October 23,2OL4

Jury lnstructions as read.

L2-or-4546

Smith v. Altman

Judge Sara L. Ellis

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FILED

10/23/2014

THOMAS G. BRUTON CLERK, U.S. DISTRICT COURT

Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 1 of 28 PageID #:1224
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Members of the jury, you have seen and heard all the evidence and the

prior arguments of the attorneys, I will instruct you on the law.

You have two duties as a jury. Your first duty is to decide the facts from the

evidence in the case. This is your job, and yours alone.

Your second duty is to apply the law that I give you to the facts. You must

follow these instructions, even if you disagree with them. Each of the instructions is

important, and you must follow all of them.

Perform these duties fairly and impartially.

Nothing I say now, and nothing I said or did during the trial, is meant to

indicate any opinion on my part about what the facts are or about what your verdict

should be.

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Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 2 of 28 PageID #:1225
During this trial, I have asked a witness a question myself. Do not assume

that because I asked questions I hold any opinion on the matters I asked about, or

on what the outcome of the case should be.

Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 3 of 28 PageID #:1226
The evidence consists of the testimony of the witnesses, the exhibits received in

evidence, and stipulations.

A stipulation is an agreement between both sides that certain facts are true.

Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 4 of 28 PageID #:1227
The parties agree that the total amount of Plaintiff Joseph Smith's medical bills in this

case are $414,996.76, and that the City of Chicago has paid $150,666.61 of those medical bills.

The parties agree that the total amount of lost wages that Plaintiff has incurred from

November 2,201I to the present time are $247,205.00, and that the City of Chicago has paid

S84,756.00 for one year of those lost wages.

You are to consider the stipulation for purposes of damages only, not for liability.

Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 5 of 28 PageID #:1228
Certain things are not considered as evidence. I will list them for you:

First, if I told you to disregard any testimony or exhibits or struck any testimony

or exhibits from the record, such testimony or exhibits are not evidence and must not be

considered.

Second, anything that you may have seen or heard outside the courtroom is not

evidence and must be entirely disregarded. This includes any press, radio, Internet or

television reports you may have seen or heard. Such reports are not evidence and your

verdict must not be influenced in any way by such publicity.

Third, questions and objections or comments by the lawyers are not evidence.

Lawyers have a duty to object when they believe a question is improper. You should not

be influenced by any objection, and you should not infer from my rulings that I have any

view as to how you should decide the case.

Fourth, the lawyers' opening statements and closing arguments to you are not

evidence. Their purpose is to discuss the issues and the evidence. If the evidence as you

remember it differs from what the lawyers said, your memory is what counts.

Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 6 of 28 PageID #:1229
Any notes you have taken during this trial are only aids to your memory. The notes are

not evidence. Ifyou have not taken notes, you should rely on your independent recollection of

the evidence and not be unduly influenced by the notes of other jurors. Notes are not entitled to

any greater weight than the recollections or impressions of each juror about the testimony.

Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 7 of 28 PageID #:1230
You should use common sense in weighing the evidence and consider the

evidence in light of your observations in life.

In our lives, we often look at one fact and conclude from it that another fact

exists. In law we call this "inference." A jury is allowed to make reasonable

inferences. Any inference you make must be reasonable and must be based on the

evidence in the case.

Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 8 of 28 PageID #:1231
In determining whether any fact has been proved, you should consider all of the evidence

bearing on the question regardless of who introduced it.

Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 9 of 28 PageID #:1232
You may have heard the phrases 'odirect evidence" and "circumstantial

evidence." Direct evidence is proof that does not require an inference, such as the

testimony of someone who claims to have personal knowledge of a fact.

Circumstantial evidence is proof of a fact, or a series of facts, that tends to show

that some other fact is true.

As an example, direct evidence that it is raining is testimony from a witness

who says, "I was outside a minute ago and saw it raining." Circumstantial

evidence that it is raining is the observation of someone entering a room carrying a

wet umbrella.

The law makes no distinction between the weight to be given to either direct

or circumstantial evidence. You should decide how much weight to give any

evidence. In reaching your verdict, you should consider all the evidence in the case,

including the circumstantial evidence.

Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 10 of 28 PageID #:1233
You must decide whether the testimony of each of the witnesses is truthful

and accurate, in part, in whole, or not at all. You must also decide what weight, if

any, you give to the testimony of each witness.

