Page 1 - DEFENDANTS’ RESPONSE TO PLAINTIFF’S OBJECTIONS TO DEFENDANTS’ JURY

INSTRUCTIONS AND VERDICT FORM

HJV/7052169-v1 Department of Justice

1162 Court Street NE

Salem, OR 97301-4096

(503) 947-4700 / Fax: (503) 947-4791

ELLEN F. ROSENBLUM

Attorney General

HEATHER J. VAN METER #983625

DIRK L. PIERSON #941281

Senior Assistant Attorneys General

Department of Justice

1162 Court Street NE

Salem, OR 97301-4096

Telephone: (503) 947-4700

Fax: (503) 947-4791

Email: Heather.J.VanMeter@doj.state.or.us

Andrew.D.Campbell@doj.state.or.us

Attorneys for Defendants Robert Wayne Edwards and State of Oregon

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JUSTIN MICHAEL WILKENS,

Plaintiff,

v.

ROBERT WAYNE EDWARDS, in his

individual capacity; THE STATE OF

OREGON,

Defendants.

Case No. 6:14-cv-00907-MC

DEFENDANTS’ RESPONSE TO

PLAINTIFF’S OBJECTIONS TO

DEFENDANTS’ JURY INSTRUCTIONS

AND VERDICT FORM

A. DEFENDANTS’ RESPONSE TO PLAINTIFF’S OBJECTIONS TO

DEFENDANTS’ REQUESTED JURY INSTRUCTIONS

a. Defendants’ Requested Instruction #3 (Ninth Circuit Model 1.2)

Plaintiff is incorrect that the State of Oregon is automatically liable for the acts of

defendant Edwards, respondeat superior liability rests on the law relating to course and scope of

employment or agency. Plaintiff failed to request jury instructions regarding agency or

respondeat superior liability.

Case 6:14-cv-00907-MC Document 104 Filed 12/29/15 Page 1 of 5
Page 2 - DEFENDANTS’ RESPONSE TO PLAINTIFF’S OBJECTIONS TO DEFENDANTS’ JURY

INSTRUCTIONS AND VERDICT FORM

HJV/7052169-v1 Department of Justice

1162 Court Street NE

Salem, OR 97301-4096

(503) 947-4700 / Fax: (503) 947-4791

b. Defendants’ Requested Instruction #5 (Ninth Circuit Model 1.5)

Defendants do not understand plaintiff’s objection because plaintiff admits there are two

defendants in the case, as the caption also reflects. Plaintiff’s objection is not well taken.

c. Defendants’ Requested Instruction #24 (Ninth Circuit Model 5.1)

Plaintiff has dropped his assault and battery claims, therefore the only remaining claims

are based on 42 U.S.C. §1983/Fourth Amendment and negligence. There is no dispute that

plaintiff lacked insurance at the time of the incident. There is no dispute that ORS 31.715 bars

recovery of non-economic damages for negligence claims of persons lacking insurance. Plaintiff

cannot claim negligence and then argue intentional conduct to attempt to recover non-economic

damages. Under Oregon law, “allegations of intentional conduct do not support a claim for

negligence.” Rodrigues v. Jackson Cty., No. 1:13-CV-01589-CL, 2015 WL 404577, at *4 (D. Or.

Jan. 29, 2015) (footnote omitted) (citing Kasnick v. Cooke, 116 Or. App. 580, 583 (1992)); see

also Aranda v. City of McMinnville, 942 F. Supp. 2d 1096, 1110 (D. Or. 2013) (noting that,

based on Kasnick, that allegations of only intentional acts allows summary judgment on

negligence theory).

d. Defendants’ Requested Instruction #29 (Ninth Circuit Model 9.18)

Defendants do not understand plaintiff’s objection because plaintiff’s own proposed jury

instruction uses the “in making a lawful arrest” language. See also defendants’ MIL #2 and 3,

defendants’ response to plaintiff’s MIL #2, incorporated herein by reference. According to

Ninth Circuit instructions, both 9.18 and 9.22 should be given, together, not one or the other.

Defendants submitted a corrected requested jury instructions setting out the exact language for

each of these instructions.

e. Defendants’ Requested Instruction #30 (Ninth Circuit Model 9.26)

Defendant Edwards maintains his qualified immunity defense and is entitled to have the

jury instructed accordingly. Denial at summary judgment, applying the standard in Fed. R. Civ.

P. 56, is not dispositive of and does not preclude the defense.

Case 6:14-cv-00907-MC Document 104 Filed 12/29/15 Page 2 of 5
Page 3 - DEFENDANTS’ RESPONSE TO PLAINTIFF’S OBJECTIONS TO DEFENDANTS’ JURY

INSTRUCTIONS AND VERDICT FORM

HJV/7052169-v1 Department of Justice

1162 Court Street NE

Salem, OR 97301-4096

(503) 947-4700 / Fax: (503) 947-4791

f. Defendants’ Requested Instruction #31 (Oregon UCJI 20.01)

Defendants’ requested instruction is appropriate because State of Oregon is the named

defendant on plaintiff’s negligence claim.

g. Defendants’ Requested Instruction #34 (Oregon UCJI 20.05)

The requested instruction relates to defendants’ justification defense and comparative

fault defense, and is not only appropriate but must be given. Plaintiff mischaracterizes

