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Eddie Horner v. Paneltech International

September 26, 2012




Final Instruction 1

Members of the Jury: Now that you have heard all of the evidence and the arguments of the parties, 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 or what your verdict should be.

It is your duty to find the facts from all the evidence in the case. You, and you alone, are the judges of the facts. You must decide what the facts are and then apply those facts to the law which I will give 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 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. Final Instruction 2

You are the sole judges of the evidence in this case and it is up to you to evaluate the witnesses and other evidence. You are to perform this duty without bias, sympathy, prejudice, or what you think public opinion might be. You must impartially consider all the evidence in the case, following the law as stated in these instructions.

Final Instruction 3

All persons stand equal before the law, and are to be dealt with as equals in a court of justice.

Paneltech is a party to this suit. It is entitled to the same fair and impartial treatment you would give to an individual. You must decide this case with the same fairness you would use if you were deciding the case between individuals.

When I say "person" in these instructions, the term includes Paneltech, CORP, and Roseburg Forest Products.

Final Instruction 4

You should not necessarily decide any issue of fact in favor of the side that brought more witnesses or evidence at trial.

The test is which evidence convinces you because it is most believable.

In deciding contested issues, you should keep in mind who has the burden of proof on that issue.

Final Instruction 5

The evidence in this case consists of the sworn testimony of the witnesses, both live testimony and that presented by videotaped deposition, all exhibits received into evidence, the attorneys' stipulations and any admissions and answers to interrogatories, which were read to you 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 the attorneys are not evidence. The attorneys are not witnesses. What the attorneys have said in their opening statements, or 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 they have stated them, your memory of them controls.

(2) Questions and objections by the attorneys 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.

(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.

Final Instruction No. 6

The parties have agreed to certain facts that have been read to you. You should therefore treat these facts as having been proven.

Final Instruction 7

A deposition is the sworn testimony of a witness taken before trial. The witness is placed under oath to tell the truth and lawyers for each party may ask questions. The questions and answers are recorded. In some circumstances, the deposition of that person may be used at trial.

The parties took the depositions of Francis Bureau, Mark Montoure, Lynne Busse, Mark Knudtson, Carl Bowden, Scott Olmstead, Joshua Grundy, Thomas Mitchell, Jack Saunders, M.D., and Scott Durbin, D.C. Portions of each video deposition were played and became part of the record of this trial. You should consider deposition testimony presented in lieu of live testimony, insofar as possible, in the same way as if the witness had been present to testify. The court did not rule on any objections you may have heard in the depositions as these objections were not renewed at trial.

Final Instruction No. 8

Counsel has read certain admissions Paneltech made before trial. Take the facts stated in these admissions as true for purposes of this case.

Final Instruction No. 9

During trial counsel have shown you materials to help explain testimony in the case. If they have been admitted into evidence, you will be able to review them if you desire during your deliberations.

Other materials you have seen were not admitted into evidence and so will not be available for your review during deliberations. You may consider the testimony given in connection with those materials.

Final Instruction 10

There are two kinds of evidence, direct and circumstantial. A witness testifying to having actual knowledge of a fact and documents received in evidence constitute direct evidence. Circumstantial evidence is a chain of evidence from which you could find that another fact exists, even though no one directly testified as to that fact.

How much you believe evidence should not depend on whether it is direct or circumstantial, but on whether the evidence is trustworthy and reliable. For that reason, you may find a fact has been proven by circumstantial evidence if that conclusion seems reasonable to you.

Final Instruction 11

In deciding what the facts are, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it.

In considering the testimony of any witness, you may take into account any number of factors, which may include the following:

1. Was the witness able to see, hear or know the things about which the witness testified?

2. How good is the witness's memory and is the witness able to testify clearly?

3. Was the witness's manner while testifying straightforward and convincing, or evasive and unconvincing?

4. Did the witness have an interest in the outcome of the case or any bias or prejudice concerning anyone or anything that mattered in the case, and if so, did that interest or bias affect the testimony?

5. How reasonable was the witness's testimony when you consider it in light of all the other evidence in the case?

6. Was the witness's testimony contradicted by what that witness said or did at another time, or by the testimony of other believable witnesses or evidence?

7. Did the witness knowingly testify falsely about a material subject? If so, you may distrust the witness' additional testimony, but it is up to you to give it the credibility you think it deserves.

8. Are there any other factors that bear on believability?

In deciding whether or not to believe a witness, remember that people sometimes forget things or sometimes get confused.

Also remember that the weight of evidence as to a fact does not necessarily depend on the number of witnesses who testify about it.

Final Instruction No. 12

A chain binder has been admitted into evidence. As you have heard, this is not the binder at issue in this case, but rather was provided by Paneltech employee Francis Bureau in connection with the deposition taken in this case.

Final Instruction No. 13

Some witnesses, because of education or experience, are permitted to state opinions and the reasons for those opinions. These witnesses may be asked questions that are based on assumed facts. These are sometimes called "hypothetical questions."

Opinion testimony should be judged just like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness's education and experience, the reasons given for the opinion, and all the other evidence in the case. In determining the weight to give to opinion testimony that is based on the assumed facts, you should consider whether the assumed facts are true.

Final Instruction 14

The party having the burden of proof on an issue must prove it by a "preponderance of the evidence."

Proof by a preponderance of the evidence means the evidence is more convincing and more probably true than not. If the evidence as to any issue is evenly balanced, your finding upon that issue must be against the party who had the burden of proving it.

In determining whether an issue has been proved by a preponderance of the evidence, you should consider all the evidence having to do with that issue regardless of who produced it.

Final Instruction No. 15

Eddie Horner claims that he was harmed by Paneltech's negligence in welding and/or inspecting the chain binders on the railcar log bunks and that he was harmed by a manufacturing defect or defective design of the chain binders. Eddie Horner has the burden of proving these claims.

Paneltech denies those claims and also contends that Eddie Horner's own negligence in using a cheater bar contributed to his harm. In addition, it contends that Central Oregon & Pacific Railroad, or CORP, was negligent in welding and/or inspecting the chain binders and that Roseburg Forest Products was negligent in training Eddie Horner and that this negligence was a ...

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