IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION





RANDALL HERBERT WEBNER,
Plaintiff,

No. C 97-3101-MWB

vs.



PRELIMINARY AND FINAL INSTRUCTIONS

TO THE JURY

TITAN DISTRIBUTION, INC.,
Defendant.

____________________



TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS

NO. 1 - PRELIMINARY INSTRUCTIONS

NO. 2 - STATEMENT OF THE CASE

NO. 3 - ELEMENTS OF CLAIMS

NO. 4 - BURDEN OF PROOF

NO. 5 - DUTY OF JURORS

NO. 6 - ORDER OF TRIAL

NO. 7 - DEFINITION OF EVIDENCE

NO. 8 - CREDIBILITY OF WITNESSES

NO. 9 - STIPULATED FACTS

NO. 10 - DEPOSITIONS

NO. 11 - INTERROGATORIES

NO. 12 - OBJECTIONS

NO. 13 - BENCH CONFERENCES

NO. 14 - NOTE-TAKING

NO. 15 - CONDUCT OF JURORS DURING TRIAL

FINAL INSTRUCTIONS

NO. 1 - INTRODUCTION

NO. 2 - IMPEACHMENT OF WITNESSES

NO. 3 - DISABILITY DISCRIMINATION

NO. 4 - RETALIATION

NO. 5 - DAMAGES--IN GENERAL

NO. 6 - ACTUAL DAMAGES

NO. 7 - PUNITIVE DAMAGES

NO. 8 - DELIBERATIONS



VERDICT FORM

PRELIMINARY INSTRUCTION NO. 1 - PRELIMINARY INSTRUCTIONS



Members of the jury, before the lawyers make their opening statements, I give you these preliminary instructions to help you better understand the trial and your role in it. Consider these instructions, together with any oral instructions given to you during the trial and the written final instructions given at the end of the trial, and apply them as a whole to the facts of the case. In considering these instructions, the order in which they are given is not important.



PRELIMINARY INSTRUCTION NO. 2 - STATEMENT OF THE CASE



The following brief summary of the case is not to be considered evidence or proof of any facts or events in the case. It simply informs you of the factual disputes between the parties.

This is a civil case involving claims of disability discrimination and retaliation by plaintiff Randy Webner against his employer, defendant Titan Distribution, Inc. Mr. Webner had been employed as a truck driver by a company known as Nieman's Ltd., in Ventura, Iowa. However, in 1994, he suffered a back injury for which he received workers' compensation benefits. In 1996, the Nieman's facility in Ventura, Iowa, became a part of Titan Distribution, so at that time, Titan Distribution became Mr. Webner's employer. When Mr. Webner returned to work in January of 1997, he was employed as an assembly-line worker for Titan Distribution, because he could not return to his former job as a truck driver.

Mr. Webner alleges that he was disabled, had a record of a disability, or Titan Distribution perceived him to be or regarded him as disabled, as the result of his back injury. He alleges further that Titan Distribution discriminated against him because of his disability, record of a disability, or perceived disability, in violation of federal law, by terminating his employment on March 31, 1997. He also alleges that Titan Distribution retaliated against him for pursuing a workers' compensation claim, in violation of the public policy of the State of Iowa, by terminating his employment on March 31, 1997. Mr. Webner seeks money damages on his discrimination and retaliation claims.

Titan Distribution denies Mr. Webner's claims. Titan Distribution contends that Mr. Webner was not disabled, did not have a record of a disability, and was not perceived by Titan Distribution to be disabled within the meaning of applicable law. Titan Distribution contends that Mr. Webner was not able to continue his employment on the assembly line at its Ventura, Iowa, assembly facility with his work restrictions and the risk of injury to himself such employment posed. Thus, Titan Distribution contends that Mr. Webner was not qualified for his job on the assembly line. Titan Distribution also denies that it terminated Mr. Webner's employment. Titan Distribution also denies terminating or laying off Mr. Webner in retaliation for pursuing a workers' compensation claim.

You will be asked to resolve these disputes between the parties.

PRELIMINARY INSTRUCTION NO. 3 - ELEMENTS OF CLAIMS



To help you follow the evidence, here is a brief summary of the elements of Mr. Webner's claims of disability discrimination and retaliation.

