IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF

NEBRASKA

DAWN DANAUSKAS, ) 8:02CV250)

Plaintiff, ))

vs. ) FINAL) JURY INSTRUCTIONS

UNION PACIFIC RAILROAD COMPANY, )a corporation, )

) Defendant. )

INSTRUCTION NO. 1

DUTY

It will be your duty to decide from the evidence whether the plaintiff is entitled to

a verdict against the defendant. From the evidence, you will decide what the facts are.

You are entitled to consider the evidence in the light of your own observations and

experiences in life. You may use reason and common sense to draw deductions from

facts established by the evidence. You will then apply those facts to the law which I give

you in these and the other instructions. In that way, you will reach your verdict. You are

the sole judges of the facts; but you must follow the law as stated in my instructions,

whether you agree or disagree with the law stated in the instructions.

Do not allow sympathy or prejudice to influence you. The law requires that your verdict

be unaffected by anything except the evidence, your common sense, and the law stated

in these and other instructions.

Anything that I may say or do during the trial must not be taken by you as an indication

of what I think of the evidence or what I think your verdict should be.

INSTRUCTION NO. 2

EVIDENCE

The word "evidence" includes the testimony of witnesses; documents and other

things received as exhibits; any facts that have been stipulated, that is, formally agreed to

by the parties; and any facts that have been judicially noticed, that is, facts which I say

you must accept as true.

The following things are not evidence:

1. Statements, arguments, questions and comments by lawyers

are not evidence.

2. Objections are not evidence.

Lawyers have an obligation to their clients to object when they believe that the

evidence being offered is improper under the rules of evidence. You should not be

influenced by the lawyer’s objection or by my ruling on it. If I sustain an objection to a

question, ignore the question. If I overrule the objection, treat the answer like any other

answer. If so, do not attempt to draw any inference in favor of either side as the result of

any ruling I make. Finally, if I instruct you that some item of evidence is received for a

limited purpose only, you must follow that instruction. Pay particularly close attention to

this sort of limiting instruction, because it may not be available to you in writing later in the

jury room.

3. Testimony that I strike from the record or tell you to disregard is

not evidence and must not be considered.

4. Anything you see or hear about this case outside this courtroom is

not evidence and must be disregarded.

Finally, some of you may have heard the phrases or terms "direct evidence" and

"circumstantial evidence." Direct evidence is direct proof of a fact, such as testimony by

an eye witness. Circumstantial evidence is proof of facts from which you may infer or

conclude that other facts exist. The law makes no distinction between the weight to be

given to either direct or circumstantial evidence. You should give the evidence the weight

that you believe the evidence is entitled to receive.

INSTRUCTION NO. 3

BENCH CONFERENCES AND RECESSES

During the trial it may become necessary for me to talk with the lawyers outside

your hearing, either by having a bench conference while you are present in the courtroom,

or by calling a recess. Please understand that while you are waiting, the court and

counsel are working. The purpose of these conferences is to decide how certain evidence

is to be treated under the rules of evidence or to decide a particular procedure to be

followed in the case. We will, of course, do what we can to minimize the number and

length of these conferences.

INSTRUCTION NO. 4

JURY QUESTIONS

While evidence is being presented, you are not allowed to raise your hands to

ask questions about that evidence. However, if you do have questions about something

you hear during the examination of a witness, you may write your questions down on a

piece of paper. When attorneys have finished examining that witness, you may submit

your written question or questions. I will review each question with the attorneys. You may

not receive an answer to your question because I may decide that the question is not

proper under the rules of evidence. The attorneys may choose to answer your questions

by asking more questions of the witness. But even if the question is proper, you may not

get an immediate answer to your question. For instance, a witness or an exhibit that you

will see later in the trial may answer your question.

INSTRUCTION NO. 5

NOTE-TAKING

If you wish, you may take notes to help you remember what witnesses said. Notes

may be helpful to you because at the end of the trial, you must make your decision based

on what you recall of the evidence. You will not have a written transcript to consult, and it

may not be practicalfor the court reporter to read back lengthy testimony. Therefore, you

should pay close attention to the testimony as it is given.

If you do take notes, please keep them to yourself until you and the other jurors go

to the jury room to decide this case. However, do not let note-taking distract you to the

point that you miss hearing other testimony from the witness.

