R.K. v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, et al - 253

R.K. v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, et al Doc. 253 Case 2:04-cv-02338-RSM Document 253 Filed 02/05/2007 Page 1 of 13 1 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON IN SEATTLE -----------------------------------------------------------) ) Plaintiff, ) ) v. ) ) THE CORPORATION OF THE PRESIDENT ) OF THE CHURCH OF JESUS CHRIST ) OF LATTER-DAY SAINTS ) ) Defendant. ) ) ROBERT KELLY, No. C 04-2338RSM -----------------------------------------------------------11 VERDICT 12 -----------------------------------------------------------13 14 15 16 17 APPEARANCES: 18 For the Plaintiff: 19 20 21 For the Defendant: 22 23 24 25 Charles Gordon and Jeffrey Tilden Attorneys at Law Michael T. Pfau Tim Kosnoff and Michael Rosenberger Attorneys at Law October 12, 2006 BEFORE THE HONORABLE RICARDO S. MARTINEZ Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Dockets.Justia.com Case 2:04-cv-02338-RSM Document 253 Filed 02/05/2007 Page 2 of 13 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 clerk? verdict. THE COURT: Counsel, the jury has indicated a Please bring in the jury. (At this time the jury entered the courtroom.) THE COURT: are the foreperson? JUROR NO. 6: THE COURT: JUROR NO. 6: THE COURT: Yes, your Honor. Has the jury reached a verdict? Yes, they have. Would you hand the jury forms to our Juror Number 6, Mr. Dukenthaler, you The Court will announce the verdict of the jury. Question The following along with the special verdict form: number one: "Did plaintiff commence this action within the Answer: "Yes." period of time required by law?" Question number two: "Do you find that the Answer: "Yes." defendant is negligent in this case?" Question number three: "Was such negligence a Answer: "Yes." proximate cause of injury to plaintiff?" Question four: "Do you find that any of the Answer: following non-parties were negligent in this case?" "Herman Allenbach, yes; Dorothy Kelly, yes; Jerry Kelly, yes." Question five: "Do you find that such negligence, if any, was a proximate cause of injury to plaintiff?" Answer: "Herman Allenbach, yes; Dorothy Kelly, yes; Jerry Kelly, yes. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 253 Filed 02/05/2007 Page 3 of 13 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 jury. Question six: "Do you find that Herman Allenbach was an agent of defendant acting within the scope of his authority with respect to the acts or omissions regarding Mr. Loholt?" Answer: "No." Question eight: "Assume that 100 percent represents the total combined negligence that proximately caused plaintiff's injuries. What percentage of this total negligence is attributable to defendant and what percentage is attributable to each non-party whose fault was found by you, if any?" Answer: "Defendant, 25 percent; Herman Allenbach 45 percent; Dorothy Kelly, Jerry Kelly 15 percent each." Question nine: "What do you find of the amount Answer: $1,400,000." of plaintiff's compensatory damages?" Question ten: What percentage of damages in your answer to question nine were caused by negligent conduct and what percentage were caused by Mr. Loholt's intentional conduct?" intentional 75 percent. The next thing I am going to do is poll the By that I am going to ask you a question, simply to Actually two questions, yes or no. Starting with Juror Number 1, Answer: "Negligent 25 percent, be answered yes or no. All right. Ms. Anderson, is this your verdict? JUROR NO. 1: Yes, it is. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 253 Filed 02/05/2007 Page 4 of 13 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 verdict? verdict? THE COURT: JUROR NO. 1: THE COURT: Is it the verdict of the jury. Yes. Juror Number 2, Ms. Kelly, is your JUROR NO. 2: THE COURT: JUROR NO. 2: THE COURT: your verdict? JUROR NO. 3: THE COURT: JUROR NO. 3: THE COURT: Yes. And the verdict of the jury? Yes. Juror Number 3, Ms. Evans, is this Yes. And the verdict of the jury? Yes. Juror Number 4, Ms. Vant, is this your JUROR NO. 4: THE COURT: JUROR NO. 4: THE COURT: your verdict? JUROR NO. 5: THE COURT: JUROR NO. 5: THE COURT: this your verdict? JUROR NO. 6: Yes. And the verdict of the jury? Yes. Juror Number 5, Mr. Anderson, is this Yes. And the verdict of the jury? Yes. Juror Number 6, Mr. Dukenthaler, is Yes. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 253 Filed 02/05/2007 Page 5 of 13 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: JUROR NO. 6: THE COURT: your verdict? JUROR NO. 7: THE COURT: JUROR NO. 7: THE COURT: your verdict? JUROR NO. 8: THE COURT: JUROR NO. 8: THE COURT: your verdict? JUROR NO. 9: THE COURT: JUROR NO. 9: THE COURT: to be in order. And the verdict of the jury? Yes. Juror Number 7, Mr. Sefas, is this Yes. And the verdict of the jury? Yes. Juror Number 8, Mr. Galvin, is this Yes. And the verdict of the jury? Yes. Juror Number 9, Mr. McGrath, is this Yes. And the verdict of the jury? Yes. Madam Clerk, the verdict form appears The jurors having answered unanimously the All right. verdict form will be accepted by the Court. That completes your service as jurors on this particular case. On behalf of all the judges of our district and certainly on my own behalf, I want to thank you so very much for participating with us in this process. I think a couple of you had been jurors before on other matters, but probably Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 253 Filed 02/05/2007 Page 6 of 13 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 nothing like this. I hope that the process itself, going through this process, sitting in the courtroom listening to the witnesses testify, listening to the attorneys ask questions and get answers showed you how important your role as a juror is in deciding these types of issues. You understand that every now and then judges serve the role of both judge and jury. bench trial. That is called a Sometimes there will be no jury, and I have to decide not only the legal issues but also the factual issues that may come up. That always makes it tough for me. For me it is always better when we have people like you from the community sit and listen to a dispute amongst parties and then resolve that dispute under our system. I think the attorneys put it very well in their closing arguments when they told you about the statistics involving how many people will be called to jury duty. You understand that the system would not function without it. There is nothing magical about the system. is different around the world. countries -jury system. It If you travel to many other There are many countries that do not have the There are some countries that have a jury In Brazil, for example, they The jury system and do it differently. have a jury like this, criminal and civil matters. does not deliberate. At the end of the trial, the minute it is done, the jurors are asked to vote, the majority wins. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 253 Filed 02/05/2007 Page 7 of 13 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 That's all it takes. We have a different system. this system works for us. in the jury system. We believe that I have a deep and abiding belief And it would not work without people like you being willing to give of your time and your effort to do this with us. So I now release you from the Court's earlier instructions. anyone. You are free to discuss this case with You are just as free to say, no thanks, if anyone asks you any questions about it, I don't want to discuss it. The attorneys in federal court are not allowed to have contact with you. you. They are not allowed to talk with But your friends, anyone else, you are free to tell them whatever you want. The notes that you took will be destroyed. If you want them, rip them out, you are free to take them with you. Just remember, now once you leave the courthouse with those particular notes I don't want them just flying everywhere if you understand what I'm saying. The discussion that took place back there is strictly confidential amongst you that make up the jury. So remember that when you discuss the matter, if you choose to discuss the matter with anyone else, a certain amount of confidential information that may have been given to you by other people back there, and how you relay that to other Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 253 Filed 02/05/2007 Page 8 of 13 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 people I think is sometimes a very sensitive thing. think about it before you start making comments. So just Other than that, as I said, you are free to discuss it with anyone, you are just as free to say no thanks, I care to make no comment, and no one will ask you anything further. Just do me one favor, and for the other judges of this district, for all the judges in our state, if you ever hear of anyone saying to you, oh, I just got this summons in the mail to go to jury duty, and I am trying to figure out how to get out of it, before you answer how to get out of it, you tell them what your experience was like, whether you found it good, bad, frustrating, whatever. tell them what your experience was like. You But also remind them that if everybody gets out of it then we don't have the jury system that we need to be able to make these very difficult decisions. Thank you all so very much. You are excused. (At this time the jury left the courtroom.) THE COURT: You may be seated. Counsel, the jurors had sent out several other additional questions today, aside from the one we spoke of the other day. The questions were fairly easily answered by this Court, but I want you to see them. We