1. Disability discrimination

To win his claim of disability discrimination, Mr. Webner must prove each of the following elements by the greater weight of the evidence:

One, Mr. Webner had a back injury, which Titan Distribution does not dispute;

Two, his back injury substantially limited him, or was perceived by Titan Distribution to substantially limit him, in major life activities, including lifting, standing, bending, twisting, walking, or working;

Three, Titan Distribution took adverse employment action against Mr. Webner, either terminating him or laying him off from his employment;

Four, at the time of Titan Distribution's adverse employment action, Mr. Webner could have performed the essential functions of his job on the assembly line at the Ventura facility without a risk of injury to himself;

Five, Mr. Webner's disability, record of a disability, or perceived disability was a motivating factor in Titan Distribution's decision to terminate him or lay him off.

2. Retaliation

To win his claim of retaliation, Mr. Webner must prove each of the following elements by the greater weight of the evidence:

One, Mr. Webner was an employee of Titan Distribution;

Two, Titan Distribution terminated Mr. Webner or laid Mr. Webner off from his employment;

Three, Mr. Webner's pursuit of a workers' compensation claim was the determining factor in Titan Distribution's decision to terminate him or lay him off;

Four, the termination or lay off was a proximate cause of damage to Mr. Webner; and

Five, the nature and extent of the damage caused by the retaliatory action.



This is only a preliminary outline of the elements of Mr. Webner's claims. At the end of the trial, I will give you further final written instructions that explain more fully these claims and Titan Distribution's defenses to them. Because the final instructions are more detailed, those instructions govern on the elements of Mr. Webner's claims and Titan Distribution's defenses to those claims.

PRELIMINARY INSTRUCTION NO. 4 - BURDEN OF PROOF



In these instructions, you are told that your verdict 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, facts must be proved by the "greater weight of the evidence." To prove something by the greater weight of the evidence is to prove 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, the evidence is equally balanced, you cannot find that 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.

PRELIMINARY INSTRUCTION NO. 5 - DUTY OF JURORS



It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judges of the facts. You will hear the evidence, decide what the facts are and then apply those facts to the law which I will give you in these preliminary instructions, any instructions given during the trial, and in the final instructions at the conclusion of the case. You will then deliberate and reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.

You have been chosen and sworn as jurors in this case to try the issues of fact presented by the parties. 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 will give it to you.

This case should be considered and decided by you as an action between persons of equal standing in the community, of equal worth, and holding the same or similar stations in life. An individual, such as Mr. Webner, and a corporation, such as Titan Distribution, stand equal before the law, and are entitled to the same fair consideration by you. The mere fact that Titan Distribution is a corporation, not an individual, does not mean that it is entitled to any greater or lesser consideration by you.

However, when a corporation is involved, of course, it may act only through natural persons as its agents or employees; and, in general, any agent or employee of the corporation may bind the corporation by the acts and declarations made while acting within the scope of the authority delegated to the employee by the corporation, or within the scope of the employee's or agent's duties as an employee or agent of the corporation.

You should not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.

PRELIMINARY INSTRUCTION NO. 6 - ORDER OF TRIAL



The trial will proceed in the following order:

After I conclude these preliminary instructions, the plaintiff's lawyer may make an opening statement. Next, the defendant's lawyer may make an opening statement. An opening statement is not evidence, but is simply a summary of what the lawyers expect the evidence to be.

The plaintiff will then present evidence and witnesses and the defendant may cross-examine. Following the plaintiff's case, the defendant may present evidence and witnesses and the plaintiff may cross-examine. Following the defendant's case, the plaintiff may take a further opportunity to present additional evidence.

After the evidence is concluded, I will give you the final instructions on the law that you are to apply in reaching your verdict. The lawyers will then make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence. I will then give you some final instructions on deliberations, and you will retire to deliberate on your verdict.

PRELIMINARY INSTRUCTION NO. 7 - DEFINITION OF EVIDENCE



You shall base your verdict only upon the evidence, these instructions, and other instructions that I may give you during the trial.

Evidence is:

1. Testimony in person or testimony previously given, which includes depositions or videotaped depositions.

2. Exhibits admitted into evidence by the court.

3. Stipulations, which are agreements between the parties.

4. Any other matter admitted into evidence.

Evidence may be direct or circumstantial. You should not be concerned with these terms since the law makes no distinction between the weight to be given to direct and circumstantial evidence. The weight to be given any evidence is for you to decide.

