UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
CHERYL LINDSEY SEELHOFF,
a married woman,
Plaintiff, Tacoma, Washington
vs.
PAT and SUE WELCH,
husband and wife,
Defendants.
Docket No. C97-5383FDB
Tacoma, Washington
September 8, 1998
Trial
Volume 6
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE FRANKLIN D. BURGESS
UNITED STATES DISTRICT JUDGE, and a Jury.
APPEARANCES:
For the Plaintiff:
BARBARA J. DUFFY
GWENDOLYN PAYTON KLEIN
Lane Powell Spears Lubersky
1420 Fifth Avenue, Suite 4100
Seattle, Washington 98101-2338
For the Defendants:
RUDY R. LACHENMEIER
LORI DeDOBBELAERE
Lachenmeier, Enloe & Rall
9600 S.W. Capitol Highway
Portland, Oregon 97219
Court Reporter: Teri Hendrix
Union Station Courthouse, Room 3100
1717 Pacific Avenue
Tacoma, Washington 98402
(253) 593-6545
Proceedings recorded by mechanical stenography, transcript
produced by Reporter on computer.
Excerpt from transcripts Volume 6, September 8, 1998 Pages 1091-1317
How to use these documents.
A complete copy of the transcript are availble on an independent web site.
http://members.aol.com/Hsingcase/index.html
(Link provide by permission)
Documents can be ordered by writing to:
US District Court
Western District of Washington
P.O. Box 1935
Tacoma, Washington 98401
1254
1 THE COURT: All right.
2 Will you be using any charts or various things?
3 MS. DUFFY: No.
4 THE COURT: All right, let's do this because
5 Mr. Lachenmeier has indicated he's going to use some things,
6 let's get it back a little bit so I can see what's going on so I
7 don't get completely blocked out, so let's move it back in terms
8 of -- how is that right there?
9 MS. DUFFY: That is fine by me, Your Honor.
10 THE COURT: All right, then let's leave it there.
11 All right, are we ready? Ms. Duffy?
12 MS. DUFFY: Yes, Your Honor.
13 THE COURT: All right. Let me also remind you that the
14 time will start once you are asked to give your argument, so if
15 you know where the things are you want to utilize, I would
16 suggest that you put them at your fingertips so you don't lose
17 any,time in the process.
18 All right, bring them in.
19 (Jury present.)
20 All right, you may be seated.
21 Members of the jury, now you have heard all the evidence
22 that you are going to hear in this case. It is my duty to
23 instruct you on the law which applies to this case. You will
24 have a copy of these instructions in the jury room. You will
25 also have the exhibits received into evidence.
1255
1 It is your duty to find the facts from all the evidence in
2 the case. To those facts you will apply the law as I give it to
3 you whether you agree with it or not. You must not be
4 influenced by any personal likes or dislikes, opinions,
5 prejudices, or sympathy. This means that you must decide the
6 case solely on the evidence before you, and according to the
7 law. You will recall that you took an oath promising to do so
8 at the beginning of this case.
9 In following my instructions, you must follow all of them
10 and not single out some and ignore others; they are all equally
11 important. And you are not to read into these instructions or
12 into anything I may have said or done any suggestion as to what
13 verdict you should return -- that is a matter entirely f or you
14 to decide.
15 The evidence from which you are to decide what the facts are
16 consist of (1) the sworn testimony of witnesses, on both direct
17 and cross-examination, regardless of who called the witness; (2)
18 the exhibits which have been received into evidence; and (3)
19 any facts to which all the lawyers have agreed.
20 You have heard testimony in the form of depositions.
21 Testimony given in this manner is entitled to the same
22 consideration, and is to be judged by you as to credibility and
23 weight, as if the witness were testifying in person.
24 Certain things that happen during a trial do not constitute
25 evidence. You may not consider them in deciding what the facts
1256
1 are. I will list them for you:
2 1. Arguments and statements by lawyers are not evidence.
3 The lawyers are not witnesses. What they have said in their
4 opening statements, closing arguments, and at other times is
5 intended to help you interpret the evidence, but it is not
6 evidence. If the facts as you remember them differ from the way
7 the lawyers have stated them, your memory of them controls.
8 2. Questions and objections by lawyers are not evidence.
