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Filing # 195614673 E-Filed 04/05/2024 04:40:10 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CIVIL DIVISION
CHARLES A. ANDERSON, III,
Plaintiff, CASE NO. 2021-CA-003164-AN
v. DIVISION: 20
THE ESTATE OF KENNETH ELTON
NICHOLLS, SCI SHARED RESOURCES,
LLC, and S.E. CEMETERIES OF FLORIDA,
LLC d/b/a GLEN HAVEN MEMORIAL
PARK,
Defendants.
DEFENDANTS’ PROPOSED JURY INSTRUCTIONS
Defendants, by and through their undersigned counsel, hereby file their Proposed Jury
Instructions, attached hereto. Defendants respectfully reserve the right to supplement, modify or
amend their jury instructions pending receipt and review of Plaintiff’s proposed jury instructions.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that on April 5, 2024, a true and a correct copy of the foregoing
was electronically filed with the Clerk of Court via the Florida Courts eFiling Portal, which will
send a copy via electronic mail to all Counsel of Record listed on the attached Service List.
Respectfully submitted,
WEINBERG, WHEELER, HUDGINS,
GUNN & DIAL, LLC
/s/ Matthew T. Gomes
LAWRENCE E. BURKHALTER
Florida Bar No.: 186104
MATTHEW T. GOMES
Florida Bar No.: 117030
3350 Virginia Street, Suite 500
Miami, Florida 33133
Telephone: (305) 455-9500
Facsimile: (305) 455-9501
E-Mail: lburkhalter@wwhgd.com
mgomes@wwhgd.com
aperdomo@wwhgd.com
arezende@wwhgd.com
atressler@wwhgd.com
Attorneys for Defendants
SERVICE LIST
Nadine S. Diaz, Esq.
Walter L. Grantham, Jr., Esq.
Darrigo & Diaz, P.A.
4504 North Armenia Avenue
Tampa, FL 33603
Telephone: (813) 877-5548
ndiaz@ddlawtampa.com
wgrantham@ddlawtampa.com
mail@ddlawtampa.com
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INSTRUCTION NO. 1
101.1 OATH OF JURORS BEFORE VOIR DIRE
Do you solemnly swear or affirm that you will answer truthfully all questions asked of you
as prospective jurors [so help you God]?
INSTRUCTION NO. 2
101.2 OATH OF JUROR AFTER VOIR DIRE
Do you solemnly swear or affirm that you will well and truly try this case between the
Plaintiff and Defendants, and a true verdict render according to the law and evidence [so help you
God]?
INSTRUCTION NO. 3
101.3 OATH OF A WITNESS
Do you solemnly swear or affirm that the evidence you are about to give will be the truth,
the whole truth, and nothing but the truth [so help you God]?
INSTRUCTION NO. 4
QUALIFICATIONS INSTRUCTION
Many of you have electronic devices such as cell phones, smartphones, tablets, and laptops.
Even though you have not yet been selected as a juror, there are some strict rules that you must
follow about electronic devices.
When you are called to a courtroom, the judge will give you specific instructions on the
use of electronic devices. These rules are so important that the judge may tell you that you must
turn off your cell phone or other electronic devices completely or that you cannot have your cell
phone or electronic devices in the courtroom. If someone needs to contact you in case of an
emergency, the judge will provide you with a phone number where you can receive messages.
If the trial judge allows you to keep your cell phones, computers, or other electronic
devices, you cannot use them to take photographs, video recordings, or audio recordings of the
proceedings in the courtroom or your fellow jurors. You must not use them to search the Internet
or to find out anything related to any cases in the courthouse.
Why is this restriction imposed? This restriction is imposed because jurors must decide
the case without distraction and only on the evidence presented in the courtroom. I know that, for
some of you, these restrictions affect your normal daily activities and may require a change in the
way you are used to communicating and perhaps even in the way you are used to learning.
If you investigate, research, or make inquiries on your own, 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. Any independent investigation
by a juror unfairly and improperly prevents the parties from having that opportunity our judicial
system promises.
Between now and when you have been discharged from jury duty by the judge, you must
not discuss any information about your jury service with anyone, including friends, co-workers,
and family members. You may tell those who need to know where you are that you have been
called for jury duty. If you are picked for a jury, you may tell people that you have been picked for
a jury and how long the case may take. However, you must not give anyone any information about
the case itself or the people involved in the case. You must also warn people not to try to say
anything to you or write to you about your jury service or the case. This includes face-to-face,
phone or computer communications.
I want to stress that you must not use electronic devices or computers to talk about this
case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat
room, or any other means at all. Do not send or accept any messages, including e-mail and text
messages, about your jury service. You must not disclose your thoughts about your jury service or
ask for advice on how to decide any case.
The judge will tell you when you are released from this instruction. Remember, these rules
are designed to guarantee a fair trial. It is important that you understand the rules as well as the
impact on our system of justice if you fail to follow them. If it is determined that any one of you
has violated this rule, and conducted any type of independent research or investigation, it may
result in a mistrial. A mistrial would require the case to be tried again at great expense to the
parties and the judicial system. The judge may also impose a penalty upon any juror who violates
this instruction. All of us are depending on you to follow these rules, so that there will be a fair
and lawful resolution of every case.
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INSTRUCTION NO. 5
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 or companies, 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 personal injuries that Plaintiff claims to have experienced as a result
of an automobile collision when the car in which he was a passenger was struck by a company
truck driven by Kenneth Elton Nicholls in the course of his employment with S.E. Cemeteries of
Florida, LLC d/b/a Glen Haven Memorial Park.
The incident involved in this case occurred on January 30, 2019, at the intersection of
Florida State Road 423 (John Young Parkway) and Thacker Avenue.
The principal witnesses who will testify in this case are Charles A. Anderson, III, Heather
Marie Grant, Gary Sontos, Dr. Ravi Patel, and Nicole Bonaparte.
