VOLUME 8 PAGES 1242 - 1308 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE YVONNE GONZALEZ ROGERS, JUDGE CIARA NEWTON, ) ) PLAINTIFF, ) ) VS. ) ) EQUILON ENTERPRISES LLC DBA ) SHELL OIL PRODUCTS, ) ) ) DEFENDANT. ) ____________________________) NO. C-17-3961 YGR WEDNESDAY, DECEMBER 19, 2018 OAKLAND, CALIFORNIA JURY TRIAL REPORTER'S TRANSCRIPT OF PROCEEDINGS APPEARANCES: FOR PLAINTIFF: BY: DICKSON GEESMAN LLP 1999 HARRISON STREET, SUITE 1945 OAKLAND, CALIFORNIA 94612 EMILY A. NUGENT, ESQUIRE BY: FOR DEFENDANT: BY: REPORTED BY: MINNIS & SMALLETS LLP 369 PINE STREET, SUITE 500 SAN FRANCISCO, CALIFORNIA 94104 SONYA L. SMALLETS, ESQUIRE EVEN R. ETHINGHOFF, ESQUIRE LAFAYETTE & KUMAGAI LLP 1300 CLAY STREET, SUITE 810 OAKLAND, CALIFORNIA 94612 GARY T. LAFAYETTE, ESQUIRE BARBARA L. LYONS, ESQUIRE DIANE E. SKILLMAN, CSR 4909, RPR, FCRR OFFICIAL COURT REPORTER TRANSCRIPT PRODUCED BY COMPUTER-AIDED TRANSCRIPTION DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1243 1 I N D E X 2 PAGE VOL. 3 VERDICT 1245 8 4 INSTRUCTIONS 1248 8 5 CLOSING ARGUMENT (PHASE 2) BY MS. NUGENT 1260 8 6 CLOSING ARGUMENT (PHASE 2) BY MR. LAFAYETTE 1268 8 7 REBUTTAL CLOSING ARGUMENT (PHASE 2) MS. NUGENT 1291 8 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1244 1 WEDNESDAY, DECEMBER 19, 2018 12:30 P.M. 2 P R O C E E D I N G S 3 (PROCEEDINGS HELD OUTSIDE THE PRESENCE OF THE JURY.) 4 THE COURT: 5 MR. LAFAYETTE: 6 MS. NUGENT: 7 THE COURT: 8 9 10 11 GOOD AFