Jury Instructions: Spence v. Solar Supply:Impermiss Access

David A. Szwak

Jury Instructions: Spence v. Solar Supply:Impermiss Access

Postby David A. Szwak » Thu Oct 06, 2005 10:11 pm

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

BRADY KENT SPENCE,
Plaintiff,
CIVIL ACTION
Versus NO.: 95-0258

SOLAR SUPPLY, INC.,
Defendant.

PLAINTIFF'S PROPOSED JURY INSTRUCTIONS

MAY IT PLEASE THE COURT:
Plaintiff respectfully submits the following jury instructions:

JURY INSTRUCTION NO. ____ :

In this case, defendant has stipulated to a willful violation of the Fair Credit Reporting Act and to an actionable invasion of Plaintiff's privacy. Accordingly, you must award actual damages against the defendant. As the triers of facts, in awarding compensatory damages, you must award an amount of money which will fairly and adequately compensate him for such damages, including any damage the plaintiff is reasonably certain to experience in the future. In considering the issue of plaintiff's compensatory damages, you are instructed that you should assess the amount you find to be justified by a preponderance of the evidence as full, just and reasonable compensation for all of plaintiff's damages. Compensatory damages are not designed to punish defendant, which is the role of punitive damages. On the other hand, compensatory damages are not restricted to actual loss of time or money; they cover both the mental and physical aspects of injury - tangible and intangible. They are an attempt to restore the Plaintiff, that is, to make him whole or as he was immediately prior to his injuries. In making an award of compensatory damages, you should consider the following elements of damage, to the extent you find them proved by a preponderance of the evidence, and no others:

Any Bodily injury sustained by the Plaintiff and any resulting pain and suffering, disability, mental anguish and loss of capacity for the enjoyment of life experienced in the past or to be experienced in the future. No evidence of the value of such intangible things as mental or physical pain and suffering has been or need be introduced. In that respect it is not value you are trying to determine, but an amount that will fairly compensate the Plaintiff for the damages he has suffered. There is no exact standard for fixing the compensation to be awarded on account of such elements of damage. Any such award should be fair and just in the light of the evidence. The reasonable expense of hospitalization and medical and nursing care and treatment necessarily or reasonably to be so obtained in the future. Any earnings lost in the past and any loss of ability (capacity) to earn money in the future. If a preponderance of the evidence shows that the Plaintiff has been permanently injured, you may consider his life expectancy in determining the amount of damages he will sustain in the future. The mortality tables received in evidence may be considered in determining how long the claimant may be expected to live. Bear in mind, however, that life expectancy as shown by mortality tables is merely an estimate of the average remaining life of all persons in the United States of a given age and sex having average health and exposure to danger of persons that class. So, such tables are not binding on you but may be considered together with the other evidence in the case bearing on the Plaintiff's health, age, occupation and physical condition, before and after the injury, in determining the probable length of his life. When considering life expectancy in determining future damages, you should bear in mind, of course the distinction between entire life expectancy and work like expectancy, and those elements of damage related to future income should be measured only by the Plaintiff's remaining work life expectancy. If the Jury should find that the evidence establishes a reasonable likelihood of a loss of future earnings, then it becomes the duty of the jury to ascertain the present worth in dollars of such future damages, since an award of future damages necessarily requires the payment be made now for a loss that will not actually be sustained until some future date.

Under these circumstances, the result is that the Plaintiff will in effect be reimbursed in advance of the loss, and will have the use of money which he would not have received until some future date, but for the verdict.

In order to make a reasonable adjustment for the present use, interest free, of money representing a lump-sum payment of anticipated future loss, the law requires that you discount, or reduce to its present worth, the amount of the anticipated future loss by taking the interest rate or return which the Plaintiff could reasonably be expected to receive based on the rate of interest prevailing at this time in Louisiana, on an investment of the lump sum payment together with the period of time over which the future loss is reasonably certain to be sustained; and then reduce, or in effect deduct from, the total amount of anticipated future loss whatever that amount would be reasonably certain to earn or return, if invested at such rate of interest over such future period of time; and include in the verdict an award for only the present worth, the reduced amount, of the total anticipated future loss. Bear in mind that your duty to discount to present value applies to loss of future earnings or future medical expenses. If you should find that the plaintiff is entitled to damages for future mental anguish, then such award is not subject to any reduction for the present use. In considering any element of damage to be experienced in the future you are instructed that you should not take into account any possible effect of present or future inflation one way or another.

With regard to wages or earnings, the evidence and figures presented concerning those claims related to gross earnings; that is, earnings before income taxes and other deductions, not "take home" pay. In making an award for future loss of earnings, the figures should not be adjusted to take taxes into account one way or the other. You are instructed that any person who claims damages as a result of an alleged wrongful act on the part of another has a duty under the law to "mitigate" those damages, that is, to take advantage of any reasonable opportunity he may have had under the circumstances to reduce or minimize the loss or damage. So, if you should find from a preponderance of the evidence that the Plaintiff within the limitations of any disability he may have sustained failed to seek out or take advantage of a business or employment opportunity that was reasonably available to him under all circumstances shown by the evidence, then you should reduce the amount of his damages by the amount he could have reasonably realized if he had taken advantage of such opportunity. Of course, the fact that I have given you instructions concerning the issue of Plaintiff's damages should not be interpreted in any way as an indication that I believe the Plaintiff should not, prevail in this case. Any amount you award the plaintiff is not subject to income tax.

