Pena v. Meeker, et al

Filing 370

PRELIMINARY JURY INSTRUCTIONS (cwlc3S, COURT STAFF) (Filed on 11/4/2013)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 VAN A. PENA, 5 Plaintiff, 6 7 JUDITH BJORNDAL, Defendant. ________________________________/ DUTY OF THE JURY United States District Court For the Northern District of California 10 Ladies and gentlemen: You are now the jury in this case. It 11 12 PRELIMINARY JURY INSTRUCTIONS v. 8 9 No. C 00-4009 CW is my duty to instruct you on the law. These are preliminary instructions to help you understand the 13 14 principles that apply to civil trials and to help you understand 15 the evidence as you listen to it. 16 this set throughout the trial and refer to it. 17 instructions is not to be taken home and must remain in the jury 18 room when you leave in the evenings. 19 will give you a final set of instructions. 20 instructions which will govern your deliberations. You will be allowed to keep This set of At the end of the trial, I It is the final set of You must not infer from these instructions or from anything I 21 22 may say or do that I have an opinion regarding the evidence or 23 what your verdict should be. It is your duty to find the facts from all the evidence in 24 25 the case. To those facts you will apply the law as I give it to 26 you. 27 agree with it or not. 28 personal likes or dislikes, opinions, prejudices, or sympathy. You must follow the law as I give it to you whether you And you must not be influenced by any 1 That means that you must decide the case solely on the evidence 2 before you. 3 4 In following my instructions, you must follow all of them and not single out some and ignore others; they are all important. CLAIMS AND DEFENSES 5 6 7 8 9 You took an oath to do so. I will give you a brief summary of the positions of the parties: Plaintiff Dr. Van Peña claims that Defendant Dr. Judith Bjorndal violated his rights under the First Amendment of the United States District Court For the Northern District of California 10 United States Constitution when she terminated his employment as a 11 physician at the Sonoma Developmental Center. 12 Bjorndal fired him because (1) he filed a lawsuit alleging that he 13 was being retaliated against for speaking out about patient abuse 14 and malpractice at the Sonoma Developmental Center, (2) he 15 photographed patients’ injuries to document such abuse and 16 malpractice, (3) he filed a complaint with the California 17 Department of Health Services alleging that photographs 18 documenting patient injuries were being removed improperly from 19 the patients’ records, and (4) he complained to SDC Police Chief 20 Ed Contreras. 21 for her actions were a pretext to disguise her true motivation. 22 Dr. Peña has the burden of proving this claim. 23 He claims that Dr. Dr. Peña claims that the reasons Dr. Bjorndal gave Dr. Bjorndal denies Dr. Peña’s claim that she terminated his 24 employment because of his prior lawsuit, communications with 25 Contreras and the California Department of Health Services, or 26 photography of patients. 27 Peña because of misconduct in connection with a Do Not Resuscitate 28 Order for a patient, because he failed to inform her of the 2 Dr. Bjorndal contends that she fired Dr. 1 circumstances surrounding the Do Not Resuscitate Order, often 2 referred to as a DNR Order, and because he was dishonest in the 3 ensuing investigation. Dr. Bjorndal also asserts an affirmative defense that she 4 would have terminated Dr. Peña’s employment because of his 6 improper conduct while working at the Sonoma Developmental Center, 7 regardless of his prior lawsuit, photography, communication with 8 Contreras and complaints to the California Department of Health 9 Services. 10 United States District Court For the Northern District of California 5 defense. Dr. Bjorndal has the burden of proving this affirmative Dr. Peña denies the claims of this affirmative defense. BURDEN OF PROOF 11 When a party has the burden of proof on any claim or 12 13 affirmative defense by a preponderance of the evidence, it means 14 you must be persuaded by the evidence that the claim or 15 affirmative defense is more probably true than not true. You should base your decision on all of the evidence, 16 17 regardless of which party presented it. WHAT IS EVIDENCE 18 The evidence from which you are to decide what the facts are 19 20 consists of: 21 (1) the sworn testimony of any witness; 22 (2) the exhibits which have been received into evidence; and 23 (3) any facts to which the lawyers have agreed. WHAT IS NOT EVIDENCE 24 In reaching your verdict, you may consider only the testimony 25 26 and exhibits received into evidence. 27 evidence, and you may not consider them in deciding what the facts 28 are. I will list them for you: 3 Certain things are not 1 (1) Arguments and statements by lawyers are not evidence. 2 The lawyers are not witnesses. 3 opening statements, closing arguments, and at other times is 4 intended to help you interpret the evidence, but it is not 5 evidence. If the facts as you remember them differ from the way 6 the lawyers state them, your memory of them controls. 