have obviously got records of I want you to see them and every question they sent out. see the answers that the Court sent back before you will be Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 253 Filed 02/05/2007 Page 9 of 13 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 excused. Counsel, as you remember, the very first question they sent out, "can we obtain a copy of the law regarding the statute of limitations as referenced in Instruction Numbers 24 and 25?" And we discussed that one. And the Court's response was to actually send in a copy of the statute. The other question was -MR. KOSOFF: Your Honor, before you go on to the next one I would like to the record to reflect in that conference call we had about that instruction that we asked the Court to provide the additional statute of limitations instructions, but also, short of that, that the Court give them the entire statute with the legislative intent findings as well. And I understand that didn't become an issue with the jury, but I would like the record to reflect that we did ask the Court to reconsider giving them the entire instructions on statute of limitations, and the Court declined to do that. THE COURT: Yes, you did. For purposes of our record, let me indicate the defense actually objected to having anything further going into the jury regarding anything further from that statute. As it turns out, Mr. Kosnoff, it didn't have an impact here. The next question that came out from the jury, actually a series of questions -You are going to have to Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 253 Filed 02/05/2007 Page 10 of 13 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 be looking at your verdict form to follow the questions. The question is: correct question? "Question number seven, is this the It appears it is almost a duplicate of number eight, except one of the answers for number eight includes Herman Allenbach as an option for non-party. Should there be another question for number seven?" Court's response: six." Question two: "If we choose to award damages, The "Please reread, questions four, five and can we require Mr. Kelly to attend treatment therapy as a condition of the award? payments?" Question three: "Can we get copies of testimony If so, can we require annualized from the following, Rochelle Cope, Julie Ellis, Jovine Umali?" Question four: "Do we have the option to answer the questions in the special verdict form with answers that are not indicated? The Court's response: two, three and four is no." And the final question that came out -- actually the penultimate question that came out: "End of case "The answer to questions instructions ask us to determine the amount of money that will reasonably and fairly compensate the plaintiff for such damages as you find were proximately caused by the Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 253 Filed 02/05/2007 Page 11 of 13 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 defendant. Are the answers to satisfy the instructions and question number nine of the special verdict form the same dollar amount?" The Court's response: Final question: "Yes." "Is the amount to be indicated in question nine the amount to be paid by the defendant or is this an amount to be further divided by previously indicated percentages as in question eight?" The Court's response: your special verdict form." These are actually made a part of the record. Anything further, Counsel? MR. TILDEN: MR. KOSOFF: THE COURT: Nothing, your Honor. Nothing further. Gentleman, I want to say one thing. "Please carefully review These are difficult cases, no doubt about it, from both sides. A lot of emotion. Everybody acknowledges that It is not deserved by any Mr. Kelly went through a lot. person, much less any kid. From my perspective, I just want to say that it has been a pleasure to have such competent counsel in a case like this. When I came to federal court I had such high hopes that this is what I would see all the time. Unfortunately it doesn't quite work out that way. I I am really glad we had a jury to make this determination. am glad I didn't have to make this kind of factual Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 253 Filed 02/05/2007 Page 12 of 13 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 determination. But it was an absolute pleasure watching very good, professional individuals practicing their craft in front of me. Thank you. Thank you. We will be in recess. (Adjourned.) MR. PFAU: THE COURT: Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 253 Filed 02/05/2007 Page 13 of 13 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATE I, Barry L. Fanning, Official Court Reporter, do hereby certify that the foregoing transcript is true and correct. S/Barry L. Fanning ____________________________ Barry L. Fanning