United States Court of Appeals
For the First Circuit
No. 09-1054
EMILIO DECARO,
Plaintiff, Appellant,
v.
HASBRO, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Boudin, Selya and Dyk,* Circuit Judges.
Tani E. Sapirstein, with whom Sapirstein & Sapirstein, P.C.
was on brief, for appellant.
Neil Jacobs, with whom Harry T. Daniels, Shari G. Kleiner,
Tina Marisam, and Wilmer Cutler Pickering Hale and Dorr, LLP were
on brief, for appellee.
September 2, 2009
*
Of the Federal Circuit, sitting by designation.
SELYA, Circuit Judge. This appeal involves two claims of
instructional error and a belated claim of error concerning the
procedure to be followed by a trial court under the 2003 amendments
to Federal Rule of Civil Procedure 51. Concluding, as we do, that
no substantive or procedural error tainted the challenged jury
instructions, we affirm.
I. BACKGROUND
We rehearse here only those facts necessary to place this
appeal in context.
Plaintiff-appellant Emilio DeCaro worked for defendant-
appellee Hasbro, Inc., at its plant in Longmeadow, Massachusetts,
for over two decades, most recently as a "first pressman." In that
capacity, the plaintiff operated large-scale printing presses used
to embellish thousands of sheets of cardboard and paper hourly.
In 2001, the plaintiff informed Hasbro that his doctors
had diagnosed him as afflicted with multiple sclerosis.
Notwithstanding this diagnosis, he valiantly continued to work. By
2005, however, his condition had deteriorated and he began a
regimen of chemotherapy. He left work and, in July of that year,
applied for Social Security Disability Insurance (SSDI) benefits.
The plaintiff's SSDI application has particular
pertinence here. In it, he made a series of factual averments
touching upon his physical condition, some in his own hand and
others in the form of answers provided orally to a government
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scrivener who typed his responses into the application. These
averments (the accuracy of which was disputed at trial) included
claims that the plaintiff was unable to work and descriptions of
his particular physical impairments.
The plaintiff attempted to return to work on November 29,
2005. A company nurse dashed his hopes; after observing the
plaintiff's physical appearance, she forbade him from resuming his
position without a doctor's note. On November 30, the plaintiff's
physician wrote a letter opining that the plaintiff should eschew
employment until the following February.
On February 2, 2006, the plaintiff again tried to reclaim
his job. The company demurred, citing the lack of a
contemporaneous medical clearance. This sort of pas de deux
occurred at least twice more during the next four months; the short
of it is that Hasbro did not allow the plaintiff to return to work.
Disappointed by Hasbro's unwillingness to restore him to
its work force, the plaintiff brought suit against the company in
a Massachusetts state court. In his complaint, filed on June 9,
2006, he asserted a gallimaufry of discrimination and breach of
contract claims, all arising under state law. This asseverational
array included claimed violations of Massachusetts's principal
anti-discrimination statute (Massachusetts General Laws ch. 151B).
Hasbro removed the case to the United States District
Court for the District of Massachusetts on the basis of diversity
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of citizenship and the existence of a controversy in the requisite
amount. See 28 U.S.C. §§ 1332(a)(1), 1441. Following a period of
pretrial discovery, the district court granted summary judgment in
Hasbro's favor on the breach of contract claim.1 An eight-day jury
trial ensued on the state-law discrimination claims.
As the trial wound down, the district court convened a
charge conference, see Fed. R. Civ. P. 51(b), to discuss how the
jury was to be instructed. A court reporter attended the charge
conference and memorialized what transpired. The court commented
upon the parties' proposed instructions and indicated generally
which instructions it would give and which it would eschew.
Among other things, Hasbro proposed an instruction
concerning both the effect of the statements contained in the
plaintiff's application for SSDI benefits and his receipt of those
benefits. Its proposed instruction read in relevant part:
On his application for those benefits Mr.
DeCaro represented that he was disabled and
unable to work. Mr. DeCaro is bound by his
statements on his application for disability
and you must presume the truth.
The court noted that it would give an SSDI instruction, but not one
that was stated "with as much intensity" as Hasbro's suggested
instruction. Instead, the court planned to "say that the jury is
entitled to take into consideration the statements made by Mr.
1
That ruling is not challenged on appeal and, thus, we do not
dwell on it.
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DeCaro in his application for [SSDI] benefits" and may find that
those statements "are evidence that in fact he viewed himself as
unable to perform the essential functions of his job."
