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BUTTE COUNTY SUPERIOR COURT erior Court of California F
COUNTY OF BUTTE, STATE OF CALIFORN of Bute
Coin EA® I
L L
E JUL 14 2021 E
JURY INSTRUCTIONS cc r ~ Kimbe Clerk D
(X ) NOT GIVEN Deputy
() GIVEN
Patsy Newton et al,
Plaintiff/Petitioner
Vs CASE # _20CV01091
Enloe Medical Center,
Defendant/Respondent
CACTI 112. QUESTIONS FROM JURORS
@ Requested by Plaintiffs bs Requested by Enloe Medical Center
Given as Requested oO Given as Modified C | Given on Court’s Motion
Refused Mm
Withdrawn
tr—
o Judge Tamara Mosbarger
If, during the trial, you have a question that you believe should be asked of a witness, you may write
out the question and send it to me through my courtroom staff. I will share your question with the attorneys
and decide whether it may be asked.
Do not feel disappointed if your question is not asked. Your question may not be asked for a variety of
reasons. For example, the question may call for an answer that is not allowed for legal reasons. Also, you
should not try to guess the reason why a question is not asked or speculate about what the answer might have
een. Because the decision whether to allow the question is mine alone, do not hold it against any of the
attorneys or their clients if your question is not asked.
Remember that you are not an advocate for one side or the other. Each of you is an impartial judge of
the facts. Your questions should be posed in as neutral a fashion as possible. Do not discuss any question
asked by any juror with any other juror until after deliberations begin.
CACI 3941. PUNITIVE DAMAGES - INDIVIDUAL DEFENDANT - BIFURCATED TRIAL
@
(FIRST PHASE)
Requested by Plaintiffs Qo Requested by Enloe Medical Center
Given as Requested Oo Given as Modified © | Given on Court’s Motion
Refused
A
| Witharawn oO Judge Tamara Mosbarger
Enlot medical Center PAY NETH
If you decide that [wawmeofdefendant|’s conduct caused [mame tfpiaimiff] harm, you must decide
whether that conduct justifies an award of punitive damages. At this time, you must decide whether [vavra
DaTN not Aloe menace CexTer—
af
phuinti¥]] has proved by clear and convincing evidence that [vamewfdeferdant| engaged in that conduct
with malice, oppression, or fraud
The amount of punitive damages, if any, will be decided later.
Glee Medical Contir Enloe Melics
@ Cntr
“Malice” means that [wame-ofdexeudent| acted with intent to cause injury or that Jwawewf
Nefenderx]’s conduct was despicable and was done with a willful and knowing disregard of the rights or
safety of another. A person acts with knowing disregard when the person is aware of the probable
dangerous consequences of the person’s conduct and deliberately fails to avoid those consequences.
alot Medical Comte
Oppression” means that [wcwc\ef defond|’s conduct was despicable and subjected [vanmewA
h
yplaiatjfA to cruel and unjust hardship in knowing disregard of fatsther*anbiageypronerm] rights.
Despicable conduct” is conduct that is so vile, base, or contemptible that it would be looked down
on and despised by reasonable people.
anloe Media) Cater
“Fraud” means that [wawewfdefendam] intentionally misrepresented or concealed a material fact and
PRAY nwo
did so intending to harm [wameor
e”
CACI 206. EVIDENCE ADMITTED FOR LIMITED PURPOSE
@ Requested by Plaintiffs oO Requested by Enloe Medical Center
Given as Requested oO Given as Modified C | Given on Court’s Motion
Refused
x
Withdrawn Oo Judge Tamara Mosbarger
During the trial, certain evidence was admitted for a limited purpose. You may consider that
evidence only for that purpose and for no other.
CACI 112. QUESTIONS FROM JURORS
@ Requested by Plaintiffs Oo Requested by Enloe Medical Center
Given as Requested Given as Modified D | Given on Court’s Motion
Refused
Withdrawn Judge Tamara Mosbarger
If, during the trial, you have a question that you beliéve should be asked ofa witness, you may write
out the question and send it to me through my courtrogm staff. I will share your question with the attorneys
and decide whether it may be asked.
Do not feel disappointed if your quest n is not asked. Your question may not be asked for a variety
of reasons. For example, the question may/call for an answer that is not allowed for legal reasons. Also, you
eo" not try to guess the reason why a question is not asked or speculate about what the answer might
have been. Because the decisio ether to allow the question is mine alone, do not hold it against any of
the attorneys or their client ur question is not asked.
Remember that y re not an advocate for one side or the other. Each of you is an impartial judge
of the facts. Your questions should be posed in as neutral a fashion as possible. Do not discuss any question
asked by any juror Ath any other juror until after deliberations begin.
CACI 5019. QUESTIONS FROM JURORS
Requested by Plaintiffs o Requested by Enloe Medical Center
Given as Requested o Given as Modified © | Given on Court’s Motion
Refused
A
Withdrawn o Judge Tamara Mosbarger
If, during the trial, any of you had a question that you believed should be asked of a witness, you
were instructed to write out the question and provide it to me through my courtroom staff. I shared your
questions with the attorneys, after which, I decided whether the question could be asked.
If a question was asked and answered, you are to consider the answer as you would any other
evidence received in the trial. Do not give the answer any greater or lesser weight because it was initiated
@ by a juror question.
If the question was not asked, do not speculate as to what the answer might have been or why it was
not asked. There are many legal reasons why a suggested question cannot be asked of a witness. Give the
question no further consideration.
@ Given as Requested Given as Modified Given on Court’s
Motion
Refused
Withdrawn Judge
PUNITIVE DAMAGES — MULTIPLE DEFENDANTS
Plaintiff is seeking punitive damages against more than one
defendant. You must determine whether to impose punitive
damages (and if so, in what amount) on an individualized basis,
taking into account the relevant factors as they apply to each
defendant.
Authority.
Thomson vy. Catalina (1928) 205 Cal. 402 (jury was properly instructed that it could
determine the appropriate amount of punitive damages separately for each defendant); see also
McFadden v. Sanchez (2d Cir. 1983) 710 F.2d 907, 913 (“In modern times American
jurisdictions have come to the conclusion that punitive damages should be assessed on an
individual basis. A plaintiff who seeks to recover punitive damages from joint tortfeasors must
‘establish that each defendant against whom punitive damages are sought engaged in conduct
which was sufficiently aggravated to justify the imposition of those damages”).
a
@ PUNITIVE DAMAGES — DETERRENT EFFECT OF COMPENSATORY DAMAGES
Requested by Requested by Defendant Requested by
Plaintiff
Given as Requested Given as Modified Given on Court’s
Motion
Refused
Withdrawn Judge
PUNITIVE DAMAGES = DETERRENT EFFECT OF COMPENSATORY
DAMAGES
In determining what amount of punitive damages to award, if any,
you should consider whether the $ In
compensatory damages you have already awarded is sufficient to
punish the defendant and deter future misconduct. If so, you
should not award punitive damages.
@ Authority.
Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal 4th 1159, 1189 (a compensatory
award “may be so large as to serve, itself, as a deterrent”); Mirkin v. Wasserman (1993) 5 Cal 4th
1082, 1106 (‘“‘the overall size of compensatory damages alone may constitute a significant
deterrent”); see also Lane v. Hughes Aircraft Co. (2000) 22 Cal. 4th 405, 424 (conc. opn. of
Brown, J.) (“large compensatory damage awards not based on a defendant's ill-gotten gains have
a strong deterrent and punitive effect in themselves”); State Farm Mut. Auto. Ins. Co. v.
