PATTERN JURY INSTRUCTIONS (Civil Cases) Prepared by the Committee on Pattern Jury Instructions District Judges Association Fifth Circuit 2014 with revisions through October 2016 For Customer Assistance Call 1-800-328-4880 Mat #41663410 COMMITTEE ON PATTERN JURY INSTRUCTIONS DISTRICT JUDGES ASSOCIATION FIFTH CIRCUIT Judge Daniel P. Jordan III, Chairman Judge Ron Clark Judge Elizabeth Erny Foote Judge Melinda Harmon Judge Mary Ann Vial Lemmon Judge Michael P. Mills Judge Sul Ozerden Judge Sarah Vance Judge Stanwood R. Duval, Jr. Judge Lee H. Rosenthal iii FOREWORD In July 2011, the Fifth Circuit District Judges Associa- tion formed the Pattern Jury Instruction Committee (Civil) including Judges Lee Rosenthal, Ron Clark, Elizabeth Foote, Sul Ozerden, Michael P. Mills, Stanwood Duval, Mary Ann Lemmon, Sarah Vance, Melinda Harmon and Dan Jordan. The Committee was charged with reviewing the existing pattern instructions and updating them where necessary. After an initial review, the Committee determined that the time had come for a top-to-bottom examination for substantive accuracy. While many of the existing instruc- tions remained valid, a significant number no longer reflected current law. This is no reflection on prior commit- tees, which did an excellent job drafting prior patterns. The law is not stagnant; it was time to update. Accordingly, the 2014 edition of the Fifth Circuit Pattern Jury Instructions (Civil) will represent a substantial overhaul. The Committee approached this project with a consistent mantra: present instructions that are as balanced, accurate, and user friendly as possible. Given the breadth of that undertaking, outside assistance was essential. And in the end, nearly one hundred judges, attorneys, law professors, and law students helped draft, vet, edit, and proofread the final product. In all, the instructions went through four rounds of review, each time by a different panel of reviewers. In every case, the volunteer reviewers were recruited for their expertise in the chapters they helped produce. In most cases, the volunteers presided, practiced, or taught within the Fifth Circuit and possessed hands-on experience apply- ing this circuit’s standards, though some experts beyond this circuit were consulted. Readers will note that the subject areas are not identical to previous editions. Chapter 6 on Antitrust and Chapter 8 on RICO have been deleted because the Committee concluded that the existing instructions were no longer trustworthy and that the issues arose too infrequently to justify revision. Chapter 9 on Patent Infringement has been deleted because the Committee learned that practitioners favored other pat- tern instructions for patent cases. Chapter 14 on statutes of v FOREWORD limitations was also deleted because such statutes generally involve state-law issues and Louisiana, Mississippi, and Texas all have variations that were not reflected in the old pattern instructions. For some of these chapters, the Com- mittee has suggested other sources. The Committee also added instructions, including an instruction on electronic communications during trial and a new section on the Fair Labor Standards Act. Those using the new instructions will also observe that they are heavily footnoted. There is simply no way to draft an instruction that covers every possible factual case. The patterns therefore address the most common factual sce- narios, but the footnotes direct the reader to other potential issues and authorities. The notes also allow the reader to review the source to determine whether the instruction remains current. Along these same lines, the Committee received a fair number of suggested instructions from attorneys and profes- sors that represented novel legal theories. The Committee did not include these suggestions—though some were footnoted—concluding that pattern instructions are not the place to advance the law. Again, the patterns were designed to cover the most common issues. This major undertaking lasted more than three years, and there are many to thank. The Committee offers its heartfelt appreciation to all who helped produce the 2014 edition, including our law clerks and summer externs. Special thanks are extended to Professor Lonny Hoffman, who served as our reporter and devoted countless hours to the project. His guidance and input were invaluable. vi TABLE OF CONTENTS Page Committee Members Page. iii Forward. ................ v Instruction 1. PRELIMINARY INSTRUCTIONS 1.1 Instructions for Beginning of Trial........................ 1 1.2 Preliminary Instructions to Jury.......................... 4 2. GENERAL INSTRUCTIONS 2.1 First Recess ................................................ 8 2.2 Stipulated Testimony...................................... 