Switching to a different subject, the plaintiff noted
conflicting characterizations of the evidence about what Hasbro
knew anent his disability and whether and when he had requested
some sort of accommodation to permit him to work notwithstanding
that disability. Accordingly, he proposed an instruction relating
to an employer's duty under Massachusetts law to provide a
reasonable accommodation, even in the absence of any request that
it do so. The court stated that it had read the relevant case law,
see, e.g., Leach v. Comm'r of Mass. Rehab. Comm'n, 827 N.E.2d 745,
749 (Mass. App. Ct. 2005), and had concluded that Massachusetts law
does not impose such an affirmative duty on the employer in the
circumstances at hand.
The attorneys for the parties delivered their summations
the next day. Immediately thereafter, the court charged the jury
and simultaneously gave a written copy of the charge to each party.
With respect to the receipt of SSDI benefits and the
statements made in the plaintiff's application for those benefits,
the court instructed:
Defendant has pointed to the fact that,
while plaintiff was out on voluntary medical
leave, plaintiff applied for, and has been
continuously receiving, social security
disability benefits since November 2005.
Plaintiff's application for those benefits
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included representations about the physical
requirements of the first pressman position
and statements about his physical limitations
at the time of his application.
You should examine the statements made
by plaintiff in the application for social
security disability benefits and consider
whether these statements constitute admissions
by him that he was in fact unable to perform
the essential functions of his job, with or
without a reasonable accommodation, at the
time he completed his social security
disability application. A plaintiff is not
permitted to say one thing in applying for
disability benefits and another thing,
entirely the opposite, in seeking damages for
discrimination.
In making this examination you should
consider all the facts and circumstances
surrounding the submission of the application.
To the extent that you find that statements
made in plaintiff's application for social
security disability benefits were made by
plaintiff, you may decide that they reflected
the truth when made, and you may consider them
as evidence related to Mr. DeCaro's ability to
perform the essential functions of the first
pressman position, with or without
accommodation, on the dates he attempted to
return to work.
At the same time, keep in mind that the
standard for determining eligibility for
social security disability benefits is
different from the standard you must apply in
determining whether plaintiff was able, with
or without reasonable accommodation, to
perform the essential functions of his job.
The fact that Mr. DeCaro received social
security disability benefits is not in itself
necessarily fatal to a claim that he was able
to perform the essential functions of his job.
However, the receipt of benefits and the
statements made by plaintiff in applying for
them are items of evidence you may consider in
making this determination.
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With respect to the initiation of a reasonable
accommodation, the court instructed:
When a plaintiff in a disability
discrimination case contends that he was
entitled to a reasonable accommodation in
order to perform the essential functions of
his job, he must present evidence to persuade
the jury that he actually initiated a request
for the accommodation and engaged in an
interactive process with the employer to work
out the possible accommodation. As part of
this process the employer may request medical
records and make inquires of the employee
about his medical condition. If you find on
the facts of this case that plaintiff never
requested a specific accommodation, then you
cannot find that defendant violated
plaintiff's rights by failing to offer him
one.
After completing its charge but before allowing the jury
to retire, the court brought counsel to sidebar. There — out of
the jury's earshot — it inquired about objections. See Fed. R.
Civ. P. 51(b)(2). The plaintiff's attorney objected to the SSDI
instruction on two grounds, asserting that the instruction (i)
"simply overstates the law in Massachusetts" and (ii) should have
told the jurors that the receipt of SSDI benefits was "not fatal at
all" to the claims being tried. The lawyer also objected to the
accommodation instruction insofar as it obligated the plaintiff, as
a condition precedent to recovery, to request a specific
accommodation. The district court overruled these objections and
sent the jury to the jury room to deliberate.
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To assist the jurors in their task, the court gave them
a written copy of its charge. It also prepared a special verdict
form. See Fed. R. Civ. P. 49(a). The form, a replica of which is
attached hereto as Appendix A, posed a series of questions.
Neither party interposed any objection to either the use or the
wording of the special verdict form. The parties thus waived the
right to object to these matters on appeal. See Clausen v. Sea-3,
Inc., 21 F.3d 1181, 1196 (1st Cir. 1994); La Amiga del Pueblo, Inc.
v. Robles, 937 F.2d 689, 692 (1st Cir. 1991).
