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FILED: NEW YORK COUNTY CLERK 05/28/2014 INDEX NO. 771000/2010
NYSCEF DOC. NO. 1629 RECEIVED NYSCEF: 05/28/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
In re 91st Street Crane Collapse Litigation Index No. 771000-2010
Xhevahire Sinanaj and Selvi Sinanovic as Co-
Administrators of The Estate of Ramadan Kurtaj,
Deceased; and Selvi Sinanovic, Individually,
Index No. 117469-2008
Plaintiffs,
– against –
New York City Educational Construction Fund, et al.
Defendants.
Kurtaj Wrongful Death Plaintiffs: (a)
Opposition to Motions For Mistrial
and (b) Request for Curative Instruction
A. Defendants' Motion For A Mistrial Should Be Denied.
Preliminary Statement
Defendants have collectively made a motion for a mistrial based on plaintiff Leo's
counsel's reading of portions of an affidavit to the jury in her opening statement. For purposes
of this memorandum, the Kurtaj plaintiffs assume that the affidavit is inadmissible hearsay.
The substance of the affidavit concerned the history, qualifications and background of RTR
Bearing (“RTR”), the vendor of the replacement turntable bearing that failed on May 30, 2008.
The point that was being made was that defendant Lomma, if he had done due diligence,
would have learned that RTR was a broker and not a manufacturer of bearings.
Defendants objected to plaintiff reading the affidavit to the jury, and over defendants'
objections, plaintiff was permitted to continue. Although the Kurtaj plaintiffs assume, for
purposes of this memorandum, that the affidavit constitutes inadmissible hearsay, it is
important to note that:
• The subject matter of the affidavit is relevant, and there is no claim that evidence has
been given to the jury that the jury would not otherwise be entitled to receive, in
admissible form. The objection to the affidavit is one of form only.
• There is no suggestion by anybody that the affidavit is factually inaccurate.
• There is no suggestion that counsel for Leo was acting in bad faith or in violation of a
directive of the Court. She read the affidavit to the jury only after the Court permitted
her to do so.
• The only parties that could conceivably be “prejudiced” by the substance of the
affidavit are the Lomma related defendants. Nonetheless, all defendants urge this
Court not for a curative instruction, but for a mistrial.
Discussion
CPLR 4402 permits the Court to grant a mistrial “in the interests of justice on such
terms as may be just.” The decision to grant or deny a mistrial is entrusted to the sound
discretion of the trial court. Harris v. East Hills, 41 N.Y.2d 446, 451 (N.Y. 1977). Where a
proper curative instruction is given concerning the receipt of inadmissible evidence, the denial
of a motion for mistrial will not be questioned. Id.; Dennis v. Capital Dist. Transp. Auth., 274
A.D.2d 802, 803 (3d Dep't 2000); Mulle v. Weinstein, 141 A.D.2d 517 (2d Dep't 1988). A
curative instruction is sufficient to obviate a trial error if it is given in such explicit terms as to
preclude the inference that the jury might have been influenced by the error. See, Smulczeski v
City Ctr. of Music & Drama, 3 NY2d 498, 501).
In this case, the Lomma related defendants have not explained the nature of the
prejudice or why it cannot be dissipated by a proper curative instruction. The affidavit was
read (not show) to the jury in Leo's opening statement. The Court has already advised the jury
that the statements of attorneys are not evidence. Furthermore, and most importantly, most of
the information contained in the affidavit read by plaintiff's counsel has been acknowledged to
be true by defendant Lomma in his deposition. See, e.g.:
Q You checked RTR, or you checked the bearing company?
A Both.
Q Both?
A Both.
Q So it was the RTR bearing. What did you learn about RTR
Bearings?
A It's customary in Europe and in Asia to have a broker
represent a lot of the manufacturers.
Q So you knew that RTR was a broker before the bearing
came into the United States?
A Yes.
Q And did you have an understanding of what their role was
as a broker?
A My belief is that they represented -- I think it was -- I
forgot the name -- Dalian Liaoning or something. I forget the
name of the company. And they represented them.
Lomma dep., pp. 1419-1420.
Not only was Lomma aware that RTR was a broker, not a manufacturer, but Lomma
testified that he conducted due diligence of the manufacturer as well as of RTR. That being
the case, Lomma cannot be prejudiced by the jury being informed (via the reading of the
affidavit) that RTR was a broker, and whatever facts about RTR might have been contained in
the affidavit were immaterial, since Lomma checked the credentials of the manufacturer itself.