9 Attorneys have a duty to their clients to object when they
10 believe a question is improper under the rules of evidence. You
11 should not be influenced by the objection or by the Court's
12 ruling on it.
13 3. Testimony that has been excluded or stricken, or that
14 you have been instructed to disregard, is not evidence and must
15 not be considered. If testimony or exhibits have been received
16 only for a limited purpose, you must follow the limiting
17 instructions I have given.
18 4. Anything you may have seen or heard when the Court was
19 not in session is not evidence.
20 There are two kinds of evidence, direct and circumstantial.
21 Direct evidence is direct proof of a fact, such as the testimony
22 of an eyewitness. Circumstantial evidence is indirect proof,
23 that is, proof of a chain of facts from which you could find
24 another fact exists, even though it has not been proved
25 directly. You may consider both kinds of evidence. The law
1257
1 permits you to give equal weight to both, but it is for you to
2 decide how much weight to give any evidence. In making that
3 decision, you should consider all the proof in light of reason,
4 common sense, and experience.
5 In deciding what the facts are in this case, you must decide
6 which testimony to believe and which testimony not to believe.
7 You may believe all or any part of any witness's testimony. In
8 making that decision, you may take into account a number of
9 factors including these:
10 1. Was the witness able to see, or hear, or know things
11 about which that witness testified?
12 2. How well was the witness able to recall and describe
13 those things?
14 3. What was the witness's manner while testifying?
15 4. Did the witness have an interest in the outcome of this
16 case or any bias or prejudice concerning any party or any matter
17 involved in the case?
18 5. How reasonable was the witness's testimony considered in
19 light of the other evidence?
20 5. Was the witness's testimony contradicted by what he or
21 she has said or done at another time, or by the testimony of
22 other witnesses, or by other evidence?
23 In deciding whether or not to believe a witness, keep in
24 mind that people sometimes forget things. You need to consider
25 whether a contradiction is an innocent lapse of memory or an
1258
1 intentional falsehood, and that may depend on whether it has to
2 do with an important fact or with only a small detail.
3 The weight of the evidence does not necessarily depend on
4 the number of witnesses testifying on one side or the other.
5 These are some of the factors you may consider in deciding
6 whether to believe testimony.
7 Certain charts and summaries have been shown to you or have
8 been received into evidence to illustrate facts brought out in
9 testimony in the trial. Charts and summaries are only as good
10 as the underlying evidence that supports them. You should,
11 therefore, give them only such weight as you think the
12 underlying evidence deserves.
13 When it is said that a party has the burden of proof on any
14 claim or that a claim must be proved by a "preponderance" of the
15 evidence, or if the expression "if you find" is used, it means
16 you must be persuaded, considering all of the evidence in the
17 case, that the claim is more probably true than not true.
18 Plaintiff Cheryl Lindsey Seelhoff brings this federal
19 antitrust lawsuit, under the Sherman Act, against the defendants
20 Pat and Sue Welch to recover compensation for damages allegedly
21 sustained by plaintiff to her business and property as a result
22 of alleged violations by the defendants of the antitrust laws of
23 the United States. Plaintiff asserts the following claims:
24 First: That the defendants Pat and Sue Welch acting in
25 concert and for the benefit of their marital community, combined
1259
1 and conspired with others to eliminate plaintiff's Gentle Spirit
2 magazine, and their act have unreasonably restrained interstate
3 trade and commerce in the homeschool publishing industry in
4 violation of federal law.
5 Second: That the defendants' activities were intended to
6 harm competition and have proximately caused damage to the
7 plaintiff's business and property.
8 Defendants deny these claims and, further, deny the nature
9 and extent of plaintiff's claimed damages.
10 The foregoing is merely a summary of the claims and defenses
11 of the parties. You are not to take the same as proof of the
12 matter alleged unless admitted by the opposing party, and you
13 are to consider only those matters that are admitted or
14 established by the evidence. These claims and defenses have
15 been outlined solely to aid you in understanding the issues.
16 The purpose of the Sherman Antitrust Act is to preserve and
17 advance our system of free, competitive enterprise; to
18 encourage, to the fullest extent practicable, free and open
19 competition in the marketplace; and to prevent the
20 accomplishment of a monopoly in any business or industry.