In evaluating the testimony of any witness, including any party to the case,

you may consider, among other things:

o the ability and opportunity the witness had to see, hear, or know the

things that the witness testified about;

o the witness's memory;

. any interest, bias, or prejudice the witness may have;

o the witness's intelligence;

o the manner of the witness while testifying;

o and the reasonableness of the witness's testimony in light of all the

evidence in the case.

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Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 11 of 28 PageID #:1234
You may consider statements given by a party or witness under oath before trial

as evidence of the truth of what he said in the earlier statements, as well as in deciding

what weight to give his testimony.

With respect to other witnesses, the law is diflerent. If you decide that, before the

trial, one of these witnesses made a statement not under oath or acted in a manner that is

inconsistent with his testimony here in court, you may consider the earlier statement or

conduct only in deciding whether his testimony here in court was true and what weight to

give his testimony here in court.

In considering a prior inconsistent statement or conduct, you should consider

whether it was simply an innocent error or an intentional falsehood and whether it

concerns an important fact or an unimportant detail.

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Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 12 of 28 PageID #:1235
You may find the testimony of one witness or a few witnesses more persuasive

than the testimony of a larger number. You need not accept the testimony of the larger

number of witnesses.

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Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 13 of 28 PageID #:1236
You have heard witnesses give opinions about matters requiring special

knowledge or skill. You should judge this testimony in the same way that you judge

the testimony of any other witness. The fact that such person has given an opinion

does not mean that you are required to accept it. Give the testimony whatever weight

you think it deserves, considering the reasons given for the opinion, the witness's

qualifications, and all of the other evidence in the case.

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Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 14 of 28 PageID #:1237
When I say that aparty must prove something by " apreponderance of the evidence," or

when I use the expression "if you findo" or "if you decide," this is what I mean: When you have

considered all the evidence in the case, you must be persuaded that it is more probably true

than not true.

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Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 15 of 28 PageID #:1238
lt is proper for a lawyer to meet with any witness in preparation for trial.

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Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 16 of 28 PageID #:1239
The law does not require any party to call as a witness every person who might have

knowledge of the facts related to this trial. Similarly, the law does not require any party to

present as exhibits all papers and things mentioned during this trial.

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Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 17 of 28 PageID #:1240
Certain demonstrative exhibits have been shown to you. Those maps, photographs,

illustrations, and diagrams are used for convenience and to help explain the facts of the case.

They are not themselves evidence or proof of any facts.

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Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 18 of 28 PageID #:1241
In this case, Plaintiff claims that Defendant Mark Altman used excessive force against

him. To succeed on this claim, Plaintiff must prove each of the following things by a

preponderance of the evidence:

1. Defendant used unreasonable force against Plaintiff; and

2. Because of Defendant's unreasonable force, Plaintiff was harmed.

If you find that Plaintiff Smith has proved each of these things against Defendant Altman

by a preponderance of the evidence, then you should find for Plaintiff, and go on to consider the

question of damages.

If, on the other hand, you find that Plaintiff did not prove any one of these things by a

preponderance of the evidence, then you should find for Defendant Altman, and you will not

consider the question of damages.

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Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 19 of 28 PageID #:1242
You must decide whether Defendant's use of force was unreasonable from the

perspective of a reasonable Fire Department officer facing the same circumstances that

Defendant faced. You must make this decision based on what Defendant Altman knew at the

time of the incident, not based on what you know now. In deciding whether Defendant's use of

force was unreasonable, you must not consider whether Defendant's intentions were good or

bad.

In performing his job, a Fire Department officer can use force that is reasonably

necessary under the circumstances.

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Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 20 of 28 PageID #:1243
If you decide for Defendant on the question of liability, then you should not consider the

question of damages.

Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 21 of 28 PageID #:1244
If you find that Plaintiff has proved his claim against Defendant, then you must determine

what amount of damages, if any, Plaintiffis entitled to recover.

Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 22 of 28 PageID #:1245
If you find for Plaintiff and against Defendant, you may, but are not required to, assess

punitive damages against the Defendant. The purposes of punitive damages are to punish a

defendant for his conduct and to serve as an example or warning to the defendant and others not

to engage in similar conduct in the future.

