Opinion
8:23CV21
09-26-2024
NORMAN NIELSON, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Defendant.
COURT'S PROPOSED JURY INSTRUCTIONS
8th Cir. MCivJI 1.01, 1.02, 1.08 (modified). This is my stock Instruction, from Walls v. Union Pacific R.R. Co., No. 8:20cv413.
Members of the Jury Panel, if you have a cell phone or other communication device, please take it out now and turn it off. Do not turn it to vibration or silent; power it down. During jury selection and the trial, you must leave it off.
From now until you are discharged from the case, and for those who are selected to try the case, from now until you retire to deliberate on a verdict at the end of the trial, you may not discuss this case with anyone, not even the other jurors. You may tell your family, close friends, and other people about your participation in this trial so that you can explain when you are required to be in court. If you do so, you should warn them not to ask you about this case, tell you anything they know or think they know about it, or discuss this case in your presence.
Furthermore, you must not post any information on any social media or a social network, or communicate with anyone about the parties, witnesses, participants, claims, evidence, or anything else related to this case.
After you retire to deliberate on a verdict at the end of the trial, you must discuss the case with only the other jurors. You must not tell anyone else anything about the jury's deliberations in this case until after I accept your verdict or until I give you specific permission to do so. If you discuss the case with someone other than the other jurors during deliberations, you may be influenced in your verdict by their opinions. That would not be fair to the parties, and it would result in a verdict that is not based entirely on the evidence and the law.
Also, while you are in the courthouse and until you are discharged in this case, do not provide any information to anyone by any means about this case. Thus, for example, do not talk face-to-face or use any electronic device or social media or in any other way communicate to anyone any information about this case until I accept your verdict or until you have been excused as a juror.
Those of you who are selected for the jury in this case must decide this case based only on the evidence received by the court here in the courtroom and the instructions on the law that I give the jury. Do not do any research-on the internet, through social media, in libraries, in the newspapers, or in any other way-or make any investigation about this case on your own. Do not visit or view any place discussed in this case and do not use internet programs or other devices to search for or to view any place discussed in the testimony. Also, do not research any information about this case, the law, the people involved, including the parties, the witnesses, the lawyers, or the judge, until you have been excused as jurors.
The important reason for your not talking with anyone about the case is that the parties have a right to have this case decided only on evidence they know about and that has been presented here in court. If you do some research or investigation or experiment that we don't know about, then your verdict may be influenced by inaccurate, incomplete, or misleading information that has not been tested by the Rules of Evidence, the trial process, including the oath to tell the truth, and by cross-examination. Each of the parties is entitled to a fair trial, rendered by an impartial jury, and you must conduct yourself so as to maintain the integrity of the trial process. If you decide a case based on information not presented in court, you will have denied the parties a fair trial in accordance with the rules of this country and you will have done an injustice. It is very important that you abide by these rules. Failure to follow these instructions, and indeed any instructions the court gives you throughout the trial could result in the case having to be retried. And failure to follow these and the court's other instructions could result in you being held in contempt of the court and punished accordingly.
8th Cir. MCivJI 1.03.
Members of the Jury: I am now going to give you some instructions about this case and about your duties as jurors. At the end of the trial, I will give you more instructions. I may also give you instructions during the trial. All instructions-those I give you now and those I give you later, and whether they are in writing or given to you orally-are equally important and you must follow them all.
You must leave your cell phone, smartphone, iPhone, tablet computer, or any other wireless communication device in the jury room during the trial and may only use them during breaks. You will have to turn those devices “off” in the jury room during your deliberations.
This is a civil case brought by Plaintiff Norman Nielson against Defendant Union Pacific Railroad Company. Nielson alleges damages under the Federal Employers' Liability Act for personal injuries that he allegedly suffered on October 26, 2021, as a result of negligence of Union Pacific. This Court has found Union Pacific was negligent in this case as a matter of law. Specifically, Union Pacific was negligent when Nielson's foreman violated a safety rule which resulted in Nielson's foot being compacted between the coupling mechanisms of two railcars. Now, Union Pacific disputes the nature, extent, and scope of Nielson's injuries and damages. It will be your duty to determine from the evidence what damages Nielson has incurred.