INSTRUCTION NO. 6
201.2 INTRODUCTION OF PARTICIPANTS AND THEIR ROLES
Who are the people here and what do they do?
Judge/Court: I 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. I 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, JR Granthan, represents
Charles A. Anderson, III 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. Grantham, will you please introduce who is sitting at the table with you?
Defendants’ Counsel: The attorney on this side of the courtroom, Matthew Gomes,
represents the Estate of Kenneth Elton Nicholls and S.E. Cemeteries of Florida, LLC, the ones
who have been sued. His job is to present his clients’ side of things to you. He and his clients will
usually be referred to here as “the defendants.” Mr. Gomes, 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 I 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.
The law requires that jurors consider only the testimony and other evidence presented
during the trial. The law also requires that jurors keep an open mind and not discuss their opinions
with other jurors until the jury retires to deliberate at the end of the case. If you are selected as a
juror in this case, you cannot discuss the case with your fellow jurors before you are permitted to
do so at the conclusion of the trial, or with anyone else until after a decision has been reached by
the jury. Therefore, starting now, you cannot talk about the case or otherwise have any
communication about the case with anyone, including your fellow jurors, until I tell you that such
discussions may take place.
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In addition to not having face-to-face discussions with your fellow jurors or anyone else,
you must not communicate with anyone about the case in any way, whether orally or in writing,
including electronically, or on the Internet through e-mail, text messaging, blogs, or social media
such as Facebook, YouTube, Instagram, TikTok, Messenger, Snapchat, Twitter or X, Reddit,
Pinterest, Threads, or any other electronic communication whatsoever.
You also must not conduct any type of independent or personal research or investigation
regarding any matters related to this case. You must not look up words, names, [maps,] or anything
else that may have anything to do with this case. Do not use your cellphones or any other device
to do any research regarding this case, the matters in the case, the legal issues in the case, or the
individuals or entities involved in the case. And you must ignore any information about the case
you might see, even accidentally, in the news media, on the Internet, or on social media. This is
because you must base the decisions you will have to make in this case solely on what you hear
and see in this courtroom.
I want to stress again that this rule means you must not use electronic devices to
communicate about this case. Do not send or accept any messages to or from anyone about this
case or your jury service.
This applies whether you are in the courthouse, at home, or anywhere else.
Many of you may have cell phones or other electronic devices with you here in the
courtroom.
**The trial judge should select one of the following two alternative instructions explaining
the rules governing jurors’ use of electronic devices, as explained in Note on Use 1.
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
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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 communicate with anyone about the case or the people involved in
the case. Do not take photographs, video recordings, or audio recordings of the proceedings or of
your fellow jurors. After each recess, please double check to make sure your cell phone or
electronic device is turned off. At the end of the case, while you are deliberating, you must not
communicate with anyone outside the jury room. You cannot 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.]
Alternative B: [You cannot have any cell phones, tablets, laptops, or other electronic
devices in the courtroom. 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 communicate
with anyone about the case or the people involved in the case. Do not take photographs, video
recordings, or audio recordings of the proceedings or your fellow jurors. At the end of the case,
while you are deliberating, you must not communicate with anyone outside the jury room. 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
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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 must 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. I have instructed the courtroom personnel that any communications you have with
them outside of my presence must be reported to me, and I will tell the parties [and their attorneys]
about any communication from you that I 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] [dress] [what personal items can be brought into the courthouse or jury
room] [list any other types of routine ex parte communications permitted].
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If you become aware of any violation of these instructions or any other instruction I give
in this case, you must tell me by giving a note to the bailiff.
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INSTRUCTION NO. 7
201.3 EXPLANATION OF THE VOIR DIRE PROCESS
Voir Dire:
The last thing I 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, I will meet with them and they will tell me their choices for jurors.
Each side can ask that I exclude a person from serving on the 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 I 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, I 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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INSTRUCTION NO. 8
202.1 INTRODUCTION
Administer oath:
You have now taken an oath to serve as jurors in this trial. Before we begin, I am going to
tell you about the rules of law that apply to this case and let you know what you can expect as the
trial proceeds.
It is my intention to give you [all] [most] [some] of the rules of law but it might be that I
will not know for sure all of the law that will apply in this case until all of the evidence is presented.
However, I can anticipate [most] [some] of the law and give it to you now so that you will better
understand what to be looking for while the evidence is presented. If I later decide that different
or additional law applies to the case, I will tell you. In any event, at the end of the evidence I will
give you the final 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 I am about to tell
you.
INSTRUCTION NO. 9
301.1 DEPOSITION TESTIMONY, INTERROGATORIES, STIPULATED
TESTIMONY, STIPULATIONS, AND ADMISSIONS
a. Deposition or prior testimony:
Members of the jury, the sworn testimony of Gary Sontos, given before trial, will now be
presented. You are to consider and weigh this testimony as you would any other evidence in the
case.
b. Interrogatories:
Members of the jury, answers to interrogatories will now be read to you. Interrogatories
are written questions that have been presented before trial by one party to another. They are
answered under oath. You are to consider and weigh these questions and answers as you would
any other evidence in the case.
c. Stipulations:
Members of the jury, the parties have agreed to certain facts. You must accept these facts
as true. (Read the agreed facts).
INSTRUCTION NO. 10
301.2 INSTRUCTION WHEN FIRST ITEM OF DOCUMENTARY, PHOTOGRAPHIC,
OR PHYSICAL EVIDENCE IS ADMITTED
The (describe item of evidence) has now been received in evidence. Witnesses may testify
about or refer to this or any other item of evidence during the remainder of the trial. This and all
other items received in evidence will be available to you for examination during your deliberations
at the end of the trial.
INSTRUCTION NO. 11
301.3 INSTRUCTION WHEN EVIDENCE IS FIRST PUBLISHED TO JURORS
The (describe item of evidence) has been received in evidence. It is being shown to you
now to help you understand the testimony of this witness and other witnesses in the case, as well
as the evidence as a whole. You may examine (describe item of evidence) briefly now. It will also
be available to you for examination during your deliberations at the end of the trial.
