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Honorable Ronald B. Leighton

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

10 GENERAL METALS OF TACOMA, INC., a

Washington Corporation; and ARKEMA

11 INC., a Pennsylvania Corporation,

12 Plaintiffs,

13 v.

14 BEAN ENVIRONMENTAL LLC, a Delaware

limited liability company; and BEAN

15 DREDGING LLC, a Louisiana limited

liability company,

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Defendants.

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AGREED (JOINT) JUY INSTRUCTIONS - 1

(CV05-5306 RBL)

1953788.1

NO. CV05-5306 RBL

AGREED (JOINT) JURY

INSTRUCTIONS

Wiliams, Kastner & Gibbs PLLC

Two Union Square, Suite 4100 (98101-2380)

Mail Address: P.O. Box 21926

Seattle, Washington 98111-3926

(206) 628-6600

Case 3:05-cv-05306-RBL Document 295 Filed 01/10/07 Page 1 of 20
1 DATED this 10th day of January, 2007.

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AGREED (JOINT) JUY INSTRUCTIONS - 2

(CY05-5306 RBL)

1953788.1

s/John P. Evans, WSBA No. 08892

Heidi L. Evatt, WSBA No. 29527

Thomas W. Falkner, WSBA No. 28429

Attorneys for Plaintiff .

General Metals of Tacoma, Inc.

WILLIAMS, KASTNER & GIBBS, PLLC

Two Union Square

601 Union Street, Suite 4100

Seattle, WA 98101

Telephone: 206.628.6600

Facsimile: 206.628.6611

E-mail: ievans(âwkq.com

Email: hevatt(âwkq.com

E-mail: tfalkner(âwkq.com

and

s/Marisa M. Bavand. WSBA No. 27929

Kristi D. Favard, WSBA No. 34419

Attorneys for Plaintiff Arkema, Inc.

GROFF MURPHY TRACHTENBERG &

EVERARD

300 East Pine Street

Seattle, WA 98122

Telephone: 206.628.9500

Facsimile: 206.628.9506

E-mail: mbavandcaqroffmurphy.com

E-mail: kfavardcagroffmurohy.com

Wiliams, Kastner & Gibbs PLLC

Two Union Square, Suite 4100 (98101-2380)

Mail Address: P.O. Box 21926

Seattle, Washington 98111-3926

(206) 628-6600

Case 3:05-cv-05306-RBL Document 295 Filed 01/10/07 Page 2 of 20
1 CERTIFICATE OF SERVICE

2 I hereby certify that on January 10, 2007, I electronically filed the foregoing with

3 the Clerk of the Court using the CMfEFC system which wil send notification of such

4 filing to the following:

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Wiliam F. Cronin

Kevin C. Craig

Corr Cronin Michelson

Baumgardner & Preece LLP

1001 Fourth Avenue, Suite 3900

Seattle, WA 98154-1051

Attorneys for Defendant

Bean Environmental LLC

DATED this 10th day of January, 2007.

sf

John P. Evans, WSBA No. 08892

Heidi L. Evatt, WSBA No. 29527

Thomas W. Falkner, WSBA No. 28429

Attorneys for Plaintiff

General Metals of Tacoma, Inc.

WILLIAMS, KASTNER & GIBBS, PLLC

Two Union Square

601 Union Street, Suite 4100

Seattle, WA 98101

Telephone: 206.628.6600

Facsimile: 206.628.6611

E-mail: Îevans(âwkq.com

Email: hevatt(âwkq.com

E-mail: tfalkner(âwkq.com

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AGREED (JOINT) JUY INSTRUCTIONS - 3

(CY05-5306 RBL)

Wiliams, Kastner & Gibbs PLLC

Two Union Square, Suite 4100 (98101-2380)

Mail Address: P.O. Box 21926

Seattle, Washington 98111-3926

(206) 628-6600

1953788.1

Case 3:05-cv-05306-RBL Document 295 Filed 01/10/07 Page 3 of 20
Table of Contents for JUry Instructions

AGREED (JOINT) INSTRUCTIONS

Instruction No. Title Source PaQe No. Party

1 Duty of Jurors Model Ninth 1 Joint

Circuit Jury

Instructions,

3.1

2 What Is Evidence Model Ninth 2 Joint

Circuit Jury

Instructions,

3.2

3 What Is Not Model Ninth 3 Joint

Evidence Circuit Jury

Instructions,

3.3

4 Direct and Model Ninth 4 Joint

Circumstantial Circuit Jury

Evidence Instructions,

3.5

5 Credibilty of Model Ninth 5 Joint

Witnesses Circuit Jury

Instructions,

3.6 -

6 Opinion Model Ninth 6 Joint

Evidence, Expert Circuit Jury

Witnesses Instructions,

3.7

7 Charts and Model Ninth 7 Joint

Summaries Not Circuit Jury

Received In Instructions,

Evidence 3.9

8 Charts and Model Ninth 8 Joint

Summaries in Circuit Jury

Evidence Instructions,

3.10

9 Preponderance Model Ninth 9 Joint

of the Evidence Circuit Jury

Instructions,

5.1

10 Proximate Cause WPI 15.01 10 Joint

1953792.1

Case 3:05-cv-05306-RBL Document 295 Filed 01/10/07 Page 4 of 20
11 Damages for Restatement 11 Joint

Negligent (Second) of

Misrepresentation Torts § 552B

(modified);

Janda v. Brier

Realtv, 97 Wn.

