IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

WILLIAM TARR, as Personal 

Representative of the Estate 

of Connor William Tarr, 

Plaintiff, 

v. 

USF REDDAWAY, INC., an Oregon 

corporation, 

Defendant. 

BROWN, Judge. 

3:15-cv-02243-PK 

ORDER 

Magistrate Judge Paul Papak issued Findings and 

Recommendation (F&R, #66) on November 7, 2017, in which he 

recommends the Court grant in part and deny in part Defendant 

USF Reddaway, Inc.'s Motion (#53) for Partial Summary Judgment. 

Both Defendant USF Reddaway and Plaintiff William Tarr, as 

Personal Representative of the Estate of Connor William Tarr, 

filed timely Objections to the Findings and Recommendation. The 

matter is now before this Court pursuant to 28 U.S.C. § 636(b) (1) 

and Federal Rule of Civil Procedure 72(b). 

When any party objects to any portion of the Magistrate 

1 - ORDER 
Judge's Findings and Recommendation, the district court must make 

a de nova determination of that portion of the Magistrate Judge's 

report. 28 U.S.C. § 636(b) (1). See also Dawson v. Marshall, 561 

F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328 

F.3d 1114, 1121 (9th Cir. 2003) (en bane). 

Plaintiff's son, Connor, was killed while riding as a 

passenger in a motor vehicle that was struck from behind at high 

speed by a semi-truck driven by Defendant's employee within the 

course and scope of his employment. The accident occurred in 

California. Plaintiff, a resident of the State of Washington, 

filed this action against Defendant, an Oregon corporation. 1 

Plaintiff alleges Defendant was negligent in hiring its 

employee-driver, failing to train and to supervise its employee, 

failing to incorporate an adequate safety system allowing realtime monitoring of the speed of its trucks, and is vicariously 

liable pursuant to the doctrine of respondeat superior for its 

employee's negligence in driving at an unsafe speed and with 

impaired alertness as a result of fatigue. 

Defendant moves for partial summary judgment against 

Plaintiff's claims and contends (1) Oregon law applies under 

choice-of-law statutes, and, therefore, Plaintiff's noneconomic 

1 Defendant's employee-driver, Gerald Thomas Truelove, was 

named as a party, but on April 14, 2016, the Magistrate Judge 

dismissed Defendant Truelove on the ground that the Court lacked 

personal jurisdiction over him. 

2 - ORDER 
damages are capped at $500,000 pursuant to Oregon Revised 

Statutes§ 13.710(1); (2) Plaintiff has presented insufficient 

evidence to support a claim for punitive damages; and 

(3) Plaintiff may not recover economic damages in federal 

court for lost future earnings from a cannabis business on the 

ground that cannabis is illegal under federal law. 

The Magistrate Judge recommends this Court find that 

California law applies under the Oregon choice-of-law statute, 

and, therefore, the cap on noneconomic damages under Oregon law 

would not apply. The Magistrate Judge also recommends this Court 

find Plaintiff should be allowed to seek recovery of economic 

damages based on projected profits from his cannabis business. 

Accordingly, the Magistrate Judge recommends this Court deny 

Defendant's Motion as to these issues. 

The Magistrate Judge also recommends this Court find 

Plaintiff has failed as a matter of law to present evidence that 

would support an award of punitive damages, and, accordingly, he 

recommends this Court grant Defendant's Motion as to this issue. 

DISCUSSION 

Defendant contends the Magistrate Judge erred in his 

Findings and Recommendation by concluding that California law 

applies in this action and that Plaintiff is allowed to seek 

economic damages based on Plaintiff's cannabis business. 

3 - ORDER 
Plaintiff, in turn, contends the Magistrate Judge improperly 

weighed the evidence when he recommended this Court should 

dismiss Plaintiff's punitive damages claim. 

I. Choice of Law 

The Oregon choice-of-law statute, Oregon Revised Statutes 

§ 15.440(3), provides: 

If the injured person and the person whose conduct 

caused the injury were domiciled in different states 

and the laws of those states on the disputed issues 

would produce a different outcome, the law of the 

stated designated in this subsection governs. 