21 Section 1 of the Sherman Antitrust Act (15 USCA S 1],
22 dealing with restraints of trade, provides that:
23 "Every contract, combination or conspiracy, in restraint of
24 trade or commerce is illegal
25 So, any unreasonable interference, by contract, or
1260
1 combination, or conspiracy, with the ordinary, usual and
2 freely-competitive pricing or distribution system of the open
3 market in interstate trade and commerce, constitutes an
4 unreasonable restraint of interstate trade, and is a violation
5 of the Federal antitrust laws.
6 To establish that the defendants violated the Sherman Act,
7 the plaintiff has the burden of proving each of the following
8 propositions:
9 (1) an agreement, conspiracy, or combination among two or
10 more persons;
11 (2) that is specifically intended to harm unreasonably or
12 restrain competition;
13 (3) that one or more of the defendants' acts was in
14 furtherance of an agreement, conspiracy or combination; and
15 (4) that defendants acts actually caused injury to
16 competition within the field of commerce in which the plaintiff
17 is engaged.
18 If you find from your consideration of all of the evidence
19 that the plaintiff has proved each of these propositions, your
20 verdict should be for the plaintiff. On the other hand, if any
21 of these propositions has not been proved, your verdict should
22 be for the defendants.
23 A "conspiracy" is a combination of two or more persons by
24 concerted action to accomplish some unlawful purpose, or to
25 accomplish some lawful purpose by. unlawful means. So, a
1261
I conspiracy is a kind of partnership, in which each member
2 becomes the agent of every other member. The essence of a
3 conspiracy is a combination or agreement to violate or to
4 disregard the law.
5 Mere similarity of conduct among various persons, and the
6 fact that they may have associated with each other, and may have
7 assembled together and discussed common aims and interests, does
8 not necessarily establish proof of the existence of a
9 conspiracy.
10 However, the evidence in this case need not show that the
11 members entered into any express or formal agreement, or that
12 they directly, by words spoken or in writing, stated between
13 themselves that their object or purpose was to be, or the
14 details thereof, or the means by which the object or purpose was
15 to be accomplished. What a preponderance of the evidence in the
16 case must show, in order to establish proof that a conspiracy
17 existed, is that the members in some way or manner, or through
18 some contrivance, positively or tacitly came to a mutual
19 understanding to try to accomplish a common and unlawful plan.
20 The evidence in the case need not show that all the means or
21 methods alleged by plaintiff were agreed upon to carry out the
22 alleged conspiracy; nor that all means or methods which were
23 agreed upon were actually used or put into operation; nor that
24 all persons alleged to have been members of the claimed
25 conspiracy were members. What plaintiff must show by a
1262
1 preponderance of the evidence in this case is that the alleged
2 conspiracy was formed; and that one or more of the means or
3 methods described by plaintiff was agreed upon to be used in an
4 effort to effect or accomplish some object or purpose of the
5 conspiracy alleged by plaintiff; and that two or more persons,
6 including one or more of the defendants, were knowingly members
7 of the conspiracy.
8 The phrase "in restraint of interstate trade" means in
9 restraint of trade and commerce which takes place between
10 persons or business organizations in the State of Washington and
11 those in another state; that is to say, trade and commerce which
12 moves or flows or takes place, not wholly within the boundaries
13 of the State of Washington, but across state lines from this
14 State into one or more other states.
15 To unlawfully restrain interstate trade and commerce means,
16 then, to interfere unreasonably with the ordinary, usual, and
17 free-competitive pricing or distribution system of the open
18 market in interstate trade and commerce. The amount, quantity
19 or value of the interstate trade or commerce involved or
20 affected by an unreasonable restraint of trade is immaterial.
21 In this lawsuit, plaintiff has alleged that the defendants
22 participated in a conspiracy with Joe and Irene Williams, Mary
23 Pride, Michael Boutot, and Gregg Harris in order to restrain
24 trade. There can be no conspiracy unless more than one person
25 is involved. But it may be that not all the persons charged
1263
1 with being conspirators are conspirators. It may be that none
2 of them is a conspirator. In order to succeed plaintiff does
3 not have to show you that both Pat and Sue Welch joined in the
4 conspiracy, but plaintiff does have to show that at least one of
5 these names defendants conspired with at least one other
6 co-conspirator. There cannot be only one conspirator. You are
7 also instructed that there cannot be a conspiracy to violate
8 antitrust laws unless you find that one of the defendants is a
9 party to the alleged conspiracy. The agreement nee& not be an
10 express or formal agreement. Plaintiff must also present
11 evidence that excludes the possibility that the defendants acted
12 independently. Plaintiff must show the following by a
13 preponderance of the evidence:
14 (1) that the alleged conspiracy was formed by two or more
15 persons, and that one or more of the defendants were members of
16 the conspiracy; and
17 (2) that one or more of the defendants, as members of the
18 conspiracy, in some way or manner, agreed as to the object or
19 purpose of the conspiracy.
20 It is not necessary for plaintiff to join as defendants in
21 this case all persons who may have participated with the
22 defendants in an alleged conspiracy or combination. A plaintiff
23 injured by such conduct may choose to enforce her right of
24 recovery against one, some, or all of those participating. So,
25 you are hereby instructed that it is immaterial, as a matter of
1264
1 law, that any other members of the alleged conspiracy may not
2 have been joined in this suit by the plaintiff.
3 If you find that there was no express agreement between the
4 defendants and others, you may, but you are not required to
5 find, that plaintiff has proved that there was an unexpressed or
6 tacit agreement among the alleged conspirators.
7 In order to prove that the alleged conspiracy was based on
8 an unexpressed or tacit agreement among one or more of the
9 defendants and others, the plaintiff must prove the following by
10 a preponderance of the evidence:
11 (1) that one or more of the defendants knew that concerted
12 action was contemplated and invited by other members of the
13 alleged conspiracy;
14 (2) that one or more of the defendants knew that others were
15 participating in the scheme; and
16 (3) that one or more of the defendants knew that his and/or
17 her cooperation was essential to the successful operation of the
18 agreement and that she and/or he intended to cooperate fully in
19 carrying out the illegal scheme.
20 The proof need not show that the members of the alleged
21 conspiracy did any act or thing to further or accomplish any
22 object or purpose of the agreement, or arrangement, or
23 understanding. Nor is it necessary for the proof to show that
24 any of the defendants actually adopted, or followed, or adhered
25 to any arrangement or list which may have been agreed upon, or
1265
1 arranged, or understood.
2 What the preponderance of the evidence in the case must
3 show, before the plaintiff is entitled to a verdict, is that the
4 conspiracy alleged was knowingly formed and existed, and that
5 one or more of the defendants knowingly became a member of such
6 conspiracy, at the inception or beginning, or afterwards during
7 the existence of the conspiracy. The success or failure of the
8 conspirators to accomplish or achieve any object or purpose of
9 the conspiracy is immaterial.
10 The acts done by one or more of the defendants or alleged
11 co-conspirators were lawful acts if not done as a result of and
12 pursuant to an unlawful contract, combination or conspiracy. In
13 determining whether or not such a conspiracy existed between one
14 or more of the defendants and one or more of the other parties
15 who refused to deal with the plaintiff, you may consider the
16 validity of the reasons which such parties have asserted for any
17 refusal to deal with the plaintiff and the surrounding
18 circumstances.
19 If those reasons seem to you not to be advanced in good
20 faith, and if they appear to you to be not the real reason for
21 any refusal of such parties to deal with the plaintiff, then
22 these are circumstances which you may take into consideration in
23 determining whether any refusal to deal with the plaintiff was
24 the result of and in pursuance of a conspiracy. On the other
25 hand, these acts may appear to you to be reasonably responsive
1266
1 to business considerations and not in pursuance of a conspiracy.
2 The question, then, is what the intent was of the defendants and
3 those named as alleged co-conspirators, and whether or not they
4 acted in an agreement pursuant to a conspiracy to refuse to deal
5 with plaintiff.
6 One may become a member of a conspiracy without full
7 knowledge of all the details of the conspiracy. On the other
8 hand, a person who has no knowledge of a conspiracy, but who
9 happens to act in a way which furthers some object or purpose of
10 the conspiracy, does not thereby become a conspirator.
11 Before the jury may find that a defendant, or any other
12 person, has become a member of a conspiracy, plaintiff must
13 demonstrate by a preponderance of the evidence that the
14 conspiracy was knowingly formed, and that a defendant, or other
15 person who is claimed to have been a member knowingly
16 participated in the unlawful plan with the intent to advance or
17 further some object or purpose of the conspiracy.
18 To act or participate knowingly means to act or participate
19 voluntarily and intentionally, and not because of mistake, or
20 accident, or other innocent reason.
21 So, if a defendant, or any other person, with understanding
22 of the unlawful character of a plan, intentionally encourages,
23 advises, or assists, for the purpose of furthering the
24 undertaking or scheme, he thereby becomes a knowing
25 participant -- a conspirator.
1267
1 One who knowingly joins an existing conspiracy is charged
2 with the same responsibility as if he had been one of the
3 originators or instigators of the conspiracy.
4 In determining whether or not a defendant, or any other
5 person, was a member of a conspiracy, you are not to consider
6 what others may have said or done. That is to say, the
7 membership of a defendant, or any other person, in a conspiracy
8 must be established by evidence in the case as to his/her own
9 conduct -- by what he/she himself /herself knowingly said or did.
10 Whenever it appears from a preponderance of the evidence
11 that a conspiracy existed, and that a defendant was one of the
12 members, then the statements made and the acts by any person
13 likewise you have found to be a member of the conspiracy, may be
14 considered by you as evidence in the case as to the defendant
15 found to have been a member, even though the statements and acts
16 may have occurred in the absence and without the knowledge of
17 the defendant; provided such statements and acts were knowingly
18 made and done during the continuance of such conspiracy, and in
19 furtherance of some object or purpose of the conspiracy.
20 The proof need not show knowledge of the defendants that a
21 particular act or failure to act is a violation of the federal
22 antitrust laws. Every person is charged with knowing what the
23 law forbids, and what the law requires to be done. A claim of
24 good motives, like a claim or ignorance of the law, cannot
25 justify or excuse a violation of federal antitrust laws, and
1268
1 would be no defense in this case.
2 If you find by a preponderance of the evidence that the
3 conspiracy alleged by plaintiff was knowingly formed, and that
4 the defendants, or any of them knowingly became members of the
5 conspiracy, then the fact that the defendants may have believed,
6 in good faith, that what was being done was not unlawful would
7 not be a defense in this case.
8 The plaintiff is not entitled to recover under Section 1 of
9 the Sherman Act simply by showing that concerted activities of
10 the defendants restrained interstate commerce in some degree.
11 The plaintiff must also show that there was an unreasonable
12 restraint. The law does not define which restraints are
13 reasonable and which are not. It is for you to decide whether
14 the evidence in this case shows an unreasonable restraint, and
15 the plaintiff may not recover unless you find an unreasonable
16 restraint by a preponderance of the evidence as defined in these
17 instructions. In determining whether or not a particular
18 restraint is reasonable or unreasonable, you may consider the
19 following factors:
20 First, the nature of the particular industry involved;
21 Second, facts which are peculiar to the particular industry
22 involved;
23 Third, the nature of the restraint, and its effect, actual
24 and probable;
25 Fourth, the history of the restraint; and
1269
1 Fifth, the reasons for adopting the particular practice
2 which is alleged to be a restraint.
3 You will make your determination from consideration of all
4 of the evidence in the case including the effect on the industry
5 and the economic effects upon competition.
6 In order to show that the defendants' alleged restraint was
7 unreasonable, plaintiff must prove that the defendants'
8 activities substantially harmed competition in a relevant
9 market. The relevant market which plaintiff claims is
10 applicable is the market consisting of magazines directed at
11 homeschoolers. Plaintiff claims that the relevant market
12 included plaintiff's Gentle Spirit magazine, and defendants' The
13 Teaching Home.
14 In determining the relevant market, the "area of effective
15 competition" must be determined by reference to (1) a product
16 market, and (2) a geographic market.
17 (1) In determining the product market you must determine
18 whether plaintiff's and defendants, magazines were within a
19 single market; and
20 (2) In determining the relevant geographic market you must
21 determine the area or areas in which the plaintiffs, defendants'
22 and/or other members of the alleged conspiracy competed for
23 sales in the relevant market.
24 It is to duty of the Court to instruct you as to the measure
25 of damages. By instructing you on damages the Court does not
1270
1 mean to suggest for which party your verdict should be rendered.
2 If you find for the plaintiff, you must determine the
3 plaintiff's damages. Plaintiff Cheryl Lindsey Seelhoff has the
4 burden of proving damages by a preponderance of the evidence.
5 Damages means the amount of money which will reasonably and
6 fairly compensate plaintiff for any injury to her property
7 and/or business which you find were proximately caused by the
8 conduct of the defendants in violation of federal antitrust
9 laws.
10 You should consider the following:
11 The nature and extent of the injuries to plaintiff's
12 business or property.
13 Lost past and future profits.
14 The burden of proving damages rests upon the plaintiff. The
15 plaintiff has the burden of proving damages by a preponderance
16 of the evidence. It is for you to determine what damages, if
17 any, have been proved.
18 If you find that plaintiff has prevailed on her claim that
19 defendants, violated federal antitrust laws, and you find that
20 the plaintiff has sustained damages but has failed to prove
21 damages over one dollar; you shall return to the plaintiff an
22 award of nominal damages in the amount of one dollar.
23 Your award must be based upon evidence and not upon
24 speculation, guesswork, or conjecture.
25 In this case, plaintiff seeks damages for lost past profits
1271
1 and lost future profits. Lost past profits are those profits
2 from Gentle Spirit magazine that the plaintiff is entitled to
3 recover as a result of defendants' antitrust violations.
4 Profits in this sense is "net" profits. This means the amount
5 by which plaintiff's gross revenues would have exceeded all of
6 the costs and expenses that would have been necessary to produce
7 revenues. In determining the amount of lost profits, you are
8 entitled to compare the plaintiff's actual net profits in a
9 period before the antitrust violation with her actual net
10 profits, or loss, after the antitrust violation.
11 Plaintiff is also seeking future profits for 10 years into
12 the future. If you find that the defendants' alleged violation
13 of federal antitrust laws has caused plaintiff to lose profits
14 she could otherwise reasonably expect to earn in the future, you
15 may award plaintiff damages for those 10 years of future
16 profits.
17 These future profits should be awarded only if you find that
18 because of defendants, violation of federal antitrust laws,
19 plaintiff was unable to earn net profits which would have
20 accrued to her based on her publication of Gentle Spirit
21 magazine, but for the conspirators' violation, and that
22 plaintiff was in fact damaged. You must make a just and
23 reasonable estimate of plaintiff's future profits based upon the
24 amount of profits, if any, plaintiff would have earned in future
25 years.
1272
1 Future profits mean net profits and are determined by
2 subtracting the costs and expenses of a business from its gross
3 revenue. The fact that a plaintiff's business may have been new
4 or unestablished is not fatal to the element of damages
5 constituting net profits.
6 You are instructed that you may consider, in determining
7 whether or not any part of plaintiff's damages constitute future
8 net profits, the uncertainty which makes the success of a new
9 business problematical, plaintiff's experience in the publishing
10 business, the competition which the plaintiff would have had in
11 (the relevant geographical area), and the general market
12 conditions in such area.
13 In determining general compensatory damages, you may
14 consider whether the plaintiff suffered any measurable loss to
15 its goodwill.
16 The goodwill of a company is an intangible business value
17 which reflects the basic human tendency to do business with a
18 merchant who offers products of the type and quality which a
19 customer desires and expects. Service to the customer and a
20 willingness to stand behind a warranty and other representations
21 about the quality of the products which are sold by a merchant
22 are all factors in the goodwill of that business.
23 The goodwill attached to a particular product or a business
24 may be symbolized in whole or in part by the consuming public's
25 acceptance and recognition of the business. The goodwill
1273
1 attached to a product is a part of the overall business value
2 which is the goodwill of the company. It is possible,
3 therefore, that the general goodwill of a business may be
4 damaged by the loss of goodwill to a particular product.
5 Whether this has occurred is a question of fact for you to
6 determine.
7 If you find that the plaintiff's goodwill has been damaged
8 either by damage to the goodwill associated with her Gentle
9 Spirit magazine or injury to its general business reputation,
10 you may assess such compensatory damages as you may find shown
11 by the evidence. The measure of the plaintiff's damages is the
12 difference between such goodwill before and after the acts of
13 the defendant.
