UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF PENNSYLVANIA

––––––––––––––––––––––––––––––––––––x 

MERISANT COMPANY, : 

: Civil Action No. 04-CV-55-4 

Plaintiff, : 

: Judge Gene E.K. Pratter 

v. : 

: 

McNEIL NUTRITIONALS, LLC and : 

McNEIL-PPC, INC., : 

 : 

Defendants. : 

––––––––––––––––––––––––––––––––––––x 

DEFENDANTS’ PROPOSED JURY INSTRUCTIONS 

Steven A. Zalesin 

Clay J. Pierce 

PATTERSON BELKNAP WEBB & TYLER LLP 

1133 Avenue of the Americas 

New York, New York 10036 

212-336-2000 (telephone) 

212-336-2222 (facsimile) 

Attorneys for McNeil Nutritionals, LLC and McNeil-PPC, 

Inc. 

Of counsel: 

 

 Donna Malin, Esq. 

 Johnson & Johnson 

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 1 of 24
2 

1358064v1

Pursuant to Judge Pratter’s General Pretrial and Trial Procedures, Section 

II(J)(17), Defendants McNeil Nutritionals, LLC and McNeil-PPC, Inc. respectfully submit these 

proposed jury instructions with respect only to substantive issues. 

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 2 of 24
3 

1358064v1

DEFENDANTS’ PROPOSED JURY INSTRUCTION NO. 1 

False Advertising Under Federal Law 

Merisant Company, as Plaintiff, has asserted claims against McNeil Nutritionals, 

LLC and McNeil-PPC, Inc., as Defendants, for false advertising under federal law. Specifically, 

Merisant alleges that the advertising claims that Splenda is “Made from Sugar, Tastes Like 

Sugar” and “Made From Sugar So It Tastes Like Sugar” are literally false. Merisant further 

alleges that these claims mislead a substantial portion of relevant consumers to believe that 

Splenda actually contains sugar, or is natural. 

McNeil contends that the “Made From Sugar, Tastes Like Sugar” and “Made 

From Sugar So It Tastes Like Sugar” advertising claims are literally true and do not mislead a 

substantial number of consumers.

Merisant has the burden of proving its claim of false advertising. To fulfill this 

burden, Merisant must prove each of the following elements by a preponderance of the evidence: 

1. that McNeil has made a false or misleading statement or 

statements about Splenda; 

2. that there is actual deception – or at least a tendency to 

deceive – a substantial portion of the intended audience; 

3. that the deception is material in that it is likely to influence 

consumers’ purchasing decisions; 

4. that the advertised goods traveled in interstate commerce; 

and 

5. that Merisant has been injured as a result of the false or 

misleading statements, in terms of lost sales or otherwise.1

 

1 Novartis Consumer Health Inc. Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d 578, 590 

(3d Cir. 2002); Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 171 (3d Cir. 2001); WarnerLambert Co. v. Breathasure, 204 F.3d 87, 91-92 (3d Cir. 2000); Johnson & Johnson-Merck Consumer 

Pharm. Co. v. Rhone-Poulenc Rorer, 19 F.3d 125, 129 (3d Cir. 1994); Ditri v. Coldwell Banker 

Residential Affiliates, Inc., 954 F.2d 869, 872 (3d Cir. 1992). 

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 3 of 24
4 

1358064v1

Merisant alleges that more than one of McNeil’s advertising claims for Splenda 

violates federal law. To find for Merisant and against McNeil as to a particular advertising 

claim, you must find that Merisant has proven each of these five elements as to each particular 

claim. 

I will now explain each of the five elements in detail. 

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 4 of 24
5 

1358064v1

DEFENDANTS’ PROPOSED JURY INSTRUCTION NO. 2 

False advertising -- Element 1 (False or misleading statement) 

Merisant must prove by a preponderance of the evidence that McNeil made a 

false or misleading statement of fact about Splenda in its advertising. Merisant may fulfill this 

element by showing either that (1) McNeil made a literally false statement, or that (2) McNeil 

made a misleading statement.2

 It is not enough for Merisant to show that the claims in 

advertising for Splenda are inadequately substantiated -- Merisant must show that the claims are 

false or misleading.3

A statement is literally false when it explicitly and unambiguously states 

something that is untrue. Merisant alleges that the “Made From Sugar, Tastes Like Sugar” and 

“Made From Sugar So It Tastes Like Sugar” claims are literally false, and McNeil counters that 

they are literally true. 

