I will now instruct you about damages. My instructions are given as a guide for calculating what damages should be if you find that [name of plaintiff] is entitled to them. However, if you decide that [name of plaintiff] is not entitled to recover damages, then you must disregard these instructions.
If you decide that [name of defendant]'s fault caused [name of plaintiff]'s harm, you must decide how much money will fairly and adequately compensate [name of plaintiff] for that harm. There are two kinds of damages: economic and noneconomic.
This instruction should be given as a preliminary instruction to all personal injury damage instructions and should be modified to fit the particular situation. The case may be submitted to the jury on special verdict, general verdict, or stipulated liability.
The Advisory Committee recommends that the terms "special" and "general" damages not be used and that the terms "economic" and "noneconomic" damages are more descriptive. But they are intended as the equivalent of "special" and "general" damages. See, for example, Judd ex rel. Montgomery v. Drezga, 2004 UT 91, P4 (Utah 2004) and Utah Code Section 78B-3-410.
To be entitled to damages, [name of plaintiff] must prove two points:
First, that damages occurred. There must be a reasonable probability, not just speculation, that [name of plaintiff] suffered damages from [name of defendant]'s fault.
Second, the amount of damages. The level of evidence required to prove the amount of damages is not as high as what is required to prove the occurrence of damages. There must still be evidence, not just speculation, that gives a reasonable estimate of the amount of damages, but the law does not require a mathematical certainty.
In other words, if [name plaintiff] has proved that [he] has been damaged and has established a reasonable estimate of those damages, [name of defendant] may not escape liability because of some uncertainty in the amount of damages.
Economic damages are the amount of money that will fairly and adequately compensate [name of plaintiff] for measurable losses of money or property caused by [name of defendant]'s fault.
Noneconomic damages are the amount of money that will fairly and adequately compensate [name of plaintiff] for losses other than economic losses.
Noneconomic damages are not capable of being exactly measured, and there is no fixed rule, standard or formula for them. Noneconomic damage must still be awarded even though they may be difficult to compute. It is your duty to make this determination with calm and reasonable judgment. The law does not require the testimony of any witness to establish the amount of noneconomic damages.
In awarding noneconomic damages, among the things that you may consider are:
(1) the nature and extent of injuries;
(2) the pain and suffering, both mental and physical;
(3) the extent to which [name of plaintiff] has been prevented from pursuing [his] ordinary affairs;
(4) the degree and character of any disfigurement;
(5) the extent to which [name of plaintiff] has been limited in the enjoyment of life; and
(6) whether the consequences of these injuries are likely to continue and for how long.
While you may not award damages based upon speculation, the law requires only that the evidence provide a reasonable basis for assessing the damages but does not require a mathematical certainty.
I will now instruct you on particular items of economic and noneconomic damages presented in this case.
Economic damages include reasonable and necessary expenses for medical care and other related expenses incurred in the past and those that will probably be incurred in the future.
Economic damages include past and future lost earnings, including lost benefits, [and lost earning capacity].
Calculate past lost earnings from the date of the harm until the trial. [Calculate future lost earnings from the date of trial forward.]
[Lost earning capacity is not the same as lost earnings. Lost earning capacity means the lost potential to earn income. In determining lost earning capacity, you should consider:
(1) [name of plaintiff]'s actual earnings;
(2) [his] work before and after [describe event];
(3) what [he] was capable of earning had [he] not been injured; and
(4) any other facts that relate to [name of plaintiff]'s employment.]
The judge should instruct on lost earning capacity only if there is evidence to support the loss, such as injury to a student who may not be working at the time of the injury but whose prospects for future employment are proved.
The verdict form should distinguish between lost earnings and lost earning capacity before and after the trial. The former accrue interest from the date of the injury. The latter do not.
Economic damages include loss of household services. To recover damages for this loss, [name of plaintiff] must prove the reasonable value of the household services that [he] has been or will be unable to do since the harm.
Economic damages include injury to or destruction of [name of plaintiff]'s [item of personal property].
The damages to be awarded for injury to personal property are the difference in the [item of personal property]’s fair market value immediately before and immediately after the injury, unless it can be repaired for a lesser amount. If the [item of personal property] can be repaired for a lesser amount, then the damages are the reasonable cost of repair.