The following are not evidence:

1. Statements, arguments, questions, and comments by the lawyers.

2. Objections and rulings on objections.

3. Testimony I tell you to disregard.

4. Anything you saw or heard about this case outside the courtroom.

You should not take anything I may say or do during the trial as indicating what I think of the evidence.

PRELIMINARY INSTRUCTION NO. 8 - CREDIBILITY OF WITNESSES



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, the 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.

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.

You may hear testimony from persons described as experts. Persons who have become experts in a field because of their education and experience may give their opinions on matters in that field and the reasons for their opinions. 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's education and experience, the reasons given for the opinion, and all the other evidence in the case.

Also, an expert witness may be asked to assume certain facts are true and to give an opinion based on that assumption. This is called a hypothetical question. If any facts assumed in the question are not proved by the evidence, you should decide if that omission affects the value of the expert's opinion.

PRELIMINARY INSTRUCTION NO. 9 - STIPULATED FACTS



The plaintiff and defendant have agreed or "stipulated" to certain facts and have reduced these facts to a written agreement or stipulation. Any counsel may, throughout the trial, read to you all or a portion of the stipulated facts. You should treat these stipulated facts as having been proved.



PRELIMINARY INSTRUCTION NO. 10 - DEPOSITIONS



Certain testimony from a deposition may be read into evidence or played from a videotape. A deposition is testimony taken under oath before the trial and preserved in writing or on videotape. Consider that testimony as if it had been given in court.

PRELIMINARY INSTRUCTION NO. 11 - INTERROGATORIES



During this trial, you may hear 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.

PRELIMINARY INSTRUCTION NO. 12 - OBJECTIONS



From time to time during the trial I may be called upon to make rulings of law on objections or motions made by the lawyers. It is the duty of the lawyer for each party to object when another party offers testimony or other evidence that the lawyer believes is not properly admissible. You should not show prejudice against a lawyer or the party the lawyer represents because the lawyer has made objections. You should not infer or conclude from any ruling or other comment I may make that I have any opinions on the merits of the case favoring one side or the other. Also, if I sustain an objection to a question that goes unanswered by the witness, you should not draw any inferences or conclusions from the question itself.

PRELIMINARY INSTRUCTION NO. 13 - BENCH CONFERENCES



During the trial it may be necessary for me to talk 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, 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.







PRELIMINARY INSTRUCTION NO. 14 - NOTE-TAKING



If you want to take notes during the trial, you may. However, it is difficult to take detailed notes and pay attention to what the witnesses are saying. If you do take notes, be sure that your note-taking does not interfere with listening to and considering all of the evidence. Also, if you take notes, do not discuss them with anyone before you begin your deliberations. Do not take your notes with you at the end of the day. Be sure to leave them on your chair in the courtroom. The court attendant will safeguard the notes. No one will read them. The notes will remain confidential throughout the trial and will be destroyed at the conclusion of the trial.

If you choose not to take notes, remember it is your own individual responsibility to listen carefully to the evidence. You cannot give this responsibility to someone who is taking notes. We depend on the judgment of all members of the jury; you must all remember and consider the evidence in this case.

Whether or not you take notes, you should rely on your own memory regarding what was said. Your notes are not evidence. A juror's notes are not more reliable than the memory of another juror who chooses to consider the evidence carefully without taking notes. You should not be overly influenced by the notes.

You will notice that we do have an official court reporter making a record of the trial. However, we will not have typewritten transcripts of this record available for your use in reaching your verdict.



PRELIMINARY INSTRUCTION NO. 15 - CONDUCT OF JURORS

DURING TRIAL



You will not be required to remain together while court is in recess. However, to ensure fairness, you, as jurors, must obey the following rules:

First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the case when you go to the jury room to decide on your verdict.

Second, do not talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.

Third, when you are outside the courtroom, do not let anyone tell you anything about the case, or about anyone involved with it until the trial has ended and your verdict has been accepted by me. If someone should try to talk to you about the case during the trial, please report it to me.

Fourth, during the trial you should not talk with or speak to any of the parties, lawyers or witnesses involved in this case--you should not even pass the time of day with any of them. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side--even if it is simply to pass the time of day--an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator, or the like, remember it is because they are not supposed to talk or visit with you either.

Fifth, do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it.

Sixth, do not do any research or make any investigation about the case on your own.

Seventh, do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence.

DATED this 15th day of February, 2000.