(a) If both the injurious conduct and the 

resulting injury occurred in the same state, the law of 

that state governs if either the injured person or the 

person whose conduct caused the injury was domiciled in 

that state. 

(b) If both the injurious conduct and the 

resulting injury occurred in a state other than the 

state in which either the injured person or the person 

whose conduct caused the injury were domiciled, the law 

of the state of conduct and injury governs. If a party 

demonstrates that, under the circumstances of the 

particular case, the application of that law to a 

disputed issue will not serve the objectives of that 

law, that issue will be governed by the law selected 

under ORS 15.445. 

The Magistrate Judge concludes§ 15.440(3) (a) mandates the 

application of California law because the injurious conduct and 

the resulting injury occurred in California and the person whose 

conduct caused the injury resides in California. 

Defendant contends the Magistrate Judge's conclusion is 

erroneous because § 15.440 only applies when there is a "claim[] 

between an injured person and the person whose conduct caused the 

4 - ORDER 
injury." Defendant argues the only "claim" in this case is 

between Plaintiff, a Washington citizen, and Defendant, an Oregon 

citizen, and, therefore, the "injured person" and "the person 

whose conduct caused the injury" can only refer to the named 

parties. Inasmuch as neither of the named parties are residents 

of California where the accident occurred, Defendant argues 

§ 15.440, and specifically§ 15.440(3) (a) does not apply. 

Contrary to Defendant's argument, however, the Court notes 

the plain language of the statute is not limited to "named 

parties." As the Magistrate Judge explained, the statute's 

resolution of choice-of-law issues turns on "the person who 

caused the injury," and that phrase reasonably includes 

Defendant's employee whose alleged negligence was the operative 

cause of the injury here. 

With respect to Plaintiff's claim based on the theory of 

respondeat superior (which makes Defendant liable for the 

negligent acts of its employee), the Magistrate Judge relies on 

the Oregon Law Commission's Report to the Oregon Legislature 

regarding the then-proposed choice-of-law statute. The Report 

states: "[I]n a respondeat superior action filed against an 

employer for an injury caused by an employee, both the employer 

and the employee are considered to be 'persons whose conduct 

caused the injury' for purposes of the Act." F&R at 6. This 

Court concludes the Magistrate Judge properly considered the 

5 - ORDER 
residence of Defendant's employee "whose conduct caused the 

injury" for purposes of resolving the choice-of-law issues and 

did not err in recommending that§ 15.440(3) applies as a matter 

of law. 

Defendant also contends§ 15.445 requires analysis of the 

"most appropriate law" to be applied regardless of the 

application of § 15. 440 (3) (a) or (b). Section 15.445, however, 

is a "residual approach" to a choice-of-law issue to be followed 

"except as provided in . § 15.440." Or. Rev. Stats. 

§ 15.445. Inasmuch as the Magistrate Judge correctly applies 

§ 15.440(3), he is not required to follow the analysis under 

§ 15.445 to resolve the choice-of-law issue. 

Accordingly, the Court concludes the Magistrate Judge 

correctly applied the Oregon choice-of-law statute; that under 

the Oregon choice-of-law standard California law applies to this 

matter; and, therefore, that the Oregon cap on noneconomic 

damages does not apply. 

II. Noneconomic Damages 

Defendant contends the Magistrate Judge incorrectly found 

Plaintiff was entitled to seek recovery of economic damages based 

on losses incurred by the Tarr family in their cannabis growing 

company. Defendant's arguments in its Objections are similar to 

those that it raised in its Motion for Summary Judgment. 

As the Magistrate Judge noted, there is not any case law 

6 - ORDER 
directly on point. The cases that Defendant cites arise out of 

issues related to the "illegal operation" itself; i.e., a 

cannabis operation could not avoid federal prosecution for 

distribution (Gonzales v. Raich, 545 U.S. 1 (2005)); could not 

receive bankruptcy protection (Arenas v. United States Trustee, 

535 B.R. 845 (10th Cir. 2015)); and is not entitled to a Federal 

Reserve account for banking services (Fourth Corner Credit Union 

v. Federal Reserve Bank of Kansas City, 861 F.3d 1052 (10th Cir. 

