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BP Amoco Chemical Co. v. Flint Hills Resources LLC

November 3, 2009

BP AMOCO CHEMICAL COMPANY, PLAINTIFF/COUNTER--DEFENDANT,
v.
FLINT HILLS RESOURCES LLC, DEFENDANT/COUNTER--PLAINTIFF.
FLINT HILLS RESOURCES LLC, THIRD-PARTY PLAINTIFF,
v.
BP CORPORATION NORTH AMERICA INC., DEFENDANT.



The opinion of the court was delivered by: Judge Amy J. St. Eve

Motion Ex. 11

BP AMOCO CHEMICAL COMPANY'S SUBMISSION RELATING TO JURY INSTRUCTIONS

During the course of the trial, the Court has made various rulings on objections to the parties' proposed jury instructions. Those rulings were then incorporated into revised sets of instructions, which were jointly submitted by the parties to the Court. As previously noted on the record, in submitting those revised instructions, BP Amoco was not waiving any of the objections it had made to any instructions or portions of instructions given by the Court over BP Amoco's objections. (9/28/09 Tr. at 2862:17-2864:10) When BP Amoco raised this issue during one of the jury instruction conferences, the Court noted that the parties were free to reaffirm their objections at an appropriate time before or when the instructions are given. (Id. at 2863:20-25) Accordingly, out of an abundance of caution, BP Amoco files this submission to reaffirm its objections.

Except for those proposed instructions and objections that BP Amoco agreed to withdraw, BP Amoco continues to assert, and expressly preserves and reaffirms, all of its proposed jury instructions that the Court declined to give and the objections which have been overruled by the Court, including those in the following pleadings:

* Dkt. 696, Exhibit 7, 7/22/09 (Flint Hills' proposed jury instructions and BP Amoco's objections);

* Dkt. 696, Exhibit 8, 7/22/09 (BP Amoco's proposed jury instructions and Flint Hills' objections);

* Dkt. 708, 7/27/09 (Flint Hills' proposed jury instructions, BP Amoco's objections, and Flint Hills' replies);

* Dkt. 726, 7/30/09 (BP Amoco's proposed jury instructions, Flint Hills' objections, and BP Amoco's replies);

* Dkt. 765, 9/1/09 (Joint proposed damages instructions);

* Dkt. 788, 9/5/09 (Joint revised liability instructions);

* Dkt. 789, 9/5/09 (Joint proposed preliminary instructions);

* Dkt. 790, 9/7/09 (Flint Hills' and BP Amoco's alternative instructions relating to contract interpretation); and

* Dkt. 831, 10/7/09 (Joint jury instructions).

BP Amoco specifically asserts, preserves, and reaffirms its objections and proposed instructions regarding the proper statement of the elements for a fraud claim (Dkt. 696, Exhibit 7 at 50-51*fn1; Dkt. 696, Exhibit 8 at 76-77; Dkt. 708 at 88-89; Dkt. 726 at 111-12, 114-15; Dkt. 788, at 12-13; Dkt. 789 at 7; Dkt. 831 at 25), as well as its objections and proposed instructions regarding what Flint Hills must prove and may potentially recover in terms of cost-of-repair and diminution-invalue damages (Dkt. 696, Exhibit 7 at 30-32, 34-36, 38-39, 41-43, 54-55; Dkt. 696, ...


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