During the trial, documents or other physical items may be received into evidence.

At the present, however, you will not be supplied with a list of exhibits which are

received in evidence. Therefore, you may wish to make notes about the exhibits,

especially their description and number, so that you can refer to those exhibits while you

are deliberating.

When we take our recess each day for the lunchtime break and when we take

our recess each night, please take your notes to the jury room and leave your notes

there. The courtroom deputy will take custody of your notes and secure them.

No one will read your notes but you. Your notes will be destroyed after the trial is over.

INSTRUCTION NO. 6

ALL PERSONS ARE EQUAL BEFORE THE LAW

This is a case between an individual, Dawn Danauskas, and a company, Union

Pacific Railroad Company. The case should be considered and decided by you as an

action between two persons of equal standing and worth in the community, persons

holding the same or similar position in life. A company is entitled to the same fair trial at

your hands as a private individual. All persons, including corporations, partnerships, and

other organizations stand equal before the law, and therefore must be treated as equals in

a court of justice.

INSTRUCTION NO. 7

PREPONDERANCE OF EVIDENCE

Your verdict depends on whether you find certain facts have been proven. The

burden of proving a fact is upon the party whose claim or defense depends on that fact.

The party who has the burden of proving a fact must prove it by the greater weight of the

evidence, also known as a “preponderance of the evidence.”

By a "preponderance of the evidence," I mean the greater weight of credible

evidence. This is not determined by which party has the greater number of witnesses

testifying about the facts and circumstances or by the number of exhibits. Preponderance

of the evidence is determined by the amount of evidence which on the whole, when fully,

fairly and impartially considered, makes the stronger impression on your mind and is

more convincing as to its truth when weighed against the evidence the other party has

presented.

To prove something by a preponderance of evidence is to prove that it is more

likely true than not. Each party is entitled to the benefit of any evidence tending to

establish a claim, even though the other party introduced that evidence. If the evidence is

equally balanced, a preponderance is not established.

You may have heard the term “proof beyond a reasonable doubt.” That is a stricter

standard that applies in criminal cases. It does not apply in civil cases such as this one.

You should, therefore, put the term out of your minds.

INSTRUCTION NO. 8

WITNESSES

In deciding what the facts are, you may have to decide what testimony you believe

and what testimony you do not believe. You may believe all of what a witness said, or only

part of it, or none of it.

In deciding what testimony to believe, consider the witness’s intelligence, the

opportunity the witness had to have seen or heard the things testified about, the

witness’s memory, any motives that witness may have for testifying a certain way, the

manner of the witness while testifying, whether that witness said something different at an

earlier time, the general reasonableness of the testimony, and the extent to which the

testimony is consistent with any evidence that you believe.

In deciding whether or not to believe a witness, keep in mind that people

sometimes hear or see things differently and sometimes forget things. You need to

consider therefore whether a contradiction is an innocent misrecollection or lapse of

memory or an intentional falsehood, and that may depend on whether it has to do with an

important fact or only a small detail.

The fact that one side may use a greater number of witnesses or present a

greater quantity of evidence should not affect your decision. Rather, determine which

witness or witnesses and which evidence appears accurate and trustworthy. It is the

weight of the evidence that counts -- not the number of witnesses.

If the testimony of a single witness produces in your minds a belief in the likely truth of

any fact and would justify a verdict in accordance with the witness’s testimony, even

though a number of witnesses may have testified to the contrary, and you have

considered all of the

evidence in the case, then you hold greater belief in the accuracy and reliability of this singlewitness.

INSTRUCTION NO. 9

CONDUCT OF THE JURY

To insure fairness, jurors are asked to obey the following rules:

First, do not talk among yourselves about this case, or about anyone involved with

this case, until the end of the case when you go to the jury room to decide on your verdict.

Second, do not talk with anyone else about this case, or about anyone involved

with it, until the trial has ended and you have been discharged as jurors.

Third,during this trial when you are outside this courtroom, do not listen to or

letanyone try to tell you anything about this case. Do not let anyone talk to you about

anyone involved with this case until the trial has ended and I have accepted your verdict. If

anyone tries to talk to you about this case during the trial, please promptly report the

matter to me.