I have made mostly minor, editorial, and non-substantive changes to paragraph 3 of the parties' Joint Proposed JI No. 1. However, I believe that it is insufficient to tell the jurors that I have found Union Pacific negligent as a matter of law, but not in what way, or they will be unable to determine whether the damages resulted in in whole or in part from that negligence. Consequently, I have added the fourth sentence beginning, “Specifically, ....” The Court believes this statement is sufficient to identify the negligence and the resulting injury for the jurors to make the required determination. This statement is also consistent with stipulated fact 5 in Joint Proposed JI No. 9 and this Court's Instruction No. 6.
Your duty is to decide what the facts are from the evidence. You are allowed to consider the evidence in the light of your own observations and experiences. After you have decided what the facts are, you will have to apply those facts to the law that I give you in these and in my other instructions. That is how you will reach your verdict. Only you will decide what the facts are. However, you must follow my instructions, whether you agree with them or not. You have taken an oath to follow the law that I give you in my instructions.
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 says, or only part of it, or none of it.
This paragraph and the next one are drawn from 8th Cir. MCivJI 3.03. I will not give a separate credibility instruction like Joint Proposed JI No. 6, which is also based on 8th Cir. MCivJI 3.03.
In deciding what testimony to believe, consider the witnesses' intelligence, their opportunity to have seen or heard the things they testify about, their memories, any reasons they might have to testify a certain way, how they act while testifying, whether they said something different at another time, whether their testimony is generally reasonable, and how consistent their testimony is with other evidence that you believe.
Do not let sympathy, or your own likes or dislikes, influence you. The law requires you to come to a just verdict based only on the evidence, your common sense, and the law that I give you in my instructions, and nothing else.
Nothing I say or do during this trial is meant to suggest what I think of the evidence or what I think your verdict should be.
This is the last paragraph of 8th Cir. MCivJI 1.03. I believe it is sufficient, so that 8th Cir. MCivJI 3.02, as requested in Joint Proposed JI No. 4, is not necessary.
This is my stock instruction, which identical to the parties' Joint Proposed JI No. 3, drawn from O'Malley, Grenig & Lee, FJP&I § 103.12 (6th ed. 2011) (modified).
Each party to a lawsuit is entitled to the same fair and impartial consideration, whether that party is a corporation or an individual. All persons, including corporations, partnerships, unincorporated associations, and other organizations, stand equal before the law and are to be dealt with as equals in a court of justice.
INSTRUCTION NO. 4
For you to understand the evidence, the claim, and the defense in this case, I must explain some matters for you.
The Federal Employers' Liability Act-which the Court and the parties may call the FELA-provides a federal cause of action to railroad employees who sustain injuries “in whole or in part from the negligence of any of the officers, agents, or employees of [the railroad company].”Plaintiff Nielson's right, if any, to recover in this case is governed by the provisions of the FELA.
See 8th Cir. MCivJI 15.00, first paragraph, and 45 U.S.C. § 51. I do not believe a fuller statement of the statutory language, as offered in Joint Proposed JI No. 11, will be helpful to the jury.
See Joint Proposed JI No. 10, last sentence, based on 3A O'Malley, Grenig & Lee, FJP&I, § 155:1 (6th ed. 2012).
Prior to trial, this Court determined that as a matter of law that Defendant Union Pacific Railroad Company was negligent and that such negligence caused Plaintiff Nielson to suffer injury to his left foot. Accordingly, at issue for determination at trial is the nature, extent, and scope of Plaintiff's injuries and damages.
See Joint Proposed JI No. 10, second paragraph. I find the third paragraph of Proposed JI No. 10 redundant of the Stipulated Facts and unnecessary.
Under the FELA, “damages” are an award of money to compensate a person for injuries the person suffered and is reasonably certain to suffer in the future “resulting in whole or in part” from a railroad's negligence. The question is whether the railroad's negligence played any part, however small, in the injury that is the subject of the suit.
See 8th Cir. MCivJI 15.00, third paragraph, citing CSX Transportation Inc. v. McBride, 564 U.S. 685, 705 (2011). I do not believe the “direct result” language in 8th Cir. MCivJI 15.70 is actually the correct damages causation standard in a FELA case.
Defendant Union Pacific alleges that Plaintiff Nielson failed to “mitigate” his damages. “Mitigation of damages” means taking reasonable steps to minimize one's damages. Therefore, any award of damages must be reduced by the amount a plaintiff might reasonably have avoided by taking such steps.
