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INTRODUCTORY INSTRUCTION
Members of the jury, | shall now instruct you on the law that you must follow in
reaching your verdict. It is your duty as jurors to decide the issues, and only those issues,
that I submit for determination by your verdict. In reaching your verdict, you should consider
and weigh the evidence, decide the disputed issues of fact, and apply the law on which }
shall instruct you, to facts as you find them from the evidence.
The evidence in this case consists of the swom testimony of the witnesses, all
exhibits received in evidence, all facts that may be admitted or agreed to by the parties.
In determining the facts, you may draw reasonable inferences from the evidence
You may make deductions and reach conclusions which reason and common sense lead
you to draw from the facts shown by the evidence in this case. But you should not speculate
on any matters outside the evidence.
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BELIEVABILITY OF WITNESSES
to be given the
In determining the betievability of any witness and the weight
nor of the witness while
testimony of any witness, you may properly consider the demea
intelligence of the witness;
testifying; the frankness or lack of frankness of the witness; the
the means and opportunity
any interest the witness may have in the outcome of the case;
d; the ability of the
the witness had to know the facts about which the witness testifie
the matters about which the witness testified; and the
witness to remember
the fight of all the evidence
reasonableness of the testimony of the witness, considered in
sense.
in the case and in the light of your own experience and common
—
BELIEVABILITY OF WITNESSES
b Expert witnesses:
You have heard opinion testimony on certain technical subjects from persons
referred to as expert witnesses.
You may accept such opinion testimony, reject it, or give it the weight you think it
deserves, considering the knowledge, skill, experience, training, or education of the
witness, the reasons given by the witness for the opinion expressed, and all the other
evidence in the case.
NEGLIGENCE ISSUES
The issues for your determination on the claim of Plaintiff, SALLY SIMON vs.
Defendant, SAMUEL ESTEPA, M.D., are:
Whether the Defendant, SAMUEL ESTEPA, M.D., was negligent in his care and
treatment of MICHAEL SIMON from July 23, 1997 through August 8, 1997, and if so,
whether such negligence was a legal cause of the death of the decedent, MICHAEL
SIMON.
GREATER HT (P ONDERANCE!
OF EVIDENCE AND BURDEN OF PROOF
If the greater weight of the evidence does not support the claim of Plaintiff, SALLY
SIMON, then your verdict should be for the Defendant, SAMUEL ESTEPA, M.D.
GREATER WEIGHT (PREPONDERANCE)
OF EVIDENCE AND BURDEN OF PROOF
ON DEFENSE ISSUE
If, however, the greater weight of the evidence does support the claim of SALLY
SIMON, then you shall consider the defenses raised by SAMUEL ESTEPA, M.D.
On the defenses, the first issues for your determination are: whether Dr. Koerper
was also negligent in his care and treatment of MICHAEL SIMON; and, if so, whether
such
negligence was a contributing legal cause of his death.
Ifthe greater weight of the evidence supports the Defendant's claim that Dr. Koerper
was negligent and that such negligence was a contributing legal cause 2f MICHAEL
SIMON’S death, then you should determine and write on the verdict form the percentage
of the total negligence that was a legal cause of MIGHAEL SIMON’S death that you charge
to Dr. Koerper. If the greater weight of the evidence does not support the Defendant's
claim that Dr. Koerper was negligent and that such negligence was a contributing legal
cause of MICHAEL SIMON’S death, then you should place a zero next to Dr. Koerper’
s
name on the verdict form.
anne —_———_
On the defenses, the second issues for your determination are: whether Dr.
Asperilia was also negligent in his care and treatment of MICHAEL SIMON; and, if so,
whether such negligence was a contributing legal cause of his death.
If the greater weight of the evidence supports the Defendant’s claim that Dr.
Asperilla was negligent and that such negligence was a contributing legal cause of
MICHAEL SIMON'S death, then you should determine and write on the verdict form the
percentage of the total negligence that was a legal cause of MICHAEL SIMON’S death that
you charge to Dr. Asperilla. If the greater weight of the evidence does not support the
Defendant's claim that Dr. Asperilia was negligent and that such negligence was a
contributing legal cause of MICHAEL SIMON'S death, then you should place a zero next
to Dr. Asperilla’s name on the verdict form.
