[00:00:00] Speaker 00:
Please the court and counsel.

[00:00:02] Speaker 00:
I'm Janet Schraer and I'm here on behalf of the defendant appellant Southwestern Oregon Community College.

[00:00:08] Speaker 00:
I'm retaining five minutes for my rebuttal time.

[00:00:12] Speaker 00:
Sure.

[00:00:13] Speaker 00:
This is essentially a case that arises out of a grade dispute.

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Nicole Gilliland was a community college nursing student who enrolled at the college in 2017.

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She embarked on a campaign to dispute a zero grade based on plagiarism and the reduction of a grade based on a late submitted paper.

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The college refused to give in to her request to change the grade after

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quite a bit of work on internally holding hearings, interviewing students, looking at other assignments and things like that.

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But when the grade did not get changed, Gilliland ended up failing a class in the spring of 2018.

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And as a result of that, she left.

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She lawyered up that summer.

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And she ended up bringing this claim in 2019.

[00:01:11] Speaker 04:
So we have to take the facts in her favor at this point, don't we?

[00:01:17] Speaker 04:
The jury found in her favor, so when you say she left instead of she was kicked out, that seems sort of... She was invited to re-enroll and she did not re-enroll.

[00:01:29] Speaker 00:
In any event, she's not there anymore and she voluntarily went on to finish

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a poli sci degree online, I believe the following term, and she then went to law school.

[00:01:40] Speaker 00:
I believe she's still in law school and supposed to be graduating this year.

[00:01:44] Speaker 02:
But to follow up on Judge Friedland's question, I think I understand that the college had its version of the facts and she had her version of the facts, but she won.

[00:01:52] Speaker 02:
So I think for you to prevail here, you've got to show us what the error was, not retell the story, but what was the error that requires us to throw out a jury verdict, which is

[00:02:03] Speaker 02:
That's a big ask.

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I'm not saying it's impossible, but that's a big ask.

[00:02:06] Speaker 02:
I think we should focus your time on what was the legal error that requires us to throw out the jury verdict.

[00:02:10] Speaker 00:
There are at least four reasons that the jury verdict should be reversed.

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And we're only talking about the contract claim, not the Title IX claim.

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No one has challenged the Title IX claim.

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But Gilliland had no right to recover in contract under Oregon contract law in the first instance.

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Secondly, the jury's finding of no discrimination, harassment, or retaliation on the Title IX claim cannot be reconciled with its finding that there was a breach of the contract which was related to an investigation of discrimination.

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So if there's no discrimination, investigation of discrimination

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whether done or not, could not have led to anything that would be helpful to her because there was no discrimination to be found on investigation or remedied.

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The other two.

[00:02:58] Speaker 04:
So that assumes that the Title IX definition would be the same as the discrimination under this policy, right?

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It doesn't have to be the same.

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And in this case, if you look at the jury instructions that the jury was given, the Title IX claim definition was broader than that of the discrimination investigation internal policy.

[00:03:24] Speaker 04:
But doesn't that mean the jury would have had to find more things to find the Title IX violation?

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And so they didn't, but they still could find discrimination under the policy?

[00:03:32] Speaker 00:
No.

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The fact that the finding that there was nothing under Title IX

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even with the broadest possible definition, when they said no, there was no discrimination, there was nothing left under the narrower definition of discrimination under the policy that the college had that was left to be found.

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There was nothing different.

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And you'll see from all the instructions the way this was argued, there was never a distinction made before the jury about the kinds of things that would fall within the contract and would fall in turn under Title IX.

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Council admitted they're essentially one and the same.

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They're on all fours.

[00:04:13] Speaker 04:
Well, for example, under Title IX, doesn't an appropriate person need to have knowledge of the harassment?

[00:04:19] Speaker 04:
And I'm not sure that's one of the criteria for just general discrimination under the policy.

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I'm not sure that was something that the jury was involved with making a finding on.

[00:04:29] Speaker 04:
Well, were there jury, can you point us to jury instructions on what they had to find for Title IX?

[00:04:33] Speaker 00:
Absolutely, yes.

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It's in the ER.

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And on ER 86 or 84, starting on 84 are these, protected activity within the context of Title IX includes complaints about gender-based institutional bias or discrimination or complaints to any administrator about professors' unequal treatment, sexual harassment of students on account of students' gender, causal link

[00:05:03] Speaker 00:
which is important to our case, that there's no causal link.

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But causal link under Title IX is, within the context, construed so broadly.

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This is on reading from the instruction on page 84.

[00:05:15] Speaker 00:
So broad that the plaintiff merely has to prove that the protected activity and the negative action are not completely unrelated So it's a very broad definition anything can fall within title 9 related to a showing of discrimination They also have a finding that it has to you'll see on page 85 there's

[00:05:36] Speaker 00:
very explicit instructions relating to harassment.

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And what that means, selective enforcement elements on page 86, deliberate indifference, retaliation.

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Retaliation specifically is called out by plaintiff as being narrower under Title IX, but it's not.

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If you look at it, plaintiff merely has to suffer an adverse action, whereas under the college policy as set out in ER,

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555, the plaintiff must show not just any adverse action, but it has to be as to an educational assignment or study environment of the student complainant.

