ELEVENTH CIRCUIT PATTERN JURY INSTRUCTIONS (CIVIL .5 Alter Ego.1 Corporation As Alter Ego Of Stockholder 215.2 Subsidiary As Alter Ego Of Parent Corporation 218 II. CIVIL RIGHTS CONSTITUTIONAL

ELEVENTH CIRCUIT

PATTERN JURY INSTRUCTIONS

(CIVIL CASES)

2005

ii

TABLE OF CONTENTS

Judicial Council Resolution x Preface xi Preliminary Instructions Before Trial xvii

BASIC INSTRUCTIONS

Index to Basic Instructions 1 Directions to Counsel Concerning Preparation of Proposed Instructions 3

Instruction No. Page

1 Face Page - Introduction 4 2 Consideration Of The Evidence

Duty To Follow Instructions .1 No Corporate Party Involved 5 .2 Corporate Party Involved 7 .3 Governmental Entity Or Agency Involved 9

3 Credibility Of Witnesses 11 4 Impeachment Of Witnesses

.1 Inconsistent Statement 12

.2 Inconsistent Statement And Felony Conviction 13

5 Expert Witnesses .1 General Instruction 14 .2 When Expert Witness Fees Represent

A Significant Portion Of The Witness' Income 15

6 Burden Of Proof .1 When Only Plaintiff Has Burden Of Proof 16 .2 When There Are Multiple Claims Or

When Both Plaintiff And Defendant Or Third Parties Have Burden Of Proof 17

7 Duty To Deliberate .1 When Only The Plaintiff Claims Damages 18 .2 When Both Plaintiff And Defendant

Claim Damages Or When Damages Are Not An Issue 19

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TABLE OF CONTENTS Instruction No. Page

8 Election Of Foreperson Explanation Of Verdict Form(s) 20

9 Civil Allen Charge 21

FEDERAL CLAIMS INSTRUCTIONS

Index to Federal Claims Instructions 24

I. ADVERSE EMPLOYMENT ACTION CLAIMS

1 .1 Public Employee (Constitutional Claims) 42 USC § 1983 .1 First Amendment Claim

Discharge/Failure To Promote Free Speech On Matter Of Public Concern 32

.2 First Amendment Claim Discharge/Failure To Promote Political Disloyalty/Key Employee 44

.3 Equal Protection Claim Race and/or Sex Discrimination Hostile Work Environment (Separate Liability Of Public Body And Individual Supervisors) 58

1 .2 Title VII, Civil Rights Act 42 USC § 2000e - 2000e-17 .1 Race And/Or Sex Discrimination

Discharge/Failure To Promote Including “Same Decision” Defense 71

.2 Race And/Or Sex Discrimination Workplace Harassment No Tangible Employment Action Taken (With Affirmative Defense By Employer) 84

.3 Race And/Or Sex Discrimination Workplace Harassment Tangible Employment Action Taken 100

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TABLE OF CONTENTS Instruction No. Page

1 .3 Civil Rights Act 42 USC §1981 Race Discrimination In Employment Discharge/Failure To Promote .1 General Instruction 110

1 .4 Age Discrimination In Employment Act 29 USC §§621-634 .1 General Instruction 119

1 .5 Americans With Disabilities Act 42 USC §§ 12101-12117 .1 Disparate Treatment Claim 130 .2 Reasonable Accommodation Claim 145

1 .6 Equal Pay Act 29 USC § 206(d)(1) and (3) .1 General Instruction 164

1 .7 Fair Labor Standards Act 29 USC §§ 201 et seq. .1 General Instruction 173

1 .8 Family And Medical Leave Act Substantive Claims And Retaliation Claims 29 USC §§ 2601-2654 .1 General Instruction 180

1 .9 Employee Claim Against Employer and Union (Vaca v. Sipes) .1 General Instruction 193

1 .10 Miscellaneous Issues .1 Respondeat Superior

(Under 42 USC § 1983) 199 .2 Constructive Discharge 203 .3 Retaliation 205

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TABLE OF CONTENTS Instruction No. Page

1 .10 .4 Employee/Independent Contractor And/Or Joint Employers .1 Employee/Independent Contractor 209 .2 Joint Employers 212

.5 Alter Ego .1 Corporation As Alter Ego

Of Stockholder 215 .2 Subsidiary As Alter Ego

Of Parent Corporation 218

II. CIVIL RIGHTS CONSTITUTIONAL CLAIMS 42 USC § 1983

2 .1 First Amendment Claim Prisoner Alleging Retaliation/Denial Of Access To Courts 221

2 .2 Fourth Amendment Claim Citizen Alleging Unlawful Arrest - Unlawful Search - Excessive Force 228

2 .3 Eighth Amendment Claim .1 Convicted Prisoner Alleging Excessive Force 239 .2 Convicted Prisoner Alleging Deliberate

Indifference to Serious Medical Need 248

2 .4 Fourteenth Amendment Claim .1 Pretrial Detainee Alleging Excessive Force 257 .2 Pretrial Detainee Alleging Deliberate

Indifference To Serious Medical Need 266

III. ANTI-TRUST SHERMAN ACT

3 .1 Section 1, Per Se Violation Conspiracy To Fix Prices (Includes Alternative "Rule of Reason" Instruction) 274