A statement that is literally true may be misleading if it is likely to deceive a 

substantial portion of its target audience. But, a factual proposition that is susceptible to 

misunderstanding by some consumers is not necessarily misleading under federal law.4

 Merisant 

alleges that the “Made From Sugar, Tastes Like Sugar” and “Made From Sugar So It Tastes Like 

Sugar” claims are misleading, and McNeil counters that these claims are not misleading. 

 

2 Highmark, 276 F.3d at 171; Rhone-Poulenc Rorer, 19 F.3d at 129; Castrol, Inc. v. Pennzoil Co., 987 

F.2d 939, 943 (3d Cir. 1993); Sandoz Pharmaceutical Corp. v. Richardson-Vicks, Inc., 902 F.2d 222, 

227-29 (3d Cir. 1990). 

3

 Sandoz, 902 F.2d at 227-229; U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 

914, 922 (3d Cir. 1990). 

4 Mead Johnson & Co. v. Abbott Labs., 201 F.3d 883, 887 (7th Cir. 2000); Haymond v. Lundy, No. Civ. 

A. 99-5048, 2001 WL 15956 (E.D. Pa. Jan. 5, 2001). 

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 5 of 24
6 

1358064v1

To decide whether an advertising claim is false or misleading, you must go 

through a two-step process: you must first determine what claim or claims the advertising 

conveys and second you must determine whether those claims are false or misleading.5

 

5 Novartis, 290 F.3d at 586; U.S. Healthcare,, 898 F.2d at 922. 

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 6 of 24
7 

1358064v1

DEFENDANTS’ PROPOSED JURY INSTRUCTION NO. 3 

False advertising -- Element 2 (Actual deception) 

The second element Merisant must prove by a preponderance of the evidence is 

that the statements McNeil made about Splenda actually deceived a substantial portion of the 

targeted audience. 

If you determine that McNeil’s advertising claims were literally false, then you 

need not consider this second element. 

If you find that the advertising literally true but misleading, however, then 

Merisant must demonstrate by a preponderance of the evidence that a substantial portion of the 

targeted consumers were actually deceived by the advertising claims. In other words, Merisant 

cannot prevail by arguing how consumers could react; it must prove how consumers actually do 

react. 6 

 

6 Highmark, 276 F.3d at 171; Breathasure, 204 F.3d at 96; Rhone-Poulenc Rorer, 19 F.3d at 129-130; 

Castrol, 987 F.2d at 943; Ditri, 954 F.2d at 872; Labware, Inc. v. Thermos Labsystems, Inc., No. Civ. A. 

04-2545, 2005 WL 1541028, at *10 (E.D. Pa. June 29, 2005). 

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 7 of 24
8 

1358064v1

DEFENDANTS’ PROPOSED JURY INSTRUCTION NO. 4 

False advertising -- Element 3 (Material deception) 

The third element Merisant must prove by a preponderance of the evidence is that 

the statements McNeil made about Splenda were material. In other words, Merisant must show 

that the statements were likely to influence the purchasing decisions of the intended audience.7

 

7 U.S. Healthcare, 898 F.2d at 922; Cashmere & Camel Hairs Mfrs. Inst. v. Saks Fifth Avenue, 284 F.3d 

302 (1st Cir. 2002); Labware, 2005 WL 1541028, at *11. 

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 8 of 24
9 

1358064v1

DEFENDANTS’ PROPOSED JURY INSTRUCTION NO. 5 

False advertising -- Element 4 (Interstate commerce) 

The fourth element Merisant must prove by a preponderance of the evidence is 

that McNeil made the statements about Splenda at issue in interstate commerce. McNeil and 

Merisant have agreed that the interstate commerce element is satisfied. Accordingly, you do not 

need to make a determination as to this element. 

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 9 of 24
10 

1358064v1

DEFENDANTS’ PROPOSED JURY INSTRUCTION NO. 6 

False advertising -- Element 5 (Resulting injury) 

The fifth element Merisant must prove by a preponderance of the evidence is that 

Merisant has been injured as a result of McNeil’s allegedly false or misleading statements. 

To recover money damages, Merisant must show a causal nexus or link between 

McNeil’s alleged false or misleading advertising claims and consumers’ decision to purchase 

Splenda instead of Merisant’s products. In other words, Merisant must prove 

1. that consumers were actually deceived by McNeil’s allegedly false or 

misleading advertising claims for Splenda, 

2. that consumers relied on those claims, and 

3. that Merisant was actually injured as a result of consumers’ deception and 

reliance.8

If you determine that Merisant has not been injured as a result of the allegedly 

false or misleading nature of McNeil’s advertising, you must find in favor of McNeil. 