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So on this record, with these instructions, there is no way they could have found discrimination, retaliation, and harassment, and somehow found the college breached its contract related to discrimination investigation.

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So I think, I mean, the appropriate person language I'm talking about is on ER 86.

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It is part of the instruction.

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I mean, it doesn't seem like they line up exactly.

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It's a little hard for me to go back and forth to every page to see what you're saying, but I think there's language in the Title IX instruction that's not what you would necessarily think the definition of the policy would have to be for just discrimination.

[00:06:58] Speaker 04:
I'm not sure I understand what... I mean, I'm just... There are a lot of factors the jury was told they had to find to find the Title IX claim, and they didn't, but they did find the discrimination claim, and I'm not quite sure I understand why you think that's impossible.

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Because this is broader than what... If you look at what the discrimination policy and harassment policy is, the Title IX is broader, including who you have to make a complaint to.

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And these specifically are not arguments, for one thing, that plaintiff made, nor bases that the trial judge provided.

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But let me back up for a minute.

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I think we have a question over here.

[00:07:40] Speaker 01:
I'm sorry.

[00:07:40] Speaker 01:
So you're saying that under the policy breach of contract claim, there had to be a finding that the actions taken were because of her sex.

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The purpose of the policy, the policy simply is procedural.

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It's what you do if there's a complaint of discrimination.

[00:08:03] Speaker 01:
And only relating to sex though, right?

[00:08:05] Speaker 01:
Because couldn't the jury have found defendant would have allowed plaintiff to continue the program if investigated even though it did not find defendant acted because of plaintiff sex?

[00:08:18] Speaker 00:
No.

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This was a sex discrimination claim

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all the way along.

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And that's what plaintiff's trying to make this now.

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So in hindsight, now that they had the negative finding on the Title IX and the positive on the contract, they're trying to make this into a grade dispute.

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But absolutely not.

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The discrimination and harassment policy that

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they allege was breached, is about discrimination and harassment.

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It is not a grade dispute policy.

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There is a grade dispute policy.

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And once she lawyered up, this plaintiff did not choose to dispute the grade under the college's grade dispute policy.

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If you'll read every reason that she gives why she should continue on with her damages, even though there's no discrimination, it's essentially because they could have found that I

[00:09:03] Speaker 00:
should have won my grade dispute.

[00:09:05] Speaker 00:
Well, it's about discrimination leading to the grades.

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That was the nature of her claim.

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And I can read you from the jury instruction that the judge gave at the beginning of the case.

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And he said it's a Title IX claim.

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Plaintiff contends defendant and its agents illegally and unfairly discriminated against her based on gender stereotypes and used discriminatory methods to expel her from the nursing program due to discriminatory gender stereotypes.

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Plaintiff likewise asserts that defendants alleged discriminatory acts were in breach of contract.

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It is a discrimination case that she chose to bring.

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She did not bring a grade dispute.

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And let me just go real quickly into you don't even need to reach this.

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She doesn't have a contract claim to begin with based on Oregon law.

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This is an Oregon state law case, and Oregon law applies to this case.

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And there's case law in Oregon starting to take case way back over 100 years ago, which said you can

[00:10:06] Speaker 00:
have a contract claim based on regulations or requirements published by a college ahead of time that were relied upon by the plaintiff in enrolling in the school.

[00:10:18] Speaker 00:
Tate case plaintiff made a claim that he didn't get the degree and dental degree that he wanted.

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He sued for specific enforcement.

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The court recognized that because these requirements were published and he was relying on them ahead of time, he in turn

[00:10:35] Speaker 04:
So I know you have this argument that she didn't see the policy before she enrolled, but she does say she saw the policy within her first semester, and she kept paying tuition.

[00:10:45] Speaker 04:
So why isn't there a new contract under Tate every time she pays tuition for every semester?

[00:10:49] Speaker 00:
Again, under Oregon law, the McPhail case specifically says that you can't change a contract in midstream without additional consideration.

[00:11:00] Speaker 00:
And she enrolled in the college not knowing about- Well, she paid tuition every semester.

[00:11:04] Speaker 04:
Why isn't that consideration?

[00:11:06] Speaker 00:
It's not separate consideration because she was already enrolled.

[00:11:09] Speaker 00:
I don't think that's separate consideration as you go along.

[00:11:12] Speaker 00:
The question is, did she have it when she enrolled in the college?

[00:11:15] Speaker 00:
That's the question presented by Tate.

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And she didn't know it ahead of time.

[00:11:19] Speaker 04:
As far as I can tell, Tate doesn't really speak to this particular situation.

[00:11:23] Speaker 04:
And we have kind of an absence of case law from Oregon courts that speak to what kind of contract students have with the university.

[00:11:30] Speaker 04:
But a lot of federal district courts have said that this kind of contract could be a contract.

[00:11:35] Speaker 04:
And why would we assume that the Oregon courts would not follow what the federal district courts have done?

[00:11:39] Speaker 00:
Well, first of all, federal district courts aren't Oregon law.

[00:11:42] Speaker 04:
I understand that, but we have nothing that speaks to this in Oregon law.

[00:11:45] Speaker 04:
So is there any reason to think all these federal district courts have done this wrong?