App. 45, 50,

984 P.2d 412

(1999)

12 Duty to Model Ninth 12 Joint

Deliberate Circuit Jury

Instructions,

4.1

13 Use of Notes Model Ninth 13 Joint

Circuit Jury

Instructions,

4.2

14 Communication Model Ninth 14 Joint

with Cou rt Circuit Jury

Instructions,

4.3

15 Duty Of Good WPI 302.11 15 Joint

Faith and Fair

Dealing

1953792.1

Case 3:05-cv-05306-RBL Document 295 Filed 01/10/07 Page 5 of 20
AGREED INSTRUCTION NO.1

(Duty of Jurors to Find Facts and Follow Law)

Members of the jury, now that you have heard all the evidence and the

arguments of the attorneys, it is my duty to instruct you on the law which applies to this

case. A copy of these instructions wil be available in the jury. room for you to consult if

you find it necessary.

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. 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 promising to do

so at the beginning of the case.

In following my instructions, you must follow all of them and not single out some

and ignore others; they are all equally important. You must not read into these

instructions or into anything the court may have said or done any suggestion as to what

verdict you should return-that is a matter entirely up to you.

Model Ninth Circuit Jury Instructions, 3.1 "Duty of Jurors to Find Facts and Follow Law."

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1953142.1

Case 3:05-cv-05306-RBL Document 295 Filed 01/10/07 Page 6 of 20
AGREED INSTRUCTION NO.2

(What Is Evidence)

The evidence from which you are to decide what the facts are consists of:

(1) the sworn testimony of any witness;

(2) the exhibits which have been received into evidence; and

(3) any facts to which the lawyers have agreed or stipulated.

Model Ninth Circuit Jury Instructions, 3.2 "What Is Evidence."

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1953142.1

Case 3:05-cv-05306-RBL Document 295 Filed 01/10/07 Page 7 of 20
AGREED INSTRUCTION NO.3

(What Is Not Evidence)

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 and 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.

(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.

Model Ninth Circuit Jury Instructions, 3.3 "What Is Not Evidence."

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1953142.1

Case 3:05-cv-05306-RBL Document 295 Filed 01/10/07 Page 8 of 20
AGREED INSTRUCTION NO.4

(Direct and Circumstantial Evidence)

Evidence may be direct or circumstantiaL. Direct evidence is direct proof of a fact,

such as testimony by a witness about what the 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 direct or circumstantial evidence. It is for you to decide

how much weight to give to any evidence.

Model Ninth Circuit Jury Instructions, 3.5 "Direct and Circumstantial Evidence."

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1953142.1

Case 3:05-cv-05306-RBL Document 295 Filed 01/10/07 Page 9 of 20
AGREED INSTRUCTION NO.5

(Credibility of Witnesses)

In deciding the facts in this case, you may have to decide which testimony to

believe and which testimony not to believe. You may believe everyhing a witness says,

or part of it, or none of it.

In considering the testimony of any witness, you may take into account:

(1) the opportunity and ability of the witness to see or hear or know the

things testified to;

(2) the witness' memory;

(3) the witness' manner while testifying;

(4) the witness' interest in the outcome of the case and any bias or

prejudice;

(5) whether other evidence contradicted the witness' testimony;

(6) the reasonableness of the witness' testimony in light of all the

evidence; and

(7) any other factors that bear on believability.

The weight of the evidence as to a fact does not necessarily depend on the

number of witnesses who testify.

Model Ninth Circuit Jury Instructions, 3.6 "Credibility of Witnesses."

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1953142.1

Case 3:05-cv-05306-RBL Document 295 Filed 01/10/07 Page 10 of 20
AGREED INSTRUCTION NO.6

(Opinion Evidence, Expert Witnesses)

You have heard testimony from persons who, because of education or

experience, are permitted to state opinions and the reasons for those opinions.

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' education and experience, the reasons given for the opinion, and all the other

evidence in the case.

Model Ninth Circuit Jury Instructions, 3.7 "Opinion Evidence, Expert Witnesses."

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1953142.1

Case 3:05-cv-05306-RBL Document 295 Filed 01/10/07 Page 11 of 20
AGREED INSTRUCTION NO.7

(Charts and Summaries Not Received In Evidence)

Certain charts and summaries that have not been received in evidence have

been shown to you in order to help explain the contents of books, records, documents,

or other evidence in the case. They are not themselves evidence or proof of any facts. If

they do not correctly reflect the facts or figures shown by the evidence in the case, you

should disregard these charts and summaries and determine the facts from the

underlying evidence.

Model Ninth Circuit Jury Instructions, 3.9 "Charts and Summaries Not Received In Evidence."