If you find that the repairs do not restore the [item of personal property] to the same value as before the injury, the damages are the difference between its fair market value before the injury and its fair market value after the repairs, plus the reasonable cost of making the repairs. The total amount awarded must not exceed the [item of personal property]'s fair market value before the injury occurred.
If the property has no fair market value, use the first paragraph only.
Economic damages include injury to [name of plaintiff]'s real property.
The damages to be awarded for injury to real property are the difference in the fair market value of the real property immediately before and immediately after the injury, unless the property can be repaired or restored for a lesser amount. If the property can be repaired or restored for a lesser amount, then the damages are the reasonable cost of repair or restoration.
If you find that repair or restoration does not return the real property to the same value as before the injury, the damages to be awarded are the difference between the real property’s fair market value before the injury and its fair market value after the repair or restoration, plus the reasonable cost of making the repair or restoration.
[In addition, if the evidence establishes that the injury to the real property has created a lingering negative public perception of it, then the damages would include any reduction in the value of the property as a result of the negative perception.]
The sentence on "stigma damages" is to be given only if there is evidence to support a claim of lingering negative public perception.
Fair market value is the highest price that a willing buyer would have paid to a willing seller, assuming that there was no pressure on either one to buy or sell; and that the buyer and seller were fully informed of the condition and quality of the [item of personal property].
To compensate [name of plaintiff] for the loss of use of [item of personal property], calculate the amount that you decide will restore [name of plaintiff] to the same position [he] was in prior to the damage. You may consider the following factors [as applicable]:
(1) the rental value of the [item of personal property];
(2) the lost income, meaning the income [name of plaintiff] would likely have earned through using the [item of personal property]; and
(3) what [name of plaintiff] reasonably spent to decrease the damage.
Noneconomic damages include loss of consortium. Loss of consortium is loss of the benefits that one spouse expects to receive from the other, such as companionship, cooperation, affection, aid and sexual relations.
To award damages for loss of consortium, it must be proven that [name of plaintiff] has suffered a significant permanent injury that substantially changes [his] lifestyle. This may include, but is not limited to one or more of the following:
[(1) a partial or complete paralysis of one or more of the extremities;]
[(2) significant disfigurement;]
[(3) incapability of performing the types of jobs [he] performed before the injury; or]
[(4) other].
[You must decide whether [name of spouse] was [name of plaintiff]’s spouse at the time of [name of plaintiff]’s injury. "Spouse" means the legal relationship established between a man and a woman as recognized by the laws of Utah.]
You must allocate fault as I have instructed you in Instruction 211 including [name of spouse] in your allocation. If you decide that the [combined] fault of [name of plaintiff]’s and [name of spouse]'s is 50% or greater, [name of spouse] will recover nothing for loss of consortium. If you decide that [name of plaintiff] has no claim against [name of defendant], then [name of spouse] also has no claim. As with other damages, do not reduce the award by [name of plaintiff]'s and [name of spouse]’s percentage of fault. I will make that calculation later.
Often there is no dispute about whether the plaintiff’s spouse is the spouse at the time of the injury. If there is, the jury should be instructed on this issue as well.
Utah Code Section 30-2-11 is ambiguous about whether the fault of the spouses is combined or separate for the purpose of calculating loss of consortium damages: that is, whether the jury should consider the fault of the non-injured spouse alone when calculating loss of consortium damages or whether the fault of the injured spouse also reduces the loss of consortium damages.
Damages include an amount that will compensate [name of plaintiff] for the loss suffered due to [name of decedent]'s death.
Calculate this amount based on all circumstances existing at the time of [name of decedent]'s death that establish [name of plaintiff]'s loss, including the age, health and life expectancies of [name of decedent] and [name of plaintiff] immediately prior to the death.
You may calculate economic damages for:
(1) The loss of financial support, past and future, that [name of plaintiff] would likely have received, or been entitled to receive, from [name of decedent] had [name of decedent] lived.
(2) The loss or reduction of inheritance from [name of decedent] [name of plaintiff] is likely to suffer because of [name of decedent]'s death.
(3) Any other evidence of assistance or benefit that [name of plaintiff] would likely have received had [name of decedent] lived.
You may calculate non-economic damages for the loss of such things as love, companionship, society, comfort, pleasure, advice, care, protection and affection which [name of plaintiff] has sustained and will sustain in the future.
[In determining this award, you are not to consider any pain or suffering of [name of decedent] prior to [his] death.]