3 .2 Section 1, Per Se Violation Tying Agreement - Defense Of Justification 289

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TABLE OF CONTENTS Instruction No. Page

IV. SECURITIES ACT - 15 USC § 78j(b) - RULE 10b-5 17 C.F.R. § 240.10b-5(a),(b) and (c)

4 .1 Rules 10b-5(a),10b5-1, 10b5-2 Device, Scheme Or Artifice To Defraud Insider Trading 300

4 .2 Rule 10b-5(b) Misrepresentations/Omissions Of Material Facts 315

4 .3 Rule 10b-5(c) Fraudulent Practice Or Course Of Dealing Stockbroker "Churning" (Including Violation Of Blue Sky Law And Breach Of Fiduciary Duty As Pendent State Claims) 326

V. CIVIL RICO (18 USC § 1964(c))

5 .1 General Instruction 338

VI. JONES ACT - UNSEAWORTHINESS

6 .1 General Instruction (Comparative Negligence Defense) 348

6 .2 Maintenance And Cure 363

VII. FEDERAL EMPLOYERS LIABILITY ACT (FELA - 45 USC § 51)

7 .1 General Instruction (Comparative Negligence Defense) 369

VIII. PATENT INFRINGEMENT

8 .1 General Instruction (With Defense Of Invalidity) 378

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TABLE OF CONTENTS Instruction No. Page

IX. EMINENT DOMAIN

9 .1 General Instruction (Including Partial Taking Instructions) 393

X. TAX REFUND SUITS

10 .1 Reasonable Compensation To Stockholder - Employee 398

.2 Debt vs. Equity 402

.3 Employee vs. Independent Contractor 411

.4 Business Loss vs. Hobby Loss 417

.5 Real Estate Held Primarily For Sale 421

.6 Section 6672 Penalty 426

XI. AUTOMOBILE DEALERS DAY-IN-COURT ACT (15 USC § 1222)

11 .1 General Instruction 432

XII. ODOMETER TAMPERING - MOTOR VEHICLE INFORMATION AND COST SAVINGS ACT (49 USC § 32701, et. seq.)

12 .1 General Instruction 439

XIII. INTERSTATE LAND SALES FULL DISCLOSURE ACT (15 USC § 1709(b))

13 .1 General Instruction 444

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TABLE OF CONTENTS Instruction No. Page

STATE CLAIMS INSTRUCTIONS

Index to State Claims Instructions 449

1 Negligence .1 Comparative Negligence Defense 451 .2 With Counterclaim By Defendant 460 .3 Medical Malpractice

Claim Against Hospital And Physician Statute Of Limitations Defense 468

2 Products Liability (Against Manufacturer) .1 With Defenses Of Mis-Use And

Assumption Of Risk 476 .2 With Comparative Negligence Defense 486

3 Fraud - Civil Theft - Breach Of Fiduciary Duty .1 Intentional Fraud (With Defense Of Waiver) 497 .2 .1 Civil Theft (Florida) 509

.2 Civil Theft By Deception (Georgia) 515 .3 Breach of Fiduciary Duty 520

4 Fire Insurance Claim .1 General Instruction

With Defenses Based Upon False Application, Arson, And False Claim Form 526

5 Breach Of Construction Contract .1 Claim By Contractor

Counterclaim By Owner 538

6 Tortious Interference With Business Relationship .1 Raiding Key Employees 549

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TABLE OF CONTENTS Instruction No. Page

SUPPLEMENTAL DAMAGES INSTRUCTIONS

Index to Supplemental Damages Instructions 556

1 Duty To Mitigate .1 In General 558 .2 Pursuing Medical Care 559 .3 When Issue Raised Concerning

Advisability of Medical Treatment 560

2 Punitive Damages .1 In General 561

3 Mortality Tables - Actuarial Evidence .1 Life Expectancy In General 563 .2 Work Life Expectancy 564 .3 Life Expectancy Of Decedent 565 .4 Life Expectancy Of Survivor 566

4 Effect Of Income Taxes .1 Recovery Of Take-Home Pay 567

5 Reduction To Present Value .1 Inflation And Calculation Of

Below-Market Discount Rate 568

6 Attorney’s Fees And Court Costs .1 In General 571

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FOR THE ELEVENTH CIRCUIT

JUDICIAL COUNCIL

RESOLUTION

The Judicial Council of the Eleventh Circuit hereby RESOLVES,

That the Committee on Pattern Jury Instructions of the Judicial Council of the Eleventh Circuit is hereby authorized to distribute to the District Judges of the Circuit for their aid and assistance, and to otherwise publish, the Committee's Pattern Jury Instructions, Civil Cases, Eleventh Circuit (2005 revision); provided, however, that this resolution shall not be construed as an adjudicative approval of the content of such instructions which must await a case by case review by the Court.

For the Council:

CHIEF JUDGE

Date:

xi

PREFACE

These Pattern Jury Instructions (Civil Cases) have been prepared

by a Committee of District Judges of the Eleventh Circuit building upon

earlier works of the same kind first published in 1980 by a predecessor

committee in the former Fifth Circuit and republished in 1990 and in

1999 by a predecessor committee in the Eleventh Circuit.

Apart from reflecting evolving changes in the law, the prime

objective of the committee has remained constant - - to provide in words

of common usage and understanding a body of brief, uniform jury

instructions, fully stating the law wi