I will give you further instructions later regarding damages and what you must 

find in order to award damages, if any, to Merisant. 

 

8 Breathasure, 204 F.3d at 92; U.S. Healthcare, 898 F.2d at 922; Parkway Baking Co. v. Freihofer Baking 

Co., 255 F.2d 641, 648 (3d Cir. 1958); Labware, 2005 WL 1541028, at *12; Synygy, Inc. v. Scott-Levin, 

Inc., 51 F. Supp. 2d 570, 577 (E.D. Pa. 1999). 

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 10 of 24
11 

1358064v1

DEFENDANTS’ PROPOSED JURY INSTRUCTION NO. 7 

False Advertising Under Pennsylvania Law 

A Pennsylvania common law claim for unfair competition mirrors the federal 

claim for unfair competition, except that under Pennsylvania law there is no requirement that the 

goods traveled through interstate commerce. 9 

Thus, if you find McNeil liable for false advertising under federal law, you must 

find McNeil liable for false advertising under Pennsylvania law. 

If, on the other hand, you find that McNeil is not liable for false advertising under 

federal law, you must find McNeil not liable for false advertising under Pennsylvania law.

 

9 Louis Vuitton Malletier and Oakley, Inc. v. Veit, 211 F. Supp. 2d 567, 582 (E.D. Pa. 2002); Haymond, 

2001 WL 15956 at *2 (E.D. Pa. 2001); Paul Morelli Design, Inc. v. Merit Diamond Corp., No. Civ. A. 

99-3219, 2000 WL 670029, at *1 (E.D. Pa. 2000).

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 11 of 24
12 

1358064v1

DEFENDANTS’ PROPOSED JURY INSTRUCTION NO. 8 

Laches -- General 

McNeil alleges, as a defense, that Merisant waited an unreasonably long time to 

file this lawsuit challenging McNeil’s advertising and that McNeil was prejudiced by that delay. 

This is known as a “laches” defense and is based upon the principle that a court will not come to 

the aid of one who sleeps on its rights. To establish a laches defense, McNeil must prove that 

Merisant unreasonably delayed in filing this lawsuit, and that McNeil has been prejudiced as a 

result of Merisant’s inaction.10

 

10 Santana Prods. Inc. v. Bobrick Washroom Equip, Inc., 401 F.3d 123, 138 (3d Cir. 2005); University of 

Pittsburgh v. Champion Prods. Inc., 686 F.2d 1040, 1044 (3d Cir. 1982). 

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 12 of 24
13 

1358064v1

DEFENDANTS’ PROPOSED JURY INSTRUCTION NO. 9 

Laches -- Delay 

In determining whether Merisant’s delay was unreasonable, the amount of time 

that may be deemed unreasonable has no fixed boundaries but depends on the circumstances. 

Your focus should then be on the reasonableness of the delay rather than on the amount of time 

that elapsed. 11 Informal efforts by a party to protest its rights that are short of filing a lawsuit – 

such as raising an objection to the advertising in a letter or in person – do not necessarily justify 

a delay in filing suit.12 Nor can a party delay filing suit simply to see whether a defendant’s 

product will be successful or how a defendant’s advertising campaign might evolve.13

 

11 McKesson Info Solutions LLC v. The Trizetto Group, 426 F. Supp. 2d 203, 208 (D. Del. 2006); Sobosle 

v. U.S. Steel Corp., 359 F.2d 7 (3d Cir. 1966); see also Juicy Couture, Inc. v. L’Oreal USA, Inc., No. 04 

Civ. 7203 (DLC), 2006 WL 1012939, *33-34 (S.D.N.Y. Apr. 19, 2006). 

12 Santana Prods. v. Bobrick Washroom Equip., 249 F. Supp. 2d 463, 501 (M.D. Pa. 7, 2003), aff’d, 401 

F.3d 123 (3d Cir. 2005); see also Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 190 (2d Cir. 1996). 