ORS 811.540(1)(b), as it applies to “[a] police officer who is in uniform and prominently

displaying the police officer’s badge of office or operating a vehicle appropriately marked

showing it to be an official police vehicle” (emphasis added: or not and is used). There is no

dispute that defendant Edwards was in uniform and prominently displaying his badge, and there

is no dispute that he gave visual and audible signal to stop plaintiff including by lights and siren.

h. Defendants’ Requested Instructions #36-37 (Oregon UCJI 21.01-21.02)

Plaintiff’s objection is not well taken, as defendants assert a comparative fault defense

and it is for the jury to determine whether plaintiff was at fault.

i. Defendants’ Requested Instruction #39-41 (Oregon UCJI 70.02, 70.03, 70.09)

Defendants’ requested instructions are proper because Oregon state law regarding

damages applies to plaintiff’s §1983 claim as well as the negligence claim, and instructing

separately on essentially the same damages law will be confusing to the jury.

j. Defendants’ Requested Instruction #42 (Oregon UCJI 70.16)

Plaintiff appears to re-raise his objection to defendants’ requested instruction #24,

defendants incorporate their response herein by reference.

k. Defendants’ Requested Instruction #43 (Oregon UCJI 73.01)

Defendants have asserted a failure to mitigate defense and are entitled to have the jury

instructed accordingly.

Case 6:14-cv-00907-MC Document 104 Filed 12/29/15 Page 3 of 5
Page 4 - DEFENDANTS’ RESPONSE TO PLAINTIFF’S OBJECTIONS TO DEFENDANTS’ JURY

INSTRUCTIONS AND VERDICT FORM

HJV/7052169-v1 Department of Justice

1162 Court Street NE

Salem, OR 97301-4096

(503) 947-4700 / Fax: (503) 947-4791

l. Defendants’ Special Instruction #1

Defendants herein incorporate their response to plaintiff’s objection to defendants’

requested instruction #30 by reference. The proposed instruction expressly incorporates the

objective standard, and is otherwise a correct statement of the law. Defendants use plaintiff

because there is only one, and name defendants because there are two, but leave this

housekeeping issue for the court to determine.

m. Defendants’ Special Instruction #2

Defendants request this instruction and it must be given because an individual employee

and the State of Oregon are named defendants, but the §1983 claim is against defendant Edwards

personally and individually, the Eleventh Amendment prohibits a §1983 claim against the State

of Oregon, and the State of Oregon is not a “person” for purposes of 42 U.S.C. §1983, and the

jury must understand that it cannot find defendant Edwards liable for the acts of the State of

Oregon. This is especially true when extensive testimony is expected regarding Oregon State

Police practices, policies, procedures and training, for which defendant Edwards cannot be held

liable. Failure to give this clarifying instruction would impermissibly allow the jury to consider

defendant Edwards liable for acts of the Oregon State Police or State of Oregon, and would be

confusing.

n. Defendants’ Special Instruction #3

This instruction properly informs the jury that they are not to second-guess the officer,

especially with improper 20/20 hindsight. Intent is included in Ninth Circuit Model 9.18. The

instruction should be given to ensure the jury does not use 20/20 hindsight.

o. Defendants’ Special Instruction #4

Presumptions are standard instructions and applicable to the facts of this case, and must

be given when applicable. See Fed. R. Evid. 301 and the cited cases.

Case 6:14-cv-00907-MC Document 104 Filed 12/29/15 Page 4 of 5
Page 5 - DEFENDANTS’ RESPONSE TO PLAINTIFF’S OBJECTIONS TO DEFENDANTS’ JURY

INSTRUCTIONS AND VERDICT FORM

HJV/7052169-v1 Department of Justice

1162 Court Street NE

Salem, OR 97301-4096

(503) 947-4700 / Fax: (503) 947-4791

p. Defendants’ Special Instruction #5

Defendant State of Oregon asserts a justification defense to plaintiff’s negligence claim,

and is entitled to have the jury instructed consistent with the defense. The instruction is also a

neutral, plain, concise statement of justification law in Oregon.

B. DEFENDANTS’ RESPONSE TO PLAINTIFF’S OBJECTIONS TO

DEFENDANTS’ REQUESTED VERDICT FORM

Plaintiff’s objection to defendants’ verdict form because it is complicated is not well

taken because the form is easy to follow step by step and requires the jury to answer several

particular questions that are necessary elements of plaintiff’s claims and defendants’ defenses.

Plaintiff’s objection to defendants’ verdict form because plaintiff’s proposed verdict form is

“clear and easy” is not well taken because plaintiff’s omission of several required elements of

plaintiff’s claims and all of defendants’ defenses is improper. As discussed above and in

defendants’ Trial Memorandum, plaintiff is not entitled to recover non-economic damages or

punitive damages on his negligence claim. Defendants agree that, to the extent plaintiff’s

punitive damages claim proceeds to the jury, that a space for such claim should be added to

plaintiff’s first claim for relief.

DATED December 29 , 2015.

Respectfully submitted,

ELLEN F. ROSENBLUM

Attorney General

s/ Heather J. Van Meter

HEATHER J. VAN METER #983625

DIRK L. PIERSON #941281

Senior Assistant Attorney General

Trial Attorney

Tel (503) 947-4700

Fax (503) 947-4791

Heather.J.VanMeter@doj.state.or.us

Dirk L. Pierson@doj.state.or.us

Of Attorneys for Defendants State of Oregon

and Robert Wayne Edwards

Case 6:14-cv-00907-MC Document 104 Filed 12/29/15 Page 5 of 5