IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

ANUCHA BROWNE SANDERS,

PLAINTIFF,
CIVIL NO. 06-0589
v.
MADISON SQUARE GARDEN,
L.P., ISIAH LORD THOMAS, AND
JAMES L. DOLAN
DEFENDANTS.

PLAINTIFFS DEMANDS TRIAL BY JURY

JOINT MOTION SUBMITTING PROPOSED JURY INSTRUCTIONS

Come now, plaintiffs and defendant, through their undersigned attorneys,

and request that this Honorable Court read to the jury the instructions proposed
here.

I HEREBY CERTIFY: That on this same date we have electronically filed the
foregoing with the Clerk of the Court, using the CM/ECF system which will send
notification of this filing to all counsel for the parties in this case.

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 I – BEFORE TRIAL

JURY INSTRUCTION NO. 1 - Introduction to Jury

Members of the jury, we are about to start the trial of this case, about which

you have heard some details during jury selection. Before the trial begins,

however, there are certain instructions you should have in order to understand what

you will hear and see and how you should conduct yourself during the trial.

JURY INSTRUCTION NO. 2 - Parties

The parties who bring a lawsuit are called plaintiffs. In this action, the

plaintiff is Anucha Browne Sanders who claims sex discrimination by the

defendants in the form of a hostile work environment and retaliation under Title

VII of the Civil Rights Act of 1974 and Section 296 of the Human Rights Law and

is seeking to recover compensatory and punitive damages from the defendants in

the amount of $20,000,000.

The defendants are Madison Square Garden, Isaiah Thomas, and James

Dolan. The party against whom the suit is brought is called defendant. In this

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action the defendants are Madison Square Garden, Isaiah Thomas, and James

Dolan.

JURY INTRUCTION NO. 3 - No Transcript Available

At the end of the trial, you must make your decision based on what you

recall of the evidence. You will not have a written transcript to consult. You must

pay close attention to the testimony as it is given.

JURY INSTRUCTION NO. 4 - Outline of Trial

The trial will proceed in the following manner:

First, the plaintiff's attorney may make an opening statement. Next, the

defendant[s]'s attorney may make an opening statement. An opening statement is

not evidence but is simply a summary of what the attorney expects the evidence to

be.

The plaintiff will then present evidence and counsel for the defendant[s] may

cross-examine. Then, following the plaintiff’s case, the defendants may present

evidence and plaintiff's counsel may cross-examine.

Lastly, after the presentation of evidence is completed, the attorneys will

make their closing arguments to summarize and interpret the evidence for you. As

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with opening statements, closing arguments are not evidence. The court will

instruct you further on the law. After that you will retire to deliberate on your

verdict.

JURY INSTRUCTION NO. 5 – Role of the Jury

Introduction

It is your duty to determine the facts in this case from the evidence produced

in court. It also is your duty to accept the law from the court, regardless of what

you personally believe the law is or ought to be. You are to apply the law to the

facts and in this way decide the case.

The order in which these instructions are given has no significance as to

their relative importance. The attorneys may properly discuss any specific

instructions they think are particularly significant. You should consider the

instructions as a whole and should not place undue emphasis on any particular

instruction or part thereof. The information complaint in this case is only an

accusation against the defendant which informs the defendant of the charge. You

are not to consider the filing of the information complaint or its contents as proof

of the matters charged.

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 The evidence you are to consider consists of the testimony of the witnesses

and the exhibits admitted into evidence. It has been my duty to rule on the

admissibility of evidence. You must not concern yourselves with the reasons for

these rulings. You will disregard any evidence which either was not admitted or

which was stricken by the court.

In determining whether any proposition has been proved, you should

consider all of the evidence introduced by all parties bearing on the question.

Every party is entitled to the benefit of the evidence whether produced by that

party or by another party.

You are the sole judges of the credibility of the witnesses and of what

weight is to be given the testimony of each. In considering the testimony of any

witness, you may take into account the opportunity and ability of the witness to

observe, the witness’s memory and manner while testifying, any interest, bias, or

prejudice the witness may have, the reasonableness of the testimony of the witness

considered in light of all the evidence, and any other factors that bear on

believability and weight.

JURY INSTRUCTION NO. 6 - Openings and Evidence

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 When I have completed these opening instructions to you, the attorneys will

make opening statements to you in which each will outline for you what they

expect to prove. The purpose of such opening statements is to tell you about each

party's claims so that you will have a better understanding of the evidence as it is

introduced. What is said in such opening statements is not evidence. The evidence

upon which you will base your decision will come from the testimony of witnesses

here in court or in examinations before trial, or in the form of photographs,

documents, or other exhibits introduced into evidence.

Plaintiffs will make their opening statement first and will be followed by the

defendant’s. After the opening statements, plaintiffs will introduce evidence in

support of their claim. Normally, plaintiffs must produce all their witnesses and

complete their entire case before the defendant introduces any evidence, although

exceptions are sometimes made to that rule in order to accommodate a witness.