On the defenses, the third issues for your determination are: whether Dr. Greenberg
was also negligent in his care and treatment of MICHAEL SIMON from July 23, 1997
through August 8, 1997, and, if so, whether such negligence was a contributing legal cause
of his death.
If the greater weight of the evidence supports the Defendant's claim that Dr.
Greenberg was negligent and that such negligence was a contributing legal cause of
MICHAEL SIMON’S death, then you should determine and write on the verdict form the
percentage of the total negligence that was a lega! cause of MICHAEL SIMON’S death that
you charge to Dr. Greenberg. If the greater weight of the evidence does not support the
Defendant's claim that Dr. Greenberg was negligent and that such negligence was a
contributing legal cause of MICHAEL SIMON’S death, then you should place a zero next
to Dr. Greenberg’s name on the verdict form.
GREATE! IG REPONDERANCE
OF EVIDENCE DEFINED
“Greater weight of the evidence” means the more persuasive and convincing force
and effect of the entire evidence in this case.
PROFESSI L_ NEGLIGENCE
Negligence is the failure to use reasonable care. Reasonable care on the part of a
physician is that level of care, skill and treatment which, in light of all relevant surrounding
circumstances, is recognized as acceptable and appropriate by similar and reasonably
careful physicians.
LEGAL CAUSE
PROXIMA’ CONCURRING: RVENI CAUSE
Negligence is a legal cause of loss, injury, or damage if it directly and in natural and
continuous sequence produces or contributes substantially to producing such loss,
injury,
or damage, so that it can reasonably be said that, but for the negligence, the
loss, injury,
or damage would not have occurred.
————— —
LEGAL CAUSE
(PROXIMATE, CONCURRING, INTERVENING CAUSE)
In orderto be regarded as a lega! cause of loss, injury, or damage, negligence need
not be the only cause. Negligence may be a legal cause of loss, injury, or damage even
though it operates in combination with the act of another, some natural cese, or some
other cause if such other cause occurs at the same time as the negligence and if the
negligence contributes substantially to.producing such loss, injury, or damage.
INGFI ‘COVERABLE
FOR ESTATE AND SURVIVORS: INTRODUCTION
b. When there is no issue of contributory negligence:
tf you find for the Defendant, SAMUEL ESTEPA, M_D., you will not consider the
matter of damages. But, if you find for SALLY SIMON, as personal representative of the
Estate of Michael Simon, you should award the decedent's personal representative an
amount of money that the greater weight of the evidence shows will fairly and adequately
compensate the decedent's estate and the decedent’s survivors for their damages,
including any such damages that the estate and the survivors are reasonably certain to
incur or experience in the future.
In determining any damages recoverable on behaif of the decedent's estate, you
shall consider the following elements:
In determining any damages to be awarded the decedent's personal representative
for the benefit of each of the decedent's survivors, SALLY SIMON and DANIEL SIMON, you
shall consider the following elements:
c. Medical and funeral expenses paid by survivor:
Medical or funeral expenses due to the decedent's injury or death paid by any
survivor.
In determining any damages to be awarded the decedent's personal representative
for the benefit of the decedent's surviving spouse and child, you shall consider certain
additional elements of damage for which there is no exact standard for fixing the
compensation to be awarded. Any such award should be fair and just in the light of the
evidence regarding the following elements:
f Damages of surviving spouse:
The wife's loss of the decedent's companionship and protection, and her mentat
pain and suffering as a result of the decedent’s injury and death. in determining the
duration of such losses, you may consider the joint life expectancy of the decedent and
the surviving spouse together with the other evidence in the case.
g. Damages by surviving child:
The loss by DANIEL SIMON of parental companionship, instruction and guidance,
and his mental pain and suffering as a result of the decedent’s injury and death. In
determining the duration of such losses, you may consider the joint life expectancy of the
decedent and the surviving child together with the other evidence in the case.