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1953142.1

Case 3:05-cv-05306-RBL Document 295 Filed 01/10/07 Page 12 of 20
AGREED INSTRUCTION NO.8

(Charts and Summaries in Evidence)

Certain charts and summaries have been received into evidence to illustrate

information brought out in the triaL. Charts and summaries are only as good as the

underlying evidence that supports them. You should, therefore, give them only such

weight as you think the underlying evidence deserves.

Model Ninth Circuit Jury Instructions, 3.10 "Charts and Summaries in Evidence."

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1953142.1

Case 3:05-cv-05306-RBL Document 295 Filed 01/10/07 Page 13 of 20
AGREED INSTRUCTION NO.9

(Burden of Proof - Preponderance of the Evidence)

When a party has the burden of proof on any claim or affirmative defense by a

preponderance of the evidence, it means you must be persuaded by the evidence that

the claim or affirmative defense is more probably true than not true.

You should base your decision on all of the evidence, regardless of which party

presented it.

Model Ninth Circuit Jury Instructions, 5.1 "Burden of Proof - Preponderance of the Evidence."

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1953142.1

Case 3:05-cv-05306-RBL Document 295 Filed 01/10/07 Page 14 of 20
AGREED INSTRUCTION NO.1 0

(What is Proximate Cause)

The term "proximate cause" means a cause which in a direct sequence produces

the event complained of and without which such event would not have happened.

WPI15.01.

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1953142.1

Case 3:05-cv-05306-RBL Document 295 Filed 01/10/07 Page 15 of 20
AGREED INSTRUCTION NO. 11

(Damages for Negligent Misrepresentation)

If you find the HHCG liable for negligent misrepresentation, you should award

Bean Environmental such damages as are necessary to compensate Bean

Environmental for the pecuniary loss to it of which the misrepresentation is a legal

cause. Such damages include pecuniary loss suffered otherwise as a consequence of

Sean Environmental's reliance upon the misrepresentation.

Restatement (Second) of Torts § 552B (modified); Janda v. Brier Realtv. 97 Wn. App. 45, 50, 984 P.2d

412 (1999).

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1953142.1

Case 3:05-cv-05306-RBL Document 295 Filed 01/10/07 Page 16 of 20
AGREED INSTRUCTION NO. 12

(Duty to Deliberate)

When you begin your deliberations, you should elect one member of the jury as

your presiding juror. That person wil preside over the deliberations and speak for you

here in court.

You will then discuss the case with your fellow jurors to reach agreement if you

can do so. Your verdict must be unanimous.

Each of you must decide the case for yourself, but you should do so only after

you have considered all of the evidence, discussed it fully with the other jurors, and

listened to the views of your fellow jurors.

Do not be afraid to change your opinion if the discussion persuades you that you

should. Do not come to a decision simply because other jurors think it is right.

It is important that you attempt to reach a unanimous verdict but, of course, only

if each of you can do so after having made your own conscientious decision. Do not

change an honest belief about the weight and effect of the evidence simply to reach a

verdict.

Model Ninth Circuit Jury Instructions, 4.1 "Duty to Deliberate."

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1953142.1

Case 3:05-cv-05306-RBL Document 295 Filed 01/10/07 Page 17 of 20
AGREED INSTRUCTION NO. 13

(Use of Notes)

Some of you have taken notes during the triaL. Whether or not you took notes,

you should rely on your own memory of what was said. Notes are only to assist your

memory. You should not be overly influenced by the notes.

Model Ninth Circuit Jury Instructions, 4.2 "Use of Notes."

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1953142.1

Case 3:05-cv-05306-RBL Document 295 Filed 01/10/07 Page 18 of 20
AGREED INSTRUCTION NO. 14

(Communication with Court)

If it becomes necessary during your deliberations to communicate with me, you

may send a note through the bailiff, signed by your presiding juror or by one or more

members of the jury. No member of the jury should ever attempt to communicate with

me except by a signed writing; and I wil communicate with any member of the jury on

anything concerning the case only in writing, or here in open court. If you send out a

question, I will consult with the parties before answering it, which may take some time.

You may continue your deliberations while waiting for the answer to any question.

Remember that you are not to tell anyone-including me-how the jury stands,

numerically or otherwise, until after you have reached a unanimous verdict or have

been discharged. Do not disclose any vote count in any note to the court.

Model Ninth Circuit Jury Instructions, 4.3 "Communication with Court."

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1953142.1

Case 3:05-cv-05306-RBL Document 295 Filed 01/10/07 Page 19 of 20
AGREED INSTRUCTION NO. 15

(Implied Duty Of Good Faith and Fair Dealing)

A duty of good faith and fair dealing is implied in every contract. This duty

requires the parties to cooperate with each other so that each may obtain the full benefit

of performance. However, this duty does not require a party to accept a material

change in the terms of its contract.

WPI 302.11. Implied Duty Of Good Faith and Fair Dealing

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1953142.1

Case 3:05-cv-05306-RBL Document 295 Filed 01/10/07 Page 20 of 20