This instruction applies to claims for wrongful death of an adult under Utah Code Section 78B-3-106. It should be given along with Instruction 2015 or 2016 in cases involving both wrongful death claims and survival claims under Utah Code Section 78B-3-107, and in such cases the bracketed provision should be deleted.
In appropriate cases, the court may also include a specific reference in Paragraph (3) to reasonable funeral and burial expenses, the decedent's medical expenses resulting from the subject event causing the death, and damage to or destruction of the decedent's personal property.
Statutory heirs may recover funeral and burial expenses only if the estate is impecunious. Utah Code Section 78B-3-106. Morrison v. Perry, 104 Utah 151, 140 P.2d 772 (1943).
The judge should include only those paragraphs for which there is evidence of loss.
Damages include an amount that will compensate [name of plaintiff] for the loss suffered due to [name of decedent]'s death. Calculate the amount based on all circumstances existing at the time of [name of decedent]'s death that establish [name of plaintiff]'s loss, including the following:
(1) The loss of financial support, past and future, that [name of plaintiff] would likely have received, or been entitled to receive, from [name of decedent] had [name of decedent] lived. This amount should be reduced by the costs that [name of plaintiff] would likely have incurred to support [name of decedent] had the child survived, until the child reached 18 years of age.
(2) The loss of love, companionship, society, comfort, care, protection and affection which [name of plaintiff] has sustained and will sustain in the future.
(3) The age, health and life expectancies of [name of decedent] and [name of plaintiff] immediately prior to the death.
(4) The loss of inheritance from [name of decedent] [name of plaintiff] is likely to suffer because of [name of decedent]'s death.
(5) Any other evidence of assistance or benefit that [name of plaintiff] would likely have received had [name of decedent] lived.
(6) The reasonable and necessary expenses incurred by [name of plaintiff] for [name of decedent] for any medical care because of [circumstances causing death].
(7) The reasonable expenses that were incurred for [name of decedent]'s funeral and burial.
[In determining this award, you are not to consider any pain or suffering of [name of decedent] prior to [his] death.]
This instruction applies to claims for wrongful death of a minor under Utah Code Section 78B-3-102. It should be given along with Instruction 2015 or 2016 in cases involving both wrongful death claims and survival claims under Utah Code Section 78B-3-107, and in such cases the bracketed provision should be deleted.
If you decide that [name of defendant]’s fault was a cause of [name of decedent]’s harm, you must award economic and non-economic damages for the period of time that [name of decedent] lived after the injuries, regardless of whether [name of defendant]’s fault caused the death.
There was no Utah law at the time this was drafted regarding the meaning of "survival," and whether the decedent must be conscious to bring a survival action.
The statute limits the amount of non-economic (general) damages to $100,000; if the non-economic damages awarded are greater than allowed, the judge can reduce the amount.Under Utah's comparative negligence statute, any negligence of decedent is, in effect, imputed to the plaintiff: thus, if decedent is found to be more than 50% negligent all recovery is denied. Kelson v. Salt Lake County, 784 P.2d 1152 (Utah 1989)
A person who may be more susceptible to injury than someone else is still entitled to recover the full amount of damages that were caused by [name of defendant]'s fault. In other words, the amount of damages should not be reduced merely because [name of plaintiff] may be more susceptible to injury than someone else.
A person who has a [physical, emotional, or mental] condition before the time of [describe event] is not entitled to recover damages for that condition or disability. However, the injured person is entitled to recover damages for any aggravation of the pre-existing condition that was caused by [name of defendant]'s fault, even if the person's pre-existing condition made [him] more vulnerable to physical [or emotional] harm than the average person. This is true even if another person may not have suffered any harm from the event at all.
[Name of defendant] has the burden to prove what portion of the [specific harm] to [name of plaintiff] was caused by the pre-existing condition.
If you are not able to make such an apportionment, then you must conclude that the entire [specific harm] to [name of plaintiff] was caused by [name of defendant]'s fault.
This instruction should be used only when the court determines that the defendant made a showing that there is a nonarbitrary evidentiary basis for the jury to apportion damages.
This instruction is not intended to suggest that the verdict form include a line-item allocation of what part of the harm can be apportioned to the pre-existing condition, and what part to the defendant's fault. That question is answered by the jury's award of damages and should not be confused with allocation of comparative fault.