7 What they will say in their (2) Questions and objections by lawyers are not evidence. 8 Attorneys have a duty to their clients to object when they believe 9 a question is improper under the rules of evidence. United States District Court For the Northern District of California 10 11 You should not be influenced by the objection or by the Court’s ruling on it. (3) Testimony that is excluded or stricken, or that you are 12 instructed to disregard, is not evidence and must not be 13 considered. 14 received only for a limited purpose; if I give a limiting 15 instruction, you must follow it. 16 In addition, some testimony and exhibits may be (4) Anything you see or hear when the Court is not in session 17 is not evidence. 18 evidence received at the trial. DIRECT AND CIRCUMSTANTIAL EVIDENCE 19 20 You are to decide the case solely on the Evidence may be direct or circumstantial. Direct evidence is 21 direct proof of a fact, such as testimony by a witness about what 22 that witness personally saw or heard or did. 23 evidence is proof of one or more facts from which you could find 24 another fact. 25 law makes no distinction between the weight to be given to either 26 direct or circumstantial evidence. 27 much weight to give to any evidence. Circumstantial You should consider both kinds of evidence. 28 4 The It is for you to decide how RULING ON OBJECTIONS 1 2 There are rules of evidence that control what can be received 3 into evidence. 4 into evidence and a lawyer on the other side thinks that it is not 5 permitted by the rules of evidence, that lawyer may object. 6 overrule the objection, the question may be answered or the 7 exhibit received. 8 be answered, and the exhibit cannot be received. Whenever I 9 sustain an objection to a question, you must ignore the question United States District Court For the Northern District of California 10 If I If I sustain the objection, the question cannot and must not guess what the answer might have been. CREDIBILITY OF WITNESSES 11 12 When a lawyer asks a question or offers an exhibit In deciding the facts in this case, you may have to decide 13 which testimony to believe and which testimony not to believe. 14 You may believe everything a witness says, or part of it, or none 15 of it. 16 In considering the testimony of any witness, you may take 17 into account: 18 (1) 19 the opportunity and ability of the witness to see or hear or know the things testified to; 20 (2) the witness’s memory; 21 (3) the witness’s manner while testifying; 22 (4) the witness’s interest in the outcome of the case and 23 24 25 26 27 28 any bias or prejudice; (5) whether other evidence contradicts the witness’s testimony; (6) the reasonableness of the witness’s testimony in light of all the evidence; and (7) any other factors that bear on believability. 5 1 2 The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify about it. EXPERT OPINION 3 4 5 6 Some witnesses, because of education or experience, are permitted to state opinions and the reasons for those opinions. Expert opinion testimony should be judged just like any other 7 testimony. 8 weight as you think it deserves, considering the witness’s 9 education and experience, the reasons given for the opinion and United States District Court For the Northern District of California 10 You may accept it or reject it, and give it as much all the other evidence in the case. 11 OVERVIEW OF APPLICABLE LAW - CIVIL RIGHTS CLAIM 12 Dr. Peña brings his claim under the federal civil rights 13 statute, which provides that any person who, under color of law, 14 deprives another of any rights secured by the Constitution of the 15 United States shall be liable to the injured party. 16 CIVIL RIGHTS CLAIM - ELEMENTS AND BURDEN OF PROOF 17 In order to prevail on his civil rights claim against Dr. 18 Bjorndal, Dr. Peña must prove each of the following elements by a 19 preponderance of the evidence: 20 (1) Dr. Bjorndal acted under color of law; and 21 (2) Dr. Bjorndal’s acts deprived Dr. Peña of a right he has 22 23 under the United States Constitution. A person acts “under color of law” when the person acts in 24 the performance of official duties under law. 25 agreed that Dr. Bjorndal acted under color of law. 26 27 28 6 The parties have 1 2 CONSTITUTIONAL RIGHT: FIRST AMENDMENT FREEDOM OF SPEECH The constitutional right that Dr. Peña alleges Dr. Bjorndal deprived him of is his right to freedom of speech under the First 4 Amendment to the Constitution. 5 the right to expressive conduct. 6 protected speech was the lawsuit he had previously filed against 7 other employees of the Sonoma Developmental Center, his 8 photography of patients’ injuries, communications with Contreras 9 and his complaint to the California Department of Health about the 10 United States District Court For the Northern District of California 3 removal of patient photographs from files at Sonoma Developmental 11 Center. 12 The right to free speech includes Dr. Peña claims that his The lawsuit, photography, communications with Contreras and 13 complaint constitute speech because they demonstrate Dr. Peña’s 14 intent to convey particular messages. 