1. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-051 You have been considering the case of Xiaohoung Yu, Plaintiff, vs. Vidasagar Mummaneni, as Defendant, Civil Action No. 03-C-12515- 2.

2. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-052 Plaintiff filed this action here in the State Court of Gwinnett County in which she contends that she was injured due to the negligence of the Defendant.

3. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-053 Defendant filed an answer to the petition in which he denies that he is responsible for the damages sought by the Plaintiff.

4. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-054 I have outlined to you briefly the written contentions of the parties as contained in the pleadings. The pleadings are not evidence; they are only claims or contentions of the parties.

5. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-055 Plaintiff has the burden of proof, which means that the plaintiff must prove whatever it takes to make out her case, except for any admissions by the defendant.

6. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-056 Plaintiff must prove her case by what is known as a preponderance of the evidence; that is, evidence upon the issues involved that, while not enough to wholly free the mind from a reasonable doubt,

7. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-057 is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than the other.

8. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-058 Evidence is the means by which any fact that is put in issue is established or disproved.

9. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-059 Evidence includes all the testimony of the witnesses and the exhibits admitted during the trial.

10. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0510 It also includes any stipulations, which are facts agreed to by the lawyers.

11. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0511 Direct evidence is evidence that immediately points to the question at issue.

12. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0512 Circumstantial (or indirect) evidence is evidence that only tends to establish a fact; it must be such as to reasonably establish that fact rather than anything else.

13. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0513 The comparative weight of circumstantial and direct evidence on any given issue is a question of fact for you to decide.

14. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0514 Direct evidence is the testimony of a witness who has seen or heard the facts to which the witness testifies and that, if believed, is sufficient to prove or establish these facts.

15. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0515 Circumstantial evidence is the testimony of a witness who has seen or heard the facts to which the witness testifies from which such facts, if believed,

16. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0516 you may find other facts to exist, that are reasonable and believable to you in the light of your experience.

17. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0517 When circumstantial evidence is relied upon to establish a fact or theory, it must be such as to reasonably establish that fact or theory rather than anything else.

18. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0518 The jury must determine the credibility of the witnesses. In deciding this, you may consider all the facts and circumstances of the case, including

19. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0519 the witnesses' manner of testifying, their intelligence, means and opportunity of knowing the facts to which they testify,

20. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0520 the nature of the facts to which they testify, the probability or improbability of their testimony,

21. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0521 their interest or lack of interest, and their personal credibility as you observe it.

22. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0522 Any conflicts in the evidence are to be reconciled wherever possible. All witnesses are presumed to speak the truth, and if possible, you should not attribute a false statement to any of them.

23. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0523 If you find that you cannot reconcile conflicting evidence,

24. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0524 then you should believe the evidence that is most reasonable and believable to you and decide the case by the preponderance of the evidence as you find it to be.

25. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0525 When witnesses appear and testify, they are presumed to speak the truth unless impeached in some manner provided by law.

26. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0526 To impeach a witness means to discredit the witness or prove the witness unworthy of belief.

27. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0527 A witness may be impeached a.by disproving the facts about which the witness testifies,

28. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0528 b. by proof of contradictory statements previously made by the witness about matters relevant to the testimony and to the case,

29. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0529 If it is sought to impeach a witness by proof of contradictory statements, proof of the general good character of the witness may also be shown. The effect of the evidence is to be determined by the jury.

30. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0530 When a witness is successfully contradicted as to a material matter, the witness's credibility as to other matters shall be a question for the jury.

31. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0531 Because believability of witnesses is a matter to be determined by the jury, it is your duty to determine whether the effort to impeach a witness has been successful and whether the witness is to be believed.

32. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0532 When a party has evidence that rejects (or disproves) a claim or charge made against the party and he/she fails to produce it, or having more certain and satisfactory evidence,

33. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0533 relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim is not well founded. This presumption may be rebutted, however.

34. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0534 The case before you is a tort case in which the plaintiff must prove by a preponderance of the evidence that the negligence of the defendant, if any, was a proximate cause of the injuries to the plaintiff.

35. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0535 Before a plaintiff can recover damages from a defendant in a case such as this, there must be injury to the plaintiff resulting from the defendant's negligence.

36. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0536 Proximate cause is that which, in the natural and continuous sequence, unbroken by other causes, produces an event and without which the event would not have occurred.

37. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0537 Proximate cause is that which is nearest in the order of responsible causes, as distinguished from remote, that which stands last in causation, not necessarily in time or place, but in causal relation.

38. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0538 Damages are given as pay or compensation for injury done.

39. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0539 When one party is required to pay damages to another, the law seeks to ensure that the damages awarded are fair to both parties.

40. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0540 If you believe from a preponderance of the evidence that the plaintiff is entitled to recover, you should award to the plaintiff such sums as you believe are reasonable and just in this case.

41. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0541 Damages are given as compensation for an injury done, and generally the injury is the measure when the damages are of a character to be estimated in money.

42. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0542 If the injury is small or mitigating circumstances are strong, only nominal damages are given.

43. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0543 What would be a proper amount of nominal damages is a question for you to decide under all the facts and circumstances of the case.

44. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0544 In all cases, necessary expenses resulting from the injury are a legitimate item of damages.

45. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0545 As to medical expenses, such as hospital, doctor, and medicine bills, the amount of the damage would be the reasonable value of such expense as was reasonably necessary.

46. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0546 Pain and suffering is a legal item of damages. The measure is the enlightened conscience of fair and impartial jurors.

47. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0547 Questions of whether, how much, and how long the plaintiff has suffered or will suffer are for you to decide.

48. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0548 Pain and suffering includes mental suffering, but mental suffering is not a legal item of damage unless there is physical suffering also.

49. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0549 Anxiety, shock, and worry are examples of what might be included under mental pain and suffering, and

50. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0550 loss of capacity to work or labor, separately from earnings, may be considered as an item causing mental suffering.

51. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0551 If you find that the plaintiff's pain and suffering will continue into the future, you should award damages for such future pain and suffering as you believe the plaintiff will endure.

52. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0552 In making such award, your standard should be your enlightened conscience as impartial jurors.

53. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0553 No plaintiff may recover for injuries or disabilities that are not connected with the act or omissions of the defendant in this case.

54. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0554 There can be no recovery for a particular plaintiff for any injury or disability that was not proximately caused by the incident in question.

55. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0555 If you should find that, at the time of the incident, the plaintiff had any physical condition, ailment, or disease that was becoming apparent or was dormant, and

56. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0556 if you should find that the plaintiff received an injury as a result of the negligence of the defendant and

57. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0557 that the injury resulted in any aggravation of a condition already pending, then the plaintiff could recover damages for aggravation of the preexisting condition.

58. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0558 Should you find that defendant has been stubbornly litigious and has caused plaintiff unnecessary trouble and expense, you may award the plaintiff his expenses of

59. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0559 litigation, including reasonable attorney’s fees. If you find that a bona fide controversy exists as to defendant’s liability, then plaintiff would not be entitled to recover his

60. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0560 expenses of litigation and attorney’s fees. The mere failure to pay a claim without suit does not constitute bad faith.

61. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0561 If you believe from a preponderance of the evidence that the plaintiff is entitled to recover damages,

62. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0562 you would find for the plaintiff and the form of your verdict would be, "We, the jury, find for plaintiff in the sum of (blank) dollars."

63. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0563 Where I have used the word "blank," you would insert such sum in dollars and cents as you think the plaintiff is entitled to recover.

64. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0564 If you do not think the plaintiff is entitled to recover based upon the evidence presented, you should find for the defendant, and

65. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0565 the form of your verdict would be, "We, the jury, find for the defendant.”

66. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0566 Whatever your verdict in the case, it must be agreed to by each juror; it must be in writing, dated, and signed by your foreperson; and it must be returned and read in court.

67. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0567 The court has prepared a verdict form for your use.

68. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0568 I want to emphasize that anything the court did or said during the trial of this case was not intended to and did not intimate, hint, or suggest to you which of the parties should prevail in this case.

69. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0569 Whichever of the parties is entitled to a verdict is a matter entirely for you to determine, and whatever your verdict, it must be agreed upon by all of you.

70. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0570 The court's interest in the matter is that the case be fairly presented according to law and that you--as honest, conscientious, impartial jurors--

71. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0571 consider the case as the court has instructed you and return a verdict that speaks the truth as you find the truth of the case to be.

72. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0572 Your verdict should be a true verdict based upon your opinion of the evidence according to the laws given you in this charge.

73. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0573 You are not to show favor or sympathy to one party or the other. It is your duty to consider the facts objectively without favor, affection, or sympathy to either party.

74. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0574 Your verdict must be unanimous. One of your first duties in the jury room will be to select one of your number to act as foreperson,

75. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0575 who will preside over your deliberations and who will sign the verdict to which all twelve of you freely and voluntarily agree.

76. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0576 You should start your deliberations with an open mind. Jurors should carefully consider all the evidence in the case and

77. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0577 deliberate with a view toward reaching a unanimous verdict consistent with your consciences and oaths as jurors. Avoid premature, fixed opinions.

78. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0578 Consult with one another and consider each other's views. Each of you must decide this case for yourself, but you should do so only after a discussion and consideration of the case with your fellow jurors.

79. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0579 Do not hesitate to change an opinion if convinced that it is wrong. However, you should never surrender honest convictions or

80. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0580 opinions in order to be congenial or to reach a verdict solely because of the opinions of the other jurors.

81. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0581 You may go now to the jury room, but do not begin your deliberations until I send you the pleadings, exhibits, and verdict form, which I will do shortly. Then you may begin your deliberations.

82. Yu v. Mummaneni Judge Randy Rich Gwinnett State Court 6-7-0582