After plaintiffs have completed the introduction of all their evidence,

defendant may present witnesses and exhibits. If they do so, plaintiffs may be

permitted to offer additional evidence for the purpose of rebutting defendant's

evidence. Each witness is first examined by the party who calls that witness to

testify, and then the opposing party is permitted to question the witness.

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JURY INSTRUCTION NO. 7 - Objections, Motions, Exceptions

At times during the trial, an attorney may object to a question or to the

introduction of an exhibit or make motions concerning legal questions that apply to

this case. Arguments in connection with such objections or motions are sometimes

made out of the presence of the jury. Any ruling upon such objections or motions

will be based solely upon the law and therefore you must not conclude from any

such ruling or from anything I say during the course of the trial that I favor any

party to this lawsuit. After such a ruling, you may hear one of the attorneys taking

what we call an exception to it. Exceptions have nothing to do with your role in

this case and I mention the procedure to you so that you will not be confused if you

hear the word during the trial.

JURY INSTRUCTION NO. 8 - Bench Conferences and Recesses

During the trial it may be necessary for me to speak with the lawyers out of

your hearing, either by having a bench conference here while you are present in the

courtroom, or by calling a recess. Please understand that while you are waiting, we

are working. The purpose of these conferences is to decide how certain evidence is

to be treated under the rules of evidence which govern the trial, and to avoid

confusion and error. We will, of course, do what we can to keep the number and

length of these conferences to a minimum.

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JURY INSTRUCTION NO. 9 - Summations
Upon completion of the introduction of evidence, the attorneys will again

speak to you in a closing statement or summation. In summing up, the lawyers will

point out what they believe the evidence has shown, what inferences or

conclusions they believe you should draw from the evidence and what conclusions

they believe you should reach as your verdict. What is said by the attorneys in

summation, like what is said by them in their opening statements, or in the making

of objections or motions during the trial, is not evidence. Summations are intended

to present the arguments of the parties based on the evidence.

JURY INSTRUCTION NO. 10 - Function of Court and Jury

After the summations, I will instruct you on the rules of law applicable to

the case and you will then retire for your deliberations. Your function as jurors is

to decide what has or has not been proved and apply the rules of law that I give

you to the facts as you find them to be. The decision you reach will be your

verdict. Your decision will be based on the testimony that you hear and the exhibits

that will be received in evidence during the trial. You are the sole and exclusive

judges of the facts and nothing I say or do should be taken by you as any indication

of my opinion as to the facts.

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 As to the facts, neither I nor anyone else may invade your province. I will

preside impartially and not express any opinion concerning the facts. Any opinions

of mine on the facts would, in any event, be totally irrelevant because the facts are

for you to decide. On the other hand, and with equal emphasis, I instruct you that

in accordance with the oath you took as jurors you are required to accept the rules

of law that I give you whether you agree with them or not. You are not to ask

anyone else about the law. You should not consider or accept any advice about the

law from anyone else but me.

JURY INSTRUCTION NO. 11 – Consider Only Competent Evidence

As the sole judges of the facts, you must decide which of the witnesses you

believe, what portion of their testimony you accept and what weight you give to it.

At times during the trial, I may sustain objections to questions and you may hear

no answer, or, where an answer has been made, I may instruct that it be stricken or

removed from the record and that you disregard it and dismiss it from your minds.

You may not draw any inference or conclusion from an unanswered question, nor

may you consider testimony which has been stricken or removed from the record

in reaching your decision. The law requires that your decision be made solely upon

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the evidence before you. Such items as I exclude from your consideration will be

excluded because they are not legally admissible.

JURY INSTRUCTION NO. 12 - Weighing Testimony

The law does not, however, require you to accept all of the evidence I shall

admit. In deciding what evidence you will accept, you must make your own

evaluation of the testimony given by each of the witnesses, and decide how much

weight you choose to give to that testimony. The testimony of a witness may not

conform to the facts as they occurred because he or she is intentionally lying,

because the witness did not accurately see or hear what he or she is testifying

about, because the witness' recollection is faulty, or because the witness has not

expressed himself or herself clearly in testifying.

There is no magical formula by which you evaluate testimony. You bring

with you to this courtroom all of the experience and background of your lives. In

your everyday affairs you decide for yourselves the reliability or unreliability of

things people tell you. The same tests that you use in your everyday dealings are

the tests which you apply in your deliberations. The interest or lack of interest of

any witness in the outcome of this case, the bias or prejudice of a witness, if there

be any, the appearance, the manner in which the witness gives testimony on the

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stand, the opportunity that the witness had to observe the facts about which he or

she testifies, the probability or improbability of the witness' testimony when

considered in the light of all of the other evidence in the case, are all items to be

considered by you in deciding how much weight, if any, you will give to that

witness' testimony.

If it appears that there is a discrepancy in the evidence, you will have to

consider whether the apparent discrepancy can be reconciled by fitting the two

stories together. If, however, that is not possible, you will then have to decide

which of the conflicting stories you will accept.

JURY INSTRUCTION NO. 13 - Conduct During Recess

The purpose of the rules I have outlined for you is to make sure that a just

result is reached when you decide the case. For the same purpose, you should keep

in mind several rules governing your own conduct during any recess.

JURY INSTRUCTION NO. 14 - Discussion by Others

Please do not permit any person who is not a juror to discuss this case in

your presence, and if anyone does so despite you telling the person not to, report

that to me as soon as you are able. You should not, however, discuss with your

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fellow jurors either that fact or any other fact you feel necessary to bring to my

attention.

JURY INSTRUCTION NO. 15 - Conversation with Parties or Attorneys

Although it is a normal human tendency to talk to people with whom one

comes in contact, please do not, during the time you serve on this jury, talk,

whether in or out of the courtroom, with any of the parties or their attorneys or any

witness. By this I mean not only do not talk about the case, but do not talk to them

at all, even to pass the time of day. In no other way can all parties be assured of the

absolute impartiality they are entitled to expect from you as jurors.

JURY INSTRUCTION NO. 16 - Conclusion

The description of trial procedure, the rules governing your conduct and the

legal principles I have discussed with you will, I believe, make it easier for you to

understand the trial as it goes on and to reach a just result at its conclusion. You

should not take anything I may have said during the trial as indicating what I think

of the evidence or what I think your verdict should be.

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 II – AFTER TRIAL IN CHIEF

JURY INSTRUCTION NO. 17 - Introduction

Members of the jury, we come now to that portion of the trial when you are.

instructed on the law applicable to the case and after which you will retire for your

final deliberations. You have now heard all the evidence introduced by the parties

and through arguments of their attorneys you have learned the conclusions which

each party believes should be drawn from the evidence presented to you.

JURY INSTRUCTION NO. 18 - Review Principles Stated

You will recall that at the beginning of the trial I stated for you certain

principles so that you could have them in mind as the trial progressed. Briefly, they

were that you are bound to accept the law as I give it to you, whether or not you

agree with it. You are not to ask anyone else about the law. You should not

consider or accept any advice about the law from anyone else but me.

Furthermore, you must not conclude from my rulings or anything I have said

during the trial that I favor any party to this lawsuit. Moreover, you may not draw

any inference from an unanswered question nor consider testimony which has been

stricken from the record in reaching your decision.

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 Finally, in deciding how much weight you choose to give to the testimony of

any particular witness, there is no magical formula which can be used. The tests

used in your everyday affairs to decide the reliability or unreliability of statements

made to you by others are the tests you will apply in your deliberations. The items

to be taken into consideration in determining the weight you will give to the

testimony of a witness include the interest or lack of interest of the witness in the

outcome of the case, the bias or prejudice of the witness, if there be any, the age,

the appearance, the manner of the witness as the witness testified, the opportunity

that the witness had to observe the facts about which he or she testified, the

probability or improbability of the witness' testimony when considered in the light

of all the other evidence in the case.

JURY INSTRUCTION NO. 19(A) - Sexual Harassment Hostile Environment

Created by Supervisors or Defendant Itself
Plaintiff accuses defendants of sexual harassment in violation of federal law.

To succeed on this claim, plaintiff must prove by a preponderance of the evidence

all four of the following factors:

1. She was intentionally subjected to unwelcome harassment by the

employer or by her supervisor;

2. The harassment was based upon her sex;

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 3. The harassment was both objectively and subjectively offensive, such

that a reasonable person would find it hostile or abusive and plaintiff

in fact did perceive it to be so; and

4. The harassment was sufficiently severe or pervasive so as to alter the

conditions of her employment and create an abusive working

environment.

"Unwelcome harassment" means conduct that is uninvited, and offensive or

unwanted.

On whether the conduct was objectively offensive, you may consider,

among other things, the frequency of the conduct, its severity, whether it was

physically threatening or humiliating or whether it was a mere offensive utterance,

and whether it unreasonably interfered with an employees work performance.

Liability on this claim requires more than mere utterance of an offensive

remark. It does not, however, require tangible psychological injury. There is no

mathematically precise test for determining whether words and gestures meet the

standard. Instead, you must consider the evidence as a whole and the totality of the

circumstances, such as the nature of the conduct and the context in which it

occurred.

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 Discriminatory intimidation, ridicule and insult can be sufficiently severe or

pervasive in their accumulated effect to alter the conditions of employment and

create an abusive working environment. The conduct or actions do not have to be

overtly sexual. But conduct that results from genuine but innocuous differences in

the way men and women routinely interact with members of the same sex and of

the opposite sex is not illegal. Offhand comments, rudeness, occasional teasing,

and isolated incidents are not alone sufficient. This is not a general civility code for

the workplace.

If plaintiff satisfies for you all of the requirements I have listed, then you

shall consider the defendants’ affirmative defense. To prevail on its affirmative

defense, defendant must prove by a preponderance of the evidence both of the

following:

1. It exercised reasonable care to prevent and correct promptly sexually

harassing behavior; and

2. Plaintiff unreasonably failed to take advantage of any preventive or

corrective opportunities defendants provided.

If you find that defendants have proven both of these by a preponderance of the

evidence, your verdict must be for defendants on this claim. Otherwise, your

verdict must be for plaintiff.

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JURY INSTRUCTION NO. 19(B) - Hostile Work Environment Harassment -
Essential Factual Elements—Employer or Entity Defendant
Plaintiff claims that that she was subjected to harassment based on her sex in

her workplace at Madison Square Garden, causing a hostile or abusive work

environment. To establish this claim, plaintiff, Anucha Browne Sanders, must

prove all of the following:

1. The plaintiff was an employee of the Madison Square Garden;

2. The plaintiff was subjected to unwanted harassing conduct because she was

a woman;

3. The harassing conduct was so severe, widespread, or persistent that a

reasonable woman in plaintiff’s circumstances would have considered the

work environment to be hostile or abusive;

4. The plaintiff considered the work environment to be hostile or abusive;

5. Madison Square Garden or its supervisors or agents knew or should have

known of the conduct and failed to take immediate and appropriate

corrective action;

6. The plaintiff was harmed; and

7. The conduct was a substantial factor in causing plaintiff's harm.

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JURY INSTRUCTION NO. 20 - Hostile Work Environment - Elements
The Plaintiff has alleged that she was subjected to a hostile work

environment based upon sex in violation of the Title VII of the Civil Rights Act of

1964. To prove her claim of hostile work environment, the Plaintiff must prove

each of the following:

1. The conduct complained of was unwelcome;

2. The conduct complained of was offensive;

3. The conduct complained of was sexual [or other protected status] in nature

or directed at the Plaintiff because of her sex;

4. The conduct complained of was sufficiently severe or pervasive to alter the

terms and conditions of the Plaintiff's employment by creating an abusive

working environment; and

5. The Defendants knew or should have known about the conduct to which

plaintiff claims she was subjected and failed to implement reasonably

prompt and appropriate corrective action.

JURY INSTRUCTION NO. 21 - The New York State Human Rights Law

The New York State Human Rights Law (Executive Law § 296) defines and

prohibits unlawful discriminatory practices by private and public employers. The

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statute forbids many of the same practices that are forbidden by Title VII of the

Civil Rights Act of 1964, 42 USC § 200e, et seq. (Title VII). Further, the standards

for recovering under the New York State Human Rights Law are generally the

same as those for recovering under Title VII.

Executive Law § 296(1)(a) makes it an unlawful discriminatory practice for

an employer to refuse to hire, to discharge, or to discriminate in compensation or in

terms, conditions or privileges of employment because of the … sex … of any

individual.

JURY INSTRUCTION NO. 22- New York State Human Rights Law, Hostile

Work Environment

Under the New York State Human Rights Law, a hostile environment exists

when the workplace is permeated with discriminatory intimidation, ridicule and

insult that is sufficiently severe or pervasive to alter the conditions of the victim's

employment and create an abusive working environment,

The test for a hostile environment has both objective and subjective

elements: a hostile environment is one that would reasonably be perceived and is

perceived as hostile or abusive The factors to be considered include the frequency

and severity of the conduct, whether the conduct was threatening or humiliating as

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opposed to being merely offensive and whether it unreasonably interfered with the

plaintiff's work performance, Although generally isolated remarks or occasional

episodes will not suffice,, if the alleged conduct is extraordinarily severe, a single

incident may create a hostile environment, San Juan v Leach, supra. It is not

necessary for the plaintiff to demonstrate that the conduct was psychologically

injurious, although the effect on the employee's psychological well-being is

relevant.

JURY INSTRUCTION NO. 23 - Hostile Work Environment - Defined

In determining whether a work environment is hostile, you may consider some

or all of the following factors:

 The nature and severity of the conduct;

 Whether the conduct complained of was humiliating;

 Whether the conduct complained of was repeated or a single incident;

 Whether the conduct complained of was by a co-worker or a supervisor;

 The effect of the conduct on the plaintiff's mental or emotional state;

 Whether others joined in the conduct;

 Whether the conduct was directed at more than one person;

 The context in which the conduct occurred;

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  Whether the conduct was physically threatening or humiliating or a mere

 offensive utterance.