15 includes the right not be retaliated against for engaging in 16 expressive conduct. 17 employment action taken against an employee. 18 Dr. Bjorndal retaliated against him for his expressive conduct 19 when she terminated his employment at the Sonoma Developmental 20 Center. 21 The right to free speech Retaliation can take the form of an adverse Dr. Peña claims that In order to prove Dr. Bjorndal deprived him of his First 22 Amendment rights, Dr. Peña must prove the following by a 23 preponderance of the evidence: 24 (1) Dr. Bjorndal took an adverse employment action against 25 Dr. Peña; and 26 (2) Dr. Peña engaged in protected speech or expressive 27 conduct, which was a substantial or motivating factor for the 28 adverse employment action. 7 1 The parties have agreed that Dr. Bjorndal terminated Dr. 2 Pena’s employment, and that termination is an adverse action. SUBSTANTIAL OR MOTIVATING FACTOR 3 4 5 A substantial or motivating factor is a significant factor. In order for protected speech to be a substantial or 6 motivating factor for an employment decision, the defendant, of 7 course, must be aware of the speech. 8 held liable for taking adverse action against Dr. Peña because of 9 his protected speech unless Dr. Peña proves by a preponderance of Here, Dr. Bjorndal cannot be United States District Court For the Northern District of California 10 the evidence that Dr. Bjorndal was aware of that speech. 11 Bjorndal denies that she was aware of his earlier lawsuit against 12 other employees, communications with Contreras and his complaint 13 to the California Department of Health. 14 Dr. A jury may consider a number of factors in determining if 15 retaliation was a substantial or motivating factor behind a 16 defendant’s adverse employment actions. 17 following. These include the 18 First, a plaintiff can introduce evidence regarding the 19 proximity in time between the protected speech and the allegedly 20 retaliatory employment decision, from which a jury logically could 21 infer that the plaintiff was terminated in retaliation for his 22 speech. 23 24 25 Second, a plaintiff can introduce evidence that the defendant expressed opposition to his speech, either to him or to others. Third, a plaintiff can introduce evidence that the 26 defendant’s proffered explanations for the adverse employment 27 action were false and pretextual. A reasonable fact finder could 28 8 1 also find that a pretextual explanation casts doubt on other 2 explanations that, standing alone, might appear to be true. DR. BJORNDAL’S DEFENSE 3 4 Dr. Bjorndal claims that she did not terminate Dr. Peña 5 because of his prior lawsuit against other employees, his 6 photography, communication with Contreras or his complaint to the 7 California Department of Health. 8 did not know about the lawsuit or the complaints. 9 instead, that she terminated him because of his misconduct with United States District Court For the Northern District of California 10 11 As noted above, she claims she She claims, regard to a DNR order that he issued for a patient. The patient who was the subject of the DNR order will be 12 referred to as Elizabeth R. She was an elderly, developmentally 13 disabled patient at the Sonoma Developmental Center who was 14 suffering from renal failure, that is, kidney failure. 15 wrote a DNR Order for Elizabeth R. on March 3, 2001, and Dr. 16 Bjorndal reversed the order. 17 residing in a state hospital have the right to give or withhold 18 consent for treatments and procedures, unless a judicial order or 19 other law provides for another person to make these decisions for 20 the patient. Dr. Peña Developmentally disabled persons The parties dispute what Elizabeth R.’s wishes were. 21 However, this is not a wrongful termination lawsuit. You 22 will not be asked to determine whether or not the reasons Dr. 23 Bjorndal has given for firing Dr. Peña would be fair reasons for 24 firing him. 25 end-of-life care for Elizabeth R. should have been managed, or 26 whether cardiopulmonary resuscitation (CPR) or a DNR Order was the 27 correct approach for this patient from a medical perspective. Likewise, you will not be asked to decide how the 28 9 You 1 will not be asked to determine the wisdom of medical decisions 2 that were made for this patient. 3 Similarly, you will not be asked to decide the merit of Dr. 4 Peña’s prior lawsuit. 5 to this trial. 6 lawsuit. 7 of patients should or should not be taken and kept in patients’ 8 files. 9 The outcome of that lawsuit is not relevant You should not speculate about the results of that Nor will you be asked to decide whether the photographs Instead, you will be asked to decide whether Dr. Bjorndal United States District Court For the Northern District of California 10 fired Dr. Peña for non-retaliatory reasons, or whether her true 11 motivation was to retaliate against Dr. Peña for engaging in 12 certain conduct that may be protected by the First Amendment, such 13 as filing a previous lawsuit, photography, communication with 14 Contreras and a complaint to the California Department of Health. 