INSTRUCTION NO. 12
301.4 INSTRUCTION REGARDING VISUAL OR DEMONSTRATIVE AIDS
a. Generally:
This witness will be using (identify demonstrative or visual aid(s)) to assist in explaining
or illustrating [his] [her] testimony. The testimony of the witness is evidence; however, [this]
[these] (identify demonstrative or visual aid(s)) [is] [are] not to be considered as evidence in the
case unless received in evidence, and should not be used as a substitute for evidence. Only items
received in evidence will be available to you for consideration during your deliberations.
b. Specially created visual or demonstrative aids based on disputed assumptions:
This witness will be using (identify demonstrative aid(s)) to assist in explaining or
illustrating [his] [her] testimony. [This] [These] item[s] [has] [have] been prepared to assist this
witness in explaining [his] [her] testimony. [It] [They] may be based on assumptions which you
are free to accept or reject. The testimony of the witness is evidence; however, [this] [these]
(identify demonstrative or visual aid(s)) [is] [are] not to be considered as evidence in the case
unless received in evidence, and should not be used as a substitute for evidence. Only items
received in evidence will be available to you for consideration during your deliberations.
INSTRUCTION NO. 13
301.5 EVIDENCE ADMITTED FOR A LIMITED PURPOSE
The (describe item of evidence) has now been received into evidence. It has been admitted
only [for the purpose of (describe purpose)] [as to (name party)]. You may consider it only [for
that purpose] [as it might affect (name party)]. You may not consider that evidence [for any other
purpose] [as to [any other party] [(name other party(s)].
INSTRUCTION NO. 14
301.10 INSTRUCTION BEFORE RECESS
We are about to take [our first] [a] recess. Remember that all of the rules I have given you
apply even when you are outside the courtroom, such as at recess.
Remember the basic rule: Do not talk to anyone, including your fellow jurors, friends,
family or co-workers about anything having to do with this trial, except to speak to court staff.
This means no e-mailing, text messaging, tweeting, blogging, or any other form of communication.
You cannot do any research about the case or look up any information about the case. Remember
to observe during our recess the other rules I gave you. If you become aware of any violation of
any of these rules at all, notify court personnel of the violation.
After each recess, please double check to make sure [that your cell phone or other electronic
device is turned off completely] [that you do not bring your cell phone or other electronic device
into the courtroom or jury room].
INSTRUCTION NO. 15
301.12 REDACTED DOCUMENTS
When you review the documents admitted into evidence in this trial, you may see that
certain portions of a document have been [blacked out] [whited out] [(describe other methods of
redactions)] and removed from your consideration by the court. You should not speculate as to the
content of the portions that have been [blacked out] [whited out] [(describe other method of
redaction)], nor should you consider as part of your deliberation the fact that certain portions have
been removed from your consideration. Rather, you should consider only those portions that have
been admitted into evidence.
INSTRUCTION NO. 16
401.1 INTRODUCTION
Members of the jury, you have now heard and received all of the evidence in this case. I
am now going to tell you about the rules of law that you must use in reaching your verdict. [You
will recall at the beginning of the case I told you that if, at the end of the case I decided that
different law applies, I would tell you so. These instructions are (slightly) different from what I
gave you at the beginning and it is these rules of law that you must now follow.] When I finish
telling you about the rules of law, the attorneys will present their final arguments and you will then
retire to decide your verdict.
INSTRUCTION NO. 17
401.2 SUMMARY OF CLAIMS
The claims and defenses in this case are as follows. Plaintiff claims that Defendants were
negligent in failing to operate and maintain their motor vehicle in a safe and prudent manner, which
caused him harm.
Defendants deny that claim and also claim that Plaintiff was himself negligent in not
wearing a seatbelt which caused his harm.
The parties must prove their claims by the greater weight of the evidence. I will now define
some of the terms you will use in deciding this case.
INSTRUCTION NO. 18
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.
INSTRUCTION NO. 19
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.
INSTRUCTION NO. 20
401.12 LEGAL CAUSE
a. Legal cause generally:
Negligence is a legal cause of loss, injury or damage if it directly and in natural and
continuous sequence produces or contributes substantially to producing such loss, injury or
damage, so that it can reasonably be said that, but for the negligence, the loss, injury or damage
would not have occurred.
INSTRUCTION NO. 21
401.18 ISSUES ON PLAINTIFF’S CLAIM — GENERAL NEGLIGENCE
The [next] issues you must decide on Plaintiff’s claim against Defendants are:
a. Negligence, generally:
whether Defendants were negligent in failing to operate and maintain their motor vehicle
in a safe and prudent manner, and, if so, whether that negligence was a legal cause of the loss,
injury or damage to Plaintiff.
INSTRUCTION NO. 22
401.21 BURDEN OF PROOF ON MAIN CLAIM
If the greater weight of the evidence does not support Plaintiff’s claim, your verdict should
be for Defendants.
INSTRUCTION NO. 23
401.22 DEFENSE ISSUES
If, however, the greater weight of the evidence supports Plaintiff’s claim, then you shall
consider the defenses raised by Defendants.
On the defense, the issue for you to decide is:
a. Comparative negligence generally:
whether Plaintiff was himself negligent in not wearing a seatbelt and, if so, whether that
negligence was a contributing legal cause of injury or damage to Plaintiff.
INSTRUCTION NO. 24
401.23 BURDEN OF PROOF ON DEFENSE ISSUES
If the greater weight of the evidence does not support Defendants’ defenses and the greater
weight of the evidence does support Plaintiff’s claim, then you should decide and write on the
verdict form what percentage of the total negligence of both defendants you apportion to each
defendant whose negligence you find was a legal cause of loss, injury, or damage to Plaintiff.