Removed 9/2013, pursuant to Harris v. Shopko Stores, Inc., 2011 UT App 329.
[Name of plaintiff] has a duty to exercise reasonable diligence and ordinary care to minimize the damages caused by [name of defendant]'s fault. Any damages awarded to [name of plaintiff] should not include those that [name of plaintiff] could have avoided by taking reasonable steps. It is [name of defendant]'s burden to prove that [name of plaintiff] could have minimized [his] damages, but failed to do so. If [name of plaintiff] made reasonable efforts to minimize [his] damages, then your award should include the amounts that [he] reasonably incurred to minimize them.
If you decide that [name of plaintiff] is entitled to damages for future economic losses, then the amount of those damages must be reduced to present cash value. This is because any damages awarded would be paid now, even though the plaintiff would not suffer the economic losses until some time in the future. Money received today would be invested and earn a return or yield.
To reduce an award for future damages to present cash value, you must determine the amount of money needed today that, when reasonably and safely invested, will provide [name of plaintiff] with the amount of money needed to compensate [name of plaintiff] for future economic losses. In making your determination, you should consider the earnings from a reasonably safe investment.
Utah law is silent on whether inflation should be taken into account in discounting an award for future damages to present value. The United States Supreme Court, however, has ruled that inflation should be taken into account when discounting to present value. See Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983).
Utah law is silent on whether plaintiff or defendant bears the burden of proving present cash value. Other jurisdictions are split. Some courts treat reduction to present value as part of the plaintiff's case in chief. See, e.g., Abdulghani v. Virgin Islands Seaplane Shuttle, Inc., 746 F. Supp. 583 (D. V.I. 1990); Steppi v. Stromwasser, 297 A.2d 26 (Del. Super. Ct. 1972). Other courts treat reduction to present value as a reduction of the plaintiff's damages akin to failure to mitigate, on which the defendant bears the burden of proof. See, e.g., Energy Capital Corp. v. United States, 47 Fed. Cl. 382 (Fed. Cl. 2000), aff'd in part, rev'd in part on other grounds, 302 F.3d 1314 (Fed. Cir. 2002); CSX Transp., Inc. v. Casale, 441 S.E.2d 212 (Va.1994). There is a good discussion of the issue in Lewin Realty III, Inc. v. Brooks, 771 A.2d 446 (Md. Ct. Spec. App. 2001), aff'd, 835 A.2d 616 (Md. 2003), holding the burden to be on the defendant. It cites Miller v. Union P.R. Co., 900F.2d 223, 226 (10th Cir.1990), as support.
There are several Utah cases holding that the burden is on the defendant to show that a damage award should be reduced, but they deal with failure to mitigate, not reduction to present value. See Covey v. Covey, 2003 UT App 380, 29, 80 P.3d 553; John Call Eng'g, Inc. v. Manti City Corp., 795 P.2d 678, 680 (Utah Ct. App. 1990).
Expert testimony on annuities as relevant to present value of future damages is permitted. Gallegos ex rel. Rynes v. Dick Simon Trucking, Inc., 2004 UT App 322, 110 P.3d 710, cert. denied (Utah 2005). Annuity tables and their related data also are permitted. See Schlatter v. McCarthy, 113 Utah 543, 196 P.2d 968 (1948). But Utah law is silent on whether expert testimony, government tables or other evidence is necessary before a jury is charged to calculate present cash value. Other jurisdictions require evidence before the jury can be instructed to calculate present cash value. See Schiernbeck v. Haight 7 Cal.App.4th 869, 877, 9 Cal.Rptr.2d 716 (1992), citing Wilson v. Gilbert, 25 Cal.App.3d 607, 614, 102 Cal.Rptr. 31 (1972).
According to mortality tables, a person of [name of plaintiff]'s age, race, and gender is expected to live ____ more years. You may consider this fact in deciding the amount of future damages. A life expectancy is merely an estimate of the average remaining life of all persons in our country of a given age, race, and gender, with average health and exposure to danger. Some people live longer and others die sooner. You may also consider all other evidence bearing on the expected life of [name of plaintiff], including [his] occupation, health, habits, life style, and other activities.
The purpose for this instruction is to assist the jury in determining future damages. Therefore, life expectancy is determined from the date of trial, not the date of injury.
