The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
TRANSMITTAL TO PARTIES OF TRIAL DOCUMENTS
On May 26, 2009, the parties submitted separate proposed jury instructions, some of which are on claims not preserved for trial in the Final Pretrial Order. Attached are proposed jury instructions for the claims preserved for trial in the Final Pretrial Order. "A pre-trial order... supersedes the pleadings under Fed. R. Civ. P. 16 and controls the subsequent course of the action." Donovan v. Crisostomo, 689 F.2d 869, 875 (9th Cir. 1982)(quotation omitted). "Issues not preserved in the pretrial order are eliminated from the action." Hotel Emp., et al. Health Tr. VV. Elks Lodge, 1450, 827 F.2d 1324, 1329 (9th Cir. 1987).
The CERCLA issue is still being considered since it is questionable whether the proposed CERCLA instruction is clear and adequate. No damage instructions are included because none was submitted.
The parties shall meet and confer on proposed damage instructions and shall file proposed damage instructions no later than 10:00 a.m. on June 8, 2009.
Also attached are voir dire matters and a proposed verdict form.
Members of the Jury: Now that you have heard all of the evidence and the arguments of the attorneys, it is my duty to instruct you as to the law of the case.
A copy of these instructions will be sent with you to the jury room when you deliberate.
You must not infer from these instructions or from anything I may say or do as indicating that I have an opinion regarding the evidence of what your verdict should be.
It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. And you must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath to do so.
In following my instructions, you must follow all of them and not single out some and ignore others; they are all important.
I will now say a few words about your conduct as jurors.
First, you are not to discuss this case with anyone, including members of your family, people involved in the trial, or anyone else; this includes discussing the case in internet chat rooms or through internet "blogs," internet bulletin boards or e-mails. Nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case, please let me know about it immediately;
Second, do not read or listen to any news stories, articles, radio, television, or online reports about the case or about anyone who has anything to do with it;
Third, do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials, and do not make any investigation about the case on your own;
Fourth, if you need to communicate with me simply give a signed note to the courtroom duty clerk to give to me; and
Fifth, do not make up your mind about what the verdict should be until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence. Keep an open mind until then.
Finally, until this case is given to you for your deliberation and verdict, you are not to discuss the case with your fellow jurors.
From time to time during the trial, it may become necessary for me to talk with the attorneys out of the hearing of the jury, either by having a conference at the bench when the jury is present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is not to keep relevant information from you, but to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion and error.
Of course, we will do what we can to keep the number and length of these conferences to a minimum. I may not always grant an attorney's request for a conference. Do not consider my granting or denying a request for a conference as any indication of my opinion of the case or of what your verdict should be.
You should decide the case as to each party separately. Unless otherwise stated, the instructions apply to all parties.
The evidence you are to consider in deciding what the facts are consists of:
1. The sworn testimony of any witness;
2. The exhibits which are received into evidence; and
3. Any facts to which the lawyers have agreed.
In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you:
(1) Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they have said in their opening statements, will say in their closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls.
(2) Questions and objections by lawyers are not evidence. Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by the court's ruling on it.
(3) Testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. In addition sometimes testimony and exhibits are received only for a limited purpose; when I give a limiting instruction, you must follow it.
(4) Anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial.
Some evidence may be admitted for a limited purpose only.
When I instruct you that an item of evidence has been admitted for a limited purpose, you must consider it only for that limited purpose and for no other.
Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either ...