It is also worth noting that counsel for the Lomma related defendants, Glenn Feurth,
characterized it as a lawyer's “worse nightmare” to show something to the jury in the opening
and not to be able to have it admitted at trial. According to this theory, any prejudice to the
Lomma related defendants will be more than offset by the nightmare visited upon plaintiff
Leo.
Accordingly, although the reading of the affidavit might have been technically in error,
such error was harmless. Any lingering prejudice can be adequately dispelled by a sufficient
curative instruction. A proposed curative instruction is attached hereto as Appendix A. It
would be unfair to the parties, the court, the jury and all concerned to declare a mistrial and
abandon the five weeks of work that has already been put into this trial. It is inevitable that
there will occasionally be errors in a trial as long as this one with so many attorneys and issues.
It is unrealistic to expect a trial to be perfect. A mistrial will not accomplish anything, as there
will undoubtedly be errors in any subsequent trial as well. To declare a mistrial at the first hint
of error is to doom this case to a perpetual cycle of incomplete trials and mistrials. The law
favors the use of curative instructions, except in the most severe and prejudicial cases.
B. The Curative Instruction Should Address Errors That Will,
Unless Addressed, Prejudice Plaintiffs.
During the opening statement by the Lomma related defendants, improper and
prejudicial statements and information was presented to the jury. Plaintiffs request that the
Court give an appropriate curative instruction to the jury and instruct counsel for the Lomma
related defendants to abide by the appropriate standards for an opening statement.
1. It Was Improper And Prejudicial To Permit Counsel For The
Lomma Related Defendants To Inform The Jury That Plaintiffs
Settled With Brady Marine.
CPLR 4533-b expressly provides that evidence of a settlement by a joint tortfeasor shall
not be given to the jury. This provision of the CPLR was enacted to abrogate the rule in Livant
v. Livant, 18 A.D. 2d 383 (1st Dept. 1963), which required the evidence to be submitted to the
jury for apportionment. The judicial conference's report to the legislature explained the
purpose for the rule as follows:
The principal reason for changing the rule in Livant as
proposed is the concern that under the present practice the jury
will tend to return a nominal verdict where a prior payment is
revealed, and if there are multiple defendants, to think that the
tortfeasor who settled before was the only wrongdoer merely
because he settled.
See also Pellegrino v. New York City Transit Authority, 177 A.D.2d 554, 558 (2d Dep't 1991)
(“Nor should the TA's settlement with Pellegrino have been paraded before the jury. Such
information could only have suggested to the jury that the TA was the sole culpable party”).
Providing evidence to the jury of settlement by a joint tortfeasor is sufficiently prejudicial to
warrant a mistrial. Carter v Antwi, 41 Misc. 3d 1229(A), 1229A (Sup. Ct., NY County 2013).
In this case, the jury should not ha;ve been informed that plaintiffs settled with Brady
Marine. It is simply not information for the jury, and unless corrected, will seriously prejudice
the plaintiffs. What is the jury to do with this information? Since they don't know the amount
or reasons for the settlement (nor should they), then they are left to speculate. Furthermore,
unless the Court takes immediate action (by giving the jury a proper curative instruction and
by forbidding any counsel to make any reference, direct or indirect to the Brady settlement),
there is the danger that all the defendants will seize on this as the opportunity to “pile on”
Brady as the sole party responsible for the defective weld.
There is another aspect of prejudice to the plaintiff. Whichever of the Lomma
defendants is determined to be the supplier of the crane is liable to plaintiff for damages
caused by the unsafe condition of the crane. Even if Brady were negligent, that would not
diminish the liability of the supplier of the crane to plaintiff, since it is the supplier's duty to
ensure that the crane was safe for its intended use. La Rocca v. Farrington, 301 N.Y. 247 (N.Y.
1950). While the amount of Brady's settlement might reduce the amount of any verdict against
the Lomma related defendants, the jury has no business knowing of the settlement, and
knowledge of the settlement mislead the jury into thinking that any negligence of Brady
relieves the Lomma related defendants of liability to plaintiffs.
Plaintiffs have incorporated into their requested curative instruction language to
address these issues.
2. It Is Improper And Potentially Prejudicial To Permit Counsel For
The Lomma Related Defendants To Show The Jury Documents
That Cannot Be Introduced Into Evidence And To Give His
Interpretation Of Contracts To The Jury.
Counsel for the Lomma related defendants showed the jury excerpts from the
deposition testimony of Bethany Klein, a non party witness. That deposition is inadmissible
hearsay. Rivera v. New York City Tr. Auth., 54 A.D.3d 545 (1st Dep't 2008).