Fourth, during the trial you should not talk with or speak to any of the parties,

lawyers or witnesses involved in this case, which means that you should not even pass

the time of day with any of them. If a person from one side of the lawsuit sees you talking

to a person from the other side, even if it is on a matter unconnected with this trial or

simply to pass the time of day, such contact might arouse an unwarranted suspicion about

your fairness. If a lawyer, party or witness does not speak to you when you pass in the

hall, ride the elevator, or encounter each other elsewhere while this trial is taking place,

do not think he or she is being rude. Those persons are not supposed to talk or visit with

you, either.

Fifth, you must decide this case on the basis of evidence presented in the courtroom.

Therefore, do not read any news stories or articles about the case, or about anyone

involved with this case, or listen to any radio or television reports about the case or about

INSTRUCTION NO. 9anyone involved with it. In fact, until the trial is over you should probably avoid reading

any newspapers

or news journals, and avoid listening to any TV or radio newscasts. There might not be

any news reports of this case, but, if there are, you might find yourself inadvertently

reading or listening to something before you realize what you are doing.

Sixth, do not do any research or make any investigation on your own concerning

this case. Do not use or refer to a dictionary or any law books concerning any aspect of

this case, including any evidence introduced. Do not visit the scene of any incident that

may have been mentioned in this case.

Seventh, do not form an opinion about any fact or issue in the case until you

have received the entire evidence, have heard arguments of counsel, have been

instructed as to the law of the case, and have retired to the jury room. Consequently, do

not make up your mind during the trial about what the verdict should be. Keep an open

mind until after you have gone to the jury room to decide the case and have discussed

the evidence with the other jurors.

Finally, do not be influenced by sympathy or prejudice. Do not indulge in any

speculation, guess, or conjecture. And do not make any inferences which are not

supported by the evidence.

INSTRUCTION NO. 10

OUTLINE OF TRIAL

The trial will proceed in the following manner:

First, the attorney for the plaintiff may make an opening statement. Next, the

attorney for the defendant may make an opening statement. An opening statement is not

evidence or argument. It is an outline of what the party intends to prove, a summary of

what the attorney expects the evidence to be.

The plaintiff's attorney will then present evidence through a direct examination of a

witness. The defendant’s attorney may then cross-examine that witness. After the cross-

examination, the plaintiff’s attorney may ask additional questions on re-direct. The

defendant’s attorney may also ask questions on re-cross. After the plaintiff has

presented all her witnesses, the plaintiff will rest. The defendant will then present its case.

The defendant may present evidence through direct examination of witnesses and

plaintiff’s attorney may cross- examine those witnesses. Re-direct and re-cross

examinations may also take place.

After the evidence is completely presented, the attorneys will make their closing

arguments to summarize and interpret the evidence for you. Just as with opening

statements, these closing arguments are not evidence. I will then instruct you further on

the law. After that you will retire to the jury room to deliberate on your verdict.

INSTRUCTION NO. 11

DEPOSITION TESTIMONY

During the trial, certain testimony might be presented to you by way of deposition.

A deposition consists of sworn recorded answers to questions asked of a witness in

advance of the trial by one or more of the attorneys for the parties to the case. The

testimony of a witness who, for some reason, cannot be present to testify from the

witness stand may be presented in writing under oath. Such testimony is entitled to the

same consideration, and is to be judged as to credibility, and weighed, and otherwise

considered by the jury, insofar as possible, in the same way as if the witness had been

present and had testified from the witness stand.

INSTRUCTION NO. 12

STATEMENT OF THE CASE

The plaintiff, Dawn Danauskas, alleges that the defendant, Union Pacific Railroad

Company, her former employer, discriminated against her on the basis of sex and/or

pregnancy in violation of Title VII of the Civil Rights Act of 1964 and/or the

Pregnancy Discrimination Act. She also alleges that the defendant retaliated against her

for contacting the internal Equal Employment Opportunity Office prior to her maternity

leave and that she was constructively discharged from her employment position. She is

suing Union Pacific Railroad Company under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000(e), as amended by the Pregnancy Discrimination Act of 1978, 42 U.S.C.

§2000e(k) (1998).

The defendant, Union Pacific Railroad Company, maintains that Ms. Dawn Danauskas

cannot show that gender or maternity leave was related to her allegations of

discrimination, nor can she show any link between her filing of a discrimination claim

and the alleged retaliation. The defendant further denies that the plaintiff was

constructively discharged.