WRONGFUL DEATH DAMAGES OF ESTATE
AND SURVIVORS: SEPARATE FINDINGS
E SURVIVORS
Any damages that you find were sustained by the decedent's estate and by each
survivor shall be separately stated in your verdict.
_
MORTALITY TABLES
b. Personal Representative claiming damages for benefit of decedent’s estate
(6.3, 6.4 or 6.5, 6.6):
In determining how long MICHAEL SIMON would have lived, had he lived
out his normal life, you may consider his life expectancy at the time of his death. The
mortality tables received in evidence may be considered in determining how long he may
have been expected to live. Such tables are not binding on you but may be considered
together with other evidence in the case bearing on his health, age and physical condition
before his injury and death, in determining the probable length of his life.
¢. Personal Representative claiming damages for loss to survivor (6.5, 6.6):
In determining the duration of any future loss sustained by survivors, SALLY SIMON
and DANIEL SIMON, by reason of the death of MICHAEL SIMON, you may consider the
joint life expectancy of each survivor and the decedent. The joint life expectancy is that
period of time when both the decedent and a survivor would have remained alive. The
mortality tables received in evidence may be considered, together with the other evidence
in the case, in determining how long each may have been expected to live.
PREJUDICE AND SYMPATHY
In reaching your verdict, you are not to be swayed from the performance of your
duty by prejudice, sympathy or any other sentiment for or against any party. Your verdict
must be based on the evidence that has been received and the law on which | have
instructed you.
Reaching a verdict is exclusively your job. | cannot participate in that decision in any
way. You should not speculate about how | might evaluate the testimony of any witness
or any other evidence in this case, and you should not think that | prefer one verdict
over
another. Therefore, in reaching your verdict, you should not consider anything that
| have
said or done, except for my specific instructions to you.
ELECTION OF FOREMAN: VERDICT FORMS
When you retire to the jury room, you should select one of your number to act as
foreperson to preside over your deliberations and sign your verdict. Your verdict must be
unanimous, that is, your verdict must be agreed to by each of you.
You will be given one form of verdict, which | shall now read to you:
When you have agreed on your verdict, the foreperson, acting for the jury, should
date and sign the verdict form. You may now retire to consider your verdict.
So
Preview
INTRODUCTORY INSTRUCTION Members of the jury, | shall now instruct you on the law that you must follow in reaching your verdict. It is your duty as jurors to decide the issues, and only those issues, that I submit for determination by your verdict. In reaching your verdict, you should consider and weigh the evidence, decide the disputed issues of fact, and apply the law on which } shall instruct you, to facts as you find them from the evidence. The evidence in this case consists of the swom testimony of the witnesses, all exhibits received in evidence, all facts that may be admitted or agreed to by the parties. In determining the facts, you may draw reasonable inferences from the evidence You may make deductions and reach conclusions which reason and common sense lead you to draw from the facts shown by the evidence in this case. But you should not speculate on any matters outside the evidence. Charl lotte County Clerk orssoert Dare A - 16:40:18 id: 8 WO pen COUR 20CA Pa es: 0019 lo “aaa th DAE ¥ “Td “ALKIGD 2 oye 4) tA) Jn LA 1] 9S O1Y S~ das lace me q a 7 id BELIEVABILITY OF WITNESSES to be given the In determining the betievability of any witness and the weight nor of the witness while testimony of any witness, you may properly consider the demea intelligence of the witness; testifying; the frankness or lack of frankness of the witness; the the means and opportunity any interest the witness may have in the outcome of the case; d; the ability of the the witness had to know the facts about which the witness testifie the matters about which the witness testified; and the witness to remember the fight of all the evidence reasonableness of the testimony of the witness, considered in sense. in the case and in the light of your own experience and common — BELIEVABILITY OF WITNESSES b Expert witnesses: You have heard opinion testimony on certain technical subjects from persons referred to as expert witnesses. You may accept such opinion testimony, reject it, or give it the weight you think it deserves, considering the knowledge, skill, experience, training, or education of the witness, the reasons given by