In addition, counsel for the Lomma related defendants showed the jury excerpts from a
contract with a concrete company named “DiFama” which is not a party to this action.
Plaintiffs do not see how that contract could be admissible in this action. Furthermore,
counsel for the Lomma related defendants gave his interpretation of those contracts to the jury.
The meaning of a contract is for the Court, not the jury. Ruttenberg v. Davidge Data Sys.
Corp., 215 A.D.2d 191 (1st Dep't 1995). Counsel's belief as to the meaning of contractual
language is tantamount to instructing the jury on the law, which is impermissible.
Plaintiffs' proposed curative instruction also deals with these issues.
Counsel for the Lomma related defendants should be instructed to confine his opening
statement accordingly.
Dated: New York, New York
May 28, 2014
MICHAEL G. O’NEILL
___________________________
30 Vesey Street, Third Floor
New York, New York 10007
(212) 581-0990
Attorney for Plaintiffs
Ladies and gentlemen, in the course of any trial, but particularly in a trial of this length
and with this many attorneys, information or evidence is occasionally provided to the jury that
is not admissible under our rules of evidence. When that happens, it is my job to instruct you
to disregard that evidence, and, in accordance with the instructions that I have previously given
to you, it is your obligation to put that evidence out of your mind and to give it no
consideration whatsoever.
Last week and yesterday, there was some information provided to you by attorneys in
their open statements that should not have been. I say information and not evidence, because,
as I have previously instructed you, what the attorneys say in opening statements is not
evidence. The fact that I am addressing certain information provided to you should not be
taken by you to mean that there is any special significance to the information in question, or
that statements made to you by attorneys that I am not addressing should be accepted by you
without question. The purpose of the opening statements is to give you a road map of the case
that the parties intend to present to you. In deciding these cases, you should consider only
properly admitted evidence and nothing else.
Last week, Ms. Panzella read an affidavit to you. Generally speaking, affidavits are not
admissible as evidence. Therefore, Ms. Panzella should not have read that affidavit to you.
You should not, however, reach the conclusion that Ms. Panzella did anything wrong or
improper, because I permitted her to read the affidavit. That was a mistake, however, and I am
instructing you to disregard completely anything you might have learned from hearing the
reading of that affidavit. It is possible that evidence of some or all of the information
contained in that affidavit will be presented at trial, in which case it would be perfectly proper
for you to consider that evidence and to give it such weight as you deem proper, as with any
other evidence that is properly admitted. In other words, the mere fact that I am instructing
you to disregard the affidavit at this point does not mean that the information itself is
improper or not to be considered. It only means that the affidavit cannot be used as evidence.
Tuesday, you heard Mr. Feurth tell you that the plaintiffs had sued Brady Marine and
that they had settled their claims against Brady Marine. Mr. Feurth should not have so
informed you. You should not, however, reach the conclusion that Mr. Feurth did anything
wrong or improper, because I permitted him to give that information to you. That was a
mistake, however, and I am instructing you to disregard completely that fact. There are many
reasons parties settle cases. It does not mean that the case against that party was strong or
weak, and it does not constitute an admission of liability by the settling party. Furthermore,
you should not speculate as to the terms of the settlement, or as to the amount of money, if
any, the plaintiffs received as a result of the settlement. It would be extremely unfair and
unjust for you to take any party's settlement into account in deciding the case when it is given
to you, and I am instructing you that you must not do this. This is true not just with respect to
Brady Marine but with respect to any party, because any party has the right to settle his or its
case with plaintiffs at any time. The fact that Brady Marine has settled with plaintiffs should
have no bearing whatsoever on your determination of these cases. Furthermore, if, at the end
of the case, you find for one or both of the plaintiffs, you should determine the damages
suffered by the plaintiffs without regard to any settlement that you believe the plaintiffs might
have received. This is because, after you render your verdict, I adjust the verdict to take into
account any settlements that have been reached, and there will be no double or extra recovery
to any plaintiff because of a settlement.
Tuesday, Mr. Feurth showed you, and read to you, deposition testimony of a witness.
Because the witness is not a party to the litigation, it is unlikely that her deposition testimony
will be admitted into evidence. It is likely that she will testify in person, and you will have the
opportunity to hear and assess that testimony directly. The testimony read to you by Mr.
Feurth is not evidence and should not be considered by you for any purpose.