13 Hot Wax v. Turtle Wax, 191 F.3d 813, 822 (7th Cir. 1999). 

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 13 of 24
14 

1358064v1

DEFENDANTS’ PROPOSED JURY INSTRUCTION NO. 10 

Laches -- Prejudice 

If you find that Merisant unreasonably delayed in filing this lawsuit, you must 

then consider whether McNeil was prejudiced or harmed as a result of the delay. Prejudice may 

take the form of an investment of money or resources on the part of McNeil in building up its 

business or establishing a brand identity during the time in which Merisant delayed. Prejudice 

may also exist if, had Merisant brought this lawsuit sooner, McNeil could have devoted 

resources to an alternative marketing strategy for Splenda. 14

 

14 Westco-Chippewa Pump Co. v. Delaware Electric & Supply Co., 64 F.2d 185, 187 (3d Cir. 1933); Joint 

Stock Society v. UDV N. America, 53 F. Supp. 2d 692, 717 (D. Del. 1999), aff’d , 266 F.3d 164 (3d Cir. 

2001); Anaconda Co. v. Metric Tool & Die Co., 485 F. Supp. 410, 429 (E.D. Pa. 1980); see also Jarrow 

Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829, 839 (9th Cir. 2002). 

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 14 of 24
15 

1358064v1

DEFENDANTS’ PROPOSED JURY INSTRUCTION NO. 11 

Laches -- Monetary Versus Injunctive Relief 

Even if you find that Merisant’s case should not be barred in its entirety, you may 

still find that the length of Merisant’s delay and the resulting prejudice to McNeil should 

preclude Merisant’s claims for monetary damages. A delay that does not result in a total bar may 

nonetheless support a finding that Merisant’s claims for money damages are barred by laches if, 

after considering all the facts and circumstances, an award of money damages would be 

inequitable.15

 

15 University of Pittsburgh, 686 F.2d at 1044 (3d Cir. 1982); Villanova Univ. v. Villanova Alumni Educ. 

Found., Inc., 123 F. Supp. 2d 293, 309 (E.D. Pa. 2000); United Nat’l Real Estate, Inc. v. Morgan, Civ. A. 

No. 89-5421, 1990 WL 265180, at *5 (E.D. Pa. Nov. 27, 1990). 

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 15 of 24
16 

1358064v1

DEFENDANTS’ PROPOSED JURY INSTRUCTION NO. 12 

Laches -- Equitable Considerations 

The ultimate determination of whether laches should apply in this case is a 

question of fairness given all the facts and circumstances. Thus, if you find that the elements of 

laches have been proved, you can nevertheless deprive McNeil of the defense if you find that 

McNeil has come into court with “unclean hands.”16

In deciding whether McNeil has “unclean hands,” it is not enough for you to find 

that McNeil intended to exploit consumer confusion or to mislead consumers through marketing 

techniques that are typical of competitors in the artificial sweetener industry. Rather, before 

deciding that the defense of laches should not apply, you must find that McNeil engaged in 

deliberate misconduct of a particularly egregious nature.17

 

16 Prison Health Servs., Inc. v. Umar, No. Civ. A. 02-2642, 2002 WL 32254510, at *22 (E.D. Pa. July 2, 

2002); see also Intertech Licensing Corp. v. Brown & Sharpe Mfg. Co., Inc., 708 F.Supp. 1423, 1439 (D. 

Del. 1989). 

17 Rhone-Poulenc Rorer, 19 F.3d at 132; Izume Prods. Co. v. Koninklijke Philips Electronics N.V., 315 F. 

Supp. 2d 589, 613 (D. Del. 2004); Bound v. Spencer Gifts, Inc., No. CIV. A. 95-2216, 1996 WL 556657, 

at *2 (E.D. Pa. Oct. 1, 1996); Anaconda, 485 F. Supp. at 429. 

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 16 of 24
17 

1358064v1

DEFENDANTS’ PROPOSED JURY INSTRUCTION NO. 13 

Damages -- Consider Only If Necessary 

If Merisant has proven by a preponderance of the credible evidence that McNeil is 

liable on Merisant’s claim, then you must determine the damages to which Merisant is entitled. 

However, you should not infer that Merisant is entitled to recover damages merely because I am 

instructing you on the elements of damages. It is exclusively your function to decide upon 

liability, and I am instructing you on damages only so that you will have guidance should you 

decide that Merisant is entitled to a monetary recovery.18

 

18 4 Leonard Sand, et al., Modern Federal Jury Instructions, Instruction 77-1 (parties' names substituted 

for "plaintiff" and "defendant."). 