INSTRUCTION NO. 13

UNCONTROVERTED FACTS

In the order on the pretrial conference, the parties stipulated to the following facts:

1. Dawn Danauskas is female, and resident of Plattsmouth, Nebraska.

2. The defendant, Union Pacific Railroad Company (“Union Pacific”), is a Delaware

Corporation which operates in the railroad industry.

3. On April 16, 1990, Dawn Danauskas was hired by Union Pacific as a

management trainee in its Marketing Department.

4. On May 1, 2000, Danauskas submitted a request for maternity leave,

tentatively planning to start her maternity leave on June 12, 2000.

5. Danauskas requested a total of 15 weeks of maternity leave from June 12,

2000, through October 2, 2000.

6. Danauskas contacted Kathleen Vance, the Director of Union Pacific’s Equal

Employment Opportunity and Affirmative Action Office, prior to taking her maternity leave.

7. Danauskas returned from leave on October 2, 2000.

8. On December 29, 2000, Jim Kettler met with Danauskas and reviewed her

Performance Development and Review for the period from 1/1/2000 to 12/28/2000.

9. On or about January 9, 2001, Danauskas met with Kathleen Vance and alleged

that she had been subjected to discrimination based on her sex and pregnancy.

10. On January 15, 2001, Danauskas submitted her resignation to UP Human

Resources, with an effective date of January 31, 2001.

11. On July 29, 2001, Danauskas filed a Charge of Discrimination with the

Nebraska Equal Employment Opportunity Commission and the Equal Employment

Opportunity Commission alleging claims of discrimination on the basis of sex and

pregnancy.

12. On April 2, 2002, the United States Equal Employment Opportunity

Commission issued a Notice of Right to Sue, permitting Danauskas to file her lawsuit

before this court.

INSTRUCTION NO. 14

INTRODUCTION

Now that you have heard the evidence and the attorneys’ arguments, it is my duty

to inform you of the legal principles and considerations you are to use in arriving at a

proper verdict.

It is your duty to follow the law given you in this charge and to apply these rules of

law to the facts as you find them from the evidence. Do not single out one instruction

alone as stating the law, but consider the instructions as a whole.

Do not be concerned with the wisdom of any rule of law that the court states.

Regardless of any opinion you may have about what the law ought to be, it would violate

your sworn duty to base a verdict upon a view of the law different from the one given in

these instructions, just as it would violate your sworn duty as judges of the facts to base a

verdict upon anything but the evidence in the case and the reasonable inferences arising

from such evidence.

You will also receive a “Questions and Verdict Form” that is to be used in

conjunction with these instructions.

INSTRUCTION NO. 15

GENDER/PREGNANCY DISCRIMINATION

ESSENTIAL ELEMENTS

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating

against employees because of their gender which also includes pregnancy and

pregnancy related conditions. You are instructed as a matter of law that plaintiff’s receipt

of a negative PDR and defendant’s subsequent refusal to change the PDR are adverse

employment actions.

Your verdict must be for the plaintiff and against the defendant on the plaintiff’s

claim of gender/pregnancy discrimination if plaintiff has proved by a preponderance of

evidence that Plaintiff’s gender/pregnancy was a motivating factor in defendant’s adverse

employment actions.

If youfind that the plaintiff’s gender was a motivating factor in the defendant’s

treatment of the plaintiff, then you must answer “Yes” to Question No. 1 in the Questions

and Verdict Form.

If you find that the plaintiff’s pregnancy or pregnancy related condition was a

motivating factor in the defendant’s treatment of the plaintiff, then you must answer “Yes”

to Question No.

2 in the Questions and Verdict Form.

If plaintiff has not proved by a preponderance of the evidence that her

gender/pregnancy was a motivating factor, then you must answer “No” to Question No. 1

and Question No. 2 in the Questions and Verdict Form.

INSTRUCTION NO. 16

UNLAWFUL RETALIATION

ESSENTIAL ELEMENTS

Title VII prohibits employers from retaliating against employees who file charges of

discrimination, who assist others in opposing discrimination, or who engage in other

statutorily protected activities. You are instructed as a matter of law that the plaintiff

engaged in a statutorily protected activity by contacting the EEO Department of the

defendant.