[00:11:49] Speaker 00:
Well, yes, because they don't follow Oregon law.

[00:11:52] Speaker 00:
And the weaker case is a recent Oregon case about whether you can have an implied, in fact, contract when the patient did not know about the policies of the medical clinic ahead of time, and he tried to sue on a

[00:12:07] Speaker 00:
failure to follow their policy how to discharge him and the court said no that's not an implied contract where there's no evidence that he knew about it before he went to the clinic and it doesn't matter that he knew about it later

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And he continued to seek medical care there.

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I presume he paid for it.

[00:12:23] Speaker 00:
That would be consideration.

[00:12:25] Speaker 00:
But I think the weaker case that is cited in our materials clearly addresses this issue on most recent Oregon contract law.

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So I don't believe you get past there is no contract to enforce.

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And again, even if there is, with a finding of no discrimination here, it simply didn't

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And there was just nothing to investigate to have been found, which in turn would have led to this damages.

[00:12:50] Speaker 00:
I think I'm well into my... Do you want to reserve?

[00:12:53] Speaker 00:
Excuse me?

[00:12:53] Speaker 02:
Do you want to reserve your time?

[00:12:55] Speaker 00:
Yes.

[00:12:55] Speaker 00:
Okay.

[00:12:55] Speaker 00:
Very well.

[00:13:07] Speaker 03:
President DeGioia, Judge Friedland, Judge Reyes, Council, may it please the Court.

[00:13:13] Speaker 03:
My name is Brandon Mark.

[00:13:14] Speaker 03:
I'm of the firm Parsons, Bailey, and Latimer, and I'm proud to represent Nicole Gilliland here before the Ninth Circuit.

[00:13:20] Speaker 03:
I'd like to pick up where the discussion left off, and I can take the, I think the discussion in sort of reverse order.

[00:13:26] Speaker 03:
Of course, I'm happy to take any guidance from the panel.

[00:13:29] Speaker 03:
So starting with Tate, I'd just like to clarify and correct the record.

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Judge Friedland, you said that the records suggested that my client first saw the policy sometime in her first semester.

[00:13:42] Speaker 03:
Actually, the record is pretty clear that my client saw that policy before she enrolled, before she even was in the nursing program.

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And this is at SER 231.

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So the question is,

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So it was, and it was referring to this policy, it was something that you had received in the fall of 2017 and glanced at, but you weren't referencing it.

[00:14:02] Speaker 03:
And fall of 2017 is when my client started the nursing program.

[00:14:05] Speaker 03:
My client corrects him.

[00:14:07] Speaker 03:
Answer, sooner.

[00:14:08] Speaker 03:
I enrolled in 2016.

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I had to do the year of prerequisites.

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And that's referencing her discussion that she saw this policy

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before she enrolled.

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So there's no daylight between the facts in our case and the facts in Tate.

[00:14:21] Speaker 03:
My client received this policy at the outset.

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SER-212, I believe she references as part of the intake documents that she received, and then she matriculated to the college after receiving this policy.

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So there is no difference between the facts in Tate and the facts in this case.

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And again, I understand that the appellants stake a lot of ground in their appeal brief on this idea that my client did not receive it after that or receive it later.

[00:14:52] Speaker 03:
That's not what the facts show.

[00:14:54] Speaker 04:
It seems like it doesn't matter anyway because she definitely saw it sometime before.

[00:14:58] Speaker 04:
She was paying tuition again after she saw it, it seems.

[00:15:01] Speaker 03:
She did, and then after this whole thing first started, she actually went, she knew that the policy existed, and she testified again, and I think this is, I don't have the exact pin site, but she said she went to the place where the dean's office was, where they investigated harassment, and was told to go to talk to Tim Daley, which she then did.

[00:15:19] Speaker 03:
This was before the expulsion hearing.

[00:15:21] Speaker 03:
And then many months later, after nothing had happened, remember, she goes to Tim Daley and finally lays it all out on the line.

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She says, this is my past.

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This is what I've done.

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This is why I think I'm being treated this way.

[00:15:33] Speaker 03:
And that night, the president of the school calls her and says, well, there's no investigation because you've never done a formal investigation.

[00:15:39] Speaker 03:
The next day, she sent the policy again.

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And then a few days later, or maybe the very next day, she sends an email and says, I want to initiate a formal complaint.

[00:15:48] Speaker 03:
Ali McGeehan, the person who is named as the person in the policy, says that's enough to initiate a formal complaint.

[00:15:54] Speaker 03:
And so all of those things together, at some point, a contract was formed in the terms of that contract with the policy.

[00:16:03] Speaker 03:
Now, I'd like to also address this notion that the policy is somehow narrower than Title IX.

[00:16:10] Speaker 03:
So first off,

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Title 9, as we all know, is related only to sex or gender discrimination, right?

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It does not include other types of discrimination or harassment.

[00:16:21] Speaker 03:
The policy on its face, its scope is much broader than that, right?

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college, corrective action will be taken by the college to stop any form of discrimination or harassment.

[00:16:34] Speaker 03:
That's, I believe, in the third sentence of the policy.

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Now, the policy does include a definition of harassment, which is far broader than Title IX, including gender identity as one of the protected classes.