[Name of plaintiff] has settled [his] claim against [name of settling party]. Your award of damages to [name of plaintiff] should be made without considering what [he] received under this settlement. After you have returned your verdict, I will make the appropriate adjustment to your award of damages.
You shall award damages in an amount that fully compensates [name of plaintiff]. Do not speculate on or consider any other possible sources of benefit [name of plaintiff] may have received. After you have returned your verdict, I will make whatever adjustments may be appropriate.
You may consider the arguments of the attorneys to assist you in deciding the amounts of damages, but their arguments are not evidence.
In addition to compensatory damages, [name of plaintiff] also seeks to recover punitive damages against [name of defendant]. Punitive damages are intended to punish a wrongdoer for extraordinary misconduct and to discourage others from similar conduct. They are not intended to compensate [name of plaintiff] for [his][her][its] loss.
Punitive damages may only be awarded if [name of plaintiff] has proven by clear and convincing evidence that [name of defendant]’s conduct:(1) was [willful and malicious]; or,(2) was [intentionally fraudulent]; or,(3) manifested a knowing and reckless indifference toward, and a disregard of, the rights of others, including [name of plaintiff].“Knowing and reckless indifference” means that (a) [name of defendant] knew that such conduct would, in a high degree of probability, result in substantial harm [to another] [to property]; and (b) the conduct must be highly unreasonable conduct, or an extreme departure from ordinary care, in a situation where a high degree of danger or harm would be apparent to a reasonable person.[The committee was unable to reach a working definition for “willful and malicious conduct.” For cases discussing these terms, please see Committee Note 1.][The committee was unable to reach a working definition for “intentionally fraudulent.” For cases discussing these terms, please see Committee Note 2.][Punitive damages are not awarded for mere inadvertence, mistakes, errors of judgment and the like, which constitute ordinary negligence.][Some of the questions on the Special Verdict form will ask if [name of plaintiff] has proved by clear and convincing evidence that [name of defendant]’s conduct (a) was [willful and malicious] [intentionally fraudulent], or (b) manifested a knowing and reckless indifference and disregard of [name of plaintiff]’s rights. If you answer “yes” to any of these questions, I will then give you further instructions.]1. “Willful and malicious” conduct has not yet been well defined under Utah law, but several cases discuss what it could mean. For example, Gleave v. Denver & Rio Grande W. R. Co., 749 P.2d 660 (Utah Ct. App. 1988) discusses whether actual malice is required for punitive damages or whether implied malice is sufficient. See also Johnson v. Rogers, 763 P.2d 771 (Utah 1988) and Biswell v. Duncan, 742 P.2d 80, 84 (Utah Ct. App. 1987) (discussing whether actual malice is required). Clayton v. Crossroads Equip. Co., 655 P.2d 1125 (Utah 1982) refers to non-Utah case law to define “willful or malicious” conduct (emphasis added). And State v. Larsen, 865 P.2d 1355, n. 3 (Utah 1993), discusses what “willful” means. In the non-punitive damages context, Chang v. Soldier Summit Development, 1999 UT App 27 and Golding v. Ashley Cent. Irrigation Co., 793 P.2d 897, discuss “willful misconduct”.
2. “Intentionally fraudulent” has not been defined by Utah case law. Counsel may review CV1801 (Elements of Fraud) and CV1809 (Intent) for a working definition and relevant case law.
3. The committee was divided on whether the last two paragraphs (in brackets) of this instruction should be given.
4. The statute requires bifurcation in all cases where punitive damages are sought at trial and evidence of wealth is introduced. The first phase will resolve the question of whether the plaintiff is entitled to punitive damages for the conduct alleged. If the jury determines that the plaintiff is so entitled, there will be a second phase. The second phase may include evidence of the defendant’s wealth or financial condition (Section 78B-8-201(2)), with the jury answering only the question of what amount of punitive damages to award.
5. The committee did not feel that there is adequate legal direction to determine which punitive damages instructions should be given in the first phase and which should be given if there is a second phase. However, one option would be for 2026 (and/or 2033 and 2034) to be read in the first phase, with the remainder to be read during any second phase.Now that you have decided to award punitive damages, you must determine the amount. Punitive damages should be the amount necessary to fulfill the two purposes of punitive damages: to punish past misconduct and to discourage future misconduct. Your decision should not be arbitrary. The amount must be reasonable and bear some relationship to [name of plaintiff]’s harm. Whether or not to award a specific amount or any amount of punitive damages is left entirely up to you.
