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On March 23, 2014 the Oklahoma Supreme Court, based on recommendations by the Oklahoma Supreme Court Committee for Uniform Civil Jury Instructions, adopted 43 new or revised uniform civil jury instructions. In Re: Amendments to the Oklahoma Uniform Jury Instructions, 2014 OK 17.  The Opinion was not immediately released for publication to allow 30 days for revision or withdrawal.  It was not withdrawn or revised during the allotted 30 day timeframe; consequently, the new and revised uniform civil jury instructions became effective April 23, 2014.

The Oklahoma Supreme Court also authorized publication of the Committee’s Comments and the Supreme Court’s modifications to their Comments.  Notes on Use and Comments are published within each new or revised uniform jury instruction on www.oscn.net.  Even though it will seem lengthy, below is a quick and basic summary of the additions and modifications to the uniform civil jury instruction that became effective April 23, 2014.

Instruction No. 1.2A — Introductory Instructions — Juror Questionnaires

Instruction No. 1.2A is a new uniform civil juror questionnaire. The Notes on Use instruct that trial judges have discretion whether to require each juror to complete and sign the questionnaire and whether the parties have the opportunity to supplement the form. The uniform questionnaire and supplemental questionnaires may be used; however they are not to be a substitute for voir dire.

Instruction No. 1.9 — Jury’s Duties — To Be Given Prior to Deliberation

            Instruction No. 1.9 was slightly modified to clarify a verdict form will be provided to the jurors for their verdict.

Instruction No. 1.12 –Verdict form — One Plaintiff, One Defendant

            Instruction No. 1.12 was slightly modified for clarification to include the word “or” to assist jurors in selecting either the defendant or the plaintiff.

Instruction No. 1.13 — Verdict form — Counterclaim

            Instruction No. 1.13 was slightly modified for clarification to include the word “or” to assist jurors in selecting either the defendant prevails on his or her counterclaim or the plaintiff prevails.

 

Instruction No. 4.17 — Effect of Income Tax Award of Damages

 

Instruction No. 4.17 is a new uniform jury instruction.  Previously Instruction No. 4.17 provided that “no instruction should be given.”  Now the Instruction notifies jurors that damages arising out of personal injury and wrongful death actions are not subject to federal or state income tax, jury compensations awards should not be adjusted in consideration of income tax consequences, and evidence related to damage awards must reflect accurate tax ramifications if such evidence is admitted at trial.

Instruction No. 5.9 — Exemplary or Punitive Damages — Second Stage

No revisions occurred to the Instruction.  However, within the Notes on Use section common law and statutory guidance was previously provided for use of the Instruction in comparative negligence cases.  Due to changes in joint and several liability and comparative negligence, the guidance was deleted.

Instruction No. 9.24 — Blue Verdict Form, For Plaintiff — Multiple Defendants — Directions

            No revisions occurred to the Instruction.  New Comments to Instruction No. 9.24 state it should only be used if the action accrued before November 1, 2011 or if the action was brought by the State of Oklahoma.  Instruction No. 9.24 only applies to cases where joint and severally liability is still applicable.

Instruction No. 9.26 — Blue Verdict Form, For Plaintiff; Non-Party Involved — Directions

            No revisions occurred to the Instruction.  New Comments to Instruction No. 9.26 state it should only be used if the action accrued before November 1, 2011 or was brought by the State of Oklahoma.  Instruction No. 9.26 only applies to cases where joint and severally liability is still applicable.

Instruction No. 9.33 — White Verdict Form, Comparative Two Defendants — Directions

Within the Instruction, phrasing regarding contributory negligence was moved from the first to the second paragraph allowing the use of the form without a prerequisite finding of comparative negligence on a plaintiff.  The Notes on Use state the Instruction should be used for civil actions accruing after November 1, 2011.  With abolishing joint and several liability for actions accruing after November 1, 2011, the form allows the jury to apportion liability to each party.

Instruction No. 9.34 — White Verdict Form, Comparative, Multiple Defendants — Directions

            Within the Instruction, phrasing regarding contributory negligence was moved from the first to the second paragraph allowing the use of the verdict form without a prerequisite finding of comparative negligence on a plaintiff.  Jurors are instructed damages are apportioned based on the percentage of liability placed on each party.

Instruction No. 9.36 — White Verdict Form, Comparative, Non-Party Involved — Directions

            Within the Instruction, phrasing regarding contributory negligence was moved from the first to the second paragraph allowing the use of the verdict form without a prerequisite finding of comparative negligence on a plaintiff.

Instruction No. 18.1– False Representation — Elements of Liability

            Instruction No. 18.1 was revised to include the elements of false representation must be established by clear and convincing evidence. Further, the Notes on Use provide that Instruction No. 3.2, which features a definition of clear and convincing evidence, should accompany Instruction 18.1. The Comments section now provides the elements of common law fraud.