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But as the district court noted, there is no definition of discrimination.

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So when my esteemed counsel says that the definition of

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discrimination is narrow in the policy, there is no definition of discrimination.

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The only thing it says is it'll stop any form of discrimination.

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And again, this was also made clear to the jury as part of the presentation.

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My client was not a lawyer at the time.

[00:17:10] Speaker 03:
She didn't know the ins and outs of Title IX versus sex-based discrimination.

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And if you remember,

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This is one of those sort of bleeding edge cases, you know, in terms of whether this is gender identity discrimination.

[00:17:24] Speaker 03:
My client believes she was discriminated against based upon her history and her work history, right?

[00:17:30] Speaker 03:
And that's not necessarily so clearly sex discrimination.

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And I understand why the jury may have been hung up about that.

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But they could clearly see that there was some discrimination happening here.

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I mean, the facts specifically, and I will also say,

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I disagree with the notion that the retaliation provision is somehow narrower in the policy as well.

[00:17:50] Speaker 03:
The policy, and again, I would go back and you can look at the record, I think my esteemed colleague misrepresents what happened at the trial when she said that there was no distinction made between the policy and Title IX.

[00:18:03] Speaker 03:
In fact, at numerous times during the trial, and these are all cited in our brief, we went through all the steps, the procedural rights that the policy includes that Title IX does not include, and really specifies that once a complaint is made in good faith, and it even says may violate, the initiation of a complaint that may violate this policy,

[00:18:24] Speaker 03:
triggers all these rights, right?

[00:18:26] Speaker 03:
The complaining party's not supposed to know at the outset, am I definitely harassed or discriminated in the policy?

[00:18:32] Speaker 03:
All I know is I feel like I am, I'm coming to the school in good faith, I'm making a complaint, and now I'm asking for protection.

[00:18:39] Speaker 03:
And the facts of the retaliation here cannot be clearer, and they're not rebutted.

[00:18:45] Speaker 03:
What Susan Walker did to my client after calling her unsafe with patience, which was a false accusation, she knew it was, she then

[00:18:52] Speaker 04:
Sorry, can I interrupt you because we've read the facts.

[00:18:55] Speaker 03:
I'm sorry, I know, I know.

[00:18:57] Speaker 04:
So I have a question about the emotional distress damages because emotional distress damages are not usually available in contract and I'm having trouble understanding how the physical pain that was from the suicide attempt is not then, it can count to get you these emotional damages.

[00:19:17] Speaker 03:
Okay, so first of all, I don't know that any of the non-economic damages were for emotional distress.

[00:19:22] Speaker 04:
The jury wasn't asked that question and the jury was allowed to... Well, what are the one million dollars in non-economic damages?

[00:19:27] Speaker 03:
They could be for loss of reputation, harm to reputation.

[00:19:32] Speaker 03:
My client has had to live with being called a cheater, a plagiarizer.

[00:19:36] Speaker 03:
She had to first explain all these to another undergraduate school that let her in.

[00:19:41] Speaker 04:
So it seems though that in the trial and in the

[00:19:45] Speaker 04:
in the district court that everyone was assuming that these were

[00:19:49] Speaker 04:
emotional distress damages because there was the discussion about bodily harm, which only would have mattered if it was emotional distress.

[00:19:54] Speaker 04:
So it seems like you've shifted gears, as far as I can tell.

[00:19:57] Speaker 03:
I don't think that's fair.

[00:19:58] Speaker 03:
I mean, I will say that I probably missed something in the JNOV briefing.

[00:20:02] Speaker 03:
But when you go back and look at the record, I mean, the evidence that we presented about her harmed her reputation, I mean, it's a lot.

[00:20:08] Speaker 03:
And in fact, I had to just write her a letter the other day that's going to go to the Massachusetts bar to explain all of this yet again.

[00:20:14] Speaker 03:
She relives this over and over again.

[00:20:15] Speaker 03:
I think the other component was loss of life activities that have nothing to do with work.

[00:20:21] Speaker 03:
She's had to restart her life.

[00:20:25] Speaker 03:
All this time that she was going to be a nurse and spend all this great family time with her kids at home because she was going to have this great nine to five job, that's all been gone.

[00:20:33] Speaker 03:
Now she's studying on the weekends.

[00:20:35] Speaker 03:
She's studying at night.

[00:20:35] Speaker 03:
She doesn't have quality time.

[00:20:37] Speaker 03:
She's had to relive all of that.

[00:20:38] Speaker 03:
That's another compensable form of non-economic damages that the jury was allowed to write.

[00:20:43] Speaker 03:
I will agree with you that the last

[00:20:45] Speaker 03:
paragraph of that instruction was misplaced.

[00:20:49] Speaker 03:
It really should have gone under the subsection one of that instruction, but I think the jury was smart enough to understand that we didn't have to prove physical injury first to award reputational harm or harm for loss activities.

[00:21:03] Speaker 03:
leaving that all aside.

[00:21:04] Speaker 03:
The case law and the facts, again, and I'd re-emphasize that the standard here is whether the substantial evidence supports the jury's findings of whether or not what happened here could have caused my client to attempt to take her own life.

[00:21:21] Speaker 03:
And it is regrettable.