In due course, the jury concluded its deliberations. The
first question on the special verdict form has four sub-parts, and
the jurors answered all four sub-parts in the negative. These
answers memorialized their conclusion that, on the dates in
question, the plaintiff was not qualified to perform the essential
functions of the first pressman position with or without an
accommodation. Because those answers were dispositive, the jury —
in accordance with directions contained in the special verdict form
— found in favor of Hasbro and refrained from answering any other
questions set out in the form.
This timely appeal ensued. We have jurisdiction under 28
U.S.C. § 1291.
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II. ANALYSIS
We divide our analysis into two segments. The first
deals with the objections made at sidebar. The second deals with
a newly emergent claim of procedural error.
A. The Sidebar Objections.
The plaintiff's briefs assign error to the overruling of
his objections to the SSDI and accommodation instructions. The
defendant counters, as a threshold matter, that the plaintiff's
claims of instructional error have been waived. In its view, the
plaintiff failed to comply at sidebar with either Rule 51(c)(1),
which requires that an objection "stat[e] distinctly the matter
objected to and the grounds for the objection," or Rule
51(d)(1)(B), which requires that an objection to a failure to
instruct be accompanied by a statement of the desired instruction.
The strictures of Rule 51 are not to be taken lightly.
Baron v. Suffolk County Sheriff's Dep't, 402 F.3d 225, 235 (1st
Cir. 2005). Accordingly, there is a high price to be paid for
noncompliance. A substantial failure to comply with those
requirements normally results in forfeiture of the objection to
which the failure relates. Surprenant v. Rivas, 424 F.3d 5, 15
(1st Cir. 2005). Forfeited objections are reviewed only for plain
error. Toscano v. Chandris, S.A., 934 F.2d 383, 385 (1st Cir.
1991); Fed. R. Civ. P. 51(d)(2).
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We begin with the plaintiff's objections to the SSDI
instruction. The objections, quoted above, are not models of
clarity and, although such objections have to be evaluated in light
of the colloquy that transpired at the charge conference the day
before, see Gray v. Genlyte Group, Inc., 289 F.3d 128, 133-34 & n.1
(1st Cir. 2002); Wilson v. Mar. Overseas Corp., 150 F.3d 1, 7 (1st
Cir. 1998), saying that something "simply overstates the law" or
that the jury should be admonished that receipt of SSDI benefits is
"not fatal at all" does not go very far toward preserving
particular legal points. This is especially so where, as here, the
judge did not say that receipt of the SSDI benefits was fatal. The
purpose of a sidebar objection is to inform the judge exactly what
he got wrong and what he should do to remedy the incipient harm.
In this case, the problem is compounded. The plaintiff
offers an array of grounds on appeal, and the extent to which each
ground might have been apparent from the pretrial discussion
varies.
In the end, however, the degree to which the SSDI
objections are or are not preserved does not alter the outcome of
the appeal. Consequently, we will assume for argument's sake that
the objections to the SSDI instruction were preserved.
No such reservation is required for the plaintiff's
asseveration that the jury should have been instructed on an
employer's duty to initiate consideration of a reasonable
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accommodation. That objection presented a fairly clear choice
between giving such an instruction or withholding it, and the
objection echoed an instruction proposed by plaintiff's counsel and
discussed in some detail at the charge conference. That the
objection itself was terse did not, in the idiosyncratic
circumstances of this case, deprive it of force. After all, the
root purpose of Rule 51 is to ensure that the district court is
given actual notice of the nature and grounds of a party's claim
that the court's instructions are deficient; style points are not
awarded for the form of an objection. See Wilson, 150 F.3d at 7.
We turn, then, to the merits of the objections, starting
with a few words about the standard of review.
Preserved claims of instructional error are reviewed
under a split standard. We review de novo questions as to whether
jury instructions capture the essence of the applicable law, while
reviewing for abuse of discretion questions as to whether the
court's choice of phraseology in crafting its jury instructions is
unfairly prejudicial. See United States v. Nascimento, 491 F.3d
25, 33-34 (1st Cir. 2007); Elliott v. S.D. Warren Co., 134 F.3d 1,
7 (1st Cir. 1998).
1. The SSDI Instruction. The plaintiff challenges the
SSDI instruction as inconsistent with the Supreme Court's decision
in Cleveland v. Policy Management Systems Corp., 526 U.S. 795
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(1999).2 He argues that the effect of the instruction was to
establish a forbidden presumption that the receipt of SSDI benefits
precludes a finding that an employee is able to perform the
essential functions of his job, with or without an accommodation.