Instruction No. 18.2 — Nondisclosure or Concealment — Elements of Liability

            Instruction No. 18.2 was revised to include that the elements of Nondisclosure or Concealment must be established by clear and convincing evidence. Further, the Notes on Use provide that Instruction No. 3.2, which features a definition of clear and convincing evidence, should accompany Instruction 18.2. The Comments section now states if there is a positive contractual duty for a party to speak then failure to speak can constitute fraud.

Instruction No. 21.1– Employment at Will

            No revisions occurred to the Instruction.  The Notes on Use section now states this instruction should introduce other instructions which deal with wrongful discharge “in violation of public policy and breach of employment contracts.”

Instruction No. 21.2 — Wrongful Discharge –Public Policy Exception — Refusal to Violate Public Policy

Instruction No. 21.2 changes the term “employer” to “defendant” throughout the instruction.  A sentence within the Notes on Use section was deleted which pertained to unlawful employment discrimination.

Instruction No. 21.3 — Wrongful Discharge — Public Policy Exception — Consistent with Public Policy

No revisions occurred to the Instruction.  A sentence within the Notes On Use section was deleted which pertained to unlawful employment discrimination.

Instruction No. 21.4 — Wrongful Discharge — Public Policy Exception — Employment Discrimination

            No revisions occurred to the Instruction.  Within the Notes on Use section guidance was provided.  Utilization of this instruction is necessary only if a cause of action accrued prior to the enactment of 25 O.S. § 1350 on November 1, 2011.  The instruction does not apply to a case controlled by 25 O.S. § 1350 – Creation of Cause of Action – Common Law Remedy Abolished – Standing – Requirements for Notice of Right to Sue – Jury Trial – Defenses – Remedies.

Instruction No. 21.5 – Employee Discharged For Refusing to Violate Public Policy

            No revisions occurred to the Instruction.  The only revision was within the Comments to correct a case citation using the Oklahoma Supreme Court’s preferred citation method.

Instruction No. 21.6 — Employee Discharged for performing Act Consistent with Public Policy

            No revisions occurred to the Instruction.  A sentence within the Notes On Use section pertaining to modification of the instruction for retaliatory discharge claims under 85 O.S. § 5 was deleted.  The Notes on Use no longer state: the last sentence of this Instruction should be modified to read: “You are instructed that [filing a claim for Workers’ Compensation in good faith, or retaining a lawyer in connection with a claim for Workers’ Compensation, or testifying in a Workers’ Compensation case] is such an act.”

Instruction No. 21.7 – Employee Discharged Because of Discrimination

            No revisions occurred to the Instruction.  The Notes on Use state the instruction should only be used for cases accrued prior to the effective date of 25 O.S. § 1350 (November 1, 2011).

Instruction No. 21.8 — Constructive Discharge

            Additional jury considerations were added to the Instruction, whether the employer physically threatened or humiliated the employee, how often the employer did so, and whether the employer unreasonably interfered with the employee’s work performance. Additionally, the case law cite for the common law test for constructive discharge is now included within the Comments.

Instruction No. 21.9 — Significant Factor For Discharge.

            Language related to the protected status of a plaintiff was removed from the last sentence of the Instruction. Added to the Comments section was a case cite demonstrating even if an employer has legitimate reasons to justify termination of an employee, if the employer’s motivation for retaliation against the employee was a significant factor of the employee’s termination, the termination violates 85 O.S. § 5.

Instruction No. 21.10 – Contractual Limitations On Discharge.

No substantive changes were made to the instruction.  Case citations were revised within the Comments to comply with the Oklahoma Supreme Court’s preferred citation method.

Instruction No. 21.11 — Wrongful Discharge — Damages

            No revisions occurred to the Instruction.  The entire Comments section was stricken.

Instruction No. 21.12 – Breach of Employment Contract – Damages

No substantive changes were made to the instruction.  Case citations were revised within the Comments to comply with the Oklahoma Supreme Court’s preferred citation method.

Instruction No. 21.21 — Employment Based Discrimination — Elements

            Instruction No. 21.21 is a new uniform jury instruction.  Oklahoma common law previously recognized claims for employment based discrimination relating to race, color, religion, sex, national origin, age, and handicap.  Instruction No. 21.21 applies 25 O.S. § 1350 enacted November 1, 2011 which abolishes prior common law and codifies the elements to establish an employment based discrimination claim.

Instruction No. 21.22  — Employment Based Discrimination — Retaliation

            Instruction No. 21.22 is a new uniform jury instruction.  It pertains to claims based on employment based discrimination under 25 O.S. § 1350 possessing a retaliation component.  This instruction should be used with Instruction No. 21.21 when retaliation is at issue.