Your verdict must be for the plaintiff and against the defendant if the plaintiff proves, by

a preponderance of the evidence, that plaintiff’s engaging in the protected activity was

a motivating factor in defendant’s adverse employment actions.

If you find that the plaintiff’s contact with the EEO department was a motivating factor

in the defendant’s treatment of the plaintiff, then you must answer “Yes” to Question No. 3

in the Questions and Verdict Form.

If plaintiff has not proved, by a preponderance of the evidence that her contact with the

EEO department was a motivating factor in the adverse employment actions, then you

must answer “No” to Question No. 3 in the Questions and Verdict Form.

INSTRUCTION NO. 17

DEFINITION OF MOTIVATING FACTOR

As used in these instructions, the plaintiff’s gender or pregnancy or engaging in a

protected activity was a motivating factor, if the plaintiff’s gender or pregnancy or

engaging in a protected activity played a part in the defendant’s conduct. However,

her gender, pregnancy, or engaging in protected activity need not have been the only

reason for the defendant’s decisions.

INSTRUCTION NO. 18

BUSINESS JUDGMENT

You should not find that a decision made by the defendant is unlawful just because

you may disagree with the defendant's stated reason or you believe the decision was

harsh or unreasonable. An employer is entitled to make its own subjective personnel

decisions and can decide how and when to review performance or to discipline an

employee for any reason that is not discriminatory. It is not unlawful for an employer to

decide how and

when to review or evaluate employees on factors other than her sex or pregnancy or

retaliation for protected activity.

INSTRUCTION NO. 19

DEFINITION OF PROTECTED ACTIVITY

"Protected activities" under Title VII include filing a formal charge of discrimination

with the Equal Employment Opportunity Commission, filing an internal discrimination

complaint, using an employer's internal administrative processes, and submitting an

informal complaint to a superior.

INSTRUCTION NO. 20

"SAME DECISION" INSTRUCTION

If you find that gender/pregnancy or retaliation was a motivating factor, you must

decide if it was the only motivating factor. If it was the only motivating factor, then you

must answer “Yes” to Question No. 4. If it was not the only motivating factor, you must

answer “No” to Question No. 4.

If the defendant has shown that it had other lawful reasons for its actions, you must

determine whether defendant has proven, by a preponderance of the evidence that it

would have treated plaintiff the same even if gender/pregnancy or engaging in a protected

activity had played no role in the adverse employment actions.

If you find that defendant has proven, by a preponderance of the evidence that

defendant would have treated plaintiff the same even if gender/pregnancy or engaging in

protected activity had played no role in the adverse employment actions, then you must

answer “Yes” to Question No. 5. If you find that defendant has not proven by a

preponderance of the evidence that defendant would have treated plaintiff the same even

if gender/pregnancy or engaging in protected activity had played no role in the adverse

employment actions, then you must answer “No” to Question No. 5.

INSTRUCTION NO. 21

CONSTRUCTIVE DISCHARGE

You may award actual damages for lost wages if you find plaintiff was

constructively discharged. You may find that plaintiff was constructively discharged if it

has been proven beyond a preponderance of the evidence, that:

1. Defendant made plaintiff’s working conditions intolerable, and

2. Defendant acted with the intent of forcing plaintiff to quitor plaintiff’s

resignation was a reasonably foreseeable result of defendant’s actions.

Working conditions are intolerable if a reasonable person in plaintiff’s situation

would have deemed resignation the only reasonable alternative.

If plaintiff has proved all these elements, you may award actual damages after January

31, 2001, for lost wages as set forth in Instruction No. 22 and general damages in

connection with the loss of plaintiff’s employment.

If any of the above elements has not been proved by a preponderance of the

evidence, you may not award actual damages for lost wages.

If you find that plaintiff has proven by a preponderance of evidence that she was

constructively discharged, then you must answer “Yes” to Question No. 6. If you find that

plaintiff has not proven by a preponderance of evidence that she was constructively

discharged, then you are to answer “No” to Question No. 6.

INSTRUCTION NO. 22

ACTUAL DAMAGES

If you find the Plaintiff has proven by a preponderance of the evidence that she

was constructively discharged as set forth in Instruction No. 21 then you must award the

plaintiff such sum as you find by a preponderance of the evidence will fairly and justly

compensate the plaintiff for damages you find she sustained as a direct result of her

defendant’s actions. If you find that plaintiff was constructively discharged, you may

award actual damages for lost wages. If you find that plaintiff has not been constructively

discharged, you may not award actual damages for lost wages.