In order to put this claim of error into perspective, it
is useful to step back and examine Cleveland. There, a district
court granted summary judgment in favor of an employer in a suit
brought under the Americans with Disabilities Act (ADA), 42 U.S.C.
§ 12101 et seq. The district court reasoned that the plaintiff's
application for and receipt of SSDI benefits estopped her as a
matter of law from claiming that she was capable of performing the
essential functions of her job. The Fifth Circuit affirmed but
softened the reasoning; it held that the receipt of SSDI benefits
creates a rebuttable presumption that the employee cannot perform
the essential functions of her job. Cleveland v. Policy Mgmt. Sys.
Corp., 120 F.3d 513, 518 (5th Cir. 1997). Because the plaintiff
had failed to proffer evidence sufficient to overcome that
presumption, her appeal failed. Id.
The Supreme Court saw the matter differently. The
Justices reversed, finding the SSDI scheme and the ADA scheme
separate and distinct. 526 U.S. at 801-05. Consequently, receipt
of benefits under the former scheme does not create any presumption
2
The reasoning of the Cleveland Court has been adopted by the
Supreme Judicial Court of Massachusetts. See Russell v. Cooley
Dickinson Hosp., Inc., 772 N.E.2d 1054, 1062 (Mass. 2002).
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(conclusive or rebuttable) with respect to a parallel ADA claim.
Id. at 805. Withal, the Court was careful to note that an employee
may not simply ignore seeming contradictions between statements
made in an application for SSDI benefits and elements of an ADA
claim. Id. at 807. Rather, the employee must explain such seeming
contradictions. Id.
Seen in this light, we believe that the district court's
SSDI instruction comports with the thrust of the Cleveland Court's
holding. Pertinently, the court told the jury that the mere "fact
that Mr. DeCaro received [SSDI] benefits is not in itself
necessarily fatal to his claim." The court further told the jury
to "consider" whether the statements made by the plaintiff in
applying for SSDI benefits constituted "admissions" as to his
inability to perform the essential functions of his job. In
resolving that point, the jurors were urged to "consider all the
facts and circumstances." Finally, the court warned the jury to
"keep in mind that the standard for determining eligibility for
[SSDI] benefits is different from the standard you must apply in
determining whether plaintiff was able, with or without reasonable
accommodation, to perform the essential functions of his job."
These are correct statements of the law, consistent both with
Cleveland and with Massachusetts law. See Russell v. Cooley
Dickinson Hosp., Inc., 772 N.E.2d 1054, 1062 (Mass. 2002).
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Relatedly, the plaintiff argues that the court erred in
failing either to use the phrase "not fatal at all" or to emphasize
that a change in conditions from one date to another could
constitute an acceptable means of harmonizing seemingly
contradictory statements. The first of these points is flatly
incorrect: instructing the jury that the plaintiff's statements and
the consequent receipt of benefits were "not fatal at all" would
have usurped the jury's province.3 The point of the Cleveland
decision is that such statements may or may not be inimical to an
employment discrimination claim. Everything depends on
interpretation: how the jurors view the statements and the receipt
of benefits in the context of the overall situation.
The second part of this objection deals with matters of
emphasis and choice of phraseology. While it might have been
appropriate for the district court to make an express reference to
the effect of a "change in conditions," that reference was not
required. In instructing a jury, a trial court is not obliged
either to embellish legally correct statements or to cover every
factual permutation.4 Febres v. Challenger Carib. Corp., 214 F.3d
3
While the court's use of the phrase "not in itself
necessarily fatal" may have been an awkward locution, that wording
is reminiscent of similar language in both Cleveland, 526 U.S. at
797 (using the phrase "does not necessarily estop"), and Russell,
772 N.E.2d at 1062 (similar).
4
Let us be perfectly clear: we do not suggest that the
instruction given by the district court would necessarily be
sufficient in all circumstances. Consequently, we do not foreclose
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57, 62-63 (1st Cir. 2000); see United States v. DeStefano, 59 F.3d
1, 2-3 (1st Cir. 1995).
By the same token, we believe that the court's admonition
that "[a] plaintiff is not permitted to say one thing in applying
for disability benefits and another thing, entirely the opposite,
in seeking damages for discrimination," was within the realm of its
discretion. That admonition leaves ample room for an explanation
as to why two seemingly contradictory statements are not in fact
inconsistent.