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 17 of 24
18 

1358064v1

DEFENDANTS’ PROPOSED JURY INSTRUCTION NO. 14 

Compensatory Damages 

The purpose of the law of damages is to award, as far as possible, just and fair 

compensation for loss, if any, which resulted from the defendant’s violation of the plaintiff’s 

rights. If you find that McNeil is liable on the claims, as I have explained them, then you must 

award Merisant sufficient damages to compensate it for any injury proximately caused by 

McNeil's conduct.

These are known as “compensatory damages.” Compensatory damages seek to 

make the plaintiff whole – that is, to compensate it for the damage it actually suffered. 

I remind you that you may award compensatory damages only for injuries that a 

Merisant proves were proximately caused by McNeil's allegedly wrongful conduct. The 

damages that you award must be fair and reasonable, neither inadequate nor excessive. You 

should not award compensatory damages for speculative injuries, but only for those injuries that 

Merisant has actually suffered. 

In awarding compensatory damages, if you decide to award them, you must be 

guided by dispassionate common sense. Computing damages may be difficult, but you must not 

let that difficulty lead you to engage in arbitrary guesswork. On the other hand, the law does not 

require a plaintiff to prove the amount of his or her losses with mathematical precision, but only 

with as much definiteness and accuracy as the circumstances permit. 

In all instances, you are to use sound discretion in fixing an award of damages, 

drawing reasonable inferences where you deem appropriate from the facts and circumstances in 

evidence. 

Deleted: . 

Deleted: B

Deleted: or which it is likely to suffer 

in the near future

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 18 of 24
19 

1358064v1

If you find that the evidence before you is insufficient to show that Merisant has 

sustained any substantial damages, then you may return a verdict for Merisant on liability and fix 

the amount of the compensatory damages in a nominal sum such as one.

19

 

19 4 Leonard Sand, et al., Modern Federal Jury Instructions, Instruction 77-3 (changes not noted in 

redline include changes of pronouns and substitution of parties' names from "plaintiff" and "defendant"). 

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 19 of 24
20 

1358064v1

DEFENDANTS’ PROPOSED JURY INSTRUCTION NO. 15 

Compensatory Damages -- Merisant’s Lost Profits 

If you should find, from a preponderance of the evidence in the case, that 

Merisant is entitled to a verdict, the law provides that Merisant is to be fairly compensated for all 

damages, if any, to Merisant’s business proximately caused by McNeil’s misconduct. 

In arriving at the amount of the award, you should include any damages suffered 

by Merisant because of lost profits; that is to say, profits that Merisant would have made, but for 

the unlawful conduct of McNeil. 

If you should find from a preponderance of the evidence in the case that damage 

to Merisant’s business, such as a loss in profits, was proximately caused by McNeil’s conduct 

complained of, then the circumstances that the precise amount of Merisant’s damages may be 

difficult to ascertain should not affect plaintiff's recovery, particularly if McNeil’s wrongdoings 

have caused the difficulty in determining the precise amount. 

On the other hand, Merisant is not to be awarded purely speculative damages. An 

allowance for lost profits may be included in the damages awarded only if there is some 

reasonable basis in the evidence in the case for determining that Merisant has in fact suffered a 

loss of profits, even though the amount of such loss may be difficult to ascertain. 

.

 20

 

20 O’Malley, Grenig & Lee, Federal Jury Practice and Instructions, §129.30 (5th Ed.) (substituting 

parties' names for "plaintiff" and "defendant.") 

Deleted: ,

Deleted: the 

Deleted: illegal 

Deleted: ,

Deleted: when 

Deleted: In arriving at the amount of 

any loss of profits sustained by Merisant, 

you are entitled to consider any past 

earnings of Merisant in the business in 

question, as well as any other evidence in 

the case bearing on this issue

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 20 of 24
21 

1358064v1

DEFENDANTS’ PROPOSED JURY INSTRUCTION NO. 16 

Compensatory Damages -- McNeil’s Profits 

If you should find from a preponderance of the evidence that Merisant is entitled 

to a verdict, and recovery of its own lost profits is insufficient to make it whole, the law provides 

another measure of damages by which Merisant may be fairly compensated – awarding Merisant 

those profits McNeil gained from sales that Merisant would have made but for McNeil's false 

advertising. This is called disgorgement. The parties have agreed to the amounts that constitute 

McNeil's gross revenues and expenses, and hence profits. It is up to you to decide whether 

Merisant is entitled to any portion of those profits. 