Campbell (2003) 538 U.S. 405, 416, 419 [123 S.Ct. 1513, 155 L.Ed.2d 585] (“punitive damages
serve a broader function; they are aimed at deterrence and retribution 2. : 66 punitive damages
should only be awarded if the defendant’s culpability, after having paid compensatory damages,
is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or
deterrence”).
pe
PUNITIVE DAMAGES — MULTIPLE DEFENDANTS
Requested by Requested by Defendant Requested by
e
Plaintiff
PUNITIVE DAMAGES — NOT INTENDED AS COMPENSATION
Requested by Requested by Defendant Requested by
Plaintiff
Given as Requested Given as Modified Given on Court’s
Motion
Refused
Withdrawn Judge
PUNITIVE DAMAGES — NOT INTENDED AS COMPENSATION
Punitive damages are not intended to compensate the plaintiff. Your award of
compensatory damages in the amount of $ has fully compensated
the plaintiff for any loss, harm or damage [name of plaintiff] has incurred or may
in the future incur as a result of [name of defendant]’s conduct. Accordingly, you
must not include in an award of punitive damages any amount intended as
compensation for loss, harm or damages which the plaintiff has incurred or may
incur.
Authority.
Ferguson v. Lieff, Cabraser, Hiemann & Bernstein (2003) 30 Cal.4th 1037, 1051 (‘“‘it
should be presumed a plaintiff has been made whole for his injuries by compensatory
damages’”); Adams v. Murakami (1991) 54 Cal.3d 105, 120 (“Whatever his or her injury, a
plaintiff will be made whole by the award of compensatory damages”); Dyna-Med, Inc. v. Fair
Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387 (‘punitive damages by definition
are not intended to compensate the injured party”).
we
PUNITIVE DAMAGES — EFFECT OF OTHER PUNITIVE AWARDS
Requested by Requested by Defendant Requested by
Plaintiff
Given as Requested Given as Modified Given on Court’s
Motion
Refused
Withdrawn Judge
PUNITIVE DAMAGES — EFFECT OF OTHER PUNITIVE AWARDS
If you determine that a defendant has already been assessed with punitive
damages based on the same conduct for which punitive damages are
requested in this case, you may consider whether punitive damages
awarded in other cases have sufficiently punished and made an example of
the defendant. You must not use the amount of punitive damages awarded
in other cases to determine the amount of the punitive damage award in
this case, except to the extent you determine that the penalties already
imposed in other cases justify a lesser award, or no award at all, in this
case.
Authority.
Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App4th 1645, 1663, fn. 7.
wo
@ PUNITIVE DAMAGES —FAIR NOTICE OF AMOUNT —PENALTIES AUTHORIZED BY
LEGISLATURE
Requested by Requested by Defendant Requested by
Plaintiff
Given as Requested Given as Modified Given on Court’s
Motion
Refused
Withdrawn Judge
PUNITIVE DAMAGES — FAIR NOTICE OF AMOUNT—PENALTIES AUTHORIZED BY
LEGISLATURE
In determining whether the defendant had fair notice of the amount you
have decided to award, consider the difference between that amount and
the civil penalties authorized or imposed in comparable cases. Legislative
judgments concerning appropriate civil penalties for the sort of
misconduct that injured the plaintiff are entitled to substantial deference.
The legislature has authorized a penalty of $ for comparable
cases.
Authority.
BMW of North America, Inc. v. Gore (1996) 517 U.S. 559, 574-575, 583-585 [116 S.Ct.
1589, 134 L.Ed.2d 809]; State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408, 418,
427-428 [123 S.Ct. 1513, 155 L.Ed.2d 585].
we
@ PUNITIVE DAMAGES — FINDING OF MALICE, OPPRESSION, OR FRAUD CAN
ONLY BE BASED ON CONDUCT THAT GAVE RISE TO LIABILITY
Requested by Requested by Defendant Requested by
Plaintiff
Given as Requested Given as Modified Given on Court’s
Motion
Refused
Withdrawn Judge
PUNITIVE DAMAGES = FINDING OF MALICE, OPPRESSION, OR
FRAUD CAN ONLY BE BASED ON CONDUCT THAT GAVE RISE TO
LIABILITY.
If you find that the defendant’s conduct was wrongful and that it harmed the
plaintiff, you may then consider whether the defendant acted with malice,
oppression, or fraud. A finding of malice, oppression, or fraud must be based
upon the same wrongful conduct that you find harmed the plaintiff. You may not
base a finding of malice, oppression, or fraud on conduct other than the wrongful
conduct that harmed the plaintiff.
Authority.
Holdgrafer v. Union Oil. Co. (2008) 160 Cal.App.4th 907, 929-930; Medo v. Superior
Court (1988) 205 Cal.App.3d 64, 68 [Punitive damages are not simply recoverable in the
abstract. They must be tied to oppression, fraud or malice in the conduct which gave rise to
liability in the case”’|.)
aa
e PUNITIVE DAMAGES
NECESSARY
— RATIFICATION — ACTUAL KNOWLEDGE IS
Requested by Requested by Defendant Requested by
Plaintiff
Given as Requested Given as Modified Given on Court’s
Motion
Refused
Withdrawn Judge
PUNITIVE DAMAGES — RATIFICATION — ACTUAL KNOWLEDGE IS
NECESSARY
A corporate officer, director, or managing agent cannot
adopt or approve
something that he or she did not actually know about.
To prove that a
corporation adopted or approved wrongful conduct, there must be proof by clear
and convincing evidence that an officer, director, or managing agent of the
corporation knew about an employee’s malicious, oppressive, or fraudulent
behavior and intended to adopt that conduct, with knowledge of the conduct’s
outrageous character.
Authority.
College Hospital Inc. v. Superior Court (1994) 8 CalAth 704, 726; Cruz v. HomeBase
(2000) 83 Cal.App4th 160, 168; Barton v. Alexander Hamilton Life Ins. Co. (2003) 110
Cal.App 4th 1640, 1643-1644
aie
@ PUNITIVE DAMAGES — DEFINITION OF CORPORATE POLICY
Requested by Requested by Defendant Requested by
Plaintiff
Given as Requested Given as Modified Given on Court’s
Motion
Refused
Withdrawn Judge
PUNITIVE DAMAGES — DEFINITION OF CORPORATE POLICY.
“Corporate policy” means formal policies that affect a substantial
portion of a company and that are likely to come to the attention of
corporate leadership.
Authority.
Roby v. McKesson Corp. (2009) 47 Cal 4th 686, 714-715.
et
@
PUNITIVE DAMAGES — EVIDENCE OF MALICE, OPPRESSION, OR FRAUD MUST BE
INCONSISTENT WITH HONEST ERROR OR MERE NEGLIGENCE.
Requested by Requested by Defendant Requested by
Plaintiff
Given as Requested Given as Modified Given on Court’s
Motion
Refused
Withdrawn Judge
PUNITIVE DAMAGES — EVIDENCE OF MALICE, OPPRESSION, OR FRAUD
MUST BE INCONSISTENT WITH HONEST ERROR OR MERE NEGLIGENCE.
The plaintiff is not entitled to punitive damages if the evidence is
merely consistent with the possibility of oppression, malice, or
fraud. Rather, the evidence must be inconsistent with the
possibility that the defendant acted based on a mistake of law or
fact, an honest error of judgment, mere negligence or other such
human failing.
Authority.
Food Pro Intern., Inc. v. Farmers Ins. Exchange (2008) 169 Cal.App.4th 976, 994-995;
Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App4th 1269, 1288, fn. 14; see also Shade
Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 892
(overturning punitive damage award where defendant’s conduct was “unreasonable, oe careless,”
and “stubborn,” but “within the common experience of human affairs”).
a
@ CACTI 201 (modified) DEFINITION OF CLEAR AND CONVINCING EVIDENCE
Requested by Requested by Defendant Requested by
Plaintiff
Given as Requested Given as Modified Given on Court’s
Motion
Refused
Withdrawn Judge
CACTI 201 (modified) DEFINITION OF CLEAR AND CONVINCING EVIDENCE
Certain facts must be proved by clear and convincing evidence,
which is a higher burden of proof. This means the party must
persuade you that it is highly probable that the fact is true. I will
tell you specifically which facts must be proved by clear and
convincing evidence.