[00:21:22] Speaker 03:
But the case law, and we cited numerous cases, and even though the appellant suggested those were all Title IX cases, they were not.

[00:21:30] Speaker 03:
across the spectrum, Title IX, Title VII, 1981, negligence actions, Iowa Civil Rights case actions.

[00:21:38] Speaker 03:
In all those cases, the courts have recognized under approximate cause scenario when they... And again, what is the object of this contract?

[00:21:46] Speaker 03:
The very object of a contract is to protect a party from psychic harm, right?

[00:21:51] Speaker 03:
I mean, at its core, yes, maybe there's also some additional things that happen, like grades that are changed to be corrected.

[00:21:58] Speaker 03:
But at its core, what is a discrimination contract to protect somebody from discrimination about?

[00:22:04] Speaker 03:
It's protecting their emotional and psychological well-being.

[00:22:08] Speaker 03:
And so that was the very object of the contract.

[00:22:10] Speaker 04:
You also have economic damages, though, so you have a large chunk of money that's not psychological well-being.

[00:22:17] Speaker 04:
you know, losing the tuition and paying the law school tuition and all these other things.

[00:22:20] Speaker 04:
So, I mean, I don't think you want to say it's only economic, sorry, it's only emotional because then you're going to lose those.

[00:22:25] Speaker 04:
So, I'm not sure what you're saying.

[00:22:28] Speaker 03:
Well, I mean, I think that's the object of it.

[00:22:30] Speaker 03:
But, I mean, obviously in our estimation, if the procedural rights had been, I mean, think about all the things that they could have found if they'd just done one investigation.

[00:22:37] Speaker 03:
And I will say,

[00:22:38] Speaker 03:
My esteemed colleague said that they interviewed students there as they didn't interview anybody.

[00:22:43] Speaker 03:
Jeff Whitey testified.

[00:22:45] Speaker 03:
He was the person who's named in the policy.

[00:22:48] Speaker 03:
The vice president of instruction admitted that not a single person was interviewed.

[00:22:53] Speaker 03:
Not even my client was interviewed.

[00:22:55] Speaker 03:
I mean, and so we believe that, in fact, if the procedural rights had actually been acted upon, that something would have been discovered, including Susan Walker's changing of my client's grade after the fact without any basis.

[00:23:07] Speaker 03:
I mean, she just surreptitiously changes the grade behind the fact.

[00:23:10] Speaker 03:
And so, and if that had been done, then an investigation had actually been done, we believe that these things would have been discovered.

[00:23:17] Speaker 03:
And again, this is like a loss of chance.

[00:23:19] Speaker 01:
I mean, obviously, we don't know for sure.

[00:23:20] Speaker 01:
Let me interrupt, I apologize.

[00:23:21] Speaker 01:
Would that have breached the provisions of the policy?

[00:23:25] Speaker 01:
What have?

[00:23:26] Speaker 01:
What you're describing as having been done, changing the grades and secretly doing things like that.

[00:23:32] Speaker 03:
Well, we believe, sorry, does that explicitly violate the policy?

[00:23:36] Speaker 03:
Yeah.

[00:23:38] Speaker 03:
No.

[00:23:38] Speaker 03:
What violates the policy is the fact that they didn't ever interview anybody about that or look at any of the records about it.

[00:23:44] Speaker 03:
In fact, they never did anything about it.

[00:23:47] Speaker 03:
The last set of communications was my client saying, will you look into this?

[00:23:50] Speaker 03:
And they never got back to her.

[00:23:52] Speaker 03:
because she was ineligible for readmission.

[00:23:54] Speaker 03:
That's SER 809.

[00:23:57] Speaker 03:
This is not a question of whether she could have gotten back in or not.

[00:24:01] Speaker 03:
She was, in Susan Walker's own words, ineligible for readmission because of the two Fs.

[00:24:05] Speaker 03:
That second F that Susan Walker gave her behind the scenes that she asked somebody to investigate, which they never did, that was the straw that broke the back.

[00:24:14] Speaker 03:
That was the reason why she could no longer continue in the program.

[00:24:19] Speaker 02:
Let me ask you, counsel, so this is just hypothetically.

[00:24:22] Speaker 02:
Let's say I agree with you on the contract claim, but on the non-economic damages.

[00:24:29] Speaker 02:
If I'm concerned that maybe there were some things in the mix, maybe some of the non-economic damages are okay for the reasons you said, but let's say I'm concerned that maybe there was some emotional distress that shouldn't have been in the mix.

[00:24:42] Speaker 02:
What do we do if we have a portion of a damage from a jury's verdict that we're a little concerned about, that it may have been some improper consideration?

[00:24:51] Speaker 02:
Do we send it back to the district court?

[00:24:52] Speaker 02:
Does the district court have the opportunity to remit?

[00:24:54] Speaker 02:
Do we have to retry that portion of the case?

[00:24:56] Speaker 02:
What do we do?

[00:24:57] Speaker 03:
Well, I think that actually, Your Honor, unfortunately, given the procedural posture, your only choice is to affirm, because there is no basis for sending this back.

[00:25:05] Speaker 03:
There was no new trial motion made.

[00:25:08] Speaker 03:
That was waived.