An award of McNeil’s profits is only appropriate if Merisant’s damages are 

otherwise nominal.21 To determine whether Merisant is entitled to McNeil’s profits gained from 

sales that Merisant would have made but for McNeil's false advertising you should consider the 

following factors, including, but not limited to: 

(1) whether McNeil had the intent to confuse or deceive; 

(2) whether sales have been diverted from McNeil to Merisant, 

(3) the adequacy of other remedies, such as Merisant's lost profits, 

(4) any unreasonable delay by Merisant in asserting its rights, and 

(5) the public interest in making the misconduct unprofitable. 

Disgorgement is not a penalty, it can only be awarded to compensate Merisant for 

its losses.22 Therefore, you can only award an amount that compensates Merisant for its proven 

 

21 Joint Stock Soc'y v. UDV N. Am., Inc., 266 F.3d 164, 184 (3d Cir. 2001). 

22 15 U.S.C. § 1117(a). 

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 21 of 24
22 

1358064v1

losses.23 And disgorgement must be limited to that portion of McNeil’s sales and resulting 

profits that Merisant would have made but for the false advertising, and that can reasonably be 

attributed to the false advertising. Any award should not include profits that can be reasonably 

attributed to other factors (such as taste, quality, price, and appearance).24 

You may not include in any award of profits any amount that you included in 

determining plaintiff Merisant’s actual compensatory damages.25 

 

23 Burndy Corp. v. Teledyne Indus., Inc., 584 F. Supp. 656, 668 (D. Conn. 1984); see George Basch Co., 

Inc. v. Blue Coral, Inc., 968 F.2d 1532, 1540 (2d Cir. 1992). 

24 Gucci Am., Inc. v. Daffy’s, Inc., 354 F.3d 228, 243 (3d Cir. 2003). 

25 Banjo Buddies, Inc. v. Renosky, 399 F.3d 168, 175 (3d Cir. 2005); see also Judge Pratter’s March 2, 

2007 Mem. & Order at 35-36. 

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 22 of 24
23 

1358064v1

DEFENDANTS’ PROPOSED JURY INSTRUCTION NO. 17

Damages: Mitigation of Damages 

You are instructed that any person who claims damages as a result of an alleged 

wrongful act of another has a duty under the law to use reasonable diligence under the 

circumstances to "mitigate," or minimize, those damages. The law imposes on an injured person 

the duty to take advantage of reasonable opportunities he may have to prevent the aggravation of 

his injuries, so as to reduce or minimize the loss or damage. 

If you find McNeil is liable and that Merisant has suffered damages, Merisant 

may not recover for any item of damage it could have avoided through such reasonable effort. If 

Merisant unreasonably failed to take advantage of an opportunity to lessen its damages, you 

should deny recovery for those damages which it would have avoided had it taken advantage of 

the opportunity. 

Bear in mind that the question whether Merisant acted "reasonably" with respect 

to the mitigation of damages is one for you to decide, as sole judges of the facts. Although the 

law will not allow an injured plaintiff to sit idly by when presented with an opportunity to 

mitigate, this does not imply that the law requires an injured plaintiff to exert himself 

unreasonably or incur unreasonable expense in an effort to mitigate, and it is defendant's burden 

of proving that the damages reasonably could have been avoided. In deciding whether to reduce 

Merisant's damages due to some failure to mitigate, therefore, you must weigh all the evidence in 

light of the particular circumstances of the case, using sound discretion in deciding whether 

McNeil has satisfied its burden of proving that Merisant's conduct was not reasonable.26

 

26 4 Leonard Sand, et al., Modern Federal Jury Instructions, Instruction 77-7. 

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 23 of 24
24 

1358064v1

Dated: April 2, 2007 

 Respectfully submitted, 

Steven A. Zalesin 

Clay J. Pierce 

PATTERSON BELKNAP WEBB & TYLER LLP 

1133 Avenue of the Americas 

New York, New York 10036-6710 

(212) 336-2000 

and 

DRINKER BIDDLE & REATH LLP 

One Logan Square 

18th and Cherry Streets 

Philadelphia, Pennsylvania 19103-6996 

(215) 988-2700 

By: /s/ Alfred W. Putnam, Jr. 

 Alfred W. Putnam, Jr. 

 David J. Kessler 

 Andrea L. D’Ambra 

Of Counsel: 

 Donna Malin, Esq. 

 Johnson & Johnson 

Case 2:04-cv-05504-GEKP Document 221 Filed 04/02/07 Page 24 of 24