If, however, the greater weight of the evidence shows that both Plaintiff and one or more
of Defendants were negligent and that the negligence of each contributed as a legal cause of loss,
injury or damage sustained by Plaintiff, you should decide and write on the verdict form what
percentage of the total negligence of all parties to this action you apportion to each of them.
INSTRUCTION NO. 25
501.1 PERSONAL INJURY AND PROPERTY DAMAGES: INTRODUCTION
If your verdict is for Defendants, you will not consider the matter of damages. But if the
greater weight of the evidence supports Plaintiff’s claim, you should determine and write on the
verdict form, in dollars, the total amount of loss, injury or damage which the greater weight of the
evidence shows will fairly and adequately compensate him for his loss, injury or damage, including
any damages that Plaintiff is reasonably certain to incur or experience in the future. You shall
consider the following elements:
INSTRUCTION NO. 26
501.3 MOTOR VEHICLE NO-FAULT INSTRUCTION
If your verdict is for Defendants, you will not consider the matter of damages. But if the
greater weight of the evidence supports Plaintiff’s claim, 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 for the following elements of damage to the extent
that they have not been paid and are not payable by personal injury protection benefits, including
damage that Plaintiff is reasonably certain to incur in the future:
a. Medical expenses:
Care and treatment of claimant:
The reasonable value or 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.
You must next decide whether Plaintiff’s injury, resulting from the incident in this case, is
permanent. An injury is permanent if it, in whole or in part, consists of:
(1) a significant and permanent loss of an important bodily function; or
(2) a significant and permanent scarring or disfigurement; or
(3) 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 Plaintiff’s injury is permanent,
then your verdict is complete. If, however, the greater weight of the evidence shows that Plaintiff’s
injury is permanent, you should also award damages for these additional elements of damage:
d. Injury, pain, disability, disfigurement, loss of capacity for enjoyment of life:
Any bodily injury sustained by Plaintiff and any resulting pain and suffering, disability or
physical impairment, disfigurement, mental anguish, inconvenience or loss of capacity for the
enjoyment of life 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.
2
INSTRUCTION NO. 27
501.4 COMPARATIVE NEGLIGENCE, NON-PARTY FAULT AND MULTIPLE
DEFENDANTS
In determining the total amount of damages, you should not make any reduction because
of the negligence, if any, of Plaintiff or Defendants. The court in entering judgment will make any
appropriate reductions.
INSTRUCTION NO. 28
501.5 OTHER CONTRIBUTING CAUSES OF DAMAGES
a. Aggravation or activation of disease or defect:
If you find that the Defendants caused a bodily injury, and that the injury resulted in an
aggravation of an existing disease or physical defect, you should attempt to decide what portion
of Plaintiff’s condition resulted from the aggravation. If you can make that determination, then
you should award only those damages resulting from the aggravation. However, if you cannot
make that determination, or if it cannot be said that the condition would have existed apart from
the injury, then you should award damages for the entire condition suffered by Plaintiff.
INSTRUCTION NO. 29
501.6 MORTALITY TABLES
If the greater weight of the evidence shows that Plaintiff has been permanently injured, you
may consider his 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 his life.
INSTRUCTION NO. 30
501.7 REDUCTION OF DAMAGES TO PRESENT VALUE
Any amount of damages which you allow for future medical expenses 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.
INSTRUCTION NO. 31
501.8 COLLATERAL SOURCE RULE
a. Tort actions generally:
You should not reduce the amount of compensation to which Plaintiff is otherwise entitled
on account of medical insurance payments which the evidence shows Plaintiff received from his
insurance company or some other source. The court will reduce as necessary the amount of
compensation to which Plaintiff is entitled on account of any such payments.
c. Actions accruing on or after October 1, 1993, arising out of ownership, operation,
use, or maintenance of a motor vehicle:
Some expenses claimed as damages by Plaintiff may have been paid or are payable by
personal injury protection insurance. You should not award Plaintiff any damages for past medical
expenses that have been paid or that are payable by personal injury protection insurance. “Payable”
expenses are expenses that have been incurred and will be paid by personal injury protection
insurance.
INSTRUCTION NO. 32
501.9 LIABILITY OF MULTIPLE TORTFEASORS
b. Cases not requiring special verdicts:
If you find for Plaintiff against both of the defendants, you should assess Plaintiff’s
damages in a single amount against both defendants.
INSTRUCTION NO. 33
601.1 WEIGHING THE EVIDENCE
In deciding this case, it is your duty as jurors to decide the issues, and only those issues,
that I submit for your determination. You must come to an agreement about your 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 [, and any fact of
which the court has taken judicial notice (explain as necessary)].
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 I have explained it to you.
INSTRUCTION NO. 34
601.2 BELIEVABILITY OF WITNESSES
a. General considerations:
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.
b. Expert witnesses:
You have heard opinion testimony from persons referred to as expert witnesses.
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.
INSTRUCTION NO. 35
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, I will have a few final instructions about
your deliberations.
INSTRUCTION NO. 36
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. Before you do so, I have a few last instructions
for you.
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 I discharge you at the end of the case.
If you become aware of any violation of these instructions or any other instruction I 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 I have instructed you.
Reaching a verdict is exclusively your job. I cannot participate in that decision in any way
and you should not guess what I think your verdict should be from something I may have said or
done. You should not think that I prefer one verdict over another. Therefore, in reaching your
verdict, you should not consider anything that I have said or done, except for my specific
instructions to you.
Pay careful attention to all the instructions that I 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.
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
2
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.
You will be given a form of verdict, which I shall now read to you: (read form of verdict)
If you find for Plaintiff, your verdict will be in the following form: (read form of verdict)
If you find for Defendants, your verdict will be in the following form: (read form of verdict)
Your verdict must be unanimous, that is, your verdict must be agreed to by each of you.
When you have agreed on your verdict and finished filling out the form, your foreperson must
write the date and sign it at the bottom and return the verdict to the bailiff.
If any of you need to communicate with me for any reason, write me a note and give it to
the bailiff. In your note, do not disclose any vote or split.