[Clear and convincing evidence means evidence of such
convincing force that it demonstrates, in contrast to the opposing
evidence, a high probability of the truth of the fact for which it is
offered as proof. The evidence must be so clear as to leave no
substantial doubt; sufficiently strong that after careful
consideration it would command the unhesitating assent of every
reasonable mind.|
Authority.
This is a modified version of the instruction set forth in CACI No. 201. We have modified
the instruction by adding the bracketed text. The following memorandum of points and
authorities supports the modification.
oust
@ PUNITIVE DAMAGES
STANDARDS
— COMPLIANCE WITH REGULATIONS OR INDUSTRY
Requested by Requested by Defendant Requested by
Plaintiff
Given as Requested Given as Modified Given on Court’s
Motion
Refused
Withdrawn Judge
PUNITIVE DAMAGES — COMPLIANCE WITH REGULATIONS OR INDUSTRY
STANDARDS
In determining whether to impose punitive damages and the
amount of any such damages, you should consider whether the
defendant made any good faith effort to comply with state or
federal regulations or industry customs or standards.
@
Authority.
Geier v. American Honda Motor Co., Inc. (2000) 529 U.S. 861, 893 [120 S.Ct. 1913, 146
L.Ed.2d 914 (dis opn. of Stevens, J.) (manufacturer’s compliance with safety regulations “would
presumably weigh against an award of punitive damages”); Lusardi Constr. Co. v. Aubry (1992)
1 Cal 4th 976, 996-997 (‘[C]ourts refuse to impose civil penalties against a party who acted with
a good faith and reasonable belief in the legality of his or her actions”); Lackner v. Cassidy
Bodine North (2006) 135 Cal.App.4th 1188, 1212 (punitive damages not warranted where the
defendant “took action to protect or minimize the injury to plaintiff”); see also Nissan Motor
Company, Ltd. v. Maddox (Supreme Court of Kentucky, Sept. 24, 2015, 2013-SC-000685-DG)
__ S.W.3d __ [2015 WL 5626432, at p. *5] [evidence that manufacturer met or exceeded
regulatory safety requirements weighs against imposition of punitive damages]; Gibson v.
Norfolk Southern Corp. (N.D. Ala. 1994) 878 F.Supp. 1455, aff’d 48 F.3d 536 (11th Cir. 1995)
( plaintiff’s claim of wantonness was defeated by showing that defendant complied with federal
safety regulations); Silkwood v. Kerr-McGee Corp. (W.D. Okla. 1979) 485 F.Supp. 566, 584
(“[glood faith belief in, and efforts to comply with, all government regulations would be
evidence of conduct inconsistent with the mental state requisite for punitive damages”); Malcolm
v. Evenflo Co., Inc. (2009) 352 Mont. 325 (trial court committed reversible error by excluding
evidence of defendant’s compliance with safety regulations).
@
ay
@ PUNITIVE DAMAGES — FAIR NOTICE
Requested by Requested by Defendant Requested by
Plaintiff
Given as Requested Given as Modified Given on Court’s
Motion
Refused
Withdrawn Judge
PUNITIVE DAMAGES — FAIR NOTICE THAT CONDUCT WAS PUNISHABLE
In deciding whether to award punitive damages, you must consider
whether the defendant had fair notice that [his, her or its] conduct would
subject [him, her, or it] to punishment.
Authority.
@ L.Ed.2d
BMW
809]
of North America, Inc. v. Gore (1996) 517 U.S. 559, 574 [116 S.Ct.
(stating “[e|lementary notions of fairness enshrined in our
1589, 134
constitutional
jurisprudence dictate that a person receive fair notice not only of the conduct that will subject
him to punishment, but also of the severity of the penalty that a State may impose”); Silberg v.
California Life Ins. Co. (1974) 11 Cal.3d 452, 463 (affirming trial court’s determination that
evidence was insufficient to support punitive damages against insurer “because defendant was
not put on notice . . . that its interpretation of the policy was incorrect”).
quae
Special Instruction No. 11 - The Measure of Future Medical Costs is Affected by Available
Health Insurance
In determining the amount that will likely be paid for future medical treatment or
services, you [must/should] consider how health insurance or other benefits available to the
plaintiff affects the amount that may be paid for such medical treatment or services.
Authority: Cuevas v. Contra Costa County (2017) 11 Cal.App.5th 163, 173-174.
ae
@ Special Instruction No. 10 —- The Market Value of Medical Treatment or Services
The market value of medical treatment or services is the amount that both a reasonable
provider of such treatment or services would accept as payment in full for the treatment or
services and a reasonable recipient buyer of such medical treatment or services, or someone
acting for the benefit of the recipient, would pay on the open market, where neither the
provider nor the recipient is compelled to enter into the transaction.
Authority: Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 556 [Restatement,
Second, Torts “Section 911 articulates a rule, applicable to recovery of tort damages generally,
that the value of property or services is ordinarily its ‘exchange value,’ that is, its market value
or the amount for which it could usually be exchanged”); Markow v. Rosner (2016) 3 Cal.App.5th
1027, 1050 [“Our Supreme Court has endorsed a market or exchange value as the proper way to
think about the reasonable value of medical services”]; Bermudez v. Ciolek (2015) 237
Cal.App.4th 1311, 1329 [“Howell endorsed ‘a rule, applicable to recovery of tort damages
generally, that the value of property or services is ordinarily its “exchange value,” that is, its
market value or the amount for which it could usually be exchanged’”]; Children’s Hospital
Central California v. Blue Cross of California (2014) 226 Cal.App.4th 1260, 1275 [“reasonable
market value of the services at issue, i.e., the price that would be agreed upon by a willing
buyer and a willing seller negotiating at arm’s length”]; Hefczyc v. Rady Children’s Hospital-San
Diego (2017) 17 Cal.App.5th 518, 542 [“The scope of the rates accepted by or paid to Hospital
by other payors indicates the value of the services in the marketplace” (emphasis added)].
aa"
@ Special Instruction No. 9 — Reasonable Value of Medical Treatment or Services-Measured by
Market Value, Not Billed Amount
The reasonable value of medical treatment or services, both past and future, is measured
by the market value of treatment or services, and not by the amount billed or to be billed.
Authority: Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1328-1332 [amount billed not
relevant to either past or future medical damages]; see Howell v. Hamilton Meats & Provisions,
Inc. (2011) 52 Cal.4th 541, 562 [“With so much variation, making any broad generalization
about the relationship between the value or cost of medical services and the amounts providers
bill for them-other than that the relationship is not always a close one-would be perilous”);
Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1050-1051 [“For insured plaintiffs, the reasonable
market or exchange value of medical services will not be the amount billed by a medical
provider or hospital, but the ‘amount paid pursuant to the reduced rate negotiated by the
mm
plaintiff’s insurance company, , citation omitted, original italics].
@
igo
@ Special Instruction No. 8 - Medical Expense Damages Limited to Lesser of Amount Paid or
Reasonable Value
Plaintiff seeks economic damages for medical treatment or services. Plaintiff may
recover the lesser of
(a) the amount actually paid or actually to be paid for such treatment or services, or
(b) the reasonable value of such treatment or services.
Authority: Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 555 [“a plaintiff
may recover as economic damages no more than the reasonable value of the medical services
received and is not entitled to recover the reasonable value if his or her actual loss was less,”
original italics]; Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1325-1326 [“Damages for
past medical expenses are limited to the /esser of (1) the amount paid or incurred for past
medical expenses and (2) the reasonable value of the services” (emphasis added)]; Bermudez v.