Instruction No. 21.23  — Employment Based Discrimination — Damages

            Instruction No. 21.23 is a new uniform jury instruction.  It pertains to claims based on employment based discrimination under 25 O.S. § 1350.  The instruction advises jurors how to calculate damages available under 25 O.S. § 1350.  This instruction should be used with Instruction No. 21.21 (and 21.22 when retaliation is at issue).

Instruction No. 22.7 — Exemplary or Punitive Damages — Second Stage.

            A section was added to the Instruction allowing jurors to consider evidence of actual harm to others when determining the seriousness of the hazard a defendant created to the public and advises that the defendant’s conduct which risks harm to many may be more reprehensible than conduct that risks harm to fewer people, but jurors may not use punitive damages to punish a defendant for harms caused to others.

Most of the Notes on Use section was deleted which advise the trial court how to implement the different stages of punitive damages in 23 O.S. § 9.1.

Instruction No. 28.1 — Defamation — Introductory Instruction

            Instruction No. 28.1 is a new uniform jury instruction providing a preliminary statement of a plaintiff’s defamation claim.  It should introduce all defamation instructions.

Instruction No. 28.2 — Defamation — Elements (Public Figure Plaintiff)

            Instruction No. 28.2 is a new uniform jury instruction which sets forth the elements of defamation when a plaintiff is a public official or public figure.  The Comments section provides lengthy definitions and case law pertaining to libel and slander.

Instruction No. 28.3 — Defamation — Elements (Private Figure Plaintiff)

            Instruction No. 28.3 is a new uniform jury instruction which sets forth the elements of defamation when a plaintiff is a private figure.  It does not require the extra element set forth in 28.2, almost akin to malice, for a public figure plaintiff.  The Comments section provides lengthy definitions and case law pertaining to libel and slander.

Instruction No. 28.4 — Defamation — Affirmative Defense of Fair Comment

Instruction No. 28.4 is a new uniform jury instruction which provides the elements for the defamation affirmative defense of fair comment.

Instruction No. 28.5 — Defamation — Affirmative Defense of Fair Reporting

            Instruction No. 28.5 is a new uniform jury instruction which provides the elements for the defamation affirmative defense of fair reporting. This instruction is based on 12 O.S. § 1443.1.

Instruction No. 28.6 — Defamation — Affirmative Defense of Good Faith

            Instruction No. 28.6 is a new uniform jury instruction which provides the elements for the defamation affirmative defense of good faith.  This instruction is based on 12 O.S. § 1446a.

Instruction No. 28.7 — Defamation- Affirmative Defense For Statement Made by Another Person

            Instruction No. 28.7 is a new uniform jury instruction which provides the elements for the defamation affirmative defense of statement made by another person. The affirmative defense can only be raised by an agent, employee, owner, licensee, or operator of a television or radio broadcasting station.  This instruction is based on 12 O.S. § 1447.1.

Instruction No. 28.8 — Defamation — Affirmative Defense of Qualified Privilege

            Instruction No. 28.7 is a new uniform jury instruction which provides the elements of a defamation affirmative defense based on qualified privilege. The instruction is based upon the Restatement (Second) of Torts § 595 (1977).

Instruction No. 28.9 — Defamation — Measure of Damages.

            Instruction No. 28.9 is a new uniform jury instruction which provides the elements that jurors may consider when awarding damages for defamation.

Instruction No. 29.1 — Misappropriation of Trade Secrets — Elements

Instruction No. 29.1 is a new uniform jury instruction which provides the elements a plaintiff must prove to recover based on a claim of misappropriation of trade secrets.

Instruction No. 29.2 –Trade Secret Definition

            Instruction No. 29.2 is a new uniform jury instruction which defines a trade secret.  This instruction is based on 78 O.S. § 86(4).

Instruction No. 29.3 – Misappropriation — Definition

            Instruction No. 29.3 is a new uniform jury instruction which defines misappropriation.  This instruction is based on 78 O.S. § 86(2).

Instruction No. 29.4 — Improper Means — Definition

            Instruction No. 29.4 is a new uniform jury instruction which defines misappropriation.  This instruction is based on 78 O.S. § 86(1).

Instruction No. 29.5 — Misappropriation of Trade Secrets — Measure of Damages

            Instruction No. 29.5 is a new uniform jury instruction which explains the measure of damages for misappropriation of trade secrets.  This instruction is based on 78 O.S. § 88(A).  Of note, it states in the Comments section the court may also award exemplary damages for a willful and malicious appropriation in an amount not exceeding twice the compensatory damages under 78 O.S. § 88(B).