notes are not entitled to any greater weight than each juror’s memory of the evidence. 28 202.4 JUROR QUESTIONS Questions for the court or courtroom personnel: During the trial, you may have a question about these proceedings. If so, please write it down and hand it to the bailiff, who will then hand it to me. | will review your question with the parties and their attorneys before responding. Questions for witnesses: You also may have a question you think should be asked of a witness. If so, there is a way for you to request that | ask the witness a question. After all the attorneys have completed their questioning of the witness, you should raise your hand if you have a question. | will then give you sufficient time to write the question on a piece of paper, fold it, and give it to the bailiff, who will pass it to me. Do not put your name on the question, show it to anyone or discuss it with anyone. It is important to know that if you have a question you believe should be asked of a witness, you must raise your hand and request that | ask the witness the question before the witness leaves the witness stand. You will not have an opportunity to ask the witness a question once the witness leaves the courtroom. | will then review the question with the attorneys. Under our law, only certain evidence may be considered by a jury in determining a verdict. You are bound by the same rules of evidence that control the attorneys’ questions. If | decide that the question may not be asked under our rules of evidence, | will tell you. Otherwise, | will direct the question to the witness. The attorneys may then ask follow-up questions if they wish. If there are additional questions from jurors, we will follow the same procedure again. By providing this procedure, | do not mean to suggest that you must or should submit written questions for witnesses. In most cases, the lawyers will have asked the necessary questions. The attorneys will now present their opening statements after which you will begin hearing the evidence. [Opening Statements] 29 CLOSING INSTRUCTIONS PRIOR TO CLOSING ARGUMENTS 30 401.1 Members of the jury, you have now heard and received all of the evidence in this case. | am now going to tell you about the rules of law that you must use in reaching your verdict. When | finish telling you about the rules of law, the attorneys will present their final arguments and you will then retire to decide your verdict. 31 401.2 SUMMARY OF CLAIMS The claims and defenses in this case are as follows: MARDEN LE BOUTON claims that JENNIFER D’AUGUSTINIS was negligent in the operation of the vehicle she was driving which caused her harm. MARDEN LE BOUTON claims that the subject motor vehicle collision caused permanent injuries and damages. JENNIFER D’AUGUSTINIS admits that she was negligent, but disputes the claim that the subject collision caused a permanent injury and disputes the extent of the damages claimed by MARDEN LE BOUTON. The Plaintiff, MARDEN LE BOUTON, must prove her claims by the greater weight of the evidence. 1 will now define some of the terms you will use in deciding this case. 32 401.3 GREATER WEIGHT OF THE EVIDENCE “Greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case. 33 401.4 NEGLIGENCE Negligence is the failure to use reasonable care, which is the care that a reasonably careful person would use under like circumstances. Negligence is doing something that a reasonably careful person would not do under like circumstances or failing to do something that a reasonably careful person would do under like circumstances. 34 401.12 LEGAL CAUSE Negligence is a legal cause of loss or injury if it directly and in natural and continuous sequence produces or contributes substantially to producing such loss or injury, so that it can reasonably be said that, but for the negligence, the loss or injury would not have occurred. 35 401.21 BURDEN OF PROOF ON MAIN CLAIM If the greater weight of the evidence does not support one or more of MARDEN LE BOUTON’s claims, your verdict should be for JENNIFER D’AUGUSTINIS on those claims. However, if the greater weight of the evidence supports one or more of MARDEN LE BOUTON’s claims, then your verdict should be for MARDEN LE BOUTON on that claim. 36 501.3 MOTOR VEHICLE NO-FAULT INSTRUCTION If your verdict is for JENNIFER D’AUGUSTINIS, you will not consider the matter of damages. But if the greater weight of the evidence supports Plaintiff MARDEN LE BOUTON’s claims, you should determine and write on the verdict form, in dollars, the total amount of money that the greater weight of the evidence shows will fairly and adequately compensate Plaintiff MARDEN LE BOUTON for the following elements of damage, including damage that Plaintiff MARDEN LE BOUTON is reasonably certain to incur in the future: a. Medical Expenses The reasonable expense of hospitalization and medical care and treatment necessarily or reasonably obtained by Plaintiff in the past or to be so obtained in the future. b. Lost earnings and lost earning capacity Any earnings lost in the past and any loss of ability to earn money in the future. You must next decide whether MARDEN LE BOUTON’s injury, resulting from the incident in this case, is permanent. An injury is permanent if it, in whole or in part, consists of an injury that the evidence shows is permanent to a reasonable degree of medical probability. If the greater weight of the evidence does not establish that MARDEN LE BOUTON’s injury is permanent, then your verdict is complete. If, however, the greater weight of the evidence shows that MARDEN LE BOUTON’s injury is permanent, you should also award damages for this additional element of damage: Any bodily injury sustained by MARDEN LE BOUTON and any resulting pain and suffering experienced in the past or to be experienced in the future. There is no exact standard for measuring such damage. The amount should be fair and just in the light of the evidence. 37 501.6 MORTALITY TABLES If the greater weight of the evidence shows that Plaintiff has been permanently injured, you may consider her life expectancy. The mortality tables received in evidence may be considered in determining how long Plaintiff may be expected to live. Mortality tables are not binding on you but may be considered together with other evidence in the case bearing on Plaintiff's health, age and physical condition, before and after the injury, in determining the probable length of her life. 38 501.7 REDUCTION OF DAMAGES TO PRESENT VALUE Any amount of damages which you allow for future medical expenses or loss of the ability to earn money in the future should be reduced to its present money value and only the present money value of these future economic damages should be included in your verdict. The present money value of future economic damages is the sum of money needed now which, together with what that sum will earn in the future, will compensate Plaintiff for these losses as they are actually experienced in future years. 