[00:25:10] Speaker 03:
That relief is not on the table.

[00:25:12] Speaker 04:
Well, they have appealed the appropriateness of the non-economic damages and I think they have a pretty good argument that you got emotional distress damages and you're not allowed to get emotional distress damages on contract.

[00:25:22] Speaker 04:
So I think we have the ability to vacate that whole part of your damages award and that seems to be validly on appeal right now.

[00:25:29] Speaker 03:
OK, but on what basis would you find that the million dollars is for emotional distress damages?

[00:25:36] Speaker 04:
We would find that they're emotional distress damages because it seems like that's what everyone was assuming.

[00:25:41] Speaker 04:
And it seems like you've argued that it's OK because there's the suicide attempt, which is physical harm.

[00:25:46] Speaker 04:
But I've had a lot of trouble finding any case that allows emotional distress damages when the mental

[00:25:54] Speaker 04:
distress in turn causes the physical distress instead of the other way around.

[00:25:59] Speaker 03:
Right.

[00:25:59] Speaker 03:
And I think that's why the case law in Oregon, if you look at the Keltner case and all of the cases it talks about, they don't talk about causation.

[00:26:06] Speaker 03:
And I think you need to be very clear about looking at the case law.

[00:26:09] Speaker 03:
It talks about

[00:26:10] Speaker 03:
a mental or emotional harm that is attendant to physical harm.

[00:26:13] Speaker 03:
It talks about it being a concomitant with the physical harm.

[00:26:18] Speaker 03:
It does not talk about the physical harm.

[00:26:19] Speaker 04:
But do you have any case that has it in this causal order?

[00:26:21] Speaker 04:
Because all the other ones are like, the doctor breached the contract, and so therefore the person had a medical problem, and then they had emotional distress.

[00:26:28] Speaker 04:
I mean, the contract and the physical harm are very tied.

[00:26:31] Speaker 04:
And that's not true in your way of getting to these damages.

[00:26:35] Speaker 03:
But there's also, okay, but the case law does not suggest, the Oregon case law does not suggest that the causation has to go that direction or that it could not be both, right?

[00:26:44] Speaker 03:
That you have emotional harm that leads somebody to have physical injury and then it leads to more emotional harm.

[00:26:51] Speaker 03:
And I don't know that any of this is for emotional harm.

[00:26:53] Speaker 03:
I mean, some of it could have just been for the physical injury, and for the reputational harm, and for the loss of life activities.

[00:26:59] Speaker 03:
I have no basis for knowing any of this.

[00:27:02] Speaker 02:
So let's get back to my question.

[00:27:03] Speaker 02:
So let's say we are concerned, and you may not agree with it, but let's say we are concerned that some of the damages may have been based on conduct that we don't think is allowable for this type of damage.

[00:27:12] Speaker 02:
What do we do in that situation?

[00:27:14] Speaker 02:
What should we do?

[00:27:15] Speaker 02:
I know you want us to affirm.

[00:27:16] Speaker 02:
Assuming that we think that there was an error there,

[00:27:19] Speaker 02:
How do we fix the error?

[00:27:21] Speaker 02:
Does it go back for a retrial on this particular damages?

[00:27:24] Speaker 02:
Can the district court remit?

[00:27:25] Speaker 02:
And you have to accept the remitter or walk away or ask for a retrial.

[00:27:28] Speaker 02:
What do we do?

[00:27:29] Speaker 03:
I don't know.

[00:27:30] Speaker 03:
I honestly don't know what the right procedural answer is on that.

[00:27:34] Speaker 03:
I'll be honest with you.

[00:27:35] Speaker 03:
I would like to.

[00:27:36] Speaker 03:
I mean, I think that the premise of the question is wrong.

[00:27:39] Speaker 03:
I think that Keltner and all of the organ law says that emotional distress damages would be available in a situation like this.

[00:27:46] Speaker 03:
I mean, I understand that there's no case law, but just because we're the first doesn't mean that it's wrong, right?

[00:27:52] Speaker 03:
I mean, somebody has to break new ground on some of this stuff.

[00:27:55] Speaker 03:
And I mean, I think if you look at the facts, again, the only evidence – and the Ninth Circuit has – this court has affirmed before on under-budded expert evidence of causation on this question.

[00:28:04] Speaker 03:
And so the only evidence on this was that this caused emotional harm, and it caused her suicide attempt, right?

[00:28:11] Speaker 03:
I mean, there's no under-budded evidence – or there's no contrary evidence on this point.

[00:28:16] Speaker 01:
Where in the record do we find that this damage for the non-economic damages could be something other than emotional distress?

[00:28:26] Speaker 03:
All the evidence that we've cited in the record about the reputational harm, all the things that she's said before.

[00:28:31] Speaker 01:
Was that part of the instruction that reputational harm would be a non-economic damage?

[00:28:35] Speaker 01:
Yes.

[00:28:36] Speaker 01:
Well, let me ask you this.

[00:28:37] Speaker 01:
Isn't reputational harm an economic damage?

[00:28:39] Speaker 03:
No, it's a non-economic damage in Oregon.

[00:28:42] Speaker 03:
It's defined, specifically defined by statute as non-economic damage.