Tuesday, Mr. Feurth show you some sections from a contract with a company called “Di
Fama.” Di Fama is not a party to this lawsuit, and I do not know whether that contract will be
admissible in evidence. Mr. Feurth gave you his opinion as to the meaning of that contract. I
am instructing you that it is my job to interpret contracts. You are to disregard those contracts
and Mr. Feurth's comments about the meaning of those contracts.
Preview
FILED: NEW YORK COUNTY CLERK 05/28/2014 INDEX NO. 771000/2010 NYSCEF DOC. NO. 1629 RECEIVED NYSCEF: 05/28/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In re 91st Street Crane Collapse Litigation Index No. 771000-2010 Xhevahire Sinanaj and Selvi Sinanovic as Co- Administrators of The Estate of Ramadan Kurtaj, Deceased; and Selvi Sinanovic, Individually, Index No. 117469-2008 Plaintiffs, – against – New York City Educational Construction Fund, et al. Defendants. Kurtaj Wrongful Death Plaintiffs: (a) Opposition to Motions For Mistrial and (b) Request for Curative Instruction A. Defendants' Motion For A Mistrial Should Be Denied. Preliminary Statement Defendants have collectively made a motion for a mistrial based on plaintiff Leo's counsel's reading of portions of an affidavit to the jury in her opening statement. For purposes of this memorandum, the Kurtaj plaintiffs assume that the affidavit is inadmissible hearsay. The substance of the affidavit concerned the history, qualifications and background of RTR Bearing (“RTR”), the vendor of the replacement turntable bearing that failed on May 30, 2008. The point that was being made was that defendant Lomma, if he had done due diligence, would have learned that RTR was a broker and not a manufacturer of bearings. Defendants objected to plaintiff reading the affidavit to the jury, and over defendants' objections, plaintiff was permitted to continue. Although the Kurtaj plaintiffs assume, for purposes of this memorandum, that the affidavit constitutes inadmissible hearsay, it is important to note that: • The subject matter of the affidavit is relevant, and there is no claim that evidence has been given to the jury that the jury would not otherwise be entitled to receive, in admissible form. The objection to the affidavit is one of form only. • There is no suggestion by anybody that the affidavit is factually inaccurate. • There is no suggestion that counsel for Leo was acting in bad faith or in violation of a directive of the Court. She read the affidavit to the jury only after the Court permitted her to do so. • The only parties that could conceivably be “prejudiced” by the substance of the affidavit are the Lomma related defendants. Nonetheless, all defendants urge this Court not for a curative instruction, but for a mistrial. Discussion CPLR 4402 permits the Court to grant a mistrial “in the interests of justice on such terms as may be just.” The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court. Harris v. East Hills, 41 N.Y.2d 446, 451 (N.Y. 1977). Where a proper curative instruction is given concerning the receipt of inadmissible evidence, the denial of a motion for mistrial will not be questioned. Id.; Dennis v. Capital Dist. Transp. Auth., 274 A.D.2d 802, 803 (3d Dep't 2000); Mulle v. Weinstein, 141 A.D.2d 517 (2d Dep't 1988). A curative instruction is sufficient to obviate a trial error if it is given in such explicit terms as to preclude the inference that the jury might have been influenced by the error. See, Smulczeski v City Ctr. of Music & Drama, 3 NY2d 498, 501). In this case, the Lomma related defendants have not explained the nature of the prejudice or why it cannot be dissipated by a proper curative instruction. The affidavit was read (not show) to the jury in Leo's opening statement. The Court has already advised the jury that the statements of attorneys are not evidence. Furthermore, and most importantly, most of the information contained in the affidavit read by plaintiff's counsel has been acknowledged to be true by defendant Lomma in his deposition. See, e.g.: Q You checked RTR, or you checked the bearing company? A Both. Q Both? A Both. Q So it was the RTR bearing. What did you learn about RTR Bearings? A It's customary in Europe and in Asia to have a broker represent a lot of the manufacturers. Q So you knew that RTR was a broker before the bearing came into the United States? A Yes. Q And did you have an understanding of what their role was as a broker? A My belief is that they represented -- I think it was -- I forgot the name -- Dalian Liaoning or something. I forget the name of the company. And they represented them. Lomma dep., pp. 1419-1420. Not only was Lomma aware that RTR was a broker, not a manufacturer, but Lomma testified that he conducted due diligence of the manufacturer as well as of RTR. That being the case, Lomma cannot be prejudiced by the jury being informed (via the reading of the affidavit) that RTR was a broker, and whatever facts about RTR might have been contained in the affidavit were immaterial, since Lomma checked the credentials of the manufacturer itself. It is also worth noting that counsel for the Lomma related defendants, Glenn Feurth, characterized it as a lawyer's “worse nightmare” to show something to the jury in the opening and not to be able to have it admitted at trial. According to this theory, any prejudice to the Lomma related