FINAL INSTRUCTION NO. 1 - INTRODUCTION



Members of the jury, the instructions I gave you at the beginning of the trial and any oral or written instructions I gave you during the trial remain in effect. I now give you some additional instructions.

You must, of course, continue to follow the instructions I gave you earlier, as well as those I give you now. You must not single out some instructions and ignore others, because all are important. The instructions I am about to give you now, 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. I emphasize, however, that the final instructions are not more important than the preliminary instructions, nor are written instructions more important than oral ones. Again, 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.

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.

FINAL INSTRUCTION NO. 2 - IMPEACHMENT OF WITNESSES



In Preliminary Instruction No. 8, I instructed you on the credibility of witnesses. I now give you this further instruction on how the credibility of a witness can be "impeached."

A witness may be discredited or "impeached" by contradictory evidence, or by evidence that at some time the witness has said or done something, or has failed to say or do something, that is inconsistent with the witness's present testimony. If you believe any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you may think it deserves.



FINAL INSTRUCTION NO. 3 - DISABILITY DISCRIMINATION



Mr. Webner's first claim is that he was discriminated against by Titan Distribution because of a disability, a record of a disability, or a perceived disability in violation of the federal Americans with Disabilities Act (ADA) of 1990. To win his claim of disability discrimination, Mr. Webner must prove each of the following elements by the greater weight of the evidence:

One, Mr. Webner had a back injury, which Titan Distribution does not dispute.

Two, Mr. Webner's back injury substantially limited him, or was perceived by Titan Distribution to substantially limit him, in major life activities, including lifting, standing, bending, twisting, walking, or working.

"Major Life Activities" are functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. A person is "substantially limited" in a "major life activity" if the person is unable to perform a major life activity that the average person in the general population can perform, or significantly restricted as to the condition, manner or duration under which that person can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. To determine whether Mr. Webner is substantially limited in a major life activity, has a record of such a limitation, or was perceived by his employer to be so limited, you should consider (1) the nature and severity of the impairment, record of impairment, or perceived impairment; (2) the duration or expected duration of the impairment, record of impairment, or perceived impairment; and (3) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment, record of impairment, or perceived impairment.

If Mr. Webner is not substantially limited with respect to any other major life activity, you should consider his ability to perform the major life activity of "working." However, if he is substantially limited in any other major life activity, no determination should be made as to whether he is substantially limited in working. With respect to the major life activity of working, the term "substantially limits" means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. As to a "record of a disability" that substantially limits the major life activity of "working," you should consider whether Mr. Webner's medical records show that he has a history of, or has been misclassified as having, a physical or mental impairment that precludes him from a substantial class of jobs.

In determining whether Mr. Webner is substantially limited in the major life activity of "working," in addition to the factors listed for all major life activities, you should consider the following factors: (1) the geographical area to which he has reasonable access; (2) the job from which he has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which he is also disqualified because of the impairment (class of jobs); and/or (3) the job from which he has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which he is also disqualified because of the impairment (broad range of jobs in various classes).

A perceived disability is one based on speculation, stereotype, or myth about the limiting effects of the plaintiff's impairment or perceived impairment rather than upon an individualized inquiry into the plaintiff's actual condition. However, an employer does not perceive an employee to be disabled if the employer's conclusion that the employee is unable to perform a particular job is a reasonable one based upon an individualized inquiry that takes into account medical or other evidence concerning the employee's actual ability to perform the job. Thus, as to "perceived disability," you should consider whether the defendant regarded Mr. Webner as precluded from a substantial class of jobs.



Three, Titan Distribution took adverse employment action against Mr. Webner, either terminating him or laying him off from his employment.

Four, at the time of Titan Distribution's adverse employment action, Mr. Webner could have performed the essential functions of his job on the assembly line at the Ventura facility without an unreasonable risk of injury to himself.

The term "essential functions" means the fundamental job duties of the employment position the plaintiff held. The term "essential functions" does not include the marginal functions of the position. In determining whether a job function is essential, you should consider the following factors: (1) the employer's judgment as to which functions of the job are essential; (2) written job descriptions; (3) the amount of time spent on the job performing the function in question; (4) consequences of not requiring the person to perform the function; (5) the performance requirements for other persons who have held the job; (6) whether the reason the position exists is to perform the function; (7) the current work experience of persons in similar jobs; and (8) whether there are a limited number of employees available among whom the performance of the function can be distributed.

The plaintiff must be able to perform the essential functions of the job, either with or without reasonable accommodation. A "reasonable accommodation" is one that could reasonably be made under the circumstances and may include, but is not limited to, the following: making existing facilities used by employees readily accessible to and usable by the plaintiff; job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; and other similar accommodations for individuals with disabilities. However, if an employee cannot perform the essential functions of a job without an unreasonable risk of injury to himself, and that unreasonable risk of injury cannot be prevented by a reasonable accommodation, the employee cannot perform the essential functions of the job as required by this element. Also, the law allows employers to prefer some physical attributes over others and to establish physical criteria, even if those criteria would substantially limit a person's employment opportunities if they were adopted by a large number of employers.



Five, Mr. Webner's disability, record of a disability, or perceived disability was a motivating factor in Titan Distribution's decision to terminate him or lay him off.

A "motivating factor" is a factor that played a part in the defendant's decision to terminate or lay off the plaintiff or moved the defendant toward their decision. However, the plaintiff's disability, record of a disability, or perceived disability need not be the only reason for the defendant's decision to terminate or lay off the plaintiff.

You cannot find that this element has been proved simply because you disagree with the defendant's decision to terminate or lay off Mr. Webner or because you believe that decision was harsh or unreasonable. Instead, this element is only proved if you find by the greater weight of the evidence that Mr. Webner's disability, record of a disability, or perceived disability was a motivating factor for the defendant's adverse employment action.



If Mr. Webner has failed to prove all of the above elements by the greater weight of the evidence, your verdict must be for Titan Distribution on Mr. Webner's claim of disability discrimination. However, if you find that Mr. Webner has proved all of these elements by the greater weight of the evidence, then he is entitled to damages in some amount on his disability discrimination claim.

FINAL INSTRUCTION NO. 4 - RETALIATION



Mr. Webner's second claim is that Titan Distribution retaliated against him for pursuing a workers' compensation claim by terminating him or laying him off. To win his claim of retaliation, Mr. Webner must prove the following essential elements by the greater weight of the evidence:

One, Mr. Webner was an employee of Titan Distribution.

Two, Titan Distribution terminated Mr. Webner or laid Mr. Webner off from his employment.

There is evidence that Mr. Webner was an employee at will. An employee at will may be terminated at any time for any reason, except where the reason is contrary to public policy of the State of Iowa. Therefore, you cannot find that this element has been proved simply because you disagree with the defendant's decision to terminate or lay off Mr. Webner or because you believe that decision was harsh or unreasonable. Instead, this element is only proved if you find by the greater weight of the evidence that Mr. Webner's pursuit of a workers' compensation claim was a determining factor in the defendant's adverse employment action.



Three, Mr. Webner's pursuit of a workers' compensation claim was the determining factor in Titan Distribution's decision to terminate him or lay him off.

It is against the public policy of the State of Iowa to discharge an employee for filing or pursuing a workers' compensation claim. To be a "determining factor" in Mr. Webner's termination or lay off, his pursuit of a workers' compensation claim need not be the main reason behind the decision to take adverse employment action; it need only be the reason that tips the scales decisively in favor of that adverse employment action.



Four, the termination or lay off was a proximate cause of damage to Mr. Webner.

The conduct of a party is a proximate cause of damage when it is a substantial factor in producing the damage and when the damage would not have happened except for the conduct. "Substantial" means the party's conduct has such an effect in producing damage as to lead a reasonable person to regard it as a cause.



Five, the nature and extent of the damage caused by the retaliatory action.



If Mr. Webner has failed to prove each of the above elements by the greater weight of the evidence, your verdict must be for Titan Distribution on Mr. Webner's claim of retaliation. However, if you find that Mr. Webner has proved all of these elements by the greater weight of the evidence, then he is entitled to damages in some amount for retaliation.

FINAL INSTRUCTION NO. 5 - DAMAGES--IN GENERAL



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 the plaintiff is entitled to damages in accord with the other instructions.

However, if you find in favor of Mr. Webner on one or both of his claims, you must award him such sum as you find will fairly and justly compensate him for any damages you find he sustained as a direct result of the defendant's wrongful conduct. I will now explain to you some matters applicable to all of your determinations of damages.

In arriving at the amount of damages on a claim, you cannot establish a figure by taking down the estimate of each juror as to damages and agreeing in advance that the average of those estimates shall be your award of damages for that claim. Remember, throughout your deliberations, you must not engage in any speculation, guess, or conjecture. However, the amount, if any, you assess for items of non-economic damages, such as damages for emotional distress, cannot be measured by an exact or mathematical standard. A plaintiff does not need to introduce evidence of the monetary value of such elements of damages. You must use your sound judgment based upon an impartial consideration of the evidence to determine the amount of damages, if any, for emotional distress.

You must not award actual damages on a claim 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. The amount you assess for any item of damage must not exceed the amount caused by the wrongful conduct of the defendant as proved by the evidence.

You must award the full amount for any item of damages that Mr. Webner has proved. Therefore, if you find Mr. Webner has proved damages for emotional pain and suffering on both of his claims, you must award all damages for emotional pain and suffering that were a direct result of the disability discrimination and all damages for emotional pain and suffering that were a direct result of retaliation. However, a party cannot recover duplicate damages. Therefore, do not allow amounts awarded under one item of damage to be included in any amount awarded under another item of damage on the same claim. Also, Mr. Webner can recover only one award of backpay, even if he prevails on both of his claims.

Titan Distribution contends that Mr. Webner could have reduced or "mitigated" his damages by obtaining other employment sooner than he did. A plaintiff has a duty under the law to "mitigate" his damages--that is, to exercise reasonable diligence under the circumstances to minimize his damages. Therefore, if Titan Distribution has proved by the greater weight of the evidence that Mr. Webner failed to seek out or take advantage of an opportunity that was reasonably available to him, you must reduce his damages by the amount he reasonably could have avoided if he had sought out or taken advantage of such an opportunity.

Attached to these Instructions is a Verdict Form, which you must fill out upon completion of your deliberations. You should only award those damages, if any, that Mr. Webner has proved by the greater weight of the evidence.

FINAL INSTRUCTION NO. 6 - ACTUAL DAMAGES



If you find in favor of Mr. Webner on one or more of his claims--disability discrimination, as explained in Final Instruction No. 3, or retaliation, as explained in Final Instruction No. 4, or both--then you must award Mr. Webner such sum as you find by the greater weight of the evidence will fairly and justly compensate him for any damages you find he sustained as a direct result of Titan Distribution's wrongful conduct identified in the claim or claims upon which he has prevailed.

Mr. Webner seeks two distinct types of actual damages and you must consider them separately:

Emotional distress damages. On each of his claims, Mr. Webner seeks damages for emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. You may award emotional distress damages on both of Mr. Webner's claims if you find that he has prevailed on both claims. However, on the disability discrimination claim, you may only award those damages for emotional pain and suffering that were a direct result of the disability discrimination, and on the retaliation claim, you may only award those damages for emotional pain and suffering that were a direct result of the retaliatory conduct.

When considering the amount of monetary damages to which Mr. Webner may be entitled for emotional distress, you should consider the nature, character, and seriousness of the emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life that he felt. You must also consider the extent or duration of his emotional distress, as any award you make must cover damages endured by Mr. Webner since the wrong-doing to the present time.

Backpay. Mr. Webner also seeks an award of backpay, which is the amount of any wages and fringe benefits he would have earned from the date he was terminated or laid off until the date of your verdict, minus the wages and fringe benefits, if any, he actually did earn during that time from other employment after he was terminated or laid off from his job with the defendant. However, do not deduct from any award of backpay any workers' compensation or unemployment benefits paid to Mr. Webner after he was terminated or laid off from his job with the defendant. You may award backpay if Mr. Webner prevails on either of his claims, if you find that Mr. Webner was terminated or laid off as a direct result of the wrongful conduct alleged in that claim, but Mr. Webner can recover only one award of backpay, even if he prevails on both of his claims.

FINAL INSTRUCTION NO. 7 - PUNITIVE DAMAGES



In addition to the actual damages mentioned in the preceding Instruction, the law permits the jury, under certain circumstances, to award punitive damages in order to punish the defendant for some extraordinary misconduct and to serve as an example or warning to others not to engage in such conduct. Therefore, if you find that Mr. Webner has proved either his claim of disability discrimination or his claim of retaliation, or both, then you must consider what, if any, punitive damages you should award. However, the way in which you will determine whether or not to award punitive damages depends upon which claim you are considering.

Punitive damages for disability discrimination. If you find in favor of Mr. Webner on his claim of disability discrimination, as explained in Final Instruction No. 3, then you may, but are not required, to award punitive damages on that claim in addition to any actual damages awarded under Instruction No. 6. You may award punitive damages on this claim if you find that Titan Distribution acted with malice or reckless indifference to Mr. Webner's right not to be discriminated against on the basis of his disability, record of a disability, or perceived disability. At a minimum, before you may award punitive damages, you must find that Titan Distribution discriminated in the face of a perceived risk that its actions would violate federal law. You may award punitive damages if you find it is appropriate to punish the defendant and to deter the defendant and others from like conduct in the future.

Whether or not to award punitive damages, and the amount of those damages, are within your discretion. However, in deciding the amount of punitive damages, if any, to award for disability discrimination, you should consider how offensive the defendant's conduct was; what amount is needed, considering the defendant's financial condition, to punish it for its wrongful conduct toward the plaintiff and to prevent a repetition of that wrongful conduct in the future; whether the amount of punitive damages bears a reasonable relationship to the actual damages awarded on this claim under the preceding Instruction; and what sum is sufficient to deter other similar employers from wrongful conduct in the future.

Punitive damages for retaliation. Punitive damages may be awarded under Iowa law on a claim of retaliation if the plaintiff has proved by the greater weight of clear, convincing, and satisfactory evidence that the defendant's conduct constituted a willful and wanton disregard for the rights or safety of another and caused actual damages to the plaintiff. Evidence is clear, convincing, and satisfactory if there is no serious or substantial uncertainty about the conclusion to be drawn from it. There is no exact rule under Iowa law to determine the amount of punitive damages, if any, you should award. In determining the amount of punitive damages, however, you may consider all of the evidence, including the following: the nature of the defendant's conduct; the amount of punitive damages that will punish and discourage like conduct by the defendant in view of its financial condition; and the plaintiff's actual damages.

Remember, you should determine the amount of any punitive damages award on either claim using calm discretion and sound reasoning. You must not be influenced by sympathy for or dislike of any party in the case.

FINAL INSTRUCTION NO. 8 - DELIBERATIONS



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. 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.

Finally, I am giving you the verdict forms. A verdict form is simply the written notice of the decision that you reach in this case. You will take this form to the jury room, and complete it when you have reached a verdict. Your decision must be unanimous. If you all agree, the verdict form must be signed by your foreperson and all members of the jury.

DATED this 17th day of February, 2000.



IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION





RANDALL HERBERT WEBNER,
Plaintiff,

No. C 97-3101-MWB

vs.



VERDICT FORM

TITAN DISTRIBUTION, INC.,
Defendant.

____________________



On the claims of plaintiff Randall Herbert Webner against defendant Titan Distribution, Inc., we the Jury, find as follows:



LIABILITY
Claim As explained in Verdict for
Disability Discrimination Final Jury Instruction No. 3 _____ Randall Webner or

_____ Titan Distribution

If you found in favor of Randall Webner on this claim, on what basis do you find the defendant discriminated? (Check all that apply.)
Actual disability

Record of a disability

Perceived disability

_____

_____

_____

Retaliation Final Jury Instruction No. 4 _____ Randall Webner or

_____ Titan Distribution

ACTUAL DAMAGES

as explained in Final Jury Instructions No. 5 and No. 6

(You may only award actual damages for claims on which you found in Mr. Webner's favor.)

Damages for Emotional distress for disability discrimination, since the wrong-doing to the present time



$ ______________
for retaliation, since the wrong-doing to the present time

$ ______________
Backpay for lost wages and benefits that were a direct result of either disability discrimination or retaliation or both



$ ______________
PUNITIVE DAMAGES

as explained in Final Jury Instruction No. 7

(You may only award punitive damages for claims on which you found in Mr. Webner's favor.)

Disability Discrimination Do you find that the defendant acted with malice or reckless indifference to Mr. Webner's right not to be discriminated against on the basis of a disability, record of disability, or perceived disability?





_____ Yes

_____ No

What amount of punitive damages, if any, do you award for disability discrimination?



$ __________
Retaliation Do you find by a preponderance of clear, convincing, and satisfactory evidence that the conduct of the defendant constituted willful and wanton disregard of the rights or safety of another?



_____ Yes

_____ No

What amount of punitive damages, if any, do you award for retaliation?



$ __________
Was the retaliatory conduct of the defendant directed specifically at Randall Webner? _____ Yes

_____ No





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