[00:28:45] Speaker 03:
As is any loss of life activities that don't relate to gainful employment.

[00:28:51] Speaker 03:
That's also considered non-economic damages.

[00:28:54] Speaker 01:
OK, so you're arguing that the jury could have found not only emotional distress, but non-economic damages in the form of loss of reputation and loss of life activities, because evidence was presented on those two issues, and the instruction instructed the jury that they could consider those as damages that they could award non-economic.

[00:29:13] Speaker 03:
You've done a much better job than I have in articulating my position.

[00:29:16] Speaker 03:
And those were reputational and the loss of activities, they were not disputed.

[00:29:21] Speaker 03:
There was nothing below.

[00:29:22] Speaker 04:
I don't understand how you're – I mean, you admitted this last paragraph is problematic, and I just don't understand how we can get around that it says that the non-economic damages are available to plaintiffs.

[00:29:33] Speaker 04:
This is at ER 89.

[00:29:34] Speaker 04:
available for plaintiff's breach of contract claim if plaintiff proves, and then the second thing is causes bodily harm, and then the third thing is the contract, so the defendant had reason to know when the contract was made that the breach of contract would cause mental suffering for reasons other than mere pecuniary loss.

[00:29:53] Speaker 03:
Yeah, and so that should have said, and I will admit that when that back to the jury, I was like, that should have said emotional distress, non-non-economic damages.

[00:30:01] Speaker 03:
Because those, sorry, those elements come directly from coffee, which comes from the restatement.

[00:30:06] Speaker 03:
The wanton recklessness, that's only for emotional distress.

[00:30:08] Speaker 03:
That doesn't apply to any of the other categories of non-economic damages.

[00:30:13] Speaker 03:
And I will admit

[00:30:14] Speaker 03:
it could have been written better.

[00:30:15] Speaker 03:
But when you think about the error, that actually made it harder because the jury's thinking that I have to prove all those things or may have thought I had to prove all those things for the other category.

[00:30:22] Speaker 03:
So the error, if there is any, actually made my job more difficult because it also put me under a wanton or recklessness standard with regard to the other non-economic damages.

[00:30:31] Speaker 03:
But to be fair, those last paragraphs should have only applied to the emotional distress damages.

[00:30:37] Speaker 03:
It's straight out of the coffee case.

[00:30:39] Speaker 03:
This is what we talked about ad nauseum in the charging instructions was

[00:30:43] Speaker 03:
you know, why did we have to prefer emotional distress damages?

[00:30:46] Speaker 03:
There's no case law that suggests we needed any of those other three elements for any of the other categories.

[00:30:50] Speaker 04:
You're saying the line right ahead of that, that said any injury to plaintiff's reputation, the jury should have understood that it could give those damages without the next paragraph.

[00:31:02] Speaker 03:
Well, yes, yes, and that is legally true.

[00:31:06] Speaker 03:
So as a matter of law, we did not need to prove that it was wanton reckless, that there was a physical injury or any of that for reputational harm or loss of life activity.

[00:31:15] Speaker 03:
And if I didn't make that clear, I'm going to apologize.

[00:31:17] Speaker 03:
That was a instructional error.

[00:31:20] Speaker 03:
What that first line of that last paragraph should have said, in order to award emotional distress damages, they must prove those three things.

[00:31:33] Speaker 02:
Thank you very much, counsel.

[00:31:34] Speaker 02:
Thank you.

[00:31:40] Speaker 00:
So your honor picked up on exactly what I was going to say.

[00:31:43] Speaker 00:
I mean, the instruction, I heard at admission that there's error in the jury instruction.

[00:31:47] Speaker 00:
And we think the jury instruction was correct.

[00:31:52] Speaker 00:
It says you can only recover emotional distress damages or non-economic damages at all, not just emotional distress.

[00:31:59] Speaker 04:
But what do we do about the fact that if that paragraph hadn't been there at all, he could have gotten damages probably for injury to reputation.

[00:32:06] Speaker 04:
So the problem here is we don't really know at this point whether the jury was awarding emotional distress damages improperly or awarding damages for injury to reputation.

[00:32:15] Speaker 00:
Well, first of all, we don't believe they get any emotional distress damages at all.

[00:32:19] Speaker 00:
This says they can only get them if there is a breach caused by bodily harm.

[00:32:24] Speaker 00:
OK, sorry.

[00:32:25] Speaker 04:
I'm going to try to ask my question again, because I don't think you're understanding it.

[00:32:29] Speaker 04:
Say this last paragraph of the instruction on non-economic damages on ER 89 was not there.

[00:32:36] Speaker 04:
So the jury, just imagine that the jury had only been instructed that it was number three, that they could give non-economic damages for injury to plaintiff's reputation, which was number three right at the top of ER 89.

[00:32:50] Speaker 04:
Would that have been improper to tell the jury that they could give non-economic damages for injury to reputation?

[00:32:55] Speaker 00:
Yes, they don't get non-economic damages under Oregon law.

[00:32:59] Speaker 04:
OK, I thought they didn't get emotional distress damages under Oregon law.

[00:33:03] Speaker 04:
What case do you have that says you can't get injured reputation damages under Oregon law?

