Pena v. Meeker, et al
Filing
370
PRELIMINARY JURY INSTRUCTIONS (cwlc3S, COURT STAFF) (Filed on 11/4/2013)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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VAN A. PENA,
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Plaintiff,
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JUDITH BJORNDAL,
Defendant.
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DUTY OF THE JURY
United States District Court
For the Northern District of California
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Ladies and gentlemen: You are now the jury in this case. It
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PRELIMINARY JURY
INSTRUCTIONS
v.
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No. C 00-4009 CW
is my duty to instruct you on the law.
These are preliminary instructions to help you understand the
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principles that apply to civil trials and to help you understand
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the evidence as you listen to it.
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this set throughout the trial and refer to it.
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instructions is not to be taken home and must remain in the jury
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room when you leave in the evenings.
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will give you a final set of instructions.
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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
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may say or do that I have an opinion regarding the evidence or
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what your verdict should be.
It is your duty to find the facts from all the evidence in
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the case.
To those facts you will apply the law as I give it to
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you.
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agree with it or not.
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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
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That means that you must decide the case solely on the evidence
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before you.
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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
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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
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United States Constitution when she terminated his employment as a
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physician at the Sonoma Developmental Center.
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Bjorndal fired him because (1) he filed a lawsuit alleging that he
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was being retaliated against for speaking out about patient abuse
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and malpractice at the Sonoma Developmental Center, (2) he
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photographed patients’ injuries to document such abuse and
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malpractice, (3) he filed a complaint with the California
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Department of Health Services alleging that photographs
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documenting patient injuries were being removed improperly from
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the patients’ records, and (4) he complained to SDC Police Chief
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Ed Contreras.
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for her actions were a pretext to disguise her true motivation.
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Dr. Peña has the burden of proving this claim.
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He claims that Dr.
Dr. Peña claims that the reasons Dr. Bjorndal gave
Dr. Bjorndal denies Dr. Peña’s claim that she terminated his
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employment because of his prior lawsuit, communications with
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Contreras and the California Department of Health Services, or
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photography of patients.
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Peña because of misconduct in connection with a Do Not Resuscitate
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Order for a patient, because he failed to inform her of the
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Dr. Bjorndal contends that she fired Dr.
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circumstances surrounding the Do Not Resuscitate Order, often
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referred to as a DNR Order, and because he was dishonest in the
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ensuing investigation.
Dr. Bjorndal also asserts an affirmative defense that she
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would have terminated Dr. Peña’s employment because of his
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improper conduct while working at the Sonoma Developmental Center,
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regardless of his prior lawsuit, photography, communication with
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Contreras and complaints to the California Department of Health
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Services.
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United States District Court
For the Northern District of California
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defense.
Dr. Bjorndal has the burden of proving this affirmative
Dr. Peña denies the claims of this affirmative defense.
BURDEN OF PROOF
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When a party has the burden of proof on any claim or
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affirmative defense by a preponderance of the evidence, it means
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you must be persuaded by the evidence that the claim or
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affirmative defense is more probably true than not true.
You should base your decision on all of the evidence,
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regardless of which party presented it.
WHAT IS EVIDENCE
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The evidence from which you are to decide what the facts are
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consists of:
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(1) the sworn testimony of any witness;
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(2) the exhibits which have been received into evidence; and
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(3) any facts to which the lawyers have agreed.
WHAT IS NOT EVIDENCE
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In reaching your verdict, you may consider only the testimony
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and exhibits received into evidence.
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evidence, and you may not consider them in deciding what the facts
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are.
I will list them for you:
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Certain things are not
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(1) Arguments and statements by lawyers are not evidence.
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The lawyers are not witnesses.
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opening statements, closing arguments, and at other times is
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intended to help you interpret the evidence, but it is not
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evidence. If the facts as you remember them differ from the way
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the lawyers state them, your memory of them controls.
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What they will say in their
(2) Questions and objections by lawyers are not evidence.
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Attorneys have a duty to their clients to object when they believe
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a question is improper under the rules of evidence.
United States District Court
For the Northern District of California
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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
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instructed to disregard, is not evidence and must not be
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considered.
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received only for a limited purpose; if I give a limiting
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instruction, you must follow it.
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In addition, some testimony and exhibits may be
(4) Anything you see or hear when the Court is not in session
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is not evidence.
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evidence received at the trial.
DIRECT AND CIRCUMSTANTIAL EVIDENCE
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You are to decide the case solely on the
Evidence may be direct or circumstantial.
Direct evidence is
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direct proof of a fact, such as testimony by a witness about what
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that witness personally saw or heard or did.