the witness for the opinion expressed, and all the other evidence in the case. NEGLIGENCE ISSUES The issues for your determination on the claim of Plaintiff, SALLY SIMON vs. Defendant, SAMUEL ESTEPA, M.D., are: Whether the Defendant, SAMUEL ESTEPA, M.D., was negligent in his care and treatment of MICHAEL SIMON from July 23, 1997 through August 8, 1997, and if so, whether such negligence was a legal cause of the death of the decedent, MICHAEL SIMON. GREATER HT (P ONDERANCE! OF EVIDENCE AND BURDEN OF PROOF If the greater weight of the evidence does not support the claim of Plaintiff, SALLY SIMON, then your verdict should be for the Defendant, SAMUEL ESTEPA, M.D. GREATER WEIGHT (PREPONDERANCE) OF EVIDENCE AND BURDEN OF PROOF ON DEFENSE ISSUE If, however, the greater weight of the evidence does support the claim of SALLY SIMON, then you shall consider the defenses raised by SAMUEL ESTEPA, M.D. On the defenses, the first issues for your determination are: whether Dr. Koerper was also negligent in his care and treatment of MICHAEL SIMON; and, if so, whether such negligence was a contributing legal cause of his death. Ifthe greater weight of the evidence supports the Defendant's claim that Dr. Koerper was negligent and that such negligence was a contributing legal cause 2f MICHAEL SIMON’S death, then you should determine and write on the verdict form the percentage of the total negligence that was a legal cause of MIGHAEL SIMON’S death that you charge to Dr. Koerper. If the greater weight of the evidence does not support the Defendant's claim that Dr. Koerper was negligent and that such negligence was a contributing legal cause of MICHAEL SIMON’S death, then you should place a zero next to Dr. Koerper’ s name on the verdict form. anne —_———_ On the defenses, the second issues for your determination are: whether Dr. Asperilia was also negligent in his care and treatment of MICHAEL SIMON; and, if so, whether such negligence was a contributing legal cause of his death. If the greater weight of the evidence supports the Defendant’s claim that Dr. Asperilla was negligent and that such negligence was a contributing legal cause of MICHAEL SIMON'S death, then you should determine and write on the verdict form the percentage of the total negligence that was a legal cause of MICHAEL SIMON’S death that you charge to Dr. Asperilla. If the greater weight of the evidence does not support the Defendant's claim that Dr. Asperilia was negligent and that such negligence was a contributing legal cause of MICHAEL SIMON'S death, then you should place a zero next to Dr. Asperilla’s name on the verdict form. On the defenses, the third issues for your determination are: whether Dr. Greenberg was also negligent in his care and treatment of MICHAEL SIMON from July 23, 1997 through August 8, 1997, and, if so, whether such negligence was a contributing legal cause of his death. If the greater weight of the evidence supports the Defendant's claim that Dr. Greenberg was negligent and that such negligence was a contributing legal cause of MICHAEL SIMON’S death, then you should determine and write on the verdict form the percentage of the total negligence that was a lega! cause of MICHAEL SIMON’S death that you charge to Dr. Greenberg. If the greater weight of the evidence does not support the Defendant's claim that Dr. Greenberg was negligent and that such negligence was a contributing legal cause of MICHAEL SIMON’S death, then you should place a zero next to Dr. Greenberg’s name on the verdict form. GREATE! IG REPONDERANCE OF EVIDENCE DEFINED “Greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in this case. PROFESSI L_ NEGLIGENCE Negligence is the failure to use reasonable care. Reasonable care on the part of a physician is that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by similar and reasonably careful physicians. LEGAL CAUSE PROXIMA’ CONCURRING: RVENI CAUSE Negligence is a legal cause of loss, injury, or damage if it directly and in natural and continuous sequence produces or contributes substantially to producing such loss, injury, or damage, so that it can reasonably be said that, but for the negligence, the loss, injury, or damage would not have occurred. ————— — LEGAL CAUSE (PROXIMATE, CONCURRING, INTERVENING CAUSE) In orderto be regarded as a lega! cause of loss, injury, or damage, negligence need not be the only cause. Negligence may be a legal cause of loss, injury, or damage even though it operates in combination with the act of another, some natural cese, or some other cause if such other cause occurs at the same time as the negligence and if the negligence contributes substantially to.producing such loss, injury, or damage. INGFI ‘COVERABLE FOR ESTATE AND SURVIVORS: INTRODUCTION b. When