If you find that plaintiff has been constructively discharged, you must determine

the amount of any wages and fringe benefits plaintiff would have earned in her

employment with the defendant if she had not been constructively discharged on January

31, 2001, through the date of your verdict, minus the amount of earnings and benefits that

plaintiff received during that time. You will be directed to answer Question No. 6 in the

Questions and Verdict Form in connection with this finding.

You are also instructed that plaintiff has a duty under the law to "mitigate" her

damages—that is, to exercise reasonable diligence under the circumstances to minimize

her damages. Therefore, if you find by the preponderance of the evidence that plaintiff

failed to seek out or take advantage of an opportunity that was reasonably available to her,

you must reduce her damages by the amount of the wages and fringe benefits plaintiff

reasonably could have earned if she had sought out or taken advantage of such an

opportunity.

INSTRUCTION NO. 23

GENERAL DAMAGES

If you find the Plaintiff has proven by a preponderance of the evidence that the

defendant had an unlawful motive in its adverse employment actions toward the Plaintiff as

instructed in either Instruction No. 15 or Instruction No. 16, and you find the defendant and

has not proved by a preponderance of the evidence that it would have taken the same

action regardless of it’s alleged unlawful motive as instructed in Instruction No. 20, then

you must award the plaintiff such sum as you find by a preponderance of the evidence will

fairly and justly compensate the plaintiff for general damages you find she sustained as a

direct result of her defendant’s actions. General damages include compensation for

emotional pain and suffering, mental anguish and loss of enjoyment of life. You may

award such damages for the period from January 3, 2001, to January 31, 2001.

You must determine the amount of any general damages sustained by the plaintiff,

such as emotional pain and suffering, inconvenience, mental anguish, and loss of

enjoyment of life that plaintiff experienced as a consequence of defendant’s actions.

You may award additional general damages for emotional pain and suffering,

inconvenience, mental anguish and loss of enjoyment of life that occurred after January

31,

2001, in connection with the loss of plaintiff’s employment, if you find plaintiff was constructively

discharged as instructed in Instruction No. 21. If you do not find plaintiff was constructively

discharged as instructed in Instruction No. 21 you may not award general damages in

connection with loss of employment.

Remember that throughout your deliberations, you must not engage in any speculation,

INSTRUCTION NO. 24guess, or conjecture, and you must not award damages under this Instruction through sympathy.

INSTRUCTION NO. 24

NOMINAL DAMAGES

If you find in favor of plaintiff under either Instruction No. 15 or Instruction No. 16

and if you do not find defendant would have treated plaintiff the same even if

gender/pregnancy or engaging in a protected activity had played no role in the adverse

employment actions, as instructed in Instruction No. 20, but you find that plaintiff's

damages have no monetary value, then you must return a verdict for plaintiff in the nominal

amount of One Dollar ($1.00).

INSTRUCTION NO. 25

PUNITIVE DAMAGES

In addition to actual and nominal damages mentioned in the other instructions, the

law permits the jury under limited circumstances to award an injured person punitive

damages.

If you find the Plaintiff has proven by a preponderance of the evidence that the

defendant had an unlawful motive in its adverse employment actions toward the Plaintiff as

instructed in either Instruction No. 15 or Instruction No. 16, then you must decide whether

defendant acted with malice or with reckless indifference to plaintiff’s right not to be

discriminated against on the basis of her gender, pregnancy, or her engaging in protected

activities.

Defendant acted with malice or reckless indifference if it has been proved by a

preponderance of the evidence that defendant knew its treatment of plaintiff violated

discrimination law and acted with reckless disregard of that law.

If you find that defendant acted with malice or reckless disregard, then, in addition

to any actual, general or nominal damages to which you find plaintiff entitled, you may, but

are not required to, award plaintiff an additional amount as punitive damages if you find it

is appropriate to punish the defendant or to deter defendant and others from like conduct in

the future. Whether to award plaintiff punitive damages, and the amount of those

damages, are within your discretion. You will be directed to answer Questions No. 10 and

11 in connection with this Instruction.