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evidence is proof of one or more facts from which you could find
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another fact.
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law makes no distinction between the weight to be given to either
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direct or circumstantial evidence.
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much weight to give to any evidence.
Circumstantial
You should consider both kinds of evidence.
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The
It is for you to decide how
RULING ON OBJECTIONS
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There are rules of evidence that control what can be received
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into evidence.
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into evidence and a lawyer on the other side thinks that it is not
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permitted by the rules of evidence, that lawyer may object.
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overrule the objection, the question may be answered or the
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exhibit received.
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be answered, and the exhibit cannot be received. Whenever I
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sustain an objection to a question, you must ignore the question
United States District Court
For the Northern District of California
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If I
If I sustain the objection, the question cannot
and must not guess what the answer might have been.
CREDIBILITY OF WITNESSES
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When a lawyer asks a question or offers an exhibit
In deciding the facts in this case, you may have to decide
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which testimony to believe and which testimony not to believe.
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You may believe everything a witness says, or part of it, or none
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of it.
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In considering the testimony of any witness, you may take
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into account:
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(1)
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the opportunity and ability of the witness to see or
hear or know the things testified to;
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(2)
the witness’s memory;
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(3)
the witness’s manner while testifying;
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(4)
the witness’s interest in the outcome of the case and
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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.
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The weight of the evidence as to a fact does not necessarily
depend on the number of witnesses who testify about it.
EXPERT OPINION
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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
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testimony.
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weight as you think it deserves, considering the witness’s
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education and experience, the reasons given for the opinion and
United States District Court
For the Northern District of California
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You may accept it or reject it, and give it as much
all the other evidence in the case.
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OVERVIEW OF APPLICABLE LAW - CIVIL RIGHTS CLAIM
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Dr. Peña brings his claim under the federal civil rights
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statute, which provides that any person who, under color of law,
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deprives another of any rights secured by the Constitution of the
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United States shall be liable to the injured party.
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CIVIL RIGHTS CLAIM - ELEMENTS AND BURDEN OF PROOF
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In order to prevail on his civil rights claim against Dr.
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Bjorndal, Dr. Peña must prove each of the following elements by a
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preponderance of the evidence:
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(1)
Dr. Bjorndal acted under color of law; and
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(2)
Dr. Bjorndal’s acts deprived Dr. Peña of a right he has
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under the United States Constitution.
A person acts “under color of law” when the person acts in
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the performance of official duties under law.
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agreed that Dr. Bjorndal acted under color of law.
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The parties have
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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
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Amendment to the Constitution.
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the right to expressive conduct.
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protected speech was the lawsuit he had previously filed against
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other employees of the Sonoma Developmental Center, his
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photography of patients’ injuries, communications with Contreras
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and his complaint to the California Department of Health about the
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United States District Court
For the Northern District of California
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removal of patient photographs from files at Sonoma Developmental
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Center.
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The right to free speech includes
Dr. Peña claims that his
The lawsuit, photography, communications with Contreras and
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complaint constitute speech because they demonstrate Dr. Peña’s
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intent to convey particular messages.
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includes the right not be retaliated against for engaging in
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expressive conduct.
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employment action taken against an employee.
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Dr. Bjorndal retaliated against him for his expressive conduct
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when she terminated his employment at the Sonoma Developmental
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Center.
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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
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Amendment rights, Dr. Peña must prove the following by a
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preponderance of the evidence:
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(1)
Dr. Bjorndal took an adverse employment action against
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Dr. Peña; and
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(2)
Dr. Peña engaged in protected speech or expressive
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conduct, which was a substantial or motivating factor for the
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adverse employment action.
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The parties have agreed that Dr. Bjorndal terminated Dr.
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Pena’s employment, and that termination is an adverse action.
SUBSTANTIAL OR MOTIVATING FACTOR
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A substantial or motivating factor is a significant factor.
In order for protected speech to be a substantial or
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motivating factor for an employment decision, the defendant, of
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course, must be aware of the speech.
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held liable for taking adverse action against Dr. Peña because of
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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
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the evidence that Dr. Bjorndal was aware of that speech.
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Bjorndal denies that she was aware of his earlier lawsuit against
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other employees, communications with Contreras and his complaint
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to the California Department of Health.
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Dr.
A jury may consider a number of factors in determining if
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retaliation was a substantial or motivating factor behind a
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defendant’s adverse employment actions.
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following.
These include the
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First, a plaintiff can introduce evidence regarding the
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proximity in time between the protected speech and the allegedly
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retaliatory employment decision, from which a jury logically could
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infer that the plaintiff was terminated in retaliation for his
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speech.