The plaintiff makes a last-ditch argument to the SSDI
instruction. Citing Rosebud Sioux Tribe v. A & P Steel, Inc., 733
F.2d 509 (8th Cir. 1984), he suggests that a party can successfully
appeal a legally correct jury instruction that places undue
emphasis on an aspect of the law that favors the other party. See
id. at 519. In the abstract, that may well be a correct statement
of a legal principle — but the principle has no application here.
A trial judge has broad discretion in deciding how best
to communicate complicated legal rules to a lay jury. See, e.g.,
Febres, 214 F.3d at 62-63. That discretion was not exceeded — or
even severely tested — in this case. Both the length of the SSDI
instruction and its points of emphasis were warranted by the
subtlety of the issue.
the possibility that, in a future case, a different or more
detailed instruction might be required, depending on the facts and
the issues.
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To say more about the SSDI instruction would be
supererogatory. That instruction is legally correct and, in the
final analysis, its phrasing is within the encincture of the
district court's discretion. See United States v. McGill, 953 F.2d
10, 12 (1st Cir. 1992) ("So long as the charge sufficiently conveys
the [party's] theory, it need not parrot the exact language that
the [party] prefers.").
2. The Accommodation Instruction. The plaintiff's other
claim of instructional error need not detain us. He complains of
the jury instructions regarding an employer's duty to offer a
reasonable accommodation to an employee who suffers from a
disability. Specifically, he asserts that, under certain
circumstances, an employer may be obliged to initiate a discussion
about the feasability of such an accommodation. See Leach, 827
N.E.2d at 749. This case, he says, called for such an instruction.
This claim of error is moot. Under the circumstances, an
employer's duty to accommodate does not arise unless (at a bare
minimum) the employee is able to perform the essential functions of
his job with an accommodation. See Cleveland, 526 U.S. at 805-06;
Russell, 772 N.E.2d at 1062.
Here, the jury ended its deliberations once it determined
that the plaintiff was not able to perform the essential functions
of the first pressman position, with or without an accommodation,
on any of the four dates in question. See App'x A. The special
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verdict form directed the jurors that "[i]f you have answered 'No'
as to all four dates, stop. . . . You will have completed your
deliberations." Id. That became the law of the case. See
Clausen, 21 F.3d at 1196. Therefore, the jury never had occasion
to reach the logically subsequent question of the employer's duty
to accommodate. It follows inexorably that any error regarding the
court's instructions on that issue — and we do not suggest that any
error occurred here — was harmless. Consequently, we have no need
to address the issue. See Faigin v. Kelly, 184 F.3d 67, 87 (1st
Cir. 1999).
B. The Procedural Objection.
There is one more bridge to cross. At oral argument, the
plaintiff launched an offensive in the form of a complaint that the
district court failed to follow the procedure delineated in Federal
Rule of Civil Procedure 51. This late-blooming claim of procedural
error posits a mistake of law that, under ordinary circumstances,
would engender de novo review. Here, however, the circumstances
are out of the ordinary: the argument is doubly defeated.
In the first place, the plaintiff did not
contemporaneously object when the district court implemented the
challenged procedure (that is, when it charged the jury without
having first presented the parties with the full text of the
charge). Thus, the claim of error is not properly before us. See
United States v. Slade, 980 F.2d 27, 30 (1st Cir. 1992) ("It is a
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bedrock rule that when a party has not presented an argument to the
district court, she may not unveil it in the court of appeals.").
In the second place, the plaintiff did not proffer this claim of
error in his opening brief on appeal. It is common ground that
contentions not advanced in an appellant's opening brief are deemed
waived. See Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir.
1990).
Even were this contention properly preserved, it would be
futile. The plaintiff points out that a recent amendment to Rule
51 requires the court to "inform the parties of its proposed
instructions and proposed action on the requests before instructing
the jury and before final jury arguments," Fed. R. Civ. P.
51(b)(1). The plaintiff argues that this language in effect
directs a trial court to provide counsel with a verbatim copy of
its intended jury instructions at the charge conference. He then
notes that the court below first informed him of the exact language
of the SSDI instruction when he listened, along with the jury and
opposing counsel, to the charge being delivered in open court.
This omission, he declares, violated Rule 51(b)(1).
This is an overly crabbed reading of the rule. Rule 51,
in its current form, reflects amendments made in 2003.5 These
revisions were designed to "capture many of the interpretations
5
To be sure, Rule 51 was further amended in 2007, but the
2007 revisions were of a purely stylistic nature. Fed. R. Civ. P.