You may now retire to decide your verdict.
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INSTRUCTION NO. 37
801.1 JUROR QUESTIONS DURING DELIBERATIONS
Members of the jury, I have discussed your [note] [question] with the attorneys. You have
[asked the following question] [made the following request]:
(read juror’s note):
If I have not read your [note] [question] correctly, please raise your hand.
(clarify question as needed):
1. The answer is:
(respond to question):
OR
2. I am not able to [answer] [respond to] this [question] [request] because it [calls for
information that is not in evidence] [is not proper to be considered in this case] [(other reason why
que
Preview
Filing # 195614673 E-Filed 04/05/2024 04:40:10 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CIVIL DIVISION CHARLES A. ANDERSON, III, Plaintiff, CASE NO. 2021-CA-003164-AN v. DIVISION: 20 THE ESTATE OF KENNETH ELTON NICHOLLS, SCI SHARED RESOURCES, LLC, and S.E. CEMETERIES OF FLORIDA, LLC d/b/a GLEN HAVEN MEMORIAL PARK, Defendants. DEFENDANTS’ PROPOSED JURY INSTRUCTIONS Defendants, by and through their undersigned counsel, hereby file their Proposed Jury Instructions, attached hereto. Defendants respectfully reserve the right to supplement, modify or amend their jury instructions pending receipt and review of Plaintiff’s proposed jury instructions. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that on April 5, 2024, a true and a correct copy of the foregoing was electronically filed with the Clerk of Court via the Florida Courts eFiling Portal, which will send a copy via electronic mail to all Counsel of Record listed on the attached Service List. Respectfully submitted, WEINBERG, WHEELER, HUDGINS, GUNN & DIAL, LLC /s/ Matthew T. Gomes LAWRENCE E. BURKHALTER Florida Bar No.: 186104 MATTHEW T. GOMES Florida Bar No.: 117030 3350 Virginia Street, Suite 500 Miami, Florida 33133 Telephone: (305) 455-9500 Facsimile: (305) 455-9501 E-Mail: lburkhalter@wwhgd.com mgomes@wwhgd.com aperdomo@wwhgd.com arezende@wwhgd.com atressler@wwhgd.com Attorneys for Defendants SERVICE LIST Nadine S. Diaz, Esq. Walter L. Grantham, Jr., Esq. Darrigo & Diaz, P.A. 4504 North Armenia Avenue Tampa, FL 33603 Telephone: (813) 877-5548 ndiaz@ddlawtampa.com wgrantham@ddlawtampa.com mail@ddlawtampa.com 2 INSTRUCTION NO. 1 101.1 OATH OF JURORS BEFORE VOIR DIRE Do you solemnly swear or affirm that you will answer truthfully all questions asked of you as prospective jurors [so help you God]? INSTRUCTION NO. 2 101.2 OATH OF JUROR AFTER VOIR DIRE Do you solemnly swear or affirm that you will well and truly try this case between the Plaintiff and Defendants, and a true verdict render according to the law and evidence [so help you God]? INSTRUCTION NO. 3 101.3 OATH OF A WITNESS Do you solemnly swear or affirm that the evidence you are about to give will be the truth, the whole truth, and nothing but the truth [so help you God]? INSTRUCTION NO. 4 QUALIFICATIONS INSTRUCTION Many of you have electronic devices such as cell phones, smartphones, tablets, and laptops. Even though you have not yet been selected as a juror, there are some strict rules that you must follow about electronic devices. When you are called to a courtroom, the judge will give you specific instructions on the use of electronic devices. These rules are so important that the judge may tell you that you must turn off your cell phone or other electronic devices completely or that you cannot have your cell phone or electronic devices in the courtroom. If someone needs to contact you in case of an emergency, the judge will provide you with a phone number where you can receive messages. If the trial judge allows you to keep your cell phones, computers, or other electronic devices, you cannot use them to take photographs, video recordings, or audio recordings of the proceedings in the courtroom or your fellow jurors. You must not use them to search the Internet or to find out anything related to any cases in the courthouse. Why is this restriction imposed? This restriction is imposed because jurors must decide the case without distraction and only on the evidence presented in the courtroom. I know that, for some of you, these restrictions affect your normal daily activities and may require a change in the way you are used to communicating and perhaps even in the way you are used to learning. If you investigate, research, or make inquiries on your own, 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. Any independent investigation by a juror unfairly and improperly prevents the parties from having that opportunity our judicial system promises. Between now and when you have been discharged from jury duty by the judge, you must not discuss any information about your jury service with anyone, including friends, co-workers, and family members. You may tell those who need to know where you are that you have been called for jury duty. If you are picked for a jury, you may tell people that you have been picked for a jury and how long the case may take. However, you must not give anyone any information about the case itself or the people involved in the case. You must also warn people not to try to say anything to you or write to you about your jury service or the case. This includes face-to-face, phone or computer communications. I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case. The judge will tell you when you are released from this instruction. Remember, these rules are designed to guarantee a fair trial. It is important that you understand the rules as well as the impact on our system of justice if you fail to follow them. If it is determined that any one of you has violated this rule, and conducted any type of independent research or investigation, it may result in a mistrial. A mistrial would require the case to be tried again at great expense to the parties and the judicial system. The judge may also impose a penalty upon any juror who violates this instruction. All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution of every case. 2 INSTRUCTION NO. 5 201.1 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 or companies, 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 personal injuries that Plaintiff claims to have experienced as a result of an automobile collision when the car in which he was a passenger was struck by a company truck driven by Kenneth Elton Nicholls in the course of his employment with S.E. Cemeteries of Florida, LLC d/b/a Glen Haven Memorial Park. The incident involved in this case occurred on January 30, 2019, at the intersection of Florida State Road 423 (John Young Parkway) and Thacker Avenue. The principal witnesses who will testify in this case are Charles A. Anderson, III, Heather Marie Grant, Gary Sontos, Dr. Ravi Patel, and Nicole Bonaparte. INSTRUCTION NO. 6 201.2 INTRODUCTION OF PARTICIPANTS AND THEIR ROLES Who are the people here and what do they do? Judge/Court: I 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. I 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, JR Granthan, represents Charles A. Anderson, III 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. Grantham, will you please introduce who is sitting at the table with you? Defendants’ Counsel: The attorney on this side of the courtroom, Matthew Gomes, represents the Estate of Kenneth Elton Nicholls and S.E. Cemeteries of Florida, LLC, the ones who have been sued. His job is to present his clients’ side of things to you. He and his clients will usually be referred to here as “the defendants.” Mr. Gomes, 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 I 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. The law requires that jurors consider only the testimony and other evidence presented during the trial. The law also requires that jurors keep an open mind and not discuss their opinions with other jurors until the jury retires to deliberate at the end of the case. If you are selected as a juror in this case, you cannot discuss the case with your fellow jurors before you are permitted to do so at the conclusion of the trial, or with anyone else until after a decision has been reached by the jury. Therefore, starting now, you cannot talk about the case or otherwise have any communication about the case with anyone, including your fellow jurors, until I tell you that such discussions may take place. 