defendants will be more than offset by the nightmare visited upon plaintiff Leo. Accordingly, although the reading of the affidavit might have been technically in error, such error was harmless. Any lingering prejudice can be adequately dispelled by a sufficient curative instruction. A proposed curative instruction is attached hereto as Appendix A. It would be unfair to the parties, the court, the jury and all concerned to declare a mistrial and abandon the five weeks of work that has already been put into this trial. It is inevitable that there will occasionally be errors in a trial as long as this one with so many attorneys and issues. It is unrealistic to expect a trial to be perfect. A mistrial will not accomplish anything, as there will undoubtedly be errors in any subsequent trial as well. To declare a mistrial at the first hint of error is to doom this case to a perpetual cycle of incomplete trials and mistrials. The law favors the use of curative instructions, except in the most severe and prejudicial cases. B. The Curative Instruction Should Address Errors That Will, Unless Addressed, Prejudice Plaintiffs. During the opening statement by the Lomma related defendants, improper and prejudicial statements and information was presented to the jury. Plaintiffs request that the Court give an appropriate curative instruction to the jury and instruct counsel for the Lomma related defendants to abide by the appropriate standards for an opening statement. 1. It Was Improper And Prejudicial To Permit Counsel For The Lomma Related Defendants To Inform The Jury That Plaintiffs Settled With Brady Marine. CPLR 4533-b expressly provides that evidence of a settlement by a joint tortfeasor shall not be given to the jury. This provision of the CPLR was enacted to abrogate the rule in Livant v. Livant, 18 A.D. 2d 383 (1st Dept. 1963), which required the evidence to be submitted to the jury for apportionment. The judicial conference's report to the legislature explained the purpose for the rule as follows: The principal reason for changing the rule in Livant as proposed is the concern that under the present practice the jury will tend to return a nominal verdict where a prior payment is revealed, and if there are multiple defendants, to think that the tortfeasor who settled before was the only wrongdoer merely because he settled. See also Pellegrino v. New York City Transit Authority, 177 A.D.2d 554, 558 (2d Dep't 1991) (“Nor should the TA's settlement with Pellegrino have been paraded before the jury. Such information could only have suggested to the jury that the TA was the sole culpable party”). Providing evidence to the jury of settlement by a joint tortfeasor is sufficiently prejudicial to warrant a mistrial. Carter v Antwi, 41 Misc. 3d 1229(A), 1229A (Sup. Ct., NY County 2013). In this case, the jury should not ha;ve been informed that plaintiffs settled with Brady Marine. It is simply not information for the jury, and unless corrected, will seriously prejudice the plaintiffs. What is the jury to do with this information? Since they don't know the amount or reasons for the settlement (nor should they), then they are left to speculate. Furthermore, unless the Court takes immediate action (by giving the jury a proper curative instruction and by forbidding any counsel to make any reference, direct or indirect to the Brady settlement), there is the danger that all the defendants will seize on this as the opportunity to “pile on” Brady as the sole party responsible for the defective weld. There is another aspect of prejudice to the plaintiff. Whichever of the Lomma defendants is determined to be the supplier of the crane is liable to plaintiff for damages caused by the unsafe condition of the crane. Even if Brady were negligent, that would not diminish the liability of the supplier of the crane to plaintiff, since it is the supplier's duty to ensure that the crane was safe for its intended use. La Rocca v. Farrington, 301 N.Y. 247 (N.Y. 1950). While the amount of Brady's settlement might reduce the amount of any verdict against the Lomma related defendants, the jury has no business knowing of the settlement, and knowledge of the settlement mislead the jury into thinking that any negligence of Brady relieves the Lomma related defendants of liability to plaintiffs. Plaintiffs have incorporated into their requested curative instruction language to address these issues. 2. It Is Improper And Potentially Prejudicial To Permit Counsel For The Lomma Related Defendants To Show The Jury Documents That Cannot Be Introduced Into Evidence And To Give His Interpretation Of Contracts To The Jury. Counsel for the Lomma related defendants showed the jury excerpts from the deposition testimony of Bethany Klein, a non party witness. That deposition is inadmissible hearsay. Rivera v. New York City Tr. Auth., 54 A.D.3d 545 (1st Dep't 2008). In addition, counsel for the Lomma related defendants showed the jury excerpts from a contract with a concrete company named “DiFama” which is not a party to this action. Plaintiffs do not see how that contract could be admissible in this action. Furthermore, counsel for the Lomma related defendants gave his interpretation of those contracts to the jury. The meaning of a contract is for the Court, not the jury. Ruttenberg v. Davidge Data Sys. Corp., 215 A.D.2d 191 (1st Dep't 