JURY INSTRUCTION NO. 24 - Tangible Employment Action - Defined

A "tangible employment action" means a significant change in employment

status, such as hiring, firing, layoff, failure to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change in

wages or benefits. A tangible employment action is not limited to monetary losses

of benefits or wages, but it must be more than a mere inconvenience or alteration

of job responsibility.

JURY INSTRUCTION NO. 25 - Reasonable Person - Defined

In determining whether a hostile work environment existed, you must

consider the evidence from the perspective of a reasonable person. This is an

objective standard, and you must look at the evidence from the perspective of a

reasonable person's reaction to a similar environment under similar circumstances.

JURY INSTRUCTION NO. 26 - Unwelcome Conduct - Defined

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 "Unwelcome conduct" means conduct that was not solicited or encouraged

by the plaintiff and that was regarded as undesirable by the plaintiff.

JURY INSTRUCTION NO. 27 – Supervisor - Defined

Regardless of an employee's title, a "supervisor" is an employee with

authority to hire, fire, discipline, promote, transfer, or evaluate the performance of

other employees, or to effectively recommend such actions.

JURY INSTRUCTION NO. 28 - Retaliation

Plaintiff accuses defendants of violating Title VII of the Civil Rights Act of

1964 by retaliating against her for engaging in protected activities, namely, for

filing a discrimination complaint. Filing a discrimination complaint is a protected

activity. To succeed on this claim, plaintiff must prove by a preponderance of the

evidence that:

1. The plaintiff opposed discrimination or participated in covered proceedings;

2. The defendants took an adverse action against her; and

3. There is a causal connection between the protected activity and the adverse

action.

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JURY INSTRUCTION NO. 29 - Retaliation Claim – New York State Human

Rights Law

The New York State Human Rights Law prohibits employers from

retaliating against employees or job applicants for opposing practices prohibited by

the statute or for filing a complaint, testifying, assisting or participating in a

discrimination proceeding, Executive Law § 296(1)(e); Title VII which is used to

interpret the New York State Human Rights Law also has an anti-retaliation

provision containing two clauses: (1) the “opposition clause,” which makes it

unlawful for an employer to discriminate against an employee because the

employee has opposed any practice made an unlawful employment practice “by

this subchapter,” and (2) the “participation clause,” which makes it unlawful for an

employer to discriminate against an employee because the employee “has made a

charge, testified, or participated in an investigation, proceeding, or hearing under

this subchapter.”

The term “oppose” according to its ordinary meaning of “resist or

antagonize” or “contend against” or “confront” or “withstand,” and held that an

employee may be protected under the opposition clause when the employee

provides information about the employer's discriminatory conduct in response to

questions about the employer's actions in an internal investigation.

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 The standards used for retaliation claims asserted under Title VII are also

used for claims arising under the New York State Human Rights Law. Under those

standards, a prima facie claim of retaliation requires evidence of a subjective

retaliatory motive for the adverse employment decision. To make out a prima facie

case of retaliation, plaintiff must show:

1. participation in protected activity;

2. the defendant’s knowledge of the participation;

3. an adverse employment action against the plaintiff; and

4. a causal connection between the protected activity and the adverse

employment action.

Once a prima facie case is made, the burden shifts to the employer to articulate a

legitimate nondiscriminatory reason.

If defendant meets this burden, plaintiff must then show that the reasons

advanced were pretextual, i.e., not the true reason for the employer’s actions.

There is no requirement that the retaliatory conduct occur against a current

employee.

An employee's encouraging a co-employee to bring a sexual harassment

claim and making statements concerning the alleged sexual harassment constitute

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“opposition” to practices forbidden by the Human Rights Law and are protected

against retaliatory employment decisions.

A retaliation claim is not negated merely because the underlying claim of

discrimination.

JURY INSTRUCTION NO. 30 - Burden of Proof

In these instructions you are told that your verdict depends on whether you

find certain facts have been proved by the greater weight of the evidence. To find

that an element has been proved by the greater weight of the evidence, you must

find that it is more likely true than not true. It is determined by considering all of

the evidence and deciding which evidence is more believable. If, on any issue in

the case, you cannot decide whether a fact is more likely true than not true, you

cannot find that it has been proved.

The greater weight of the evidence is not necessarily determined by the

greater number of witnesses or exhibits a party has presented. You may have heard

of the term "proof beyond a reasonable doubt." That is a stricter standard which

applies in criminal cases. It does not apply in civil cases such as this. You should,

therefore, put it out of your minds.

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JURY INSTRUCTION NO. 31 - General: Nature of Case; Burden of Proof;

Duty of Jury; Cautionary

Ladies and Gentlemen: I will take a few moments now to give you some

initial instructions about this case and about your duties as jurors. At the end of the

trial, I will give you further instructions. I may also give you instructions during

the trial. Unless I specifically tell you otherwise, all such instructions - both those I

give you now and those I give you later – are equally binding on you and must be

followed.