Plaintiff has the burden of proving by a preponderance of the evidence the damages that caused by defendnat's fault. Coleman v. Victor, 326 So.2d 344 (La., 1976); Jordan v. Travelers Ins. Co., 245 So.2d 151 (La., 1971)

The burden of proving both the existence of the injuries and the causal connection bnetween them and the accident rests with the plaintiff. Such proof must be shown to a legal certainty and by a reasonable preponderance of the evidence. A mere possibility is insufficient. Stevens v. Gulf American Fire and Casualty Co., 317 So.2d 199 (1st Cir., 1975); Rawley v. Rawley, 357 So.2d 286 (1st Cir., 1978); Young v. Department of Hospitals, 365 So.2d 848 (3rd Cir., 1979). The plaintiff in a civil case is required to establish his claim ot a legal certainty by a resasonable preponderance of evidence; and speculation, conjecture, mere possibility, and even unsupported probability are not sufficient to support a judgment in his favor. In this regard, unsupported subjective complaints of pain are insufficient to support a claim to that degree of reasonable certainty required by law. Knotts v. State Farm Mutual Auto. Ins. Co., 225 So.2d 222 (2d Cir., 1969). If the plaintiff fails to call a treating doctor, then the jury may be justified in presuming that the testimony of such doctor would have been adverse to the contentions of the plaintiff, unless it is overcome by credible evidence offered by plaintiff. Malbraux v. Guice, 322 So.2d 390 (3rd Cir., 1975); Vidrine v. Sentry Indemnity Co., 341 So.2d 558 (3d Cir., 1977). Statements of any attorney in this case as to his estimate of dollar amounts to be awarded for pain and suffering, mental anguish, and similar claims are not evidence and are to be disregarded by you unless supported by evidence. The determination of damages is solely your function, and must be based on competent evidence, and not upon figures suggested by an attorney. Botta v. Brunner, 138 Atl. 2d 714, 60 ALR 2d 331; King v. Railway Express Agency, 107 NW 2d 509 (N.D. 1961); Renne v. Balick, 146 Atl. 2d 394 (Del. 1958); Joyce v. Smith, 112 Atl. 549 (Pa. 1921); Stein v. Meyer, 150 Fed Supp 365 (ED Pa. 1957).

To recover for defamation from defendant plaintiff must prove by a preponderance of the evidence that:

(1) Defendant uttered [spoke] [wrote] defamatory words about plaintiff

(2) To someone other than plaintiff;

(3) That the words were false;

(4) That defendant knew or should have known that they were false; and

(5) That plaintiff suffered injuries as a result.
Cangelosi v. Schwegmann Brothers Giant Super Markets, 390 So.2d 196 (La., 1980); Gorman v. Swaggart, 524 So.2d 915 (La. App. 4th Cir.) writ denied 530 So.2d 571-75 (1988); Gertz v. Robert Welch, Inc.., 418 U.S. 323 (1974); Dun & Bradstreet, Inc., v. Greenmoss Builders, Inc., 472 U.S. 749 (1985); Masburn v. Collin, 355 So.2d 879 (La., 1977); Munson v. Gaylord Broadcasting Co., 491 So.2d 780 (La. App. 4th Cir.) writ denied, 496 So.2d 335 (1986).

In this case plaintiff seeks damages for defamation by a statement by defendant which was in the form of an opinion. Plaintiff may recover damages only if the opinion implies the existence does not imply the existence of underlying facts. If you determine that the opinion which the defendant expressed does not imply the existence of underlying facts known to defendant, you must render a verdict for defendant. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) -- "Under the Fifth Amendment, there is no such thing as a false idea." Mashburn v. Collins, 355 So.2d 879 (La., 1977); Defamatory words are those that expose a person to contempt, hatred, ridicule, or disgrace (obloquy) (abuse). McGowen v. Prentice, 341 So.2d 55 (La. App. 3d Cir., 1976). A person is not liable for damages caused by republication of his defamatory remark by a third person unless under the circumstances he reasonably should have expected the republication. Garrett v. Kneass, 482 So.2d 876 (2d Cir., 1986); Wattigny v. Lambert, 508 So.2d 1126 (3d Cir., 1981); Giodano v. Tullier 139 So.2d 15 (4th Cir., 1962)

In determining the amount of any award of exemplary damages you may return you should consider the following factors;

1. The reprehensibility of defendant's acts

2. The severity of the injuries that plaintiff suffered or was threatened with

3. The profitability of defendant's conduct

4. The wealth of the defendant

5. The amount of compensatory damages awarded

6. The ratio that your award of exemplary damages would bear to the compensatory damages awarded

7. The costs of litigation

8. Any potential or actual criminal penalties that have or may be imposed on defendant

9. Any other exemplary damage judgments that have or may be imposed on defendant

10. The amount needed to punish the defendant and to deter the defendant and others like him.Grimstaus v. Ford Motor Co., 119 Cal. App. 3d 757, 174 Cal. Rptr. 348 (1981) Levet, supra.