9 2.3 Stipulations of Fact ....................................... 10 2.4 Judicial Notice ............................................. 11 2.5 Discontinuance as to Some Parties ...................... 12 2.6 Limiting Instruction....................................... 13 2.7 Charts and Summaries ................................... 14 2.8 Demonstrative Evidence .................................. 15 2.9 Witness Not Called ........................................ 16 2.10 Similar Acts ................................................ 17 2.11 Impeachment by Witness’s Inconsistent Statements .. 18 2.12 Impeachment by Witness’s Felony Conviction ......... 19 2.13 Deposition Testimony ..................................... 20 2.14 Transcript of Recorded Conversation.................... 21 2.15 Law-Enforcement Officer Testimony .................... 22 2.16 Bias—Corporate Party Involved ......................... 23 2.17 Clear and Convincing Evidence.......................... 24 2.18 Civil Allen Charge......................................... 25 3. JURY CHARGE 3.1 Jury Charge ................................................. 28 3.2 Burden of Proof: Preponderance of The Evidence ....... 30 3.3 Evidence ..................................................... 31 vii PATTERN JURY INSTRUCTIONS Instruction Page 3.4 Witnesses .................................................... 32 3.5 Expert Witnesses ........................................... 33 3.6 No Inference from Filing Suit ............................. 34 3.7 Duty to Deliberate; Notes.................................. 35 4. ADMIRALTY 4.1 Seaman Status............................................. 37 4.2 Vessels ...................................................... 41 4.3 Jones Act—Unseaworthiness—Maintenance and Cure (Seaman Status Not Contested) ................. 42 4.4 Jones Act—Negligence .................................... 43 4.5 Unseaworthiness .......................................... 45 4.6 Causation................................................... 47 4.7 Contributory Negligence .................................. 48 4.8 Damages.................................................... 50 4.9 Punitive Damages ......................................... 53 4.10 Maintenance and Cure Claims and Their Relationship to Jones Act and Unseaworthiness Claims—Punitive Damages for Willful Withholding of Maintenance and Cure ............................... 55 4.11 Section 905(b) Longshore and Harbor Workers’ Compensation Act Claim................................ 60 5. RAILROAD EMPLOYEES 5.1 FELA, 45 U.S.C. §§ 51 and 53. ............................ 67 5.2 Federal Safety Appliance Act, 49 U.S.C. § 20301 et seq. (2006) (Recodifying 45 U.S.C. §§ 1–16 (1988)). ... 71 6. ANTITRUST (15 U.S.C. §§ 1, ET SEQ.) 7. SECURITIES ACT 7.1 Securities Act—(Rule 10b-5) ............................... 76 8. RICO 9. PATENT INFRINGEMENT (35 U.S.C. § 271, ET SEQ.) 10. CIVIL RIGHTS — 42 U.S.C. § 1983 10.1 42 U.S.C. Section 1983 (Unlawful Arrest—Unlawful Search—Excessive Force).............................. 83 10.2 Under Color of Law ...................................... 92 viii TABLE OF CONTENTS Instruction Page 10.3 Qualified Immunity ...................................... 93 10.4 Supervisory Liability..................................... 95 10.5 Municipal Liability....................................... 98 10.6 First Amendment Retaliation—Public Employees.... 100 10.7A Eighth Amendment (Excessive Force) ................. 105 10.7B Eighth Amendment (Excessive Force)—Pretrial Detainees ................................................ 108 10.8 Eighth Amendment (Inadequate Medical Care — Convicted Prisoner/Episodic Acts) .................... 111 10.9 Eighth Amendment (Conditions of Confinement — Convicted Prisoner) .................................... 114 10.10 Fourteenth Amendment (Inadequate Medical Care or Conditions of Confinement — Pretrial Detainee) ................................................ 117 10.11 Fourteenth Amendment (Medical Care — Pretrial Detainee/Episodic Acts) ................................ 120 10.12 Emotional Distress Damages ........................... 124 11. EMPLOYMENT CLAIMS 11.1 Title VII (42 U.S.C. § 2000e-2)—Discrimination Based on Race, Color, National Origin, Religion, or Sex (Disparate Treatment) ............................ 129 11.1 Pattern Jury Question, Title VII—Discrimination Based on Race, Color, National Origin, Religion or Sex (Disparate Treatment) ............................ 132 11.2 Title VII (42 U.S.C. § 2000E-2)—Supervisor Harassment Without Tangible Employment Action (Hostile Work Environment) .......................... 133 11.2 Pattern Jury Questions, Supervisor Sexual and Other Harassment without Tangible Employment Action (Hostile Work Environment) .................. 139 11.3 Title