39 501.8 COLLATERAL SOURCE RULE Some expenses claimed as damages by Plaintiff may have been paid or are payable by personal injury protection insurance. You should not make any deduction for payments made by personal injury protection insurance payments made to Plaintiff as the Court will make these deductions from any verdict. 40 601.1 WEIGHING THE EVIDENCE In deciding this case, it is your duty as jurors to decide the issues, and only those issues, that | submit for your determination at the end of the case and to answer certain questions | will ask you to answer on a special form, called a special verdict form. You must come to an agreement about what your answers will be. Your agreed-upon answers to my questions are called your jury verdict. The evidence in this case consists of the sworn testimony of the witnesses, all exhibits received in evidence, and all facts that were admitted or agreed to by the parties. In reaching your verdict, you must think about and weigh the testimony and any documents, photographs, or other material that has been received in evidence. You may also consider any facts that were admitted or agreed to by the lawyers. Your job is to determine what the facts are. You may use reason and common sense to reach conclusions. You may draw reasonable inferences from the evidence. But you should not guess about things that were not covered here. And, you must always apply the law as | have explained it to you. 41 601.2 BELIEVABILITY OF WITNESSES [601.2(a)] Let me speak briefly about witnesses. In evaluating the believability of any witness and the weight you will give the testimony of any witness, you may properly consider the demeanor of the witness while testifying; the frankness or lack of frankness of the witness; the intelligence of the witness; any interest the witness may have in the outcome of the case; the means and opportunity the witness had to know the facts about which the witness testified; the ability of the witness to remember the matters about which the witness testified; and the reasonableness of the testimony of the witness, considered in the light of all the evidence in the case and in the light of your own experience and common sense. [601.2(b)] Some of the testimony you hear may be in the form of opinions about certain technical subjects. You may accept such opinion testimony, reject it, or give it the weight you think it deserves, considering the knowledge, skill, experience, training, or education of the witness, the reasons given by the witness for the opinion expressed, and all the other evidence in the case. 42 601.5 CONCLUDING INSTRUCTION BEFORE FINAL ARGUMENT That is the law you must follow in deciding this case. The attorneys for the parties will now present their final arguments. When they are through, | will have a few final instructions about your deliberations. [Proceed with Closing Arguments] 43 SECTION 700 — CLOSING INSTRUCTIONS Members of the jury, you have now heard all the evidence, my instructions on the law that you must apply in reaching your verdict and the closing arguments of the attorneys. You will shortly retire to the jury room to decide this case. During deliberations, jurors must communicate about the case only with one another and only when all jurors are present in the jury room. You will have in the jury room all of the evidence that was received during the trial. In reaching your decision, do not do any research on your own or as a group. Do not use dictionaries, the Internet, or any other reference materials. Do not investigate the case or conduct any experiments. Do not visit or view the scene of any event involved in this case or look at maps or pictures on the Internet. 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. Do not read, listen to, or watch any news accounts of this trial. You are not to communicate with any person outside the jury about this case. Until you have reached a verdict, you must not talk about this case in person or through the telephone, writing, or electronic communication, such as a blog, twitter, e-mail, text message, or any other means. Do not contact anyone to assist you, such as a family accountant, doctor, or lawyer. These communications rules apply until | discharge you at the end of the case. If you become aware of any violation of these instructions or any other instruction | have given in this case, you must tell me by giving a note to the bailiff. Any notes you have taken during the trial may be taken to the jury room for use during your discussions. Your notes are simply an aid to your own memory, and neither your notes nor those of any other juror are binding or conclusive. Your notes are not a substitute for your own memory or that of other jurors. Instead, your verdict must result from the collective memory and judgment of all jurors based on the evidence and testimony presented during the trial. At the conclusion of the trial, the bailiff will collect your notes, which will be immediately destroyed. No one will ever read your notes. In reaching your verdict, do not let bias, sympathy, prejudice, public opinion, or any other sentiment for or against any party influence your decision. Your verdict must be based on the evidence that has been received and the law on which | have instructed you. Reaching a verdict is exclusively your job. | cannot participate in that decision in any way and you should not guess what | think your verdict should be from something | may have said or done. You should not think that | prefer one verdict over another. Therefore, in reaching your verdict, you should not consider anything that | have said or done, except for my specific instructions to you. Pay careful attention to all the instructions that | gave you, for that is the law that you must follow. You will have a copy of my instructions with you when you go to the jury room to deliberate. All the instructions are important, and you must consider all of them together. There are no other laws that apply to this case, and even if you do not agree with these laws, you must use them in reaching your decision in this case. 44 When you go to the jury room, the first thing you should do is choose a presiding juror to act as a foreperson during your deliberations. The foreperson 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 the others think differently. Keep an open mind so that you and your fellow jurors can easily share ideas about the case. [I wi