51 advisory committee's note (2007 amendments).
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that have emerged in practice." Fed. R. Civ. P. 51 advisory
committee's note (2003 amendments). There is no indication,
however, that the drafters envisioned a change in practice as to
how the charge conference should be conducted; to the contrary, the
revised version of the rule contains language strongly resembling
that found in the earlier pre-amendment version. Compare Fed. R.
Civ. P. 51(b)(1) (2009) ("The court must inform the parties of its
proposed instructions . . . before instructing the jury and before
final jury arguments . . . ."), with Fed. R. Civ. P. 51 (2002)
("The court shall inform counsel of its proposed action upon the
requests [for instructions] prior to . . . arguments to the
jury.").
This family resemblance is critically important because,
under the earlier version, a number of courts of appeals had held
that the rule did not require the delivery of written jury
instructions to the parties before the court actually delivered the
charge. See, e.g., Jones v. S. Pac. R.R., 962 F.2d 447, 451 (5th
Cir. 1996); Emerick v. U.S. Suzuki Motor Corp., 750 F.2d 19, 22-23
(3d Cir. 1984); Beimert v. Burlington N., Inc., 726 F.2d 412, 414
(8th Cir. 1984); Puggioni v. Luckenbach S.S. Co., 286 F.2d 340, 344
(2d Cir. 1961). The relatively minor changes in the text of the
rule do not justify deviating from this uniform result.
The plaintiff argues that the drafters of the 2003
revisions intended to equate "proposed action" with "draft
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instructions." We disagree. The advisory committee's note states
flatly that "[i]t is enough that counsel know of the intended
instructions before making final arguments addressed to the issue."
Fed. R. Civ. P. 51 advisory committee's note (2003 amendments).
That is exactly what the lower court did here.
In any event, we previously have stated that the post-
2003 version of the rule, Fed. R. Civ. P. 51(b)(1), does not
require the trial judge to supply the parties with a written copy
of the instructions before charging the jury. Cipes v. Mikasa,
Inc., 439 F.3d 52, 55 n.1 (1st Cir. 2006). Sufficiently informing
the parties of the court's proposed instructions is all that the
rule requires; no particular convention need be employed. See id.;
see also Fed. R. Civ. P. 51 advisory committee's note (2003
amendments) ("It is enough that counsel know of the intended
instructions . . . ."). Indeed, some judges, acting within the
ambit of their discretion, prefer to instruct juries orally,
without ever preparing written instructions.
We conclude, without serious question, that a district
court is under no obligation to give the parties the full text of
its intended instructions at any time before the jury is charged.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we affirm the judgment of the district court.
Affirmed.
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Appendix A
EMILIO DECARO, )
Plaintiff )
) C.A. 06-30107-MAP
v. )
)
HASBRO, INC., )
Defendant )
SPECIAL VERDICT FORM
We the jury unanimously respond to the following
questions.
1. Has Plaintiff proved by a preponderance of the
evidence that he was able to perform the essential functions of the
First Pressman position, with or without reasonable accommodation,
on one of more of the following dates:
November 29, 2005 __________ __________
Yes No
February 2, 2006 __________ __________
Yes No
May 15, 2006 __________ __________
Yes No
June 6, 2006 __________ __________
Yes No
Note: If you answered "No" as to all four dates, stop. The
foreperson should sign the verdict slip. You will have completed
your deliberations.
2. Has Plaintiff proved by a preponderance of the
evidence that discrimination by Defendant based on Plaintiff's
handicap was a determinative cause of Defendant's decision not to
permit Plaintiff to return to work, or not to offer Plaintiff a
reasonable, requested accommodation, on one or more of the
following dates:
November 29, 2005 __________ __________
Yes No
February 2, 2006 __________ __________
Yes No
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May 15, 2006 __________ __________
Yes No
June 6, 2006 __________ __________
Yes No
Note: If you answered "No" as to all four dates, stop. The
foreperson should sign the verdict slip. You will have completed
your deliberations. If you have answered "Yes" as to one or more
of the same dates in both Questions 1 and 2, then proceed to the
next question.
3. What is the amount of damages that will fairly and
reasonably compensate Plaintiff for his lost past wages and
emotional distress caused by Defendant's discriminatory conduct?
__________________________________________________ (in words)
$______________. _______ (in figures)
_____________________ __________________
Foreperson Date
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