IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
GOSS INTERNATIONAL CORPORATION, a Delaware corporation,
FINAL JURY INSTRUCTIONS
TOKYO KIKAI SEISAKUSHO, LTD., a Japanese corporation and TKS (U.S.A.), INC., a Delaware corporation
Members of the jury, the written instructions I gave you at the beginning of the trial and the oral instructions I gave you during the trial remain in effect. I now give you some additional instructions.
The instructions I am about to give you, as well as the preliminary instructions given to you at the beginning of the trial, are in writing and will be available to you in the jury room. All instructions, whenever given and whether in writing or not, must be followed. This is true even though some of the instructions I gave you at the beginning of the trial are not repeated here.
In considering these instructions, the order in which they are given is not important.
INSTRUCTION NO. ___
The plaintiff Goss alleges that it suffered economic damages as a result of the defendants TKS’s and TKS USA’s violation of the Antidumping Act.
Defendants TKS and TKS USA deny that they violated the Antidumping Act.
The Antidumping Act makes it illegal for a foreign company to commonly and systematically import or sell products in the United States at prices substantially lower than the actual market value or wholesale price of comparable products in foreign markets, with the intent of injuring or destroying an industry in the United States. The Act authorizes any party injured by a violation of the Act to bring a civil lawsuit for damages in a United States District Court.
Do not consider this summary as proof of any claim. Decide the facts from the evidence and apply the law which I will now give you.
Neither in these instructions nor in any ruling, action, or remark that I have made during the course of this trial have I intended to give any opinion or suggestion as to what your verdict should be.
My duty is to tell you what the law is. Your duty is to accept and apply this law. Your duty is to decide all fact questions. Do not be influenced by any personal likes or dislikes, sympathy, bias, prejudices or emotions.
INSTRUCTION NO. ____
The fact that plaintiff Goss and defendants TKS and TKS (U.S.A.) are corporations and that TKS, Ltd., is a Japanese corporation should not affect your decision. All person are equal before the law, and corporations, whether large or small, are entitled to the same fair and conscientious consideration by you as any other person.
INSTRUCTION NO. _____
I have mentioned the word “evidence.” The “evidence” in this case consists of the following: the testimony of the witnesses; the documents and other things received as exhibits; and the facts that have been stipulated – that is, formally agreed to by the parties.
You may use reason and common sense to draw deductions or conclusions from facts which have been established by the evidence in the case.
Certain things are not evidence. I shall list those things again for you now:
1. Statements, arguments, questions, and comments by the lawyers are not evidence.
2. Objections are not evidence. The parties have a right to object when they believe something is improper. You should not be influenced by the objection. If I sustained an objection to a question, you must ignore the question and must not try to guess what the answer might have been.
3. Testimony that I struck from the record, or told you to disregard, is not evidence and must not be considered.
4. Anything you saw or heard about this case outside the courtroom is not evidence.
In our lives, we often look at one fact and conclude from it that another fact exists. In law, we call this an “inference.” A jury is allowed to make reasonable inferences. In this case, you are permitted to draw such reasonable inferences from the testimony and exhibits as you feel are justified in light of common experience. In other words, you may make deductions and reach conclusions that reason and common sense lead you to drawfrom the facts that have been established by the testimony and evidence in this case.
There are two types of evidence from which a jury may properly find the truth as to the facts of a case: direct evidence and circumstantial evidence. Direct evidence is the evidence of the witness to a fact or facts of which they have knowledge by means of their senses. The other is circumstantial evidence – the proof of a chain of circumstances pointing to the existence or nonexistence of certain facts.
The law makes no distinction between direct and circumstantial evidence. You should give all evidence the weight and value you believe it is entitled to receive.
INSTRUCTION NO. ____
You have heard testimony from persons described as experts. Persons who have become experts in a field because of their education and experience may give their opinion on matters in that field and the reasons for their opinion.
Consider expert testimony just like any other testimony. You may accept it or reject it. You may 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.
INSTRUCTION NO. ____
An expert witness was asked to assume certain facts were true and to give an opinion based on that assumption. This is called a hypothetical question. If any fact assumed in the question has not been proved by the evidence, you should decide if that omission affects the value of the opinion.
INSTRUCTION NO. ____
During this trial, you heard the word ‘interrogatory.’ An interrogatory is a written question asked by one party of another, who must answer it under oath in writing. Consider interrogatories and the answers to them as if the questions had been asked and answered here in court.
INSTRUCTION NO. ____
Testimony from depositions was introduced into evidence. A deposition is testimony taken under oath before the trial and preserved in writing and sometimes on video tape. Consider deposition testimony as if it had been given in court.
Your verdict in this case depends on whether you find certain facts have been proved. The burden of proving a fact is upon the party whose claim depends upon that fact. In this case, that party is the plaintiff Goss.
The party with the burden of proof must prove facts by the “greater weight of the evidence.” To prove something “by the greater weight of the evidence” means to prove that it is more likely true than not true. The “greater weight of the evidence” is determined by considering all of the evidence and deciding which evidence is more believable. If, on any issue in the case, you find that the evidence is equally balanced, then you cannot find that the issue 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. The testimony of a single witness that produces in your mind a belief in the likelihood of truth is sufficient for proof of any fact and would justify a verdict in accordance with such testimony. This is so, even though a number of witnesses may have testified to the contrary, if after consideration of all of the evidence in the case, you hold a greater belief in the accuracy and reliability of that one witness.
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.
INSTRUCTION NO. _____
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, only part of it, or none of it.
In deciding what testimony to believe, consider the witness’s intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness’s memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, 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 see or hear things differently and sometimes forget things. You need to consider, therefore, whether a contradiction results from an innocent misrecollection or sincere lapse of memory, or instead from an intentional falsehood or pretended lapse of memory. That may depend on whether it has to do with an important fact or only a small detail.
INSTRUCTION NO. _____
A corporation acts only through its agents or employees and any agent or employee of a corporation may bind the corporation by acts and statements made while acting within the scope of the authority delegated to the agent by the corporation, or within the scope of his/her duties as an employee of the corporation.
The plaintiff and the defendants have stipulated -- that is, they have agreed -- that certain facts are as counsel have stated. You should, therefore, treat those facts as having been proved.
During the trial, certain charts and summaries were shown to you in order to help explain or demonstrate the contents of records, documents, or other evidence in the case. They were not received in evidence. 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.
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.
Goss contends that each defendant, TKS and TKS (USA), violated the Antidumping Act. You should decide the case as to each defendant separately.
In order to recover on its claim the plaintiff Goss must prove the following by the greater weight of the evidence against one or both defendants.
First, that the defendant under consideration commonly and systematically imported or sold, or caused to be imported or sold, newspaper press printing units within the United States at a price substantially less than the actual market value or wholesale price, at the time of exportation to the United States, of comparable printing units in Japan.
Second, that such acts were done with the intent of injuring or destroying an industry in the United States.
Third, that Goss was injured in its business or property by reason of the defendant’s conduct.
If Goss has failed to prove any of the above elements by the greater weight of the evidence against the defendant under consideration, then your verdict must be for that defendant and Goss is not entitled to damages. If Goss has proved all of these elements by the greater weight of the evidence against the defendant under consideration, Goss is entitled to damages in some amount.
With regard to element ___ of Instruction ___, whatever is done “commonly” is done with considerable frequency, as a matter of general practice. Whatever is done “systematically” is done regularly, in a recurring pattern.
With regard to element ____ of Instruction ____, in deciding whether newspaper press printing units were imported or sold within the United States at a price substantially less than the actual market value or wholesale price of comparable printing units in Japan, you should add freight, duty, and other charges and expenses necessary to import and sell the units in the United States to the Japanese market value or wholesale price before comparing the Japanese market value or wholesale price to the price at which a unit was imported or sold in the United States. You should also, in comparing Japanese and United States sales, consider only reasonably contemporaneous sales.
With regard to element ___ of Instruction ___, the technological differences between products should be compared in terms of customer use and preference and marketability. Products do not need to be identical to be comparable. To be comparable, products must be more than functional equivalents or in the same generic category. The comparison also must take into account the technological significance of any difference between the products and the differences in production costs caused by such differences. That products sold in Japan may have technical components that make them work in Japan while products sold in the United States have technical components that make them work in the United States does not make the products noncomparable.
Intent is defined by the law as that purpose with which a person acts. The phrase “intent of injuring” does not mean an evil desire or a motive of causing harm. To act with an “intent of injuring” means to act with an intent to cause pecuniary loss, rather than simply to win sales and earn profits for oneself. The phrase “intent of destroying” means to act with an intent to put a United States industry out of business.
Intent may be proven by circumstantial evidence. It rarely can be established by other means. While witnesses may see or hear and thus be able to give direct evidence of what a company does or fails to do, there can be no eyewitness account of the state of mind with which the acts were done or omitted. But what a defendant does or fails to do may indicate intent or lack of intent to commit an act.
You may consider it reasonable to draw the inference and find that a person or company intends the natural and probable consequences of acts knowingly done, but you are not required to do so. As I have said, it is entirely up to you to decide what facts to find from the evidence.