Ciolek (2015) 237 Cal.App.4th 1311, 1328-1329.
ae
SPECIAL JURY INSTRUCTION NO. 7
NATURAL COURSE OF DISEASE OR CONDITION
No physician shall be liable for professional negligence for any occurrence or result solely
on the basis that the occurrence or result was caused by the natural course of a disease or condition,
or was the natural or expected result of reasonable treatment rendered for the disease or condition.
Support: Civil Code §1714.8
a
SPECIAL JURY INSTRUCTION NO. 4
CAUSATION: BUT-FOR TEST
The law defines cause in its own particular way. A cause of injury, damage loss or harm is
something that is a substantial factor in bringing about an injury, damage, loss or harm.
A substantial factor in causing harm is a factor that a reasonable person would consider to
have contributed to the harm. It must be more than a remote or trivial factor. It does not have to
be the only cause of the harm. In other words, plaintiff must establish it is medically probable that
but for defendants’ alleged negligence, plaintiff would not have developed artis
Support: BAJI 3.76; CACTI 430, Viner v. Sweet (2003) 30 Cal.4"" 1232, 1234-41; Jennings v.
Palomas Pomerado Health Systems, Inc. (2003) 114 Cal.App.4" 1108, 1114, fn. 5; Viner ».
Sweet (Viner II) (2014) 117 Cal.App.4" 1218, 1223; Second Restatement of Torts Section 432.
ee
SPECIAL INSTRUCTION NO. 3
Natural Course of Disease or Condition
No health care provider is liable for an injury or condition which results solely
from the natural course of a disease or condition or is the natural or expected result of
a reasonable treatment rendered for a disease or condition.
Cal. Civ. Code Section 1714.8
at
SPECIAL INSTRUCTION NO. 2
Neglect and the Undertaking of Medical or Nursing Care:
Neglect refers not to the substandard performance of medical services but,
rather, to the failure of those responsible for attending to the basic needs and comforts
of elderly or dependent adults, regardless of their professional standing, to carry out
their custodial obligations. Thus, neglect speaks not of the undertaking of medical
services, but of the failure to provide medical care.
Delaney v. Baker (1999) 20 Cal.4th 23
Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771
Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331
Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396
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@ SPECIAL INSTRUCTION NO. 1
Policy and Procedures Do not Establish Standard of Care:
Awritten policy and procedure of Enloe Medical Center does not establish the
standard of care of a health care provider.
Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234
Sims v. Weeks (1935) 7 Cal.App.2d 28
Church v. Bloch (1947) 80 Cal.App.2d 542
Clemens v. Regents of University of California (1970) 8 Cal.App.3d 1
Barton v. Owen (1977) 71 Cal.App.3d 484
wv
e BAJI 2.03 WILLFUL ACTS TO PRECLUDE EVIDENCE
If you find thata party willfully [suppressed] [,] [altered] [,] [damaged] [,] [concealed] [, or]
[destroyed] evidence in order to prevent its being used in the trial, you may consider that fact in
determining what inferences to draw from the evidence.
¢ ye
@
CACI 3935. PREJUDGMENT INTEREST (CIV. CODE, § 3288)
Requested by Plaintiffs oO Requested by Enloe Medical Center
Given as Requested Oo Given as Modified © | Given on Court’s Motion
Refused a
Withdrawn V Judge Tamara Mosbarger
If you decide that [name of plaintiff] is entitled to recover damages for past economic loss in one or
more of the categories of damages that [he/ she/nonbinary pronoun/it] claims, then you must decide
whether [he/she/ nonbinary pronoun/it] should also receive prejudgment interest on each item of loss in
those categories. Prejudgment interest is the amount of interest the law provides to a plaintiff to compensate
for the loss of the ability to use the funds. If prejudgment interest is awarded, it is computed from the date
eo which each loss was incurred until the date on which you sign your verdict.
Whether [name of plaintiff] should receive an award of prejudgment interest on all, some, or none of
any past economic damages that you may award is within your discretion. If you award these damages to
[name of plaintiff], you will be asked to address prejudgment interest in
the special verdict form.
CACI 3929. SUBSUQUENT MEDICAL TREATMENT OR AID
Requested by Plaintiffs oO Requested by Enloe Medical Center
Given as Requested oO Given as Modified © | Given on Court’s Motion
Refused o
Withdrawn
¥ Judge Tamara Mosbarger
If you decide that [name of defendant] is legally responsible for [name of plaintiff\’s harm,
[he/she/nonbinary pronoun/it] is also responsible for any additional harm resulting from the acts of others in
providing medical treatment or other aid that [name of plaintiff|’s injury reasonably required, even if those
acts were negligently performed.
@
PLAINTIFFS’ SPECIAL INSTRUCTION NO. 5:
@ INTRODUCTION TO REGULATIONS GOVERNING HOSPTIALS
Hospitals are mandated to comply with various state laws and regulations governing patient care and
patient rights. The following instructions contain some of the state laws and regulations applicable to
the hospital in this case:
[List applicable laws and regulations based on the testimony of witnesses and experts]
Authority: In Re Gregory, 80 Cal.App.4th 514, 522-525 (2000); Norman v. Life Care Centers of America,
Inc., 107 Cal.App.4th 1233, 1242-1244 (2003); Nevarrez v. San Marino Skilled Nursing and Wellness
Center, 221 Cal.App.4th 102, 115 (2013).
@
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PLAINTIFFS’ SPECIAL INSTRUCTION NO. 4: MANAGING AGENT —- DEFINED
An employee is a “managing agent’ if he or she exercises substantial independent authority and
judgment in his or her corporate decision-making such that his or her decisions ultimately determine
corporate policy. An employee need not be capable of making corporate-wide policy to be a managing
agent. Instead, if the employer delegates to an employee substantial decision-making discretion within
the employee’s particular sphere of authority and such sphere is an important aspect of the
corporation’s business, the employee is a managing agent.
Authority: Egan v. Mutual of Omaha Ins. Co., 24 Cal.3d 809, 822 (1979); White v. Ultramar, Inc., 21 Cal4th
563,577 (1999); Agarwal v. Johnson, 25 Cal.3d 932 (1979); Textron Financial Corp. v. National Union Fire
Ins. Of Pittsburgh, 118 Cal.App.4th 1061 (2004); Hobbs v. Bateman Eichler, Hill Richards, Inc., 164
Cal.App.3d 174; Siva v. General Tire& Rubber Co., Inc., 146 Cal.App.3d 152, 159 (1983).
yet
CACI 516. DUTY OF HOSPITAL TO SCREEN MEDICAL STAFF [PLAINTIFF’S
@ MODIFIED INSTRUCTION NO. 3]
Requested by Plaintiffs Oo Requested by Enloe Medical Center
Given as Requested a Given as Modified Qa Given on Court’s Motion
Refused oO
Withdrawn
R Judge Tamara Mosbarger
A hospital commits neglect if it does not use reasonable care to select and periodically evaluate its
medical staff so that its patients are provided adequate medical care.
CACI 516. DUTY OF HOSPITAL TO SCREEN MEDICAL STAFF
@ Requested by Enloe Medical Center
Requested by Plaintiffs Oo
Given as Requested Oo Given as Modified (| Given on Court’s Motion
Refused Oo
Withdrawn
£ Judge Tamara Mosbarger
A hospital is negligent if it does not use reasonable care to select and periodically evaluate its
medical staff so that its patients are provided adequate medical care.
CACI 514. DUTY OF HOSPITAL [PLAINTIFF’S MODIFIED INSTRUCTION NO. 2]
Requested by Plaintiffs oO Requested by Enloe Medical Center Oo
Given as Requested Qo Given as Modified © | Given on Court’s Motion o
Refused ¢
Withdrawn oO Judge Tamara Mosbarger
A hospital commits neglect if it does not use reasonable care toward its patients. A hospital must
provide procedures, policies, facilities, supplies, and qualified personnel reasonably necessary for the
treatment of its patients.
[When you are deciding whether [name of defendant] was negligent, you must base your decision
only on the testimony of the expert witnesses who have testified in this case.]
@
CACI 504. STANDARD OF CARE FOR NURSES [PLAINTIFF’S MODIFIED
INSTRUCTION NO. 1]
Requested by Plaintiffs a Requested by Enloe Medical Center
Given as Requested o Given as Modified (| Given on Court’s Motion
Refused
#
Withdrawn Oo Judge Tamara Mosbarger
[A/An] [insert type of nurse] commits neglect if [he/she/nonbinary pronoun] fail to use the level of
skill, knowledge, and care in diagnosis and treatment that other reasonably careful [insert type of nurses]
would use in similar circumstances. This level of skill, knowledge. and care is sometimes referred to as “the
standard of care.”
[You must determine the level of skill, knowledge, and care that other reasonably careful [insert type of
eo”: would use in similar circumstances based only on the testimony of the expert witnesses [including
[name of defendant}| who have testified in this case.]
Preview
BUTTE COUNTY SUPERIOR COURT erior Court of California F COUNTY OF BUTTE, STATE OF CALIFORN of Bute Coin EA® I L L E JUL 14 2021 E JURY INSTRUCTIONS cc r ~ Kimbe Clerk D (X ) NOT GIVEN Deputy () GIVEN Patsy Newton et al, Plaintiff/Petitioner Vs CASE # _20CV01091 Enloe Medical Center, Defendant/Respondent CACTI 112. QUESTIONS FROM JURORS @ Requested by Plaintiffs bs Requested by Enloe Medical Center Given as Requested oO Given as Modified C | Given on Court’s Motion Refused Mm Withdrawn tr— o Judge Tamara Mosbarger If, during the trial, you have a question that you believe should be asked of a witness, you may write out the question and send it to me through my courtroom staff. I will share your question with the attorneys and decide whether it may be asked. Do not feel disappointed if your question is not asked. Your question may not be asked for a variety of reasons. For example, the question may call for an answer that is not allowed for legal reasons. Also, you should not try to guess the reason why a question is not asked or speculate about what the answer might have een. Because the decision whether to allow the question is mine alone, do not hold it against any of the attorneys or their clients if your question is not asked. Remember that you are not an advocate for one side or the other. Each of you is an impartial judge of the facts. Your questions should be posed in as neutral a fashion as possible. Do not discuss any question asked by any juror with any other juror until after deliberations begin. CACI 3941. PUNITIVE DAMAGES - INDIVIDUAL DEFENDANT - BIFURCATED TRIAL @ (FIRST PHASE) Requested by Plaintiffs Qo Requested by Enloe Medical Center Given as Requested Oo Given as Modified © | Given on Court’s Motion Refused A | Witharawn oO Judge Tamara Mosbarger Enlot medical Center PAY NETH If you decide that [wawmeofdefendant|’s conduct caused [mame tfpiaimiff] harm, you must decide whether that conduct justifies an award of punitive damages. At this time, you must decide whether [vavra DaTN not Aloe menace CexTer— af phuinti¥]] has proved by clear and convincing evidence that [vamewfdeferdant| engaged in that conduct with malice, oppression, or fraud The amount of punitive damages, if any, will be decided later. Glee Medical Contir Enloe Melics @ Cntr “Malice” means that [wame-ofdexeudent| acted with intent to cause injury or that Jwawewf Nefenderx]’s conduct was despicable and was done with a willful and knowing disregard of the rights or safety of another. A person acts with knowing disregard when the person is aware of the probable dangerous consequences of the person’s conduct and deliberately fails to avoid those consequences. alot Medical Comte Oppression” means that [wcwc\ef defond|’s conduct was despicable and subjected [vanmewA h yplaiatjfA to cruel and unjust hardship in knowing disregard of fatsther*anbiageypronerm] rights. Despicable conduct” is conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people. anloe Media) Cater “Fraud” means that [wawewfdefendam] intentionally misrepresented or concealed a material fact and PRAY nwo did so intending to harm [wameor e” CACI 206. EVIDENCE ADMITTED FOR LIMITED PURPOSE @ Requested by Plaintiffs oO Requested by Enloe Medical Center Given as Requested oO Given as Modified C | Given on Court’s Motion Refused x Withdrawn Oo Judge Tamara Mosbarger During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other. CACI 112. QUESTIONS FROM JURORS @ Requested by Plaintiffs Oo Requested by Enloe Medical Center Given as Requested Given as Modified D | Given on Court’s Motion Refused Withdrawn Judge Tamara Mosbarger If, during the trial, you have a question that you beliéve should be asked ofa witness, you may write out the question and send it to me through my courtrogm staff. I will share your question with the attorneys and decide whether it may be asked. Do not feel disappointed if your quest n is not asked. Your question may not be asked for a variety of reasons. For example, the question may/call for an answer that is not allowed for legal reasons. Also, you eo" not try to guess the reason why a question is not asked or speculate about what the answer might have been. Because the decisio ether to allow the question is mine alone, do not hold it against any of the attorneys or their client ur question is not asked. Remember that y re not an advocate for one side or the other. Each of you is an impartial judge of the facts. Your questions should be posed in as neutral a fashion as possible. Do not discuss any question asked by any juror Ath any other juror until after deliberations begin. CACI 5019. QUESTIONS FROM JURORS Requested by Plaintiffs o Requested by Enloe Medical Center Given as Requested o Given as Modified © | Given on Court’s Motion Refused A Withdrawn o Judge Tamara Mosbarger If, during the trial, any of you had a question that you believed should be asked of a witness, you were instructed to write out the question and provide it to me through my courtroom staff. I shared your questions with the attorneys, after which, I decided whether the question could be asked. If a question was asked and answered, you are to consider the answer as you would any other evidence received in the trial. Do not give the answer any greater or lesser weight because it was initiated @ by a juror question. If the question was not asked, do not speculate as to what the answer might have been or why it was not asked. There are many legal reasons why a suggested question cannot be asked of a witness. Give the question no further consideration. @ Given as Requested Given as Modified Given on Court’s Motion Refused Withdrawn Judge PUNITIVE DAMAGES — MULTIPLE DEFENDANTS Plaintiff is seeking punitive damages against more than one defendant. You must determine whether to impose punitive damages (and if so, in what amount) on an individualized basis, taking into account the relevant factors as they apply to each defendant. Authority. Thomson vy. Catalina (1928) 205 Cal. 402 (jury was properly instructed that it could determine the appropriate amount of punitive damages separately for each defendant); see also McFadden v. Sanchez (2d Cir. 1983) 710 F.2d 907, 913 (“In modern times American jurisdictions have come to the conclusion that punitive damages should be assessed on an individual basis. A plaintiff who seeks to recover punitive damages from joint tortfeasors must ‘establish that each defendant against whom punitive damages are sought engaged in conduct which was sufficiently aggravated to justify the imposition of those damages”). a @ PUNITIVE DAMAGES — DETERRENT EFFECT OF COMPENSATORY DAMAGES Requested by Requested by Defendant Requested by Plaintiff Given as Requested Given as Modified Given on Court’s Motion Refused Withdrawn Judge PUNITIVE DAMAGES = DETERRENT EFFECT OF COMPENSATORY DAMAGES In determining what amount of punitive damages to award, if any, you should consider whether the $ In compensatory damages you have already awarded is sufficient to punish the defendant and deter future misconduct. If so, you should not award punitive damages. @ Authority. Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal 4th 1159, 1189 (a compensatory award “may be so large as to serve, itself, as a deterrent”); Mirkin v. Wasserman (1993) 5 Cal 4th 1082, 1106 (‘“‘the overall size of compensatory damages alone may constitute a significant deterrent”); see also Lane v. Hughes Aircraft Co. (2000) 22 Cal. 4th 405, 424 (conc. opn. of Brown, J.) (“large compensatory damage awards not based on a defendant's ill-gotten gains have a strong deterrent and punitive effect in themselves”); State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 405, 416, 419 [123 S.Ct. 1513, 155 L.Ed.2d 585] (“punitive damages serve a broader function; they are aimed at deterrence and retribution 2. : 66 punitive damages should only be awarded if the defendant’s culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence”). pe PUNITIVE DAMAGES — MULTIPLE DEFENDANTS Requested by Requested by Defendant Requested by e Plaintiff PUNITIVE DAMAGES — NOT INTENDED AS COMPENSATION Requested by Requested by Defendant Requested by Plaintiff Given as Requested Given as Modified Given on Court’s Motion Refused Withdrawn Judge PUNITIVE DAMAGES — NOT INTENDED AS COMPENSATION Punitive damages are not intended to compensate the plaintiff. Your award of compensatory damages in the amount of $ has fully compensated the plaintiff for any loss, harm or damage [name of plaintiff] has incurred or may in the future incur as a result of [name of defendant]’s conduct. Accordingly, you must not include in an award of punitive damages any amount intended as compensation for loss, harm or damages which the plaintiff has incurred or may incur. Authority. Ferguson v. Lieff, Cabraser, Hiemann & Bernstein (2003) 30 Cal.4th 1037, 1051 (‘“‘it should be presumed a plaintiff has been made whole for his injuries by compensatory damages’”); Adams v. Murakami (1991) 54 Cal.3d 105, 120 (“Whatever his or her injury, a plaintiff will be made whole by the award of compensatory damages”); Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387 (‘punitive damages by definition are not intended to compensate the injured party”). we PUNITIVE DAMAGES — EFFECT OF OTHER PUNITIVE AWARDS Requested by Requested by Defendant Requested by Plaintiff Given as Requested Given as Modified Given on Court’s Motion Refused Withdrawn Judge PUNITIVE DAMAGES — EFFECT OF OTHER PUNITIVE AWARDS If you determine that a defendant has already been assessed with punitive damages based on the same conduct for which punitive damages are requested in this case, you may consider whether punitive damages awarded in other cases have sufficiently punished and made an example of the defendant. You must not use the amount of punitive damages awarded in other cases to determine the amount of the punitive damage award in this case, except to the extent you determine that the penalties already imposed in other cases justify a lesser award, or no award at all, in this case. Authority. Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App4th 1645, 1663, fn. 7. wo @ PUNITIVE DAMAGES —FAIR NOTICE OF AMOUNT —PENALTIES AUTHORIZED BY LEGISLATURE Requested by Requested by Defendant Requested by Plaintiff Given as Requested Given as Modified Given on Court’s Motion Refused Withdrawn Judge PUNITIVE DAMAGES — FAIR NOTICE OF AMOUNT—PENALTIES AUTHORIZED BY LEGISLATURE In determining whether the defendant had fair notice of the amount you have decided to award, consider the difference between that amount and the civil penalties authorized or imposed in comparable cases. Legislative judgments concerning appropriate civil penalties for the sort of misconduct that injured the plaintiff are entitled to substantial deference. The legislature has authorized a penalty of $ for comparable cases. Authority. BMW of North America, Inc. v. Gore (1996) 517 U.S. 559, 574-575, 583-585 [116 S.Ct. 1589, 134 L.Ed.2d 809]; State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408, 418, 427-428 [123 S.Ct. 1513, 155 L.Ed.2d 585]. we @ PUNITIVE DAMAGES — FINDING OF MALICE, OPPRESSION, OR FRAUD CAN ONLY BE BASED ON CONDUCT THAT GAVE RISE TO LIABILITY Requested by Requested by Defendant Requested by Plaintiff Given as Requested Given as Modified Given on Court’s Motion Refused Withdrawn Judge PUNITIVE DAMAGES = FINDING OF MALICE, OPPRESSION, OR FRAUD CAN ONLY BE BASED ON CONDUCT THAT GAVE RISE TO LIABILITY. If you find that the defendant’s conduct was wrongful and that it harmed the plaintiff, you may then consider whether the defendant acted with malice, oppression, or fraud. A finding of malice, oppression, or fraud must be based upon the same wrongful conduct that you find harmed the plaintiff. You may not base a finding of malice, oppression, or fraud on conduct other than the wrongful conduct that harmed the plaintiff. Authority. Holdgrafer v. Union Oil. Co. (2008) 160 Cal.App.4th 907, 929-930; Medo v. Superior Court (1988) 205 Cal.App.3d 64, 68 [Punitive damages are not simply recoverable in the abstract. They must be tied to oppression, fraud or malice in the conduct which gave rise to liability in the case”’|.) aa e PUNITIVE DAMAGES NECESSARY — RATIFICATION — ACTUAL KNOWLEDGE IS Requested by Requested by Defendant Requested by Plaintiff Given as Requested Given as Modified Given on Court’s Motion Refused Withdrawn Judge PUNITIVE DAMAGES — RATIFICATION — ACTUAL KNOWLEDGE IS NECESSARY A corporate officer, director, or managing agent cannot adopt or approve something that he or she did not actually know about. To prove that a corporation adopted or approved wrongful conduct, there must be proof by clear and convincing evidence that an officer, director, or managing agent of the corporation knew about an employee’s malicious, oppressive, or fraudulent behavior and intended to adopt that conduct, with knowledge of the conduct’s outrageous character. Authority. College Hospital Inc. v. Superior Court (1994) 8 CalAth 704, 726; Cruz v. HomeBase (2000) 83 Cal.App4th 160, 168; Barton v. Alexander Hamilton Life Ins. Co. (2003) 110 Cal.App 4th 1640, 1643-1644 aie @ PUNITIVE DAMAGES — DEFINITION OF CORPORATE POLICY Requested by Requested by Defendant Requested by Plaintiff Given as Requested Given as Modified Given on Court’s Motion Refused Withdrawn Judge PUNITIVE DAMAGES — DEFINITION OF CORPORATE POLICY. “Corporate policy” means formal policies that affect a substantial portion of a company and that are likely to come to the attention of corporate leadership. Authority. Roby v. McKesson Corp. (2009) 47 Cal 4th 686, 714-715. et @ PUNITIVE DAMAGES — EVIDENCE OF MALICE, OPPRESSION, OR FRAUD MUST BE INCONSISTENT WITH HONEST ERROR OR MERE NEGLIGENCE. Requested by Requested by Defendant Requested by Plaintiff Given as Requested Given as Modified Given on Court’s Motion Refused Withdrawn Judge PUNITIVE DAMAGES — EVIDENCE OF MALICE, OPPRESSION, OR FRAUD MUST BE INCONSISTENT WITH HONEST ERROR OR MERE NEGLIGENCE. The plaintiff is not entitled to punitive damages if the evidence is merely consistent with the possibility of oppression, malice, or fraud. Rather, the evidence must be inconsistent with the possibility that the defendant acted based on a mistake of law or fact, an honest error of judgment, mere negligence or other such human failing. Authority. Food Pro Intern., Inc. v. Farmers Ins. Exchange (2008) 169 Cal.App.4th 976, 994-995; Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App4th 1269, 1288, fn. 14; see also Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 892 (overturning punitive damage award where defendant’s conduct was “unreasonable, oe careless,” and “stubborn,” but “within the common experience of human affairs”). a @ CACTI 201 (modified) DEFINITION OF CLEAR AND CONVINCING EVIDENCE Requested by Requested by Defendant Requested by Plaintiff Given as Requested Given as Modified Given on Court’s Motion Refused Withdrawn Judge CACTI 201 (modified) DEFINITION OF CLEAR AND CONVINCING EVIDENCE Certain facts must be proved by clear and convincing evidence, which is a higher burden of proof. This means the party must persuade you that it is highly probable that the fact is true. I will tell you specifically which facts must be proved by clear and convincing evidence. [Clear and convincing evidence means evidence of such convincing force that it demonstrates, in contrast to the opposing evidence, a high probability of the truth of the fact for which it is offered as proof. The evidence must be so clear as to leave no substantial doubt; sufficiently strong that after careful consideration it would command the unhesitating assent of every reasonable mind.| Authority. This is a modified version of the instruction set forth in CACI No. 201. We have modified the instruction by adding the bracketed text. The following memorandum of points and authorities supports the modification. oust @ PUNITIVE DAMAGES STANDARDS — COMPLIANCE WITH REGULATIONS OR INDUSTRY Requested by Requested by Defendant Requested by Plaintiff Given as Requested Given as Modified Given on Court’s Motion Refused Withdrawn Judge PUNITIVE DAMAGES — COMPLIANCE WITH REGULATIONS OR INDUSTRY STANDARDS In determining whether to impose punitive damages and the amount of any such damages, you should consider whether the defendant made any good faith effort to comply with state or federal regulations or industry customs or standards. @ Authority. Geier v. American Honda Motor Co., Inc. (2000) 529 U.S. 861, 893 [120 S.Ct. 1913, 146 L.Ed.2d 914 (dis opn. of Stevens, J.) (manufacturer’s compliance with safety regulations “would presumably weigh against an award of punitive damages”); Lusardi Constr. Co. v. Aubry (1992) 1 Cal 4th 976, 996-997 (‘[C]ourts refuse to impose civil penalties against a party who acted with a good faith and reasonable belief in the legality of his or her actions”); Lackner v. Cassidy Bodine North (2006) 135 Cal.App.4th 1188, 1212 (punitive damages not warranted where the defendant “took action to protect or minimize the injury to plaintiff”); see also Nissan Motor Company, Ltd. v. Maddox (Supreme Court of Kentucky, Sept. 24, 2015, 2013-SC-000685-DG) __ S.W.3d __ [2015 WL 5626432, at p. *5] [evidence that manufacturer met or exceeded regulatory safety requirements weighs against imposition of punitive damages]; Gibson v. Norfolk Southern Corp. (N.D. Ala. 1994) 878 F.Supp. 1455, aff’d 48 F.3d 536 (11th Cir. 1995) ( plaintiff’s claim of wantonness was defeated by showing that defendant complied with federal safety regulations); Silkwood v. Kerr-McGee Corp. (W.D. Okla. 1979) 485 F.Supp. 566, 584 (“[glood faith belief in, and efforts to comply with, all government regulations would be evidence of conduct inconsistent with the mental state requisite for punitive damages”); Malcolm v. Evenflo Co., Inc. (2009) 352 Mont. 325 (trial court committed reversible error by excluding evidence of defendant’s compliance with safety regulations). @ ay @ PUNITIVE DAMAGES — FAIR NOTICE Requested by Requested by Defendant Requested by Plaintiff Given as Requested Given as Modified Given on Court’s Motion Refused Withdrawn Judge PUNITIVE DAMAGES — FAIR NOTICE THAT CONDUCT WAS PUNISHABLE In deciding whether to award punitive damages, you must consider whether the defendant had fair notice that [his, her or its] conduct would subject [him, her, or it] to punishment. Authority. @ L.Ed.2d BMW 809] of North America, Inc. v. Gore (1996) 517 U.S. 559, 574 [116 S.Ct. (stating “[e|lementary notions of fairness enshrined in our 1589, 134 constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose”); Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 463 (affirming trial court’s determination that evidence was insufficient to support punitive damages against insurer “because defendant was not put on notice . . . that its interpretation of the policy was incorrect”). quae Special Instruction No. 11 - The Measure of Future Medical Costs is Affected by Available Health Insurance In determining the amount that will likely be paid for future medical treatment or services, you [must/should] consider how health insurance or other benefits available to the plaintiff affects the amount that may be paid for such medical treatment or services. Authority: Cuevas v. Contra Costa County (2017) 11 Cal.App.5th 163, 173-174. ae @ Special Instruction No. 10 —- The Market Value of Medical Treatment or Services The market value of medical treatment or services is the amount that both a reasonable provider of such treatment or services would accept as payment in full for the treatment or services and a reasonable recipient buyer of such medical treatment or services, or someone acting for the benefit of the recipient, would pay on the open market, where neither the provider nor the recipient is compelled to enter into the transaction. Authority: Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 556 [Restatement, Second, Torts “Section 911 articulates a rule, applicable to recovery of tort damages generally, that the value of property or services is ordinarily its ‘exchange value,’ that is, its market value or the amount for which it could usually be exchanged”); Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1050 [“Our Supreme Court has endorsed a market or exchange value as the proper way to think about the reasonable value of medical services”]; Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311, 1329 [“Howell endorsed ‘a rule, applicable to recovery of tort damages generally, that the value of property or services is ordinarily its “exchange value,” that is, its market value or the amount for which it could usually be exchanged’”]; Children’s Hospital Central California v. Blue Cross of California (2014) 226 Cal.App.4th 1260, 1275 [“reasonable market value of the services at issue, i.e., the price that would be agreed upon by a willing buyer and a willing seller negotiating at arm’s length”]; Hefczyc v. Rady Children’s Hospital-San Diego (2017) 17 Cal.App.5th 518, 542 [“The scope of the rates accepted by or paid to Hospital by other payors indicates the value of the services in the marketplace” (emphasis added)]. aa" @ Special Instruction No. 9 — Reasonable Value of Medical Treatment or Services-Measured by Market Value, Not Billed Amount The reasonable value of medical treatment or services, both past and future, is measured by the market value of treatment or services, and not by the amount billed or to be billed. Authority: Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1328-1332 [amount billed not relevant to either past or future medical damages]; see Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 562 [“With so much variation, making any broad generalization about the relationship between the value or cost of medical services and the amounts providers bill for them-other than that the relationship is not always a close one-would be perilous”); Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1050-1051 [“For insured plaintiffs, the reasonable market or exchange value of medical services will not be the amount billed by a medical provider or hospital, but the ‘amount paid pursuant to the reduced rate negotiated by the mm plaintiff’s insurance company, , citation omitted, original italics]. @ igo @ Special Instruction No. 8 - Medical Expense Damages Limited to Lesser of Amount Paid or Reasonable Value Plaintiff seeks economic damages for medical treatment or services. Plaintiff may recover the lesser of (a) the amount actually paid or actually to be paid for such treatment or services, or (b) the reasonable value of such treatment or services. Authority: Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 555 [“a plaintiff may recover as economic damages no more than the reasonable value of the medical services received and is not entitled to recover the reasonable value if his or her actual loss was less,” original italics]; Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1325-1326 [“Damages for past medical expenses are limited to the /esser of (1) the amount paid or incurred for past medical expenses and (2) the reasonable value of the services” (emphasis added)]; Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311, 1328-1329. ae SPECIAL JURY INSTRUCTION NO. 7 NATURAL COURSE OF DISEASE OR CONDITION No physician shall be liable for professional negligence for any occurrence or result solely on the basis that the occurrence or result was caused by the natural course of a disease or condition, or was the natural or expected result of reasonable treatment rendered for the disease or condition. Support: Civil Code §1714.8 a SPECIAL JURY INSTRUCTION NO. 4 CAUSATION: BUT-FOR TEST The law defines cause in its own particular way. A cause of injury, damage loss or harm is something that is a substantial factor in bringing about an injury, damage, loss or harm. A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. In other words, plaintiff must establish it is medically probable that but for defendants’ alleged negligence, plaintiff would not have developed artis Support: BAJI 3.76; CACTI 430, Viner v. Sweet (2003) 30 Cal.4"" 1232, 1234-41; Jennings v. Palomas Pomerado Health Systems, Inc. (2003) 114 Cal.App.4" 1108, 1114, fn. 5; Viner ». Sweet (Viner II) (2014) 117 Cal.App.4" 1218, 1223; Second Restatement of Torts Section 432. ee SPECIAL INSTRUCTION NO. 3 Natural Course of Disease or Condition No health care provider is liable for an injury or condition which results solely from the natural course of a disease or condition or is the natural or expected result of a reasonable treatment rendered for a disease or condition. Cal. Civ. Code Section 1714.8 at SPECIAL INSTRUCTION NO. 2 Neglect and the Undertaking of Medical or Nursing Care: Neglect refers not to the substandard performance of medical services but, rather, to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations. Thus, neglect speaks not of the undertaking of medical services, but of the failure to provide medical care. Delaney v. Baker (1999) 20 Cal.4th 23 Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771 Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331 Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396 we @ SPECIAL INSTRUCTION NO. 1 Policy and Procedures Do not Establish Standard of Care: Awritten policy and procedure of Enloe Medical Center does not establish the standard of care of a health care provider. Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234 Sims v. Weeks (1935) 7 Cal.App.2d 28 Church v. Bloch (1947) 80 Cal.App.2d 542 Clemens v. Regents of University of California (1970) 8 Cal.App.3d 1 Barton v. Owen (1977) 71 Cal.App.3d 484 wv e BAJI 2.03 WILLFUL ACTS TO PRECLUDE EVIDENCE If you find thata party willfully [suppressed] [,] [altered] [,] [damaged] [,] [concealed] [, or] [destroyed] evidence in order to prevent its being used in the trial, you may consider that fact in determining what inferences to draw from the evidence. ¢ ye @ CACI 3935. PREJUDGMENT INTEREST (CIV. CODE, § 3288) Requested by Plaintiffs oO Requested by Enloe Medical Center Given as Requested Oo Given as Modified © | Given on Court’s Motion Refused a Withdrawn V Judge Tamara Mosbarger If you decide that [name of plaintiff] is entitled to recover damages for past economic loss in one or more of the categories of damages that [he/ she/nonbinary pronoun/it] claims, then you must decide whether [he/she/ nonbinary pronoun/it] should also receive prejudgment interest on each item of loss in those categories. Prejudgment interest is the amount of interest the law provides to a plaintiff to compensate for the loss of the ability to use the funds. If prejudgment interest is awarded, it is computed from the date eo which each loss was incurred until the date on which you sign your verdict. Whether [name of plaintiff] should receive an award of prejudgment interest on all, some, or none of any past economic damages that you may award is within your discretion. If you award these damages to [name of plaintiff], you will be asked to address prejudgment interest in the special verdict form. CACI 3929. SUBSUQUENT MEDICAL TREATMENT OR AID Requested by Plaintiffs oO Requested by Enloe Medical Center Given as Requested oO Given as Modified © | Given on Court’s Motion Refused o Withdrawn ¥ Judge Tamara Mosbarger If you decide that [name of defendant] is legally responsible for [name of plaintiff\’s harm, [he/she/nonbinary pronoun/it] is also responsible for any additional harm resulting from the acts of others in providing medical treatment or other aid that [name of plaintiff|’s injury reasonably required, even if those acts were negligently performed. @ PLAINTIFFS’ SPECIAL INSTRUCTION NO. 5: @ INTRODUCTION TO REGULATIONS GOVERNING HOSPTIALS Hospitals are mandated to comply with various state laws and regulations governing patient care and patient rights. The following instructions contain some of the state laws and regulations applicable to the hospital in this case: [List applicable laws and regulations based on the testimony of witnesses and experts] Authority: In Re Gregory, 80 Cal.App.4th 514, 522-525 (2000); Norman v. Life Care Centers of America, Inc., 107 Cal.App.4th 1233, 1242-1244 (2003); Nevarrez v. San Marino Skilled Nursing and Wellness Center, 221 Cal.App.4th 102, 115 (2013). @ we PLAINTIFFS’ SPECIAL INSTRUCTION NO. 4: MANAGING AGENT —- DEFINED An employee is a “managing agent’ if he or she exercises substantial independent authority and judgment in his or her corporate decision-making such that his or her decisions ultimately determine corporate policy. An employee need not be capable of making corporate-wide policy to be a managing agent. Instead, if the employer delegates to an employee substantial decision-making discretion within the employee’s particular sphere of authority and such sphere is an important aspect of the corporation’s business, the employee is a managing agent. Authority: Egan v. Mutual of Omaha Ins. Co., 24 Cal.3d 809, 822 (1979); White v. Ultramar, Inc., 21 Cal4th 563,577 (1999); Agarwal v. Johnson, 25 Cal.3d 932 (1979); Textron Financial Corp. v. National Union Fire Ins. Of Pittsburgh, 118 Cal.App.4th 1061 (2004); Hobbs v. Bateman Eichler, Hill Richards, Inc., 164 Cal.App.3d 174; Siva v. General Tire& Rubber Co., Inc., 146 Cal.App.3d 152, 159 (1983). yet CACI 516. DUTY OF HOSPITAL TO SCREEN MEDICAL STAFF [PLAINTIFF’S @ MODIFIED INSTRUCTION NO. 3] Requested by Plaintiffs Oo Requested by Enloe Medical Center Given as Requested a Given as Modified Qa Given on Court’s Motion Refused oO Withdrawn R Judge Tamara Mosbarger A hospital commits neglect if it does not use reasonable care to select and periodically evaluate its medical staff so that its patients are provided adequate medical care. CACI 516. DUTY OF HOSPITAL TO SCREEN MEDICAL STAFF @ Requested by Enloe Medical Center Requested by Plaintiffs Oo Given as Requested Oo Given as Modified (| Given on Court’s Motion Refused Oo Withdrawn £ Judge Tamara Mosbarger A hospital is negligent if it does not use reasonable care to select and periodically evaluate its medical staff so that its patients are provided adequate medical care. CACI 514. DUTY OF HOSPITAL [PLAINTIFF’S MODIFIED INSTRUCTION NO. 2] Requested by Plaintiffs oO Requested by Enloe Medical Center Oo Given as Requested Qo Given as Modified © | Given on Court’s Motion o Refused ¢ Withdrawn oO Judge Tamara Mosbarger A hospital commits neglect if it does not use reasonable care toward its patients. A hospital must provide procedures, policies, facilities, supplies, and qualified personnel reasonably necessary for the treatment of its patients. [When you are deciding whether [name of defendant] was negligent, you must base your decision only on the testimony of the expert witnesses who have testified in this case.] @ CACI 504. STANDARD OF CARE FOR NURSES [PLAINTIFF’S MODIFIED INSTRUCTION NO. 1] Requested by Plaintiffs a Requested by Enloe Medical Center Given as Requested o Given as Modified (| Given on Court’s Motion Refused # Withdrawn Oo Judge Tamara Mosbarger [A/An] [insert type of nurse] commits neglect if [he/she/nonbinary pronoun] fail to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful [insert type of nurses] would use in similar circumstances. This level of skill, knowledge. and care is sometimes referred to as “the standard of care.” [You must determine the level of skill, knowledge, and care that other reasonably careful [insert type of eo”: would use in similar circumstances based only on the testimony of the expert witnesses [including [name of defendant}| who have testified in this case.]