The Utah Supreme Court has opined regarding the ratios that apply in determining whether a punitive damage award is excessive. “The general rule to be drawn from our past cases appears to be that where the punitives are well below $100,000, punitive damage awards beyond a 3 to 1 ratio to actual damages have seldom been upheld and that where the award is in excess of $100,000, we have indicated some inclination to overturn awards having ratios of less than 3 to 1.” Crookston v. Fire Insurance Exchange, 817 P.2d 789, 811 (Utah 1991).
The Crookston Court did not provide guidance on whether the presumptive ratios should be disclosed to the jury. The case law regarding presumptive ratios has been in the context of post-verdict motions addressed to the judge, and the committee felt that it did not provide guidance with regard to whether the ratio should be disclosed to the jury.
In determining the amount of punitive damages, you may award punitive damages for the purpose of punishing [name of defendant] only for [harm] [attempted harm] [damage] to [name of plaintiff]. You may not award punitive damages for the purpose of punishing harm or attempted harm to other people.
In determining the amount of damages, you may also consider any evidence regarding the following: (1) the wealth or financial condition of [name of defendant]; (2) the nature of the alleged misconduct; (3) the facts and circumstances surrounding such conduct; (4) the effect of [name of defendant]’s conduct on [name of plaintiff]; (5) the probability of future reoccurrence of the misconduct toward [name of plaintiff] or others; (6) the relationship of the parties; and (7) the amount of compensatory damages awarded.
In determining the amount of punitive damages that should be awarded, you should consider the reprehensibility of [name of defendant]’s conduct. Greater reprehensibility may justify a higher punitive damage award while lesser reprehensibility may justify a lower amount.
When determining the degree of reprehensibility, you may consider evidence of similar conduct by [name of defendant] toward other people who are not in this lawsuit; however, I caution you that this evidence is to be considered only to determine reprehensibility. The actual harm to other people is not the measure of punitive damages in this case.
Evidence that [name of defendant] committed the same or similar conduct outside of Utah may not be considered to increase the level of reprehensibility if the conduct was legal when and where it was committed.
This instruction should be used only in cases where the plaintiff asserts that the defendant’s conduct is more reprehensible because it has occurred in other states and the defendant then responds that the conduct is legal in other states.
In addition to compensatory damages, [name of plaintiff] also seeks to recover punitive damages against [name of defendant]. Punitive damages are not intended to compensate [name of plaintiff] for [his][her][its] loss. Punitive damages can be awarded to punish a wrongdoer for driving [a motor vehicle or motorboat] while voluntarily intoxicated or under the influence of any drug or a combination of alcohol and drugs in violation of the law.
Punitive damages may be awarded if [name of plaintiff] has proven by a preponderance of the evidence that [name of defendant] was operating or in actual physical control of a vehicle within this state and any one of the following:
(1) had sufficient alcohol in [his][her] body that a subsequent chemical test shows that [he][she] had a blood or breath alcohol concentration of .08 grams or greater at the time of the test; or
(2) had a blood or breath alcohol concentration of .08 grams or greater at the time of operation or actual physical control; or
(3) was under the influence of alcohol, any drug, or the combined influence of alcohol and any drug to a degree that rendered the person incapable of safely operating a vehicle.
[There is a question on the Special Verdict form whether [name of plaintiff] has proved by a preponderance of the evidence that [name of defendant] violated the above law. If you answer “yes” to this question, I will then give you further instructions regarding punitive damages.]
In addition to compensatory damages, [name of plaintiff] also seeks to recover punitive damages against [name of defendant]. Punitive damages are not intended to compensate [name of plaintiff] for [his][her][its] loss. Punitive damages can be awarded to punish a wrongdoer for causing the drug-related death of another person.
Punitive damages may be awarded if [name of plaintiff] has proven by a preponderance of the evidence that [name of defendant]
1) provided or administered an illegal controlled substance to the deceased person in violation of the law; or
2) provided an illegal controlled substance to any person in the chain of transfer connected directly to someone who subsequently provided or administered the substance to the person whose death was caused in whole or in part by the substance.
[There is a question on the Special Verdict form whether [name of plaintiff] has proved by a preponderance of the evidence that [name of defendant] violated this law. If you answer “yes” to this question, I will then give you further instructions regarding punitive damages.]