[00:33:07] Speaker 00:
I believe it doesn't fall within the category of the kind of damages you can receive in contract.

[00:33:13] Speaker 00:
It was not foreseeable based on violation of a discrimination policy in light of the fact that the jury found no discrimination.

[00:33:23] Speaker 00:
So I don't think that translates.

[00:33:26] Speaker 01:
So are you saying that you cannot recover non-economic damages in a contract claim?

[00:33:31] Speaker 01:
In Oregon law?

[00:33:32] Speaker 00:
Here they were not foreseeable.

[00:33:34] Speaker 00:
The non-economic damage claim that they were making were not foreseeable on the contract, if in fact this policy was a contract.

[00:33:42] Speaker 01:
Well, there's a lot of law and foreseeability regarding injury, claims of injury, mental distress, but what about non-economic damages regarding loss of reputation or life activities?

[00:33:55] Speaker 00:
I think in the circumstance, it doesn't, because it doesn't translate because of the nature of the policy that we're talking about.

[00:34:01] Speaker 04:
I think you're arguing on these facts you should lose, but is there any Oregon case that says you cannot recover damages for harm to reputation on a contract?

[00:34:11] Speaker 00:
I can't cite you on right now.

[00:34:13] Speaker 00:
It's probably in the briefing.

[00:34:15] Speaker 00:
I can't cite you on right now.

[00:34:16] Speaker 01:
So you're saying it comes down to foreseeability.

[00:34:18] Speaker 01:
Isn't that a question of fact for the jury?

[00:34:21] Speaker 00:
No, it's a question of law in this case, because this is a discrimination policy.

[00:34:27] Speaker 00:
And because it's a discrimination policy, things that arise out of items that are not discrimination or finding of no discrimination don't apply.

[00:34:38] Speaker 00:
But I want to answer a couple more of your questions that came up.

[00:34:41] Speaker 00:
First of all, counsel said.

[00:34:43] Speaker 00:
Just make it brief, but yes.

[00:34:44] Speaker 00:
OK.

[00:34:46] Speaker 00:
Scott versus Kisling requires a physical impact.

[00:34:50] Speaker 00:
The suicide attempt is not a physical impact by the defendant.

[00:34:54] Speaker 00:
So the bodily harm part of it doesn't.

[00:34:57] Speaker 00:
There's not a legal basis for that in this record.

[00:35:01] Speaker 00:
Council said, well, the policy of the college is different than Title IX because it's unique and it involves the gender identity situation.

[00:35:09] Speaker 00:
The trial accepted that this theory applied under both Title IX as well as under the college's policy.

[00:35:18] Speaker 00:
To answer your question, Judge Friedland, the discrimination and harassment policy are virtually identical, if you look at the two of them.

[00:35:31] Speaker 00:
At ER 86, the jury instruction definition of harassment.

[00:35:35] Speaker 00:
And then on ER 554, on the policy definition of harassment, which requires it be based on a person's race, color, religion, ethnicity, sex, or sexual orientation.

[00:35:47] Speaker 00:
And so the, oh, I'm upset about my grades, is simply not a part of the kind of thing that is to be dealt with under the discrimination and harassment policy that the court allowed to go to the jury and allowed the judgment to be entered on.

[00:36:02] Speaker 00:
So at a minimum, I heard my opposing counsel admit that there's instructional error here.

[00:36:07] Speaker 00:
At a minimum, the contract claim needs to be reversed.

[00:36:11] Speaker 00:
We think a judgment in favor of the college

[00:36:14] Speaker 00:
and against the plaintiff on the contract claim should be entered.

[00:36:17] Speaker 00:
But at a minimum, you send it back to the trial court to harmonize.

[00:36:22] Speaker 04:
So as I read the page of the jury instruction that says Title IX generally and then sex-based harassment, it says under Title IX, where do you think there's a definition of discrimination that is just about the policy of the college as opposed to Title IX?

[00:36:41] Speaker 04:
in the jury instructions?

[00:36:43] Speaker 04:
Is there any definition of discrimination in the jury instructions other than a Title IX policy?

[00:36:49] Speaker 04:
Sorry, other than a Title IX definition.

[00:36:50] Speaker 00:
You mean relating to the contract?

[00:36:52] Speaker 04:
Yeah.

[00:36:53] Speaker 00:
No, but the contract was before them as Exhibit 106, and it expressly says what we're talking about based on color, religion, ethnicity, sex, or sexual orientation.

[00:37:04] Speaker 00:
So the whole fundamental basis of the case was discrimination based on sex here.

[00:37:10] Speaker 00:
That was the only thing that was alleged.

[00:37:12] Speaker 00:
The initial instructions that I read just said that.

[00:37:14] Speaker 00:
OK.

[00:37:14] Speaker 04:
I just wanted to make sure I wasn't missing a jury instruction.

[00:37:15] Speaker 04:
It doesn't sound like I am.

[00:37:16] Speaker 04:
Thank you.

[00:37:17] Speaker 00:
OK.

[00:37:17] Speaker 00:
All right.

[00:37:17] Speaker 00:
Thank you, Counselor, very much to both of you for your briefing and your argument in this case.

[00:37:21] Speaker 02:
This matter is submitted.