Plaintiff must prove by a preponderance of the evidence that punitive damages should be

assessed against the Defendant. You may assess punitive damages only if you find that the

Defendant's conduct was malicious or in reckless disregard of Plaintiff s rights. Conduct is

malicious if it is accompanied by ill will or spite, or is done for the purpose of injuring Plaintiff.

Conduct is in reckless disregard of Plaintiff s rights if, under the circumstances, it reflects

complete indifference to Plaintiff s safety or rights.

If you find that punitive damages are appropriate, then you must use sound reason in

setting the amount of those damages. Punitive damages, if any, should be in an amount sufficient

to fulfill the purposes that I have described to you, but should not reflect bias, prejudice, or

sympathy toward any party. In determining the amount of any punitive damages, you should

consider the following factors:

- the reprehensibility of Defendant's conduct;

- the impact of Defendant's conduct on Plaintiff;

- the relationship between Plaintiff and Defendan!

- the likelihood that Defendant would repeat the conduct if an award of punitive damages is not

made;

- Defendant's financial condition

- the relationship of any award of punitive damages to the amount of actual harm the Plaintiff

suffered.

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Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 23 of 28 PageID #:1246
Upon retiring to the jury room, you must select a presiding juror. The presiding juror will

preside over your deliberations and will be your representative here in court.

A form ofverdict has been prepared for you.

[Forms of verdict read]

Take these form to the jury room, and when you have reached unanimous agreement on

the verdict, your presiding juror will fill in and date the form, and all of you will sign it.

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Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 24 of 28 PageID #:1247
I do not anticipate that you will need to communicate with me. If you do need to

communicate with me, the only proper way is in writing. The writing must be signed by the

presiding juror, or, if he or she is unwilling to do so, by some other juror. The writing should be

given to the marshal, who will give it to me. I will respond either in writing or by having you

return to the courtroom so that I can respond orally.

If you do communicate with me, you should not indicate in your note what your

numerical division is, if any.

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Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 25 of 28 PageID #:1248
The verdict must represent the considered judgment of each juror. Your verdict, whether

for or against the parties, must be unanimous.

You should make every reasonable effort to reach a verdict. In doing so, you should

consult with one another, express your own views, and listen to the opinions of your fellow

jurors. Discuss your differences with an open mind. Do not hesitate to reexamine your own

views and change your opinion if you come to believe it is wrong. But you should not surrender

your honest beliefs about the weight or effect of evidence solely because of the opinions of other

jurors or for the purpose of returning a unanimous verdict.

All of you should give fair and equal consideration to all the evidence and deliberate with

the goal of reaching an agreement that is consistent with the individual judgment of each juror.

You are impartial judges of the facts.

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Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 26 of 28 PageID #:1249
If you find in favor of Plaintiff then you must determine the amount of money that will

fairly compensate Plaintiff for any injury that you find he sustained. These are called

"compensatory damages."

Plaintiff must prove his damages by a preponderance of the evidence. Your award must

be based on evidence and not speculation or guesswork. This does not mean, however, that

compensatory damages are restricted to the actual loss of money; they include both the physical

and mental aspects of injury, even if they are not easy to measure.

You should consider the following types of compensatory damages, and no others:

l. The reasonable value of medical care and supplies that Plaintiff reasonably

needed and actually received.

2. The wages that Plaintiff has lost because of his inability or diminished ability to

work.

3. The physical and mental/emotional pain and suffering and disability/loss of a

normal life that Plaintiff has experienced. No evidence of the dollar value of physical or

mental/emotional pain and suffering or disability/loss of a normal life has been or needs to be

introduced. There is no exact standard for setting the damages to be awarded on account of pain

and suffering. You are to determine an amount that will fairty compensate the Plaintiff for the

injury he has sustained.

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Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 27 of 28 PageID #:1250
If you find Defendant Altman liable, and if you find that Joseph Smith had a bodily

condition that predisposed him to be more subject to physical irrju.y than a person without that

bodily condition, Defendant Altman would be liable for any and all physical irju.y that Joseph

Smith may have suffered as the result of Defendant Altman's conduct, even though Joseph

Srnith's physical injury may have been more severe than it would have been without the

condition.

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Case: 1:12-cv-04546 Document #: 165 Filed: 10/23/14 Page 28 of 28 PageID #:1251