15 16 PUBLIC EMPLOYEES’ QUALIFIED FREE SPEECH RIGHTS Under the First Amendment, a public employee like Dr. Peña 17 has free speech rights, but his rights are limited. 18 right to speak as a citizen on matters of public concern. 19 employee, however, his speech and conduct in connection with his 20 official duties can be regulated by his employer. 21 an adverse employment action based on expressive conduct related 22 to his employment, Dr. Peña must prove that: 23 24 He has a As an To recover for (1) Dr. Peña acted as a citizen and not as part of his official duties; and 25 (2) his action was on a matter of public concern. 26 Dr. Peña’s prior lawsuit was expressive conduct taken as a 27 citizen on a matter of public concern. However, it is for you to 28 decide if Dr. Peña acted as a citizen, not as part of his official 10 1 duties, when he made his complaint to the California Department of 2 Health, when and if he complained to Contreras, and when he took 3 photographs of patients. 4 taking photographs, communicating with Contreras and making the 5 complaint to the California Department of Health were done as a 6 citizen or were done as part of his official duties. 7 In other words, you must decide whether Every physician employed by the Department of Developmental Services at the Sonoma Developmental Center is under a legal duty 9 to report any patient abuse, including medical malpractice. 10 United States District Court For the Northern District of California 8 However, photography, communication with Contreras and the 11 complaint to the Department of Health Services were not 12 necessarily done as part of his official duties simply because 13 they may have taken place at his workplace or because they 14 concerned the subject matter of his employment. 15 in direct contravention of a supervisor’s orders, that fact could 16 weigh in favor of finding that he was not acting within the scope 17 of his professional responsibilities. DEFENDANT’S MIXED MOTIVE DEFENSE 18 19 If Dr. Peña acted Even if Dr. Peña proves each element of his claim that he was 20 retaliated against for engaging in protected speech under the 21 First Amendment, Dr. Bjorndal can escape liability by proving by a 22 preponderance of the evidence that 23 24 25 (1) she had a non-retaliatory reason for taking the adverse action and (2) it is more likely than not that she would have taken the 26 same adverse action for the non-retaliatory reason in the absence 27 of the protected speech. 28 11 1 Dr. Bjorndal contends that, regardless of Dr. Peña’s 2 complaint to the Department of Health Services, his photography, 3 communication with Contreras or his earlier lawsuit, she would 4 have terminated his employment anyway because she believed that he 5 engaged in misconduct when he wrote the DNR order for Elizabeth 6 R., failed to inform Dr. Bjorndal of the circumstances and was 7 dishonest in the ensuing investigation. 8 Bjorndal has the burden of proof concerning this affirmative 9 defense. DAMAGES – PROOF United States District Court For the Northern District of California 10 11 As noted previously, Dr. It is the duty of the Court to instruct you about the measure 12 of damages. 13 mean to suggest for which party your verdict should be rendered. 14 By instructing you on damages, the Court does not If you find for Dr. Peña, you must determine his damages. He 15 has the burden of proving damages by a preponderance of the 16 evidence. 17 and fairly compensate him for any injury you find was caused by 18 Dr. Bjorndal. 19 enjoyment of life experienced; the mental pain and suffering 20 experienced and which with reasonable probability will be 21 experienced in the future; the reasonable value of earnings lost 22 to the present time; and the reasonable value of earnings which 23 with reasonable probability will be lost in the future. 24 you to determine what damages, if any, have been proved. 25 award must be based upon evidence and not upon speculation, 26 guesswork or conjecture. Damages means the amount of money that will reasonably You should consider the following: the loss of 27 28 12 It is for Your 1 DAMAGES – MITIGATION 2 Dr. Peña has a duty to use reasonable efforts to mitigate 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 damages. To mitigate means to avoid or reduce damages. Dr. Bjorndal has the burden of proving by a preponderance of the evidence: (1) that Dr. Peña failed to use reasonable efforts to mitigate damages; and (2) the amount by which damages would have been mitigated. DAMAGES ARISING IN THE FUTURE - DISCOUNT TO PRESENT CASH VALUE Any award for future economic damages must be for the present 11 cash value of those damages. 12 and suffering, are not reduced to present cash value. 13 Non-economic damages, such as pain Present cash value means the sum of money needed now, which, 14 when invested at a reasonable rate of return, will pay future 15 damages at the times and in the amounts that you find the damages 16 will be incurred. 17 CONDUCT OF THE JURY 18 I will now say a few words about your conduct as jurors. 