CLOSING INSTRUCTIONS I. GENERAL CLOSING INSTRUCTIONS Members of the jury, it is now time for me to tell you the law that applies to this case. As I mentioned at the beginning of the trial, you must keep an open mind and you must follow the law as I state it to you. II. SPECIFIC AND DETAILED INSTRUCTIONS BURDEN OF PROOF To prevail, a plaintiff in an asbestos case must show, by a preponderance of the evidence, that he was exposed to asbestos from the defendant s products, premises and/or activities and that he received an injury that was substantially caused by the exposure. When multiple causes of injury are present, a defendant s conduct is a cause in fact if it is a substantial factor generating plaintiff s harm. A substantial contributing factor is one that is not merely trivial. Every non-trivial exposure to asbestos contributes to and constitutes a cause of mesothelioma. The plaintiff has met his burden of proof only if he has shown that it is more probable than not that exposure to asbestos from a particular product in fact caused Plaintiff s injury or illness, and he may not recover damages other than those caused by his proven exposures. A person may develop an asbestos-related disease, such as mesothelioma, from his exposure to asbestos-containing products manufactured by several different companies, from exposure to asbestos on several different premises, or as a result of several different companies activities. That is, the conduct of two or more persons may operate either independently or together to cause an injury and damages, and in such a case each may be a substantial contributing factor. In order to constitute a substantial contributing factor, exposure on a particular Page 1 of 11
defendant's premises or to a product supplied or used by a particular defendant does not have to be the sole cause of the plaintiff s injury. BURDEN OF PROOF MULTIPLE DEFENDANTS A plaintiff s burden of proof against multiple defendants in a long latency case is not relaxed or reduced because of the degree of difficulty that might ensue in proving the contribution of each defendant s product to the plaintiff s injury. Thus, in an asbestos case, the claimant must show that he had sufficient exposure to the product complained of to the extent that it was a substantial factor in bringing about his injury. There are also other companies or persons whose fault is relevant to the determination of the liability of the defendants. In deciding who, if anyone, was responsible for plaintiff s injuries, you do not have to limit your inquiry to the parties present in court. If you should find that any defendant is liable to plaintiff you must also consider the fault of any other companies or persons in causing his injury and determine the extent to which the asbestos products of these companies contributed to the illness, if any, of the plaintiff. Where the concurrent or successive acts or omissions of two or more persons, although acting independently of each other, are in combination, the direct cause of a single injury to a third person, and it is impossible to determine in what proportion each contributed to the injury, either is responsible for the whole injury, even though his act alone might not have caused the entire injury, or the same damage which might have resulted from the act of the other. PRODUCTS LIABILITY In this case, Plaintiff contends that a defective thing within a Defendant s custody caused the Plaintiff s injuries. This type of claim is known as strict liability. The standard is: We are responsible, not only for the damages occasioned by our own act, but for that which is caused by the act of persons for Page 2 of 11
whom we are answerable, or for things which we have in our custody. In interpreting this standard, the courts have determined that when damage results from a defect in a thing which creates an unreasonable risk of harm to others, the entity or person legally responsible for the custody of that thing may be held liable for damages which are caused, even though no personal negligent act or inattention on the entity s part is proved. In order to recover under this theory, Plaintiff must prove by a preponderance of the evidence that the Defendant had within its care, custody, or control, a defective thing which caused damages through its defect. More specifically, the Plaintiff must show that, at the time of the exposure, (1) the Defendant had care, custody, and control of a defective thing; (2) that the defective thing created an unreasonable risk of harm; and (3) that the defective thing caused damages to the Plaintiff. If Plaintiff proves these elements by a preponderance of the evidence, a defendant can only escape liability by showing that some third person or other entity someone besides themselves solely caused the Plaintiff s injuries. PRODUCTS LIABILITY UNREASONABLY DANGEROUS PER SE Plaintiff claims that the products manufactured or sold by certain defendants were unreasonably dangerous per se. This requires the plaintiff to prove that his harm resulted from the condition of the product, the condition made the product unreasonably dangerous for normal use, and the condition existed at the time the product left the defendants control. A defendant may be liable even though it exercised all possible care in the manufacture or sale of the product. Thus, liability may be imposed solely on the basis of the intrinsic characteristics of the product irrespective of the defendants Page 3 of 11