14 Plaintiff may not recover damages for any portion of her
15 injury which she could have avoided through the exercise of
16 reasonable care and prudence. The law requires a person who
17 claims damages to "mitigate" those damages. Thus, an injured
18 party must take all reasonable steps that it can to avoid
19 further injury and thereby reduce her loss or damage.
20 If plaintiff fails to take reasonable steps and failure to
21 take those steps results in greater harm to plaintiff, plaintiff
22 may not recover damages for injury which she would have avoided
23 if she had taken reasonable steps to reduce her injury.
24 The burden of proof on this issue is on the defendants.
25 Defendants must prove by a preponderance of the evidence that
1274
1 plaintiff acted unreasonably in failing to take specific steps
2 to minimize or limit her losses, and that plaintiff's failure to
3 take those steps resulted in plaintiff's loss being greater than
4 they otherwise would have been, and the amount by which
5 plaintiff's loss would have been reduced had plaintiff taken
6 those steps to minimize the damages to her business or property.
7 When you retire to the jury room, you should elect one
8 member of the jury as your Presiding Juror. That person will
9 preside over your deliberations and speak for you here in court.
10 You will then discuss the case with your fellow jurors to
11 reach agreement if you can do so. Your verdict must be
12 unanimous.
13 Each of you must decide the case for yourself, but you
14 should do so only after you have considered all the evidence,
15 discussed it fully with the other jurors, and listened to the
16 views of your fellow jurors.
17 Do not be afraid to change your opinion if the discussion
18 persuades you that you should. But do not come to a decision
19 simply because other jurors think it is right.
20 It is important that you attempt to reach a unanimous
21 verdict but, of course, only if each of you can do so after
22 having made your conscientious decision. Do not change an
23 honest belief about the weight and effect of the evidence simply
24 to reach a verdict.
25 Some of you have taken notes during trial. Now that you are
1275
1 beginning deliberations, you may disclose and discuss your notes
2 with the other jurors if you so desire.
3 After you have reached a verdict, the Bailiff will collect
4 your pads. The notes you took will be destroyed. No one will
5 be allowed to read your notes.
6 Finally, I caution you not to assume that any particular
7 note you may have taken is necessarily more accurate than your
8 memory or the notes or memories of your fellow jurors. At all
9 times keep your minds open to the notes or memories of your
10 fellow jurors.
11 If it becomes necessary during your deliberations to
12 communicate with me, you may send a note through the Bailiff,
13 signed by your Presiding Juror, or by one or more members of the
14 jury.
15 No members of the jury should ever attempt to communicate
16 with me except by a signed writing; and I will communicate with
17 any member of the jury on anything concerning this case only in
18 open court or in writing.
19 If you send out a written question during deliberations, I
20 will contact the parties and have them return to the Courthouse.
21 1 will provide copies of your written question to the parties,
22 and consult with them before answering your question. This may
23 take some time. You may continue your deliberations while
24 waiting for the answer to any question.
25 Remember, that you are not to tell anyone -- including me -
1276
1 how the jury stands, numerically or otherwise, until after you
2 have reached a unanimous verdict or have been discharged. Do
3 not disclose any vote count in any note to the Court.
4 Please read the Special Verdict Form and the jury
5 instructions carefully. You should use the Special Verdict Form
6 as a road map for your deliberations in deciding the plaintiff's
7 claims. After you have reached a unanimous verdict, your
8 Presiding Juror will fill in, date, and sign the Special Verdict
9 Form, and advise the Court that you have reached a verdict.
10 With that, you will hear closing argument of counsel. Their
11 closing statements will be intended to help you make this
12 decision. After they have given you those presentations, then
13 all the exhibits that have been admitted and these instructions
14 will all be brought to you.
15 If you would give the attention to counsel, Ms. Duffy.
16 Plaintiff will go first, and then you will hear from defense
17 counsel second.
18 MS. DUFFY: Thank you, Your Honor, and thank you
19 members of the jury. We've watched and have seen you listening
20 carefully and taking notes. On behalf of Cheryl Lindsey
21 Seelhoff, we want to thank you for giving her your full
22 attention throughout the course of this trial.
23 Now is the time for you, a jury in a court of law, to pass
24 judgment, not on whether Cheryl Lindsey was able to live up to
25 her personal mission statement, her credo of Titus 2, the