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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
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defendant’s proffered explanations for the adverse employment
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action were false and pretextual.
A reasonable fact finder could
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also find that a pretextual explanation casts doubt on other
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explanations that, standing alone, might appear to be true.
DR. BJORNDAL’S DEFENSE
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Dr. Bjorndal claims that she did not terminate Dr. Peña
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because of his prior lawsuit against other employees, his
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photography, communication with Contreras or his complaint to the
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California Department of Health.
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did not know about the lawsuit or the complaints.
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instead, that she terminated him because of his misconduct with
United States District Court
For the Northern District of California
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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
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referred to as Elizabeth R.
She was an elderly, developmentally
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disabled patient at the Sonoma Developmental Center who was
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suffering from renal failure, that is, kidney failure.
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wrote a DNR Order for Elizabeth R. on March 3, 2001, and Dr.
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Bjorndal reversed the order.
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residing in a state hospital have the right to give or withhold
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consent for treatments and procedures, unless a judicial order or
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other law provides for another person to make these decisions for
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the patient.
Dr. Peña
Developmentally disabled persons
The parties dispute what Elizabeth R.’s wishes were.
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However, this is not a wrongful termination lawsuit.
You
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will not be asked to determine whether or not the reasons Dr.
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Bjorndal has given for firing Dr. Peña would be fair reasons for
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firing him.
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end-of-life care for Elizabeth R. should have been managed, or
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whether cardiopulmonary resuscitation (CPR) or a DNR Order was the
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correct approach for this patient from a medical perspective.
Likewise, you will not be asked to decide how the
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You
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will not be asked to determine the wisdom of medical decisions
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that were made for this patient.
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Similarly, you will not be asked to decide the merit of Dr.
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Peña’s prior lawsuit.
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to this trial.
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lawsuit.
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of patients should or should not be taken and kept in patients’
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files.
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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
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fired Dr. Peña for non-retaliatory reasons, or whether her true
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motivation was to retaliate against Dr. Peña for engaging in
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certain conduct that may be protected by the First Amendment, such
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as filing a previous lawsuit, photography, communication with
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Contreras and a complaint to the California Department of Health.
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PUBLIC EMPLOYEES’ QUALIFIED FREE SPEECH RIGHTS
Under the First Amendment, a public employee like Dr. Peña
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has free speech rights, but his rights are limited.
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right to speak as a citizen on matters of public concern.
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employee, however, his speech and conduct in connection with his
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official duties can be regulated by his employer.
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an adverse employment action based on expressive conduct related
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to his employment, Dr. Peña must prove that:
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He has a
As an
To recover for
(1) Dr. Peña acted as a citizen and not as part of his
official duties; and
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(2) his action was on a matter of public concern.
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Dr. Peña’s prior lawsuit was expressive conduct taken as a
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citizen on a matter of public concern.
However, it is for you to
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decide if Dr. Peña acted as a citizen, not as part of his official
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duties, when he made his complaint to the California Department of
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Health, when and if he complained to Contreras, and when he took
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photographs of patients.
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taking photographs, communicating with Contreras and making the
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complaint to the California Department of Health were done as a
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citizen or were done as part of his official duties.
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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
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to report any patient abuse, including medical malpractice.
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United States District Court
For the Northern District of California
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However, photography, communication with Contreras and the
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complaint to the Department of Health Services were not
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necessarily done as part of his official duties simply because
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they may have taken place at his workplace or because they
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concerned the subject matter of his employment.
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in direct contravention of a supervisor’s orders, that fact could
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weigh in favor of finding that he was not acting within the scope
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of his professional responsibilities.
DEFENDANT’S MIXED MOTIVE DEFENSE
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If Dr. Peña acted
Even if Dr. Peña proves each element of his claim that he was
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retaliated against for engaging in protected speech under the
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First Amendment, Dr. Bjorndal can escape liability by proving by a
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preponderance of the evidence that
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(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
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same adverse action for the non-retaliatory reason in the absence
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of the protected speech.
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Dr. Bjorndal contends that, regardless of Dr. Peña’s
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complaint to the Department of Health Services, his photography,
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communication with Contreras or his earlier lawsuit, she would
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have terminated his employment anyway because she believed that he
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engaged in misconduct when he wrote the DNR order for Elizabeth
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R., failed to inform Dr. Bjorndal of the circumstances and was
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dishonest in the ensuing investigation.
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Bjorndal has the burden of proof concerning this affirmative
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defense.
DAMAGES – PROOF
United States District Court
For the Northern District of California
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As noted previously, Dr.