intent, knowledge, or conduct. If the plaintiff proves that the product was unreasonably dangerous per se, a defendant may be held liable for injuries caused by that product, although the defendant did not know and reasonably could not have known of the danger. This theory considers the product s danger-in-fact, not whether the manufacturer perceived or could have perceived the danger, because the theory s purpose is to evaluate the product itself, not the manufacturer s conduct. Likewise, the benefits are those actually found to flow from the use of the product, rather than as perceived at the time the product was designed and marketed. The fact that a risk or hazard related to the use of a product was not discoverable under existing technology or that the benefits appeared greater than they actually were are both irrelevant. PRODUCTS LIABILITY DESIGN DEFECT Plaintiff claims that the product sold, supplied, installed and/or removed by certain defendants was unreasonably dangerous due to a defective design. This requires the plaintiff to prove that his harm resulted from the condition of the product; the condition made the product unreasonably dangerous for normal use, and the condition existed at the time the product left the defendant's control. A product is unreasonably dangerous when it is dangerous to an extent beyond that which would be contemplated by an ordinary consumer or user. A product may be unreasonably dangerous because of its design for any one of three reasons: (1) a reasonable person would conclude that the danger-in-fact, whether foreseeable or not, outweighs the utility of the product; or (2) although balancing under the risk-utility test leads to the conclusion that the product is not unreasonably dangerous per se, alternative products were available to serve the same needs or desires with less risk of harm; or (3) although the utility of the product outweighs its danger-in-fact, there was a feasible way to design the product with less harmful Page 4 of 11
consequences. With regard to the failure to use alternative products or designs, the defendants are held to the standard of knowledge, skill and care of an expert, including the duty to test, inspect, research, and experiment commensurate with the danger. PRODUCTS LIABILITY FAILURE TO WARN Although a product is not unreasonably dangerous per se, it may still be a defective product if the manufacturer fails to adequately warn about a danger related to the way the product is used. The manufacturer is required to provide an adequate warning of any danger inherent in the normal use of its product, which is not within the knowledge of, or obvious to, the ordinary user. In performing this duty, a manufacturer is held to the knowledge and skill of an expert. It must keep abreast of scientific knowledge, discoveries, and advances, and is presumed to know what is imported thereby. Whether a particular warning was adequate depends on all relevant considerations including the severity of the danger, the likelihood of successful communication of the warning to foreseeable consumers, the intensity and form of the warning, and the cost of improving the strength or mode of the warning. DUTY OF CARE MANUFACTURER A manufacturer is required to provide an adequate warning of any danger inherent in the normal use of its product which is not within the knowledge of or obvious to the ordinary user. In performing this duty a manufacturer is held to the knowledge and skill of an expert. It must keep abreast of scientific knowledge, discoveries, and advances and is presumed to know what is imparted thereby. A manufacturer also has a duty to test and inspect its product, and the extent of research and experiment must be commensurate with the dangers involved. Page 5 of 11
Further, in order to establish liability on the part of a manufacturer or distributor for an asbestos-related disease, it is also insufficient to simply show that the product contained asbestos; rather the burden is to show that the product released asbestos dust or fibers that were inhaled by plaintiff and that this exposure was a substantial factor in bringing about the injury. If Plaintiff s exposure to a particular product was not a substantial factor in causing the harm, it was not a cause-in-fact of the harm. If the dangers of asbestos were known to one manufacturer at the time of the Plaintiff s exposure, then the same risks were scientifically discoverable by other corporations. A manufacturer is presumed to have knowledge of the hazard if it appears in the scientific literature. A manufacturer also has a duty to test and inspect its product, and the extent of research and experiment must be commensurate with the dangers involved. Neither custom nor usage in manufacturing style, nor prolonged marketing can excuse the Defendants from liability for injury resulting from defects in their products. Louisiana does not hold a manufacturer to be compelled to warn sophisticated purchasers of dangers of which the buyer either knows or should be aware. DUTY OF CARE EMPLOYER An employer owes a duty to provide its employees with a reasonably safe place to work. This duty can be delegated by the employer to its officers, agents, supervisors and/or employees. That duty is breached when that individual fails to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances, whether the failure results from not acting upon actual knowledge of a risk creating an unsafe condition or from a lack of ordinary care in discovering and avoiding a risk creating an unsafe condition. An individual officer, agent, supervisor or employee will be personally liable if it is Page 6 of 11
shown that the individual had a duty to provide the decedent a safe place to work and that the breach of the duty caused a plaintiff's damages. Thus, when an employer's officer, agent, supervisor or employee negligently breaches the duty of care owed to an employee, that individual is liable for any resulting risk of harm. Whether or not employers are in fact aware of each OSHA regulation and fully understand it, they are charged with this knowledge and are responsible for compliance. NEGLIGENCE Malice, ill will and intent are not necessary elements of negligence. Thus, you may find that the defendants were negligent, even though you believe that the defendants did not act out of malice, willfulness or intent. III. ELEMENTS OF NEGLIGENCE The plaintiffs have the burden of proving the following elements by a preponderance of the evidence, which means that the facts the plaintiff is seeking to prove are more likely true than not true. He has to demonstrate: (1) that the injury which they claim to have suffered was caused in whole or in part by the conduct of the defendant(s); (2) that the conduct of the defendant(s) was below the standards which I have told you are applicable to the defendant's(s ) conduct; and (3) that there was damage to the plaintiff's(s ) person or his property. If you believe that the plaintiffs have established that these three elements are more likely true than not true, then the plaintiffs are entitled to recover and you Page 7 of 11
should return a verdict for the plaintiffs. If plaintiffs have failed to establish that these three elements of their case are more likely true than not true, then you should return a verdict for the defendant(s). DAMAGES If you decide to return a verdict for the plaintiff, then you should award an appropriate amount of money to the plaintiff. A defendant can only be held liable for those damages caused by his fault. The assessment of damages is in the discretion of the jury. You are not allowed, nor can you award damages for the sake of punishing a defendant or to make an example of it. Should you find damages are due plaintiffs, then your verdict must be limited to the amount of actual proven loss sustained by them. Statements of any attorney in this case as to his or his estimate of dollar amounts to be awarded for pain and suffering, mental anguish, and similar claims are not evidence. The determination of damages is solely your function and must be based on competent evidence, not upon figures suggested by any attorney. a) DEFINITIONS: GENERAL In determining an award, you should consider general damages. By general damages, we mean a sum of money which you feel would fairly compensate the plaintiff for his/her pain, suffering, and mental anguish. In determining an award for general damages, you are vested with much discretion. Again, the plaintiff must prove general damages, either past or future, by a preponderance of the evidence. IV. LOSS OF CONSORTIUM Elizabeth B. Mueller and Pamela M. Flynn have claimed damages for loss of consortium due to Donald A. Mueller s injuries. If you determine that such an award is appropriate, you should consider the following factors in determining such an award: (1) loss of love and affection; (2) loss of society; (3) decreased Page 8 of 11
ability to perform material household services; (4) loss of support; (5) decreased aid or assistance from plaintiff; and (6) loss of felicity, or overall contentment and happiness. V. DETERMINING DAMAGES You may not decide on a percentage of fault or an amount of damages by agreeing in advance to an average of various amounts suggested by individual jurors. You must reach these conclusions by your own independent consideration and judgment. Nine of you must ultimately agree on the percentage or the amount in question, or on a denial of an award altogether. VI. DELIBERATION PROCESS Ladies and Gentlemen, I ve told you the law that you must use to decide this case. You should not treat my instructions as indicating which party is entitled to a verdict in this case. When you leave the courtroom to deliberate, you may take with you, if you wish, a complete copy of all of my instructions to you, or you may ask for a copy to be sent to you later. You may also ask to have in the jury room any document or object that has been admitted into evidence, if a physical examination of that document or object will help you reach a verdict. Remember that I told you at the beginning of the trial that you were not to discuss the case among yourselves. I now remove that restriction. You should now consult with one another and deliberate with a view toward reaching agreement on a fair and impartial verdict. You each must decide the case for yourself. But you should do so only after a consideration of the case with your fellow jurors, and you should not hesitate to change an opinion when you are convinced that you re wrong. However, don t be influenced to vote in any way on any issue by the fact that a majority of your fellow jurors favor a certain point of Page 9 of 11
view. In other words, don t surrender your honest convictions for the mere purpose of returning a verdict or solely because of the opinion of the other jurors. It s usually not a good idea for you as a juror, when you first enter the jury room, to make an emphatic expression of your opinion on the case or announce a determination to hold out for a certain verdict. When you do that at the outset, your sense of pride may be at issue, and you may hesitate to back down from an announced position, even if you re shown to be wrong. Remember that you aren t advocates in this matter, but rather you re judges. The final test of the quality of your service will be in the verdict which you return, not in the opinions any of you may hold as you go to the jury room. Your contribution to the judicial system will be to arrive at an impartial verdict. To that end, I remind you that in your deliberations there can be no triumph except to find and declare the truth. You are being asked to return a verdict in this case by answering certain specific questions which will be posed to you. Louisiana law requires that nine or more of you agree in order to answer a question on this jury verdict form. When nine or more of you agree about a question you have to answer, that should end your deliberation on that question. You should consider each question separately. The same nine jurors do not have to agree on every question, but nine of you do have to agree on each separate question. When you have answered all the questions, your job is done. The first thing you should do when you go to the jury room is to choose a person to represent you in returning the verdict. When you have reached a verdict, your representative will record that verdict in its entirety on the appropriate form. He or she should then sign the form, date it and notify the bailiff that you have reached a verdict. Each of you should keep the jury verdict forms that you have been given and should record your own vote on each question, since I may decide to poll the jury to find out how each of you voted on each question. Page 10 of 11
If you recess during your deliberations, or if your deliberations should last more than one day, you must follow all of the instructions that I have given you about your conduct during the trial. Don t discuss the case with anyone outside of the jury room, even another juror. Discuss the case with your fellow jurors only in the jury room and only when all of your fellow jurors are present. If you want to send a message to me at any time, give a written message or question to the staff member, who will be nearby, and he will bring it to me. I will then respond as promptly as possible by having you come back into the courtroom. I have to tell the lawyers what your message or question is and what my reply is going to be before I answer your question. At this time, I dismiss the alternate jurors who are not allowed to participate in deliberations, and I thank them very much for their service. Members of the jury, you will now retire to deliberate. Please follow the directions of the Court staff as you leave. Page 11 of 11