2 In addition to not having face-to-face discussions with your fellow jurors or anyone else, you must not communicate with anyone about the case in any way, whether orally or in writing, including electronically, or on the Internet through e-mail, text messaging, blogs, or social media such as Facebook, YouTube, Instagram, TikTok, Messenger, Snapchat, Twitter or X, Reddit, Pinterest, Threads, or any other electronic communication whatsoever. You also must not conduct any type of independent or personal research or investigation regarding any matters related to this case. You must not look up words, names, [maps,] or anything else that may have anything to do with this case. Do not use your cellphones or any other device to do any research regarding this case, the matters in the case, the legal issues in the case, or the individuals or entities involved in the case. And you must ignore any information about the case you might see, even accidentally, in the news media, on the Internet, or on social media. This is because you must base the decisions you will have to make in this case solely on what you hear and see in this courtroom. I want to stress again that this rule means you must not use electronic devices to communicate about this case. Do not send or accept any messages to or from anyone about this case or your jury service. This applies whether you are in the courthouse, at home, or anywhere else. Many of you may have cell phones or other electronic devices with you here in the courtroom. **The trial judge should select one of the following two alternative instructions explaining the rules governing jurors’ use of electronic devices, as explained in Note on Use 1. 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 3 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 communicate with anyone about the case or the people involved in the case. Do not take photographs, video recordings, or audio recordings of the proceedings or of your fellow jurors. After each recess, please double check to make sure your cell phone or electronic device is turned off. At the end of the case, while you are deliberating, you must not communicate with anyone outside the jury room. You cannot 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.] Alternative B: [You cannot have any cell phones, tablets, laptops, or other electronic devices in the courtroom. 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 communicate with anyone about the case or the people involved in the case. Do not take photographs, video recordings, or audio recordings of the proceedings or your fellow jurors. At the end of the case, while you are deliberating, you must not communicate with anyone outside the jury room. 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 4 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 must 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. I have instructed the courtroom personnel that any communications you have with them outside of my presence must be reported to me, and I will tell the parties [and their attorneys] about any communication from you that I 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] [dress] [what personal items can be brought into the courthouse or jury room] [list any other types of routine ex parte communications permitted]. 5 If you become aware of any violation of these instructions or any other instruction I give in this case, you must tell me by giving a note to the bailiff. 6 INSTRUCTION NO. 7 201.3 EXPLANATION OF THE VOIR DIRE PROCESS Voir Dire: The last thing I 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, I will meet with them and they will tell me their choices for jurors. Each side can ask that I exclude a person from serving on the 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 I 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, I 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. 2 INSTRUCTION NO. 8 202.1 INTRODUCTION Administer oath: You have now taken an oath to serve as jurors in this trial. Before we begin, I am going to tell you about the rules of law that apply to this case and let you know what you can expect as the trial proceeds. It is my intention to give you [all] [most] [some] of the rules of law but it might be that I will not know for sure all of the law that will apply in this case until all of the evidence is presented. However, I can anticipate [most] [some] of the law and give it to you now so that you will better understand what to be looking for while the evidence is presented. If I later decide that different or additional law applies to the case, I will tell you. In any event, at the end of the evidence I will give you the final 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 I am about to tell you. INSTRUCTION NO. 9 301.1 DEPOSITION TESTIMONY, INTERROGATORIES, STIPULATED TESTIMONY, STIPULATIONS, AND ADMISSIONS a. Deposition or prior testimony: Members of the jury, the sworn testimony of Gary Sontos, given before trial, will now be presented. You are to consider and weigh this testimony as you would any other evidence in the case. b. Interrogatories: Members of the jury, answers to interrogatories will now be read to you. Interrogatories are written questions that have been presented before trial by one party to another. They are answered under oath. You are to consider and weigh these questions and answers as you would any other evidence in the case. c. Stipulations: Members of the jury, the parties have agreed to certain facts. You must accept these facts as true. (Read the agreed facts). INSTRUCTION NO. 10 301.2 INSTRUCTION WHEN FIRST ITEM OF DOCUMENTARY, PHOTOGRAPHIC, OR PHYSICAL EVIDENCE IS ADMITTED The (describe item of evidence) has now been received in evidence. Witnesses may testify about or refer to this or any other item of evidence during the remainder of the trial. This and all other items received in evidence will be available to you for examination during your deliberations at the end of the trial. INSTRUCTION NO. 11 301.3 INSTRUCTION WHEN EVIDENCE IS FIRST PUBLISHED TO JURORS The (describe item of evidence) has been received in evidence. It is being shown to you now to help you understand the testimony of this witness and other witnesses in the case, as well as the evidence as a whole. You may examine (describe item of evidence) briefly now. It will also be available to you for examination during your deliberations at the end of the trial. INSTRUCTION NO. 12 301.4 INSTRUCTION REGARDING VISUAL OR DEMONSTRATIVE AIDS a. Generally: This witness will be using (identify demonstrative or visual aid(s)) to assist in explaining or illustrating [his] [her] testimony. The testimony of the witness is evidence; however, [this] [these] (identify demonstrative or visual aid(s)) [is] [are] not to be considered as evidence in the case unless received in evidence, and should not be used as a substitute for evidence. Only items received in evidence will be available to you for consideration during your deliberations. b. Specially created visual or demonstrative aids based on disputed assumptions: This witness will be using (identify demonstrative aid(s)) to assist in explaining or illustrating [his] [her] testimony. [This] [These] item[s] [has] [have] been prepared to assist this witness in explaining [his] [her] testimony. [It] [They] may be based on assumptions which you are free to accept or reject. The testimony of the witness is evidence; however, [this] [these] (identify demonstrative or visual aid(s)) [is] [are] not to be considered as evidence in the case unless received in evidence, and should not be used as a substitute for evidence. Only items received in evidence will be available to you for consideration during your deliberations. INSTRUCTION NO. 13 301.5 EVIDENCE ADMITTED FOR A LIMITED PURPOSE The (describe item of evidence) has now been received into evidence. It has been admitted only [for the purpose of (describe purpose)] [as to (name party)]. You may consider it only [for that purpose] [as it might affect (name party)]. You may not consider that evidence [for any other purpose] [as to [any other party] [(name other party(s)]. INSTRUCTION NO. 14 301.10 INSTRUCTION BEFORE RECESS We are about to take [our first] [a] recess. Remember that all of the rules I have given you apply even when you are outside the courtroom, such as at recess. Remember the basic rule: Do not talk to anyone, including your fellow jurors, friends, family or co-workers about anything having to do with this trial, except to speak to court staff. This means no e-mailing, text messaging, tweeting, blogging, or any other form of communication. You cannot do any research about the case or look up any information about the case. Remember to observe during our recess the other rules I gave you. If you become aware of any violation of any of these rules at all, notify court personnel of the violation. After each recess, please double check to make sure [that your cell phone or other electronic device is turned off completely] [that you do not bring your cell phone or other electronic device into the courtroom or jury room]. INSTRUCTION NO. 15 301.12 REDACTED DOCUMENTS When you review the documents admitted into evidence in this trial, you may see that certain portions of a document have been [blacked out] [whited out] [(describe other methods of redactions)] and removed from your consideration by the court. You should not speculate as to the content of the portions that have been [blacked out] [whited out] [(describe other method of redaction)], nor should you consider as part of your deliberation the fact that certain portions have been removed from your consideration. Rather, you should consider only those portions that have been admitted into evidence. INSTRUCTION NO. 16 401.1 INTRODUCTION Members of the jury, you have now heard and received all of the evidence in this case. I am now going to tell you about the rules of law that you must use in reaching your verdict. [You will recall at the beginning of the case I told you that if, at the end of the case I decided that different law applies, I would tell you so. These instructions are (slightly) different from what I gave you at the beginning and it is these rules of law that you must now follow.] When I finish telling you about the rules of law, the attorneys will present their final arguments and you will then retire to decide your verdict. INSTRUCTION NO. 17 401.2 SUMMARY OF CLAIMS The claims and defenses in this case are as follows. Plaintiff claims that Defendants were negligent in failing to operate and maintain their motor vehicle in a safe and prudent manner, which caused him harm. Defendants deny that claim and also claim that Plaintiff was himself negligent in not wearing a seatbelt which caused his harm. The parties must prove their claims by the greater weight of the evidence. I will now define some of the terms you will use in deciding this case. INSTRUCTION NO. 18 401.3 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. INSTRUCTION NO. 19 401.4 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. INSTRUCTION NO. 20 401.12 LEGAL CAUSE a. Legal cause generally: Negligence is a legal cause of loss, injury or damage if it directly and in natural and continuous sequence produces or contributes substantially to producing such loss, injury or damage, so that it can reasonably be said that, but for the negligence, the loss, injury or damage would not have occurred. INSTRUCTION NO. 21 401.18 ISSUES ON PLAINTIFF’S CLAIM — GENERAL NEGLIGENCE The [next] issues you must decide on Plaintiff’s claim against Defendants are: a. Negligence, generally: whether Defendants were negligent in failing to operate and maintain their motor vehicle in a safe and prudent manner, and, if so, whether that negligence was a legal cause of the loss, injury or damage to Plaintiff. INSTRUCTION NO. 22 401.21 BURDEN OF PROOF ON MAIN CLAIM If the greater weight of the evidence does not support Plaintiff’s claim, your verdict should be for Defendants. INSTRUCTION NO. 23 401.22 DEFENSE ISSUES If, however, the greater weight of the evidence supports Plaintiff’s claim, then you shall consider the defenses raised by Defendants. On the defense, the issue for you to decide is: a. Comparative negligence generally: whether Plaintiff was himself negligent in not wearing a seatbelt and, if so, whether that negligence was a contributing legal cause of injury or damage to Plaintiff. INSTRUCTION NO. 24 401.23 BURDEN OF PROOF ON DEFENSE ISSUES If the greater weight of the evidence does not support Defendants’ defenses and the greater weight of the evidence does support Plaintiff’s claim, then you should decide and write on the verdict form what percentage of the total negligence of both defendants you apportion to each defendant whose negligence you find was a legal cause of loss, injury, or damage to Plaintiff. If, however, the greater weight of the evidence shows that both Plaintiff and one or more of Defendants were negligent and that the negligence of each contributed as a legal cause of loss, injury or damage sustained by Plaintiff, you should decide and write on the verdict form what percentage of the total negligence of all parties to this action you apportion to each of them. INSTRUCTION NO. 25 501.1 PERSONAL INJURY AND PROPERTY DAMAGES: INTRODUCTION If your verdict is for Defendants, you will not consider the matter of damages. But if the greater weight of the evidence supports Plaintiff’s claim, you should determine and write on the verdict form, in dollars, the total amount of loss, injury or damage which the greater weight of the evidence shows will fairly and adequately compensate him for his loss, injury or damage, including any damages that