there is no issue of contributory negligence: tf you find for the Defendant, SAMUEL ESTEPA, M_D., you will not consider the matter of damages. But, if you find for SALLY SIMON, as personal representative of the Estate of Michael Simon, you should award the decedent's personal representative an amount of money that the greater weight of the evidence shows will fairly and adequately compensate the decedent's estate and the decedent’s survivors for their damages, including any such damages that the estate and the survivors are reasonably certain to incur or experience in the future. In determining any damages recoverable on behaif of the decedent's estate, you shall consider the following elements: In determining any damages to be awarded the decedent's personal representative for the benefit of each of the decedent's survivors, SALLY SIMON and DANIEL SIMON, you shall consider the following elements: c. Medical and funeral expenses paid by survivor: Medical or funeral expenses due to the decedent's injury or death paid by any survivor. In determining any damages to be awarded the decedent's personal representative for the benefit of the decedent's surviving spouse and child, you shall consider certain additional elements of damage for which there is no exact standard for fixing the compensation to be awarded. Any such award should be fair and just in the light of the evidence regarding the following elements: f Damages of surviving spouse: The wife's loss of the decedent's companionship and protection, and her mentat pain and suffering as a result of the decedent’s injury and death. in determining the duration of such losses, you may consider the joint life expectancy of the decedent and the surviving spouse together with the other evidence in the case. g. Damages by surviving child: The loss by DANIEL SIMON of parental companionship, instruction and guidance, and his mental pain and suffering as a result of the decedent’s injury and death. In determining the duration of such losses, you may consider the joint life expectancy of the decedent and the surviving child together with the other evidence in the case. WRONGFUL DEATH DAMAGES OF ESTATE AND SURVIVORS: SEPARATE FINDINGS E SURVIVORS Any damages that you find were sustained by the decedent's estate and by each survivor shall be separately stated in your verdict. _ MORTALITY TABLES b. Personal Representative claiming damages for benefit of decedent’s estate (6.3, 6.4 or 6.5, 6.6): In determining how long MICHAEL SIMON would have lived, had he lived out his normal life, you may consider his life expectancy at the time of his death. The mortality tables received in evidence may be considered in determining how long he may have been expected to live. Such tables are not binding on you but may be considered together with other evidence in the case bearing on his health, age and physical condition before his injury and death, in determining the probable length of his life. ¢. Personal Representative claiming damages for loss to survivor (6.5, 6.6): In determining the duration of any future loss sustained by survivors, SALLY SIMON and DANIEL SIMON, by reason of the death of MICHAEL SIMON, you may consider the joint life expectancy of each survivor and the decedent. The joint life expectancy is that period of time when both the decedent and a survivor would have remained alive. The mortality tables received in evidence may be considered, together with the other evidence in the case, in determining how long each may have been expected to live. PREJUDICE AND SYMPATHY In reaching your verdict, you are not to be swayed from the performance of your duty by prejudice, sympathy or any other sentiment for or against any party. Your verdict must be based on the evidence that has been received and the law on which | have instructed you. Reaching a verdict is exclusively your job. | cannot participate in that decision in any way. You should not speculate about how | might evaluate the testimony of any witness or any other evidence in this case, and you should not think that | prefer one verdict over another. Therefore, in reaching your verdict, you should not consider anything that | have said or done, except for my specific instructions to you. ELECTION OF FOREMAN: VERDICT FORMS When you retire to the jury room, you should select one of your number to act as foreperson to preside over your deliberations and sign your verdict. Your verdict must be unanimous, that is, your verdict must be agreed to by each of you. You will be given one form of verdict, which | shall now read to you: When you have agreed on your verdict, the foreperson, acting for the jury, should date and sign the verdict form. You may now retire to consider your verdict. So