INSTRUCTION NO. 26

JUDGE’S OPINION

In the trial of this case and in these instructions, I have in no way attempted to

express my opinion about who should prevail upon the issues submitted to you. You must

not construe any statement, action, or ruling on my part during the trial as an indication of

my opinion about the proper outcome of your verdict. During the course of a trial, I might

have occasionally asked questions of a witness to bring out facts not fully covered in the

testimony. Do not assume that I hold any opinion on the matters to which the questions

related.

INSTRUCTION NO. 27

EVIDENCE AND OBJECTIONS

During the trial I have ruled on objections to certain evidence. You must not

concern yourselves with the reason for such rulings since they are controlled by rules of

law.

You must not speculate or form or act upon any opinion about how a witness might

have testified in answer to questions which I rejected during the trial, or upon any subject

matter to which I forbade inquiry.

In coming to any conclusion in this case, you must be governed by the evidence

before you and by the evidence alone. You may not indulge in speculation, conjecture or

inference not supported by the evidence.

The evidence from which you are to find the facts consists of the following: (1) the

testimony of the witnesses; (2) documents and other things received as exhibits; and (3)

any facts that have been stipulated -- that is, formally agreed to by the parties.

The following things are not evidence: (1) statements, comments, questions and

arguments by lawyers for the parties; (2) questions by jurors; (3) objections to questions;

(4) any testimony I told you to disregard; and (5) anything you may have seen or heard

about this case outside the courtroom.

INSTRUCTION NO. 28

REASONABLE INFERENCES

While you should consider only the evidence in the case, you are permitted to draw

such reasonable inferences from the testimony and exhibits as you feel are justified in the

light of common experience. In other words, you may make deductions and reach

conclusions which reason and common sense lead you to draw from the facts which have

been established by the testimony and evidence in the case.

INSTRUCTION NO. 29

NOTE-TAKING

Throughout the course of the trial you have been allowed to take notes of the

testimony. You may take your notes into the jury room for use in your deliberations.

Remember, however, your notes are not evidence. The courtroom deputy is charged with

the task of keeping the official record of all exhibits received into evidence during the trial.

At the close of trial, she will deliver all exhibits you are to consider in your deliberations.

Your notes should be used only as aids to your memory. You should not give your

notes precedence over your independent recollection of the evidence. You should rely on

your own independent recollection of the proceedings, and you should not be influenced by

the notes of other jurors. Your notes are not entitled to any greater weight than each juror’s

recollection or impression of the testimony given during this trial. After you have reached a

verdict, your notes will be destroyed.

INSTRUCTION NO. 30

DELIBERATIONS AND VERDICT

In conducting your deliberations and returning your verdict, there are certain rules

you must follow.

First, when you retire to the jury room, first select one of your number to be

foreperson to preside over your discussions and to speak for you here in court.

Second, it is your duty, as jurors, to discuss this case with one another in the jury

room. You should try to reach agreement because a verdict—whether liable or not liable—

must be unanimous. Each of you must make your own conscientious decision, but only

after you have considered all the evidence, discussed it fully with your fellow jurors, and

listened to the views of your fellow jurors. Do not be afraid to change your opinions if the

discussion persuades you that you should. But do not come to a decision simply because

other jurors think it is right, or simply to reach a verdict.

Third, you will take with you when you retire for your deliberations an official verdict

form on which you will indicate a verdict. Please follow the directions carefully when filling it

out. A verdict must be agreed to by all of you, that is, it must be unanimous. Your verdict

must be signed by the foreperson.

Fourth, if you need to communicate with me during your deliberations, you may send a

note to me through the courtroom deputy, signed by one or more jurors. I will respond as

soon as possible either in writing or orally in open court. Your answer may not come

immediately because I may need to assemble the attorneys and confer with them

before I respond. Remember that you should not tell anyone—including me—how your

votes stand numerically.

Finally, when you arrive at your verdict and the form of verdict has been completed, you

INSTRUCTION NO. 31

will have concluded your task. Notify my chambers and I will receive your verdict promptly. If you

do not agree on a verdict by 6:00 this evening, you may separate and return for further

deliberations Monday morning. You may separate for meals whenever you choose. If you

do separate, you are not allowed to discuss this case with anyone, even another juror.