19 First, you are not to discuss this case with anyone, 20 including members of your family, people involved in the trial, or 21 anyone else. 22 are you allowed to permit others to discuss the case with you. 23 anyone approaches you and tries to talk to you about the case, 24 please let me know about it immediately; 25 You may not discuss the case on the internet. Nor If Second, do not read or listen to any news stories, articles, 26 radio, television, or anything on the internet about the case or 27 about anyone who has anything to do with it; 28 13 1 Third, do not do any research, such as consulting 2 dictionaries, searching the internet or using other reference 3 materials, and do not make any investigation about the case on 4 your own; 5 6 7 Fourth, if you need to communicate with me simply give a signed note to the clerk to give to me; and Fifth, do not make up your mind about what the verdict should 8 be until after you have gone to the jury room to decide the case 9 and you and your fellow jurors have discussed the evidence. United States District Court For the Northern District of California 10 11 Keep an open mind until then. Finally, until this case is given to you for your 12 deliberation and verdict, you are not to discuss the case with 13 your fellow jurors. 14 NO TRANSCRIPT AVAILABLE TO JURY 15 During deliberations, you will have to make your decision 16 based on what you recall of the evidence. 17 transcript of the trial. I urge you to pay close attention to the 18 testimony as it is given. 19 You will not have a If at any time you cannot hear or see the testimony, 20 evidence, questions or arguments, let me know so that I can 21 correct the problem. 22 TAKING NOTES 23 If you wish, you may take notes to help you remember the 24 evidence. If you do take notes, please keep them to yourself 25 until you and your fellow jurors go to the jury room to decide the 26 case. 27 notes should be left in the jury room. 28 notes. Do not let note-taking distract you. When you leave, your No one will read your They will be destroyed at the conclusion of the case. 14 1 Whether or not you take notes, you should rely on your own 2 memory of the evidence. 3 You should not be overly influenced by your notes or those of your 4 fellow jurors. QUESTIONS TO WITNESSES BY JURORS 5 6 Notes are only to assist your memory. You may propose written questions to witnesses. You may 7 propose questions in order to clarify the testimony, but you are 8 not to express any opinion about the testimony or argue with a 9 witness. United States District Court For the Northern District of California 10 11 If you propose any questions, remember that your role is that of a neutral fact finder, not an advocate. If you wish to ask a question, you may write out your 12 question on a form provided by the court. 13 question. 14 your breaks. 15 determine if it is legally proper. 16 Do not sign the Give it to the courtroom deputy clerk during one of I will review the question with the attorneys to There are some proposed questions that I will not permit, or 17 will not ask in the wording you submit. 18 due to the rules of evidence or other legal reasons, or because 19 the question is expected to be answered later in the case. 20 do not ask a proposed question, or if I rephrase it, do not 21 speculate as to the reasons. 22 questions you or other jurors propose. 23 answers to those questions in the same manner as you evaluate all 24 of the other evidence. 25 This might happen either If I Do not give undue weight to You should evaluate the By giving you the opportunity to propose questions, I am not 26 requesting or suggesting that you do so. 27 case that a lawyer has not asked a question because it is legally 28 15 It will often be the 1 objectionable or because a later witness may be addressing that 2 subject. OUTLINE OF TRIAL 3 4 The trial will now begin. First, each side may make an 5 opening statement. 6 simply an outline to help you understand what that party expects 7 the evidence will show. 8 9 An opening statement is not evidence. It is After opening statements, Dr. Peña will present evidence. After Dr. Peña’s counsel questions a witness, Dr. Bjorndal’s United States District Court For the Northern District of California 10 counsel may cross-examine the witness. 11 presentation of evidence, the Court may, for efficiency reasons, 12 require Dr. Bjorndal’s counsel to conduct his examination of the 13 witness following Dr. Peña’s examination. 14 concluded his presentation of evidence, Dr. Bjorndal may present 15 additional evidence, and Dr. Peña’s counsel may cross-examine. 16 After the evidence has been presented, I will instruct you on the 17 law that applies to the case and the attorneys will make closing 18 arguments. 19 on your verdict. 20 excused. 21 During Dr. Peña’s When Dr. Peña has After that, you will go to the jury room to deliberate After you have reached your verdict, you will be IT IS SO ORDERED. 22 23 24 Dated: CLAUDIA WILKEN United States District Judge 25 26 27 28 16

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