This is a civil case brought by the plaintiff against the defendants. The

plaintiff alleges that the defendants discriminated against her by creating a hostile

work environment based upon her sex and by retaliating against her for opposing

their discriminatory practices.

The defendants deny that allegation.

It will be your duty to decide from the evidence whether the plaintiff is

entitled to a verdict against the defendants. From the evidence you will decide

what the facts are. You are entitled to consider that evidence in the light of your

own observations and experiences in the affairs of life. You will then apply those

facts to the law which I give you in these and in my other instructions, and in that

way reach your verdict. You are the sole judges of the facts; but you must follow

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the law as stated in my instructions, whether you agree with it or not. In deciding

what the facts are, you may have to decide what testimony you believe and what

testimony you do not believe. You may believe all of what a witness says, or only

part of it, or none of it.

In deciding what testimony to believe, consider the witnesses' intelligence,

their opportunity to have seen or heard the things they testify about, their

memories, any motives they may have for testifying a certain way, their manner

while testifying, whether they said something different at an earlier time, the

general reasonableness of their testimony and the extent to which their testimony is

consistent with other evidence that you believe.

Do not allow sympathy or prejudice to influence you. The law demands of

you a just verdict, unaffected by anything except the evidence, your common

sense, and the law as I give it to you.

JURY INSTRUCTION NO. 32 – Burden of Proof—When Burden Differs on

Different Issues

To say that a party has the burden of proof on a particular issue means that,

considering all the evidence in the case, the party's claim on that issue must be

established by a fair preponderance of the credible evidence. The credible evidence

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means the testimony or exhibits that you find worthy of belief. Preponderance

means the greater part of the evidence. That does not mean the greater number of

witnesses, or the greater length of time taken by either side.

The phrase preponderance of the evidence refers to the quality of the

evidence, its weight, and the effect that it has on your minds. For a party to prevail

on an issue on which he or she has the burden of proof, the evidence that supports

his or her claim on that issue must appeal to you as more nearly representing what

happened than the evidence opposed to it. If it does not or if it weighs so evenly

that you are unable to say that there is preponderance on either side, you must

decide the question against the party who has the burden of proof and in favor of

the opposing party.

In this case the plaintiffs claim that the defendant’s negligence caused the

occurrence that resulted in the death of one hundred and forty-six lives and caused

injuries and damages to seventy survivors. The plaintiffs have the burden of

proving that the defendant was negligent, and that defendant's negligence was a

substantial factor in causing the occurrence.

JURY INSTRUCTION NO. 33 - Circumstantial Evidence

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 Facts must be proved by evidence. Evidence includes the testimony of a

witness concerning what the witness saw, heard or did. Evidence also includes

writings, photographs, or other physical objects which may be considered as proof

of a fact. Evidence can be either direct or circumstantial. Facts may be proved

either by direct or circumstantial evidence or by a combination of both. You may

give circumstantial evidence less weight, more weight, or the same weight as direct

evidence.

Direct evidence is evidence of what a witness saw, heard, or did which, if

believed by you, proves a fact. For example, let us suppose that a fact in dispute is

whether I knocked over this water glass near the witness chair. If someone testifies

that he saw me knock over the glass, that is direct evidence that I knocked over the

glass.

Circumstantial evidence is evidence of a fact which does not directly prove a

fact in dispute but which permits a reasonable inference or conclusion that the fact

exists. For example, a witness testifies that he saw this water glass on the bench.

The witness states that, while he was looking the other way, he heard the breaking

of glass, looked up, and saw me wiping water from my clothes and from the papers

on the bench. This testimony is not direct evidence that I knocked over the glass; it

29
is circumstantial evidence from which you could reasonably infer that I knocked

over the glass.

Those facts which form the basis of an inference must be proved and the

inference to be drawn must be one that may be reasonably drawn. In the example,

even though the witness did not see me knock over the glass, if you believe his or

her testimony, you could conclude that I did. Therefore, the circumstantial

evidence, if accepted by you, allows you to conclude that the fact in dispute has

been proved.

In reaching your conclusion you may not guess or speculate. Suppose, for

example, the witness testifies that the water glass was located equally distant from

the court clerk and me. The witness states that he heard the breaking of glass and

looked up to see both the court clerk and me brushing water from our clothes. If

you believe that testimony, you still could not decide on that evidence alone who

knocked over the water glass. Where these are the only proved facts, it would be

only a guess as to who did it. But, if the witness also testifies that he heard the

court clerk say “I am sorry,” this additional evidence would allow you to decide

who knocked over the water glass.