1995). Counsel's belief as to the meaning of contractual language is tantamount to instructing the jury on the law, which is impermissible. Plaintiffs' proposed curative instruction also deals with these issues. Counsel for the Lomma related defendants should be instructed to confine his opening statement accordingly. Dated: New York, New York May 28, 2014 MICHAEL G. O’NEILL ___________________________ 30 Vesey Street, Third Floor New York, New York 10007 (212) 581-0990 Attorney for Plaintiffs Ladies and gentlemen, in the course of any trial, but particularly in a trial of this length and with this many attorneys, information or evidence is occasionally provided to the jury that is not admissible under our rules of evidence. When that happens, it is my job to instruct you to disregard that evidence, and, in accordance with the instructions that I have previously given to you, it is your obligation to put that evidence out of your mind and to give it no consideration whatsoever. Last week and yesterday, there was some information provided to you by attorneys in their open statements that should not have been. I say information and not evidence, because, as I have previously instructed you, what the attorneys say in opening statements is not evidence. The fact that I am addressing certain information provided to you should not be taken by you to mean that there is any special significance to the information in question, or that statements made to you by attorneys that I am not addressing should be accepted by you without question. The purpose of the opening statements is to give you a road map of the case that the parties intend to present to you. In deciding these cases, you should consider only properly admitted evidence and nothing else. Last week, Ms. Panzella read an affidavit to you. Generally speaking, affidavits are not admissible as evidence. Therefore, Ms. Panzella should not have read that affidavit to you. You should not, however, reach the conclusion that Ms. Panzella did anything wrong or improper, because I permitted her to read the affidavit. That was a mistake, however, and I am instructing you to disregard completely anything you might have learned from hearing the reading of that affidavit. It is possible that evidence of some or all of the information contained in that affidavit will be presented at trial, in which case it would be perfectly proper for you to consider that evidence and to give it such weight as you deem proper, as with any other evidence that is properly admitted. In other words, the mere fact that I am instructing you to disregard the affidavit at this point does not mean that the information itself is improper or not to be considered. It only means that the affidavit cannot be used as evidence. Tuesday, you heard Mr. Feurth tell you that the plaintiffs had sued Brady Marine and that they had settled their claims against Brady Marine. Mr. Feurth should not have so informed you. You should not, however, reach the conclusion that Mr. Feurth did anything wrong or improper, because I permitted him to give that information to you. That was a mistake, however, and I am instructing you to disregard completely that fact. There are many reasons parties settle cases. It does not mean that the case against that party was strong or weak, and it does not constitute an admission of liability by the settling party. Furthermore, you should not speculate as to the terms of the settlement, or as to the amount of money, if any, the plaintiffs received as a result of the settlement. It would be extremely unfair and unjust for you to take any party's settlement into account in deciding the case when it is given to you, and I am instructing you that you must not do this. This is true not just with respect to Brady Marine but with respect to any party, because any party has the right to settle his or its case with plaintiffs at any time. The fact that Brady Marine has settled with plaintiffs should have no bearing whatsoever on your determination of these cases. Furthermore, if, at the end of the case, you find for one or both of the plaintiffs, you should determine the damages suffered by the plaintiffs without regard to any settlement that you believe the plaintiffs might have received. This is because, after you render your verdict, I adjust the verdict to take into account any settlements that have been reached, and there will be no double or extra recovery to any plaintiff because of a settlement. Tuesday, Mr. Feurth showed you, and read to you, deposition testimony of a witness. Because the witness is not a party to the litigation, it is unlikely that her deposition testimony will be admitted into evidence. It is likely that she will testify in person, and you will have the opportunity to hear and assess that testimony directly. The testimony read to you by Mr. Feurth is not evidence and should not be considered by you for any purpose. Tuesday, Mr. Feurth show you some sections from a contract with a company called “Di Fama.” Di Fama is not a party to this lawsuit, and I do not know whether that contract will be admissible in evidence. Mr. Feurth gave you his opinion as to the meaning of that contract. I am instructing you that it is my job to interpret contracts. You are to disregard those contracts and Mr. Feurth's comments about the meaning of those contracts.