NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NICOLE GILILLAND, an individual, 

Plaintiff-Appellee, 

 v. 

SOUTHWESTERN OREGON 

COMMUNITY COLLEGE DISTRICT, by 

and through its Board of Education, an 

Oregon community college district and 

board; SOUTHWESTERN OREGON 

COMMUNITY COLLEGE, an Oregon 

community college, 

Defendants-Appellants.

No. 23-35028 

D.C. No. 6:19-cv-00283-MK 

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Mustafa T. Kasubhai, Magistrate Judge, Presiding

Argued and Submitted April 4, 2024

Portland, Oregon

Before: OWENS and FRIEDLAND, Circuit Judges, and RAYES,** District Judge.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Douglas L. Rayes, United States District Judge for the 

District of Arizona, sitting by designation.

FILED

MAY 6 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Defendant Southwestern Oregon Community College (“SWOCC”) appeals a 

partial judgment in favor of Plaintiff Nicole Gililland after a jury trial. The jury 

found in favor of Gililland on her breach of contract claim and awarded economic 

and noneconomic damages. We review the district court’s denial of a renewed 

motion for judgment as a matter of law de novo. Dunlap v. Liberty Nat. Prods., 

Inc., 878 F.3d 794, 797 (9th Cir. 2017). We affirm in part and reverse in part. 

1. To start, we hold that the terms of SWOCC’s policy were enforceable in 

contract. The student-college relationship is contractual in nature. See Tate v. N. 

Pac. Coll., 140 P. 743, 745 (Or. 1914). We predict that the Oregon Supreme Court 

would agree with the consensus of federal district courts that have held, in 

interpreting Oregon law, that “[t]he catalogs, bulletins, circulars, and regulations of 

the institution made available to the matriculant bec[o]me a part of the contract” 

between the student and the college, Bird v. Lewis & Clark Coll., 104 F. Supp. 2d 

1271, 1276 (D. Or. 2000) (citation and quotation marks omitted), and that the 

relevant question is whether the college “manifested assent” to be bound by them,

Vejo v. Portland Pub. Schs., 204 F. Supp. 3d 1149, 1175-77 (D. Or. 2016) (citation 

omitted), rev’d on other grounds, 737 F. App’x 309 (9th Cir. 2018). See In re 

Kirkland, 915 F.2d 1236, 1239 (9th Cir. 1990). Here, there was sufficient evidence 

for the jury to find that SWOCC manifested assent to be bound by the provisions 

of the policy.
3 

2. Next, we hold that the jury verdict on the Title IX claim does not 

undermine the verdict on the contract claim. We note first that “there is no duty to 

reconcile inconsistent general verdicts,” Williams v. Gaye, 895 F.3d 1106, 1132 

(9th Cir. 2018), and here the jury returned general verdicts that offered only the 

ultimate legal conclusion on each claim. Regardless, the verdicts were not 

irreconcilable because Title IX contains several highly specific requirements that 

were not applicable to the contract claim. There was sufficient evidence in the 

record for the jury to conclude that if SWOCC had complied with its obligations, 

Gililland would have been able to continue in the nursing program, even if the jury 

thought that evidence did not support a Title IX violation. 

3. We also hold that Gililland’s economic losses were a foreseeable result of 

the breach. Whether damages are foreseeable is a question of fact for the jury. 

Dynagraphics, Inc. v. U.S. Nat’l Bank of Or., 785 P.2d 760, 763 (Or. Ct. App. 

1990). The jury was properly instructed that Gililland was entitled to recover 

consequential damages that were reasonably within the contemplation of the 

parties when the contract was formed and were proximately caused by the breach. 

See Cont’l Plants Corp. v. Measured Mktg. Serv., Inc., 547 P.2d 1368, 1371 (Or. 

1976) (“All that is necessary . . . is that [the loss] is one that ordinarily follows the 

breach of such a contract in the usual course of events, or that reasonable [persons] 

in the position of the parties would have foreseen as a probable result of breach.” 
4 

(quoting 5 Corbin on Contracts 79 § 1010 (1964))). Having to unenroll and begin 

a new career path was a foreseeable result of SWOCC’s failure to follow the 

policy, and Gililland presented unrebutted evidence of the amount of her damages 

encompassing losses related to her unenrollment. 

4. We hold, however, that the $1 million noneconomic damages award was 

not recoverable because Oregon follows the general rule that “emotional distress 

damages are not recoverable” for breach of contract.1 Moody v. Or. Cmty. Credit 

Union, 542 P.3d 24, 42 (Or. 2023); see also Moser v. DKN Ind., 82 P.3d 1052, 

1054 (Or. Ct. App. 2004). Oregon allows a plaintiff to recover emotional distress 

damages where a breach of contract causes physical pain, but that exception has 

been applied only where the breach is intrinsically tied to physical pain, not where 

a breach causes mental suffering that in turn causes physical pain. See Coffey v.

Nw. Hosp. Ass’n, 189 P. 407, 408-09 (Or. 1920) (denying rehearing); McKenzie v. 

Pac. Health & Life Ins. Co., 847 P.2d 879, 880, 882 (Or. Ct. App. 1993). And the 

prohibition on emotional distress damages applies despite foreseeability. See 

1 Gililland argues that some of the award could have been for other 

categories of noneconomic damages: reputational damage and interference with 

activities. Although courts have allowed reputation damages for identifiable,

economic losses, there is no indication that Oregon courts would have allowed the 

sort of speculative, immeasurable damages awarded here, as Gililland’s own cited 

cases show. See, e.g., Buck v. Mueller, 351 P.2d 61, 66 (Or. 1960)

(“Denominating defendant’s conduct as a breach of contract does not give the 

plaintiff a license to demand damages not subject to measurement.”).
5 

Keltner v. Washington County, 800 P.2d 752, 755-58, (Or. 1990) (declining to 

adopt the rule that emotional distress damages may be recovered in contract even 

where “emotional security is the very object of the promise[]” (citation and 

quotation marks omitted)). We thus vacate the $1 million award of noneconomic 

damages. 

Each party shall bear its own costs. 

REVERSED IN PART AND AFFIRMED IN PART.