2017)). Although one court has held a partner could not recover 

damages based on a conspiracy arising out of an illegal 

partnership agreement related to a bootlegging operation (Rutkin 

v. Reinfeld, 119 F.2d 248 (2nd Cir. 1956)), that case does not 

point to an analysis in a situation like this one where the 

enterprise is lawful under state law but illegal under federal 

law. In any event, Defendant has not cited any authority that 

prohibits a claim of damages by an injured party in a personalinjury action in federal court when those damages are based on 

losses arising from a cannabis operation that is lawful under 

state law. 2 

Accordingly, this Court concludes the Magistrate Judge did 

2 The Court notes the Magistrate Judge relied by analogy 

on Greenwood v. Green Leaf Lab, LLC, in which this Court held an 

employee of a marijuana testing laboratory could bring a claim 

under the federal Fair Labor Standards Act despite the legal 

status of marijuana under federal law. No. 3:17-cv-415, 2017 WL 

3391671 (D. Or. July 13, 2017), recommendation adopted, 2017 WL 

3391647 (D. Or. Aug. 7, 2017). 

7 - ORDER 
not err in recommending that this Court find Plaintiff is 

entitled to seek recovery of economic damages based on projected 

profits from the family cannabis business. 

III. Punitive Damages 

Plaintiff contends the Magistrate Judge erred by 

recommending this Court dismiss Plaintiff's punitive-damage claim 

on the ground that the Magistrate Judge improperly weighed the 

evidence on summary judgment. 

At the summary-judgment stage the judge's function "is not 

himself to weigh the evidence and determine the truth of the 

matter but to determine whether there is a genuine issue for 

trial" and whether "there is sufficient evidence favoring the 

nonmoving party for a jury to return a verdict for that party." 

Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986). "If the 

evidence is merely colorable, or is not significantly probative, 

summary judgment may be granted." Id. at 249-50 (citations 

omitted). 

Here the Magistrate Judge found the undisputed evidence 

submitted by Plaintiff in support of his punitive-damage claim 

was insufficient to support such a claim because it did not meet 

the "clear and convincing" standard required for a showing that 

Defendant "acted with malice or has shown a reckless and 

outrageous indifference to the health, safety and welfare of 

others." See, e.g., Or. Rev. Stat. § 31.730(1) and Cal. Civ. 

8 - ORDER 
Code§ 3294(a). 

On this record the Court concludes the Magistrate Judge did 

not err when he recommended this Court find Plaintiff's evidence 

was insufficient as a matter of law to support a claim of 

punitive damages even when viewed in the light most favorable to 

Plaintiff. 

In summary, this Court has carefully considered the parties' 

Objections and concludes they do not provide a basis to modify 

the Magistrate Judge's Findings and Recommendation. The Court 

also has reviewed the pertinent portions of the record de novo 

and does not find any error in the Magistrate Judge's Findings 

and Recommendation. 

CONCLUSION 

The Court ADOPTS Magistrate Judge Paul Papak's Findings and 

Recommendation (#66) and, therefore, GRANTS in part and DENIES in 

part Defendant's Motion (#53) for Partial Summary Judgment as 

follows: 

9 - ORDER 

1. DENIES Defendant's Motion and concludes California 

law applies to the merits of Plaintiff's cliams, and, 

therefore, Oregon's statutory cap on noneconomic 

damages does not apply; 

2. GRANTS Defendant's Motion and STRIKES Plaintiff's 

claim for punitive damages; and 
3. DENIES Defendant's Motion and concludes Plaintiff 

may seek an award of money damages for lost income from 

his wholesale cannabis business as a result of 

Defendant's alleged negligence. 

The Court returns this matter to the Magistrate Judge for 

further proceedings. 

IT IS SO ORDERED. 

DATED this /0day 

10 - ORDER 

of February, 2018. 

ANNA J. BROWN 

United States Senior District Judge