This paragraph is a paraphrase of 8th Cir. MCivJI 15.70 n.6. The ways in which Union Pacific argues that Nielson failed to mitigate his damages will be addressed in the Final Jury Instructions.
8th Cir. MCivJI 1.04.
When I use the word “evidence,” I mean the testimony of witnesses, documents, and other things I receive as exhibits, facts that I tell you the parties have agreed are true, and any other facts that I tell you to accept as true.
Some things are not evidence. I will tell you now what is not evidence:
1. Lawyers' statements, arguments, questions, and comments are not evidence.
2. Documents or other things that might be in court or talked about, but that I do not receive as exhibits are not evidence.
3. Objections are not evidence. Lawyers have a right-and sometimes a duty-to object when they believe something should not be a part of the trial. Do not be influenced one way or the other by objections. If I sustain a lawyer's objection to a question or an exhibit, that means the law does not allow you to consider that information. When that happens, you have to ignore the question or the exhibit, and you must not try to guess what the information might have been.
4. Testimony and exhibits that I strike from the record, or tell you to disregard, are not evidence, and you must not consider them.
5. Anything you see or hear about this case outside the courtroom is not evidence, and you must not consider it.
Also, I might tell you that you can consider a piece of evidence for one purpose only, and not for any other purpose. If that happens, I will tell you what purpose you can consider the evidence for and what you are not allowed to consider it for. You need to pay close attention when I give an instruction about evidence that you can consider for only certain purposes, because you might not have that instruction in writing later in the jury room.
Some of you may have heard the terms “direct evidence” and “circumstantial evidence.” You should not be concerned with those terms because the law makes no distinction between the weight to be given to direct and circumstantial evidence.
8th Cir. MCivJI 2.03; Order on Final Pretrial Conference. Filing 60 at 1-2; Joint Proposed JI No. 9. I find the last sentence of Joint Proposed JI No. 9 is redundant of the first sentence, so I have not included it.
You must treat these facts as having been proved:
1. Union Pacific is a common carrier by rail engaged in interstate commerce.
2. On October 26, 2021, Norman Nielson was employed by Union Pacific as a Yardman.
3. At the time of the subject incident on October 26, 2021, Norman Nielson was working in the course and scope of his employment for Union Pacific in furtherance of Union Pacific's interstate commerce.
4. On October 26, 2021, Union Pacific was negligent as a matter of law.
5. Union Pacific's negligence caused Norman Nielson to suffer injuries to his left foot.
8th Cir. MCivJI 3.05; Joint Proposed JI No. 7.
You may hear testimony from experts who will testify to opinions and the reasons for the opinions. This opinion testimony is allowed because of the education or experience of this witness.
You should judge this opinion testimony just as you would any other testimony. You may accept it or reject it and give it the weight as you think it deserves, considering the witness's education and experience, the reasons given for the opinion, and all other evidence in this case.
8th Cir. MCivJI 214; Joint Proposed JI No. 8.
Testimony may be presented to you in the form of a deposition. A deposition is the recorded answers a witness made under oath to questions asked by lawyers before trial. The deposition testimony was electronically video recorded and that recording now will be played for you. You should consider the deposition testimony, and judge its credibility, as you would that of any witness who testifies here in person.
The parties must notify the Court if any depositions will be presented other than by video recording.
8th Cir. MCivJI 3.04; Joint Proposed JI No. 5.
You must decide whether certain facts have been proved by the greater weight of the evidence. A fact has been proved by the greater weight of the evidence, if you find that it is more likely true than not true. You decide that by considering all the evidence and deciding what evidence is more believable.
You have probably heard the phrase “proof beyond a reasonable doubt.” That is a stricter standard than “more likely true than not true.” It applies in criminal cases but not in this civil case, so put it out of your mind.
8th Cir. MCivJI 1.05.
During the trial, I will sometimes need to talk privately with the lawyers. I may talk with them here at the bench while you are in the courtroom, or I may call a recess and let you leave the courtroom while I talk with the lawyers. Either way, please understand that while you are waiting, we are working. We have these conferences to make sure that the trial is proceeding according to the law and to avoid confusion or mistakes. We will do what we can to limit the number of these conferences and to keep them as short as possible.