There is a statute of limitations applicable in this case. This statute limits plaintiff Goss to recovering damages, if any, for any sales made within four years of the date it filed its Complaint, March 7, 2000. Thus, damages are not available for the following sales made prior to March 7, 1996:
1. Dallas Morning News 1992 sale;
2. Dow Jones 1994 sale;
3. Dallas Morning News 1994 sale; and
4. Spokesman Review 1994 sale.
These sales can be considered for all other purposes in this case.
The fact that I am instructing you on the proper measure of damages should not be considered as an indication that I have any view as to which party is entitled to your verdict in this case. Instructions as to the measure of damages are given only for your guidance in the event that you should find that plaintiff is entitled to damages in accord with other instructions.
If you find in favor of plaintiff Goss, then you must award it such sum that will fairly and justly compensate plaintiff for any damages you find it sustained by reason of a defendant’s violation of the Antidumping Act.
Remember, throughout your deliberations, you must not engage in any speculation, guess, or conjecture. You must not award damages by way of punishment or through sympathy. Your judgment must not be exercised arbitrarily, or out of sympathy or prejudice, for or against any of the parties.
If you find the plaintiff Goss is entitled to recover damages, you shall consider the following items:
1. The amount of the profits Goss lost as a result of the following lost sales:
a. Dallas Morning News 1996
b. Dow Jones 1999
2. The amount of profits Goss lost due to price suppression on each of the following sales:
a. Tribune Review 1996
b. Newark Star Ledger 1997
c. Orlando Sentinel 1997
d. Dow Jones 1998
3. The opportunity cost of capital relating to lost profits from lost sales.
4. The opportunity cost of capital relating to price suppression.
Goss’s “lost profits” are those profits Goss would, with reasonable certainty, have enjoyed if it had made the sale in question instead of the defendants or if Goss had not been forced to suppress its prices for large newspaper printing press units in response to the defendants’ low prices. In arriving at the amount of profits Goss has lost in this case, you are entitled to consider Goss’s past earnings in its business, in particular, those past earnings resulting from sales of the nature of the sales in this case.
INSTRUCTION NO.___ (continued)
Goss’s “opportunity cost of capital” is the amount of damages Goss, with reasonable certainty, suffered because Goss was not able to put to more profitable uses the profits it would have received on the lost contracts or if it had not been forced to suppress its prices.
The amount you assess for any item of damages must not exceed the amount caused by the defendants as proved by the evidence.
A party cannot recover duplicative damages. Do not allow amounts awarded under one item of damage to be included in any amount awarded under another item of damage.
The amounts, if any, you find for each of the above items will be used to answer the special verdicts.
In arriving at an item of damage, you cannot arrive at a figure by taking down the
estimate of each juror as to an item of damage and agreeing in advance that the average of these estimates shall be your item of damage.
Throughout the trial, you have been permitted to take notes. Your notes should be used only as memory aids, and you should not give your notes precedence over your independent recollection of the evidence.
In any conflict between your notes, a fellow juror’s notes, and your memory, your memory must prevail. Remember that notes sometimes contain the mental impressions of the note taker and can be used only to help you recollect what the testimony was. At the conclusion of your deliberations, your notes should be delivered to the Court Security Officer for destruction.
In conducting your deliberations and returning your verdict, there are certain rules you must follow.
First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you here in court. Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment, because your verdict must be unanimous.
Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors.
Do not be afraid to change your opinions if the discussion persuades you that you should, but do not come to a decision simply because other jurors think it is right, or simply to reach a verdict. Remember at all times that you are not partisans. You are judges - judges of the facts. Your sole interest is to seek the truth from the evidence in the case.
Third, if you need to communicate with me during your deliberations, you may send a note to me through the Court Security Officer, signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should not tell anyone - including me - how your votes stand numerically.
Fourth, your verdict must be based solely on the evidence and on the law which I have given to you in my instructions. Nothing I have said or done is intended to suggest what your verdict should be - that is entirely for you to decide.
INSTRUCTION NO.___ (continued)
Finally, I am giving you the verdict form. A verdict form is simply the written notice of the decision that you reach in this case. Your verdict must be unanimous. You will take the verdict form to the jury room. When you have reached a unanimous verdict, your foreperson must complete one copy of the verdict form and sign and date it. All jurors also shall sign the verdict form indicating that the verdict is unanimous. The foreperson must bring the signed verdict form to the courtroom when it is time to announce your verdict. When you have reached a verdict, the foreperson will advise the Court Security Officer that you are ready to return to the courtroom.
DATED this ____ day of December, 2003.
LINDA R. READE
JUDGE, U. S. DISTRICT COURT
NORTHERN DISTRICT OF IOWA