JURY INSTRUCTION NO. 34 - Credibility of Witnesses

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 In deciding what the facts are, you may have to decide what testimony you

believe and what testimony you do not believe. You may believe all of what a

witness said, or only part of it, or none of it. In deciding what testimony to believe,

you may consider a witness' intelligence, the opportunity a witness had to see or

hear the things testified about, a witness' memory, any motives a witness may have

for testifying a certain way, the manner of a witness while testifying, whether a

witness said something different at an earlier time,1 the general reasonableness of

the testimony, and the extent to which the testimony is consistent with any

evidence that you believe.

In deciding whether or not to believe a witness, keep in mind that people

sometimes hear or see things differently and sometimes forget things. You need to

consider therefore whether a contradiction is an innocent misrecollection or lapse

of memory or an intentional falsehood, and that may depend on whether it has to

do with an important fact or only a small detail.

JURY INSTRUCTION NO. 35 - Return to Courtroom

If, during your deliberations, your recollection of any part of the testimony

should fail, or you have any question about my instructions to you on the law, you

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have the right to return to the courtroom for the purpose of having such testimony

read to you or have such question answered.

JURY INSTRUCTION NO. 36 - Juror's Use of Professional Expertise

Although as jurors you are encouraged to use all of your life experiences in

analyzing testimony and reaching a fair verdict, you may not communicate any

personal professional expertise you might have or other facts not in evidence to the

other jurors during deliberations. You must base your discussions and decisions

solely on the evidence presented to you during the trial and that evidence alone.

You may not consider or speculate on matters not in evidence or matters outside

the case.

JURY INSTRUCTION NO. 37 - Compensatory Damages

The fact that I instruct you on damages does not represent any view by me

that you should or should not find defendants liable. Plaintiff seeks to recover

damages for emotional pain, suffering, inconvenience, mental anguish, loss of

enjoyment of life and other noneconomic losses.

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 You must not consider any lost wages or fringe benefits. Federal law

requires that I as the judge determine the amount of any lost wages and fringe

benefits that plaintiff shall recover if you find defendants liable. Distress arising

from this lawsuit, or legal expenses incurred in this lawsuit must also not be

included in these damages. You must determine instead what other loss, if any,

plaintiff has suffered or will suffer in the future caused by any sex discrimination

that you find defendants has committed under the instructions I have given you.

We call these compensatory damages. You may award compensatory damages for

emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of

life, and other noneconomic losses if you determine that plaintiff has proven by a

preponderance of the evidence that she has experienced any of these consequences

as a result of sex discrimination.

No evidence of the monetary value of intangible things like emotional pain,

suffering, inconvenience, mental anguish, loss of enjoyment of life and other

noneconomic losses is available and there is no standard I can give you for fixing

any compensation to be awarded for these injuries. Even though it is obviously

difficult to establish a standard of measurement for these damages, that difficulty is

not grounds for denying a recovery on this element of damages. You must,

therefore, make the best and most reasonable estimate you can, not from a personal

point of view, but from a fair and impartial point of view, of the amount of
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emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life

and other noneconomic losses you find that plaintiff has undergone and can

probably be expected to suffer in the future as a result of[defendants’ conduct. And

you must place a money value on this, attempting to come to a conclusion that will

be fair and just to both of the parties. This will be difficult for you to measure in

terms of dollars and cents, but there is no other rule I can give you for assessing

this element of damages.

JURY INSTRUCTION NO. 38 – New York State Human Rights Law

Remedies

The New York State Human Rights Law, Executive Law § 297(9),

authorizes a court to award “damages and such other remedies as may be

appropriate.” The remedial nature of the statute evinces an intent to compensate

fully victims of employment discrimination,

An award of monetary compensation or some other form of remedy is

essential to the entry of judgment in favor of a plaintiff who establishes a cause of

action under the New York State Human Rights Law.

JURY INSTRUCTION NO. 39 - Punitive damages.

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 If you find that plaintiff should recover compensatory damages for the bad

faith actions of the insurance company, and you find that the conduct of the

insurance company was in reckless disregard for the interests of the plaintiff, or

was based on a dishonest judgment, or was otherwise malicious, willful, or

wanton, then you may award punitive damages.

"Reckless conduct" is the intentional doing of an act with utter indifference

to the consequences.

"Dishonest judgment" is a failure by the insurer to honestly and fairly

balance its own interests and the interests of the insured.

"Malicious conduct" is the intentional doing of a wrongful act with

knowledge that the act was wrongful.

"Willful conduct" is the intentional doing of a wrongful act with knowledge

that harm may result.

"Wanton conduct" is the doing of an act with utter indifference to or

conscious disregard for a person's rights.

Punitive damages are awarded for the limited purposes of punishment and

to deter others from the commission of like offenses.