JURY INSTRUCTION NO. ____ :

In this case, defendant has stipulated to a willful violation of the Fair Credit Reporting Act. Accordingly, you may award punitive damages against the defendant. As the triers of facts, in awarding punitive damages under the Fair Credit Reporting Act, you must consider the following factors in assessing the award:

a) The remedial purpose of the Act;

b) The harm(s) to consumer intended to be avoided or corrected by the Act;

c) The manner in which the defendant conducted its business;

d) The manner in which agency dealt with plaintiff;
and
e) The defendant's income and net worth.
Fury Imports, Inc. v. Shakespeare Co., 554 F.2d 1376 (5th Cir. 1977); Jones v. Credit Bureau of Huntington, Inc., 399 S.E.2d 694 (W. Va. 1990); Nitti v. Credit Bureau of Rochester, Inc., 84 Misc.2d 277, 375 N.Y.S.2d 817 (1975); Pinner v. Schmidt, 805 F.2d 1258 (5th Cir. 1986) [La.]; Collins v. Retail Credit Co., 410 F.Supp. 924 (U.S.D.C. Mich. 1976); Boothe v. TRW Credit Data, 768 F.Supp. 434 (U.S.D.C. S.D. N.Y. 1991); Russell v. Shelter Fin. Services, 604 F.Supp. 201 (U.S.D.C. W.D. Mo. 1984); Yohay v. City of Alexandria Employees Credit Union, Inc., 827 F.2d 967 (4th Cir. 1987) [Va.]; Ackerley v. Credit Bureau of Sheridan, Inc., 385 F.Supp. 658 (U.S.D.C. Wyo. 1974); Verdin v. Equifax Services, Inc., 1992 W.L. 111223 (U.S.D.C. E.D. La. 1992); Guimond v. Trans Union Corp., --- F.3d --- (9th Cir. 1994); Continental Trend Resources v. OXY, 44 F.3d 1465, 1476 (10th Cir. 1995); Dunn v. HOVIC, 1 F.3d 1371 (3d Cir. 1993); 15 U.S.C. 1681n.


JURY INSTRUCTION NO. ____ :

In this case, defendant has stipulated to a willful violation of the Fair Credit Reporting Act. Accordingly, you may award punitive damages against the defendant. As the triers of facts, in awarding punitive damages under the Fair Credit Reporting Act, you should consider an award which would be adequate to affect defendant's future conduct. Pinner v. Schmidt, 805 F.2d 1258 (5th Cir. 1986) [La.]; Collins v. Retail Credit Co., 410 F.Supp. 924 (U.S.D.C. Mich. 1976).


JURY INSTRUCTION NO. ____ :

In this case, defendant has stipulated to a willful violation of the Fair Credit Reporting Act. Accordingly, you may award punitive damages against the defendant. As the triers of facts, if you award punitive damages under the Fair Credit Reporting Act, you need not award punitive damages which bear any relationship to any award to actual damages you may award. In essence there is no method of computation and you should award punitive damages which, in your judgment, are necessary, in light of the factors provided to you. Jones v. Credit Bureau of Huntington, Inc., 399 S.E.2d 694 (W. Va. 1990).


JURY INSTRUCTION NO. ____ :

In this case, defendant has stipulated to a willful violation of the Fair Credit Reporting Act. Accordingly, you may award punitive damages against the defendant. As the triers of facts, in awarding punitive damages under the Fair Credit Reporting Act, may award puntive damages even if you believe Plaintiff proved no actual damages or just nominal actual damages. Boothe v. TRW Credit Data, 768 F.Supp. 434 (U.S.D.C. S.D. N.Y. 1991); Russell v. Shelter Fin. Services, 604 F.Supp. 201 (U.S.D.C. W.D. Mo. 1984); Yohay v. City of Alexandria Employees Credit Union, Inc., 827 F.2d 967 (4th Cir. 1987) [Va.]; Ackerley v. Credit Bureau of Sheridan, Inc., 385 F.Supp. 658 (U.S.D.C. Wyo. 1974); Verdin v. Equifax Services, Inc., 1992 W.L. 111223 (U.S.D.C. E.D. La. 1992); Guimond v. Trans Union Corp., --- F.3d --- (9th Cir. 1994); 15 U.S.C. 1681n.

Bodenheimer, Jones, KLOTZ & SIMMONS



By: _____________________________ David A. Szwak 509 Milam Street Shreveport, Louisiana 71101 (318) 221-1507 FAX 221-4560 ATTORNEYS FOR PLAINTIFF

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