Plaintiff is reasonably certain to incur or experience in the future. You shall consider the following elements: INSTRUCTION NO. 26 501.3 MOTOR VEHICLE NO-FAULT INSTRUCTION If your verdict is for Defendants, you will not consider the matter of damages. But if the greater weight of the evidence supports Plaintiff’s claim, 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 for the following elements of damage to the extent that they have not been paid and are not payable by personal injury protection benefits, including damage that Plaintiff is reasonably certain to incur in the future: a. Medical expenses: Care and treatment of claimant: The reasonable value or 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. You must next decide whether Plaintiff’s injury, resulting from the incident in this case, is permanent. An injury is permanent if it, in whole or in part, consists of: (1) a significant and permanent loss of an important bodily function; or (2) a significant and permanent scarring or disfigurement; or (3) 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 Plaintiff’s injury is permanent, then your verdict is complete. If, however, the greater weight of the evidence shows that Plaintiff’s injury is permanent, you should also award damages for these additional elements of damage: d. Injury, pain, disability, disfigurement, loss of capacity for enjoyment of life: Any bodily injury sustained by Plaintiff and any resulting pain and suffering, disability or physical impairment, disfigurement, mental anguish, inconvenience or loss of capacity for the enjoyment of life 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. 2 INSTRUCTION NO. 27 501.4 COMPARATIVE NEGLIGENCE, NON-PARTY FAULT AND MULTIPLE DEFENDANTS In determining the total amount of damages, you should not make any reduction because of the negligence, if any, of Plaintiff or Defendants. The court in entering judgment will make any appropriate reductions. INSTRUCTION NO. 28 501.5 OTHER CONTRIBUTING CAUSES OF DAMAGES a. Aggravation or activation of disease or defect: If you find that the Defendants caused a bodily injury, and that the injury resulted in an aggravation of an existing disease or physical defect, you should attempt to decide what portion of Plaintiff’s condition resulted from the aggravation. If you can make that determination, then you should award only those damages resulting from the aggravation. However, if you cannot make that determination, or if it cannot be said that the condition would have existed apart from the injury, then you should award damages for the entire condition suffered by Plaintiff. INSTRUCTION NO. 29 501.6 MORTALITY TABLES If the greater weight of the evidence shows that Plaintiff has been permanently injured, you may consider his 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 his life. INSTRUCTION NO. 30 501.7 REDUCTION OF DAMAGES TO PRESENT VALUE Any amount of damages which you allow for future medical expenses 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. INSTRUCTION NO. 31 501.8 COLLATERAL SOURCE RULE a. Tort actions generally: You should not reduce the amount of compensation to which Plaintiff is otherwise entitled on account of medical insurance payments which the evidence shows Plaintiff received from his insurance company or some other source. The court will reduce as necessary the amount of compensation to which Plaintiff is entitled on account of any such payments. c. Actions accruing on or after October 1, 1993, arising out of ownership, operation, use, or maintenance of a motor vehicle: Some expenses claimed as damages by Plaintiff may have been paid or are payable by personal injury protection insurance. You should not award Plaintiff any damages for past medical expenses that have been paid or that are payable by personal injury protection insurance. “Payable” expenses are expenses that have been incurred and will be paid by personal injury protection insurance. INSTRUCTION NO. 32 501.9 LIABILITY OF MULTIPLE TORTFEASORS b. Cases not requiring special verdicts: If you find for Plaintiff against both of the defendants, you should assess Plaintiff’s damages in a single amount against both defendants. INSTRUCTION NO. 33 601.1 WEIGHING THE EVIDENCE In deciding this case, it is your duty as jurors to decide the issues, and only those issues, that I submit for your determination. You must come to an agreement about your 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 [, and any fact of which the court has taken judicial notice (explain as necessary)]. 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 I have explained it to you. INSTRUCTION NO. 34 601.2 BELIEVABILITY OF WITNESSES a. General considerations: 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. b. Expert witnesses: You have heard opinion testimony from persons referred to as expert witnesses. 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. INSTRUCTION NO. 35 601.5 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, I will have a few final instructions about your deliberations. INSTRUCTION NO. 36 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. Before you do so, I have a few last instructions for you. 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 I discharge you at the end of the case. If you become aware of any violation of these instructions or any other instruction I 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 I have instructed you. Reaching a verdict is exclusively your job. I cannot participate in that decision in any way and you should not guess what I think your verdict should be from something I may have said or done. You should not think that I prefer one verdict over another. Therefore, in reaching your verdict, you should not consider anything that I have said or done, except for my specific instructions to you. Pay careful attention to all the instructions that I 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. 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 2 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. You will be given a form of verdict, which I shall now read to you: (read form of verdict) If you find for Plaintiff, your verdict will be in the following form: (read form of verdict) If you find for Defendants, your verdict will be in the following form: (read form of verdict) Your verdict must be unanimous, that is, your verdict must be agreed to by each of you. When you have agreed on your verdict and finished filling out the form, your foreperson must write the date and sign it at the bottom and return the verdict to the bailiff. If any of you need to communicate with me for any reason, write me a note and give it to the bailiff. In your note, do not disclose any vote or split. You may now retire to decide your verdict. 3 INSTRUCTION NO. 37 801.1 JUROR QUESTIONS DURING DELIBERATIONS Members of the jury, I have discussed your [note] [question] with the attorneys. You have [asked the following question] [made the following request]: (read juror’s note): If I have not read your [note] [question] correctly, please raise your hand. (clarify question as needed): 1. The answer is: (respond to question): OR 2. I am not able to [answer] [respond to] this [question] [request] because it [calls for information that is not in evidence] [is not proper to be considered in this case] [(other reason why que