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JURY INSTRUCTION NO. 40 – Damages - Punitive

In addition to awarding damages to compensate the plaintiff for her injuries,

you may, but you are not required to, award plaintiff punitive damages if you find

that the acts of the defendants that caused the injury complained of were wanton

and reckless, or malicious. The purpose of punitive damages is not to compensate

the plaintiff but to punish the defendant for wanton and reckless, malicious acts

and thereby to discourage the defendant and other companies from acting in a

similar way in the future.

In arriving at your decision as to the amount of punitive damages you should

consider the nature and reprehensibility of what defendants did. That would

include the character of the wrongdoing, such as: whether defendants’ conduct

demonstrated an indifference to, or a reckless disregard of rights of others, whether

the acts were done with an improper motive or vindictiveness, whether the act or

acts constituted outrageous or oppressive intentional misconduct, how long the

conduct went on, defendants’ awareness of what harm the conduct caused or was

likely to cause, any concealment or covering up of the wrongdoing, how often

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defendants had committed similar acts of this type in the past and the actual and

potential harm created by defendants’ conduct including the harm to individuals or

entities other than plaintiff.

However, although you may consider the harm to individuals or entities

other than plaintiff in determining the extent to which defendants conduct was

reprehensible, you may not add a specific amount to your punitive damages award

to punish defendants for the harm defendants caused to others. The amount of

punitive damages that you award must be both reasonable and proportionate to the

actual and potential harm suffered by plaintiff, and to the compensatory damages

you awarded plaintiff. The reprehensibility of plaintiff’s conduct is an important

factor in deciding the amount of punitive damages that would be reasonable and

proportionate in view of the harm suffered by plaintiff and the compensatory

damages you have awarded plaintiff.

You may also consider the defendants’ financial condition and the impact

your punitive damages award will have on defendants.

In reporting your verdict, you will state the amount awarded by you as

punitive damages.

Jury Instruction No. 41 - Jury Deliberations

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 Upon retiring to the jury room for your deliberation of this case, your first

duty is to select a foreperson to act as chairperson. It is his or her duty to see that

discussion is carried on in a sensible and orderly fashion, that the issues submitted

for your decision are fully and fairly discussed, and that every juror has a chance to

be heard and to participate in the deliberations upon each question before the jury.

You will be furnished with all of the exhibits admitted in evidence, these

instructions, and a single verdict form. You must fill out the verdict form and

answer all questions that apply to your deliberations, according to the decision you

reach. If you find the defendants liable, you must then award compensatory, and, if

applicable, punitive damages. All members of the jury must agree for you to

return a verdict. When all of you have so agreed, fill in the proper form of verdict

to express your decision. The foreperson will sign it and notify us, and we will

send someone to conduct you into court to declare your verdict.

The amount of any punitive damages must be based on reason and justice,

taking into account all the circumstances, including the nature of the wrong and

such aggravating and mitigating circumstances as may be shown. The amount

awarded, if any, must be reasonably related to the compensatory damages and

injury.

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JURY INSTRUCTION NO. 42 – Conclusion

I have now outlined for you the rules of law that apply to this case and the

processes by which you weigh the evidence and decide the facts. In a few minutes

you will retire to the jury room for your deliberations. Traditionally, Juror No. 1

acts as foreperson. Your first order of business when you are in the jury room will

be the election of a foreperson. In order that your deliberations may proceed in an

orderly fashion, you must have a foreperson, but of course, his or her vote is

entitled to no greater weight than that of any other juror. Your function—to reach a

fair decision from the law and the evidence—is an important one.

When you are in the jury room, listen to each other, and discuss the evidence

and issues in the case among yourselves. It is the duty of each of you, as jurors, to

consult with one another, and to deliberate with a view of reaching agreement on a

verdict, if you can do so without violating your individual judgment and your

conscience. While you should not surrender conscientious convictions of what the

truth is and of the weight and effect of the evidence and while each of you must

decide the case for yourself and not merely consent to the decision of your fellow

jurors, you should examine the issues and the evidence before you with candor and

frankness, and with proper respect and regard for the opinions of each other.

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 Remember in your deliberations that the dispute between the parties is, for

them, a very important matter. They and the court rely upon you to give full and

conscientious deliberation and consideration to the issues and evidence before you.

By so doing, you carry out to the fullest your oaths as jurors to truly try the issues

of this case and render a true verdict.

III – AFTER VERDICT

JURY INSTRUCTION NO. 43 - General Instruction

Members of the jury, your verdict completes your service in this case. On

behalf of the judicial system of this state, I thank you for that service. Before you

leave the courtroom, however, I want to inform you that you do not have to answer

questions about the case asked by anyone other than me. The public interest

requires that jurors have the utmost freedom of debate in the jury room, and that

each of you be free to express your views without fear of what others may think.

Although you are not required to maintain secrecy about what occurred in the jury

room, you should keep in mind your own best interests as jurors before discussing

the case with anyone or answering any questions about it. In sum, you are free to

discuss the case with anyone and you are also free to decline to discuss the case.

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