8th Cir. MCivJI 1.06.
At the end of the trial, you will have to make your decision based on what you recall of the evidence. You will not have a written copy of the testimony to refer to. Because of this, you must pay close attention to the testimony and other evidence as it is presented here in the courtroom.
If you wish, however, you may take notes to help you remember what the witnesses say. If you take notes, do not show them to anyone until you and your fellow jurors go to the jury room to decide the case after you have heard and seen all the evidence. Also, do not let taking notes distract you from paying close attention to the evidence as it is presented. The Courtroom Deputy will provide each of you with a pad of paper and a pen or pencil. At each recess, leave your notes at your seat here in court or in the jury room.
When you leave at night, your notes will be locked up and returned to you when you return. When the trial is over your notes will be destroyed. They will not be read by anyone other than you.
8th Cir. MCivJI 1.09.
The trial will proceed in the following manner:
First, Nielson's lawyer may make an opening statement. Next, Union Pacific's lawyer may make an opening statement. An opening statement is not evidence but a summary of the evidence the lawyers expect you will see and hear during the trial.
After opening statements, Nielson will present evidence. Union Pacific's lawyer will have a chance to cross-examine Nielson's witnesses. After Nielson has finished presenting his case, Union Pacific may present evidence, and Nielson's lawyer will have a chance to cross-examine its witnesses.
After you have seen and heard all the evidence from both sides, the lawyers will make closing arguments that summarize and interpret the evidence. Just as with opening statements, closing arguments are not evidence.
I will then instruct you further on the law. After the lawyers' arguments and after the Court's instructions you will go to the jury room to deliberate and decide on your verdict.
8th Cir. MCivJI 1.08.
Jurors, to make sure this trial is fair to both parties, you must follow these rules:
First, do not talk or communicate among yourselves about this case, or about anyone involved with it, until the end of the trial when you go to the jury room to consider 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, when you are outside the courtroom, do not let anyone tell you anything about the case, or about anyone involved with it until the trial has ended and your verdict has been accepted by me. If someone tries to talk to you about the case during the trial, please report it to the Courtroom Deputy or a Court Security Officer.
Fourth, during the trial, do not talk with or speak to any of the parties, lawyers, or witnesses in this case-not even to pass the time of day. It is important not only that you do justice in this case but that you act accordingly. If a person from one side of the lawsuit sees you talking to a person from the other side-even if it is just about the weather-that might raise a suspicion about your fairness. So, when the lawyers, parties, and witnesses do not speak to you in the halls, on the elevator, or the like, please understand that they are not being rude. They know they are not supposed to talk to you while the trial is going on, and they are just following the rules.
Fifth, you may need to tell your family, close friends, and other people that you are a part of this trial. You can tell them when you have to be in court, and you must warn them not to ask you about this case, tell you anything they know or think they know about this case, or talk about this case in front of you. Remember: You must not communicate with anyone in any manner about anything or anyone, including the court, related to this case. You must not tell anyone anything about the jury's deliberations in this case until after I accept your verdict or until I give you specific permission to do so. If you talk about the case with someone besides the other jurors during deliberations, it looks as if you might already have decided the case or that you might be influenced in your verdict by their opinions. That would not be fair to the parties, and it might result in the verdict being thrown out and the case having to be tried over again. During the trial, while you are in the courthouse and after you leave for the day, do not give any information to anyone, by any means, about this case.
Sixth, do not do any research or investigate the case facts or the law-on the Internet, in libraries, newspapers, dictionaries or otherwise. Do not visit or view any place discussed in this case, and do not use the Internet or other means to search for or view any place discussed in the testimony. Also, do not look up any information about this case, the law, or the people involved, including the parties, the witnesses, the lawyers, or the judge.
Seventh, do not read or otherwise receive any information, including any news stories or Internet articles or blogs that are about the case, or about anyone involved with it. Do not listen to any radio or television reports, or digital streaming, about the case or about anyone involved with it. In fact, until the trial is over, I suggest that you avoid reading or receiving any digital streaming or any newspapers or news journals and avoid listening to any television or radio newscasts at all. I do not know whether there will be news reports about this case, but if there are, you might accidentally find yourself reading or listening to something about the case. If you want, you can have someone collect information or clip out any stories and set them aside to give to you after the trial is over. I assure you that by the time you have heard all the evidence in this case, you will know what you need to decide it.