It is the duty of the Court to instruct you about the measure
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of damages.
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mean to suggest for which party your verdict should be rendered.
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By instructing you on damages, the Court does not
If you find for Dr. Peña, you must determine his damages.
He
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has the burden of proving damages by a preponderance of the
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evidence.
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and fairly compensate him for any injury you find was caused by
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Dr. Bjorndal.
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enjoyment of life experienced; the mental pain and suffering
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experienced and which with reasonable probability will be
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experienced in the future; the reasonable value of earnings lost
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to the present time; and the reasonable value of earnings which
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with reasonable probability will be lost in the future.
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you to determine what damages, if any, have been proved.
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award must be based upon evidence and not upon speculation,
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guesswork or conjecture.
Damages means the amount of money that will reasonably
You should consider the following: the loss of
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It is for
Your
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DAMAGES – MITIGATION
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Dr. Peña has a duty to use reasonable efforts to mitigate
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United States District Court
For the Northern District of California
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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
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cash value of those damages.
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and suffering, are not reduced to present cash value.
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Non-economic damages, such as pain
Present cash value means the sum of money needed now, which,
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when invested at a reasonable rate of return, will pay future
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damages at the times and in the amounts that you find the damages
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will be incurred.
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CONDUCT OF THE JURY
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I will now say a few words about your conduct as jurors.
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First, you are not to discuss this case with anyone,
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including members of your family, people involved in the trial, or
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anyone else.
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are you allowed to permit others to discuss the case with you.
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anyone approaches you and tries to talk to you about the case,
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please let me know about it immediately;
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You may not discuss the case on the internet.
Nor
If
Second, do not read or listen to any news stories, articles,
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radio, television, or anything on the internet about the case or
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about anyone who has anything to do with it;
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Third, do not do any research, such as consulting
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dictionaries, searching the internet or using other reference
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materials, and do not make any investigation about the case on
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your own;
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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
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be until after you have gone to the jury room to decide the case
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and you and your fellow jurors have discussed the evidence.
United States District Court
For the Northern District of California
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Keep
an open mind until then.
Finally, until this case is given to you for your
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deliberation and verdict, you are not to discuss the case with
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your fellow jurors.
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NO TRANSCRIPT AVAILABLE TO JURY
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During deliberations, you will have to make your decision
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based on what you recall of the evidence.
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transcript of the trial. I urge you to pay close attention to the
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testimony as it is given.
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You will not have a
If at any time you cannot hear or see the testimony,
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evidence, questions or arguments, let me know so that I can
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correct the problem.
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TAKING NOTES
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If you wish, you may take notes to help you remember the
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evidence.
If you do take notes, please keep them to yourself
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until you and your fellow jurors go to the jury room to decide the
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case.
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notes should be left in the jury room.
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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.
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Whether or not you take notes, you should rely on your own
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memory of the evidence.
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You should not be overly influenced by your notes or those of your
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fellow jurors.
QUESTIONS TO WITNESSES BY JURORS
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Notes are only to assist your memory.
You may propose written questions to witnesses.
You may
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propose questions in order to clarify the testimony, but you are
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not to express any opinion about the testimony or argue with a
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witness.
United States District Court
For the Northern District of California
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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
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question on a form provided by the court.
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question.
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your breaks.
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determine if it is legally proper.
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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
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will not ask in the wording you submit.
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due to the rules of evidence or other legal reasons, or because
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the question is expected to be answered later in the case.
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do not ask a proposed question, or if I rephrase it, do not
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speculate as to the reasons.
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questions you or other jurors propose.
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answers to those questions in the same manner as you evaluate all
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of the other evidence.
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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
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requesting or suggesting that you do so.
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case that a lawyer has not asked a question because it is legally
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It will often be the
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objectionable or because a later witness may be addressing that
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subject.
OUTLINE OF TRIAL
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The trial will now begin.
First, each side may make an
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opening statement.
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simply an outline to help you understand what that party expects
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the evidence will show.
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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
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counsel may cross-examine the witness.
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presentation of evidence, the Court may, for efficiency reasons,
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require Dr. Bjorndal’s counsel to conduct his examination of the
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witness following Dr. Peña’s examination.
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concluded his presentation of evidence, Dr. Bjorndal may present
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additional evidence, and Dr. Peña’s counsel may cross-examine.
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After the evidence has been presented, I will instruct you on the
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law that applies to the case and the attorneys will make closing
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arguments.
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on your verdict.
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excused.
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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.
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Dated:
CLAUDIA WILKEN
United States District Judge
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