The parties have a right to have you decide their case based only on evidence admitted here in court. If you research, investigate, or experiment on your own, or get information from other sources, your verdict might be influenced by inaccurate, incomplete, or misleading information. Witnesses here in court take an oath to tell the truth, and the accuracy of their testimony is tested through cross-examination. All the parties are entitled to a fair trial before an impartial jury, and you have to conduct yourselves in a way that assures the integrity of the trial process. If you decide a case based on information not admitted in court, you will deny the parties a fair trial. You will deny them justice. Remember, you have taken an oath to follow the rules, and you must do so. If you do not, the case might have to be retried, and you could be held in contempt of court and possibly punished.
Eighth, do not make up your mind during the trial about what your verdict should be. Keep an open mind until after you and your fellow jurors have discussed all the evidence.
I do not believe that any extensive restatement of the case is required after the jurors have heard the evidence. Consequently, I will not give Plaintiff's Proposed JI No. 12 on “duty as to the place of work” or Plaintiff's Proposed JI No. 13 defining “FELA negligence,” nor will I reiterate that FELA is Nielson's “sole remedy” as set out in Plaintiff's Proposed JI No. No. 14. None of these instructions involve issues the jury must decide in this case. Rather, this first Final Jury Instruction simply reiterates the issues that the jury must determine, that is, damages and failure to mitigate damages. The remaining jury instructions address those issues.
As I explained at the start of the case, after the Court made findings as a matter of law, the only remaining issues for you to determine are the amount of damages Nielson should be awarded as a result of Union Pacific's negligence and Union Pacific's affirmative defense of failure to mitigate damages.
INSTRUCTION NO. 15
You must award Nielson such sum as you find will fairly and justly compensate him for any damages that you find resulted in whole or in part from Union Pacific's negligence. The question is whether Union Pacific's negligence played any part, however small, in the injury to Nielson. You should consider the following elements of damages:
See 8th Cir. MCivJI 15.00, third paragraph, citing CSX Transportation Inc. v. McBride, 564 U.S. 685, 705 (2011). I do not believe the “direct result” language in 8th Cir. MCivJI 15.70 is actually the correct damages causation standard in a FELA case.
I find the second paragraph of Plaintiff's Proposed JI No. 15 superfluous. It states, “Your award must be based on evidence and not speculation or guesswork. This does not mean, however, that compensatory damages are restricted to the actual loss of money; they include both the physical and mental aspects of injury, even if they are not easy to measure.”
1. The physical pain and mental suffering Nielson has experienced and is reasonably certain to experience in the future considering the nature and extent of the injury, whether the injury is temporary or permanent, and whether any resulting disability is partial or total;
I find “mental emotional suffering” in Plaintiff's Proposed JI No. 15 item 1 is redundant. Mental suffering suffices for the injuries claimed in this case. Because item 1 is in terms of “physical pain and mental suffering Nielson has experienced,” the references to “past physical and mental pain and suffering and disability/loss of a normal life” in item 2 of Plaintiff's Proposed JI No. 15 invites a double recovery and will not be listed.
8th Cir. MCivJI 15.70 appears to list “the nature and extent of the injury, whether the injury is temporary or permanent, and whether any resulting disability is partial or total” as subitems or separate items of pain and suffering damages. However, the Court believes the listed items are considerations in determining the amount of pain and suffering damages.
2. The reasonable expense of medical care and supplies reasonably needed by and actually provided to Nielson to date that Union Pacific has not already paid for, and the present value of reasonably necessary medical care and supplies reasonably certain to be received in the future;
I believe Union Pacific is correct in Defendant's Proposed JI No. 1 that Nielson cannot recover amounts that Union Pacific has already paid for Nielson medical care.
3. The earnings that Nielson has lost to date and the present value of earnings that Nielson is reasonably certain to lose in the future;
I note that Nielson requests a separate item for lost earning potential. Plaintiff's Proposed JI No. 15 item 4. I believe that it is unhelpful to refer to lost earning potential as well as earnings Nielson is reasonably certain to lose in the future. I believe this issue “can be left to argument,” because “[s]ituations in which this distinction arises may be rare.” 8th Cir. MCivJI 15.70 n.4.
4. The reasonable value of household services that Nielson has been unable to perform for himself to date and the present value of household services Nielson is reasonably certain to be unable to perform for himself in the future.
It is not clear to me why Union Pacific has not included this item of damages in Defendant's Proposed JI No. 1. The reasonable value of household services that the injured employee is unable to perform himself is a compensable item of pecuniary damages. 8th Cir. MCivJI 15.70 n.5. I have declined to include item 6 in Plaintiff's Proposed JI No. 15 concerning loss of enjoyment of life and/or embarrassment, because Nielson has not offered any explanation of this item of damages that would meaningfully distinguish it from mental suffering. I have also declined to instruct, “You must not reduce your award of any damages by placing blame on Mr. Nielson for the incident that occurred on October 26, 2021. Mr. Nielson was not negligent on October 26, 2021.” See Plaintiff's Proposed JI No. 15, last paragraph. There has been no reference to contributory negligence in the instructions, I ruled such a defense could not be asserted, and I do not wish to invite consideration of contributory negligence by unnecessarily prohibiting it.
If you find that Union Pacific has proved that Nielson has failed to take reasonable steps to mitigate his damages, as “mitigation of damages” is explained in Instruction No. 19, then your award must not include any sum for any amount of damage which you find Nielson might reasonably have avoided by taking such steps.
See 8th Cir. MCivJI 15.70 n.6. Union Pacific has requested this paragraph based on its defense of failure to mitigate damages. While Nielson disputes Union Pacific's ability to support that defense, I have included this language in this first set of Instructions.
Remember, throughout your deliberations you must not engage in any speculation, guess, or conjecture, and you must not award any damages by way of punishment or through sympathy. You may not include in your award any sum for court costs or attorneys' fees.
This last paragraph of 8th Cir. MCivJI 15.70 makes it unnecessary to include Defendant's Proposed JI No. 5 stating that damages must be reasonable not speculative.
I believe Union Pacific's request for 8th Cir. MCivJI 15.72 on present value of future damages is appropriate because Nielson claims future pecuniary damages See Defendant's Proposed JI No. 3; see also Plaintiff's Proposed JI No. 17. I have conformed the descriptions of damages that must and must not be reduced to present value to the way they are described in the prior Instruction.
If you find that Nielson is reasonably certain to require reasonably necessary medical care and supplies in the future and/or that he is reasonably certain to lose earnings in the future, then you must reduce those future damages to their present value.
The present value of future damages is the amount of money that will fully compensate Nielson for future damages, assuming that amount is invested now and will earn a reasonably risk-free rate of interest for the time that will pass until the future damages occur.
You must not reduce to present value any non-economic damages you find that Nielson is reasonably certain to sustain in the future, such as for physical pain and mental suffering.
Plaintiff has requested a lengthy and repetitive “eggshell plaintiff” instruction. See Plaintiff's Proposed JI No. 18. I have instead condensed slightly a “pre-existing injury” instruction in a FELA case approved by the First Circuit Court of Appeals. See Stevens v. Bangor & Aroostook R. Co., 97 F.3d 594, 601 (1st Cir. 1996) (finding the following instruction “correctly stated the law”: “There is evidence in this case that plaintiff had a pre-existing injury or condition which existed prior to February 19, 1994. The railroad is only liable for damages you find to be caused by the occurrence of February 19, 1994. If you find that plaintiff's pre-existing condition made him more susceptible to injury than a person in good health, the defendant is responsible for all injuries suffered by the plaintiff as a result of the defendant's negligence, even if those injuries are greater than would have been suffered by a person in good health under the same circumstances.”).
If you find there is evidence in this case that Nielson had a pre-existing injury or condition prior to the incident on October 26, 2024, that made him more susceptible to injury than a person in good health, then Union Pacific is responsible for all injuries suffered by Nielson as a result of Union Pacific's negligence. This is true even if those injuries are greater than would have been suffered by a person in good health under the same circumstances.
This instruction is Joint Proposed JI No. 19. Because the parties have not requested it, I have not replaced or amplified this instruction using 8th Cir. MCivJI 2.15 on life expectancy evidence.
In the event you find that Nielson is entitled to damages arising in the future, you may consider how long he is likely to live. Nielson's age at the time of the injury was 46 years. The average life expectancy of a person aged 46 years is approximately 35 years. This figure is not conclusive. You may consider this in connection with other evidence relating to Nielson's probable life expectancy, including evidence of his occupation, health, habits, and activities, bearing in mind that some persons live longer and that some persons live less than the average.
Both parties have proffered jury instructions on Union Pacific's “failure to mitigate damages” defense. Compare Plaintiff's Proposed JI No. 16, with Defendant's Proposed JI No. 4.
As a defense to Nielson's claim for damages, Union Pacific asserts that Nielson failed to mitigate his damages. As I explained in Instruction No. 5, “mitigation of damages” means taking reasonable steps to minimize one's damages. Therefore, any award of damages must be reduced by the amount a plaintiff might reasonably have avoided by taking such steps.
The second and third sentences of this paragraph paraphrase 8th Cir. MCivJI 15.70 n.6.
For Union Pacific to prove its defense of “failure to mitigate damages,” Union Pacific must prove the following by the greater weight of the evidence:
1. There was something Nielson could have done to mitigate his loss;
2. Requiring Nielson to do so was reasonable under the circumstances;
3. Nielson acted unreasonably in failing to undertake the mitigating activity; and
4. Nielson's failure to mitigate his damages resulted in some damages he would not have suffered otherwise.
As opposed to Defendant's Proposed JI No. 4, based on 3A Fed. Jury Prac. & Instr. § 155:66 (6th ed.), I have relied on the instruction approved in Niemiec v. Union Pac. R.R. Co., 449 F.3d 854, 858 n.3 (8th Cir. 2006), which is a decision Union Pacific also cites in support of its proffered instruction.
Union Pacific alleges that Nielson unreasonably failed to mitigate his damages because he failed to follow recommendations of his medical providers, failed to return to railroad work, failed to seek vocational rehabilitation assistance, or has failed to obtain other employment outside the railroad. If you find that Union Pacific has proved that Nielson has failed to take reasonable steps to minimize his damages, then your award of damages must not include any sum for any amount of damage that you find Nielson might reasonably have avoided by taking such steps.
This is Union Pacific's specification of instances of failure to mitigate damages from Defendant's Proposed JI No. 4, first element.
This sentence is the entirety of the instruction found in 8th Cir. MCivJI 15.70 n.6.
8th Cir. MCivJI 3.07.
There are rules you must follow when you go to the jury room to deliberate and return with your verdict.
First, you will select a foreperson. That person will preside over your discussions and speak for you here in court.
Second, your verdict must be the unanimous decision of all jurors. Therefore, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement, if you can do this without going against what you believe to be true. Each of you must come to your own decision, but only after you have considered all the evidence, discussed the evidence fully with your fellow jurors, and listened to the views of your fellow jurors. Do not be afraid to change your mind if the discussion persuades you that you should. On the other hand, do not come to a decision just because other jurors think it is right, or just to reach a unanimous verdict. Remember you are not for or against any party. You are judges-judges of the facts. Your only job is to study the evidence and decide what is true.
Third, during your deliberations, including during any recess taken during deliberations, you must not, directly or indirectly, communicate with or provide any information to anyone by any means or by any medium, about anything relating to this case, until I accept your verdict and discharge you from further service in this case.
Fourth, as stated in my instructions at the beginning of the trial, you may not in any manner seek out or receive any information about the case from any source other than the evidence received by the court and the law of the case I have provided to you. You are only permitted to discuss the case with your fellow jurors during deliberations because they have seen and heard the same evidence you have. In our judicial system, it is important that you are not influenced by anything or anyone outside of this courtroom. Otherwise, your decision may be based on information known only by you and not your fellow jurors or the parties in the case. This would unfairly and adversely impact the judicial process.
Fifth, if you need to communicate with me during your deliberations, send me a note signed by one or more of you. Give the note to the Courtroom Deputy or Court Security Officer, and I will answer you as soon as I can, either in writing or here in court. While you are deliberating, do not tell anyone-including me-how many jurors are voting for any side.
Sixth, nothing I have said or done was meant to suggest what I think your verdict should be. The verdict is entirely up to you.
Finally, the verdict form is your written decision in this case. You will take this verdict form to the jury room, and when you have all agreed on the verdict, your foreperson will fill in the form, sign and date it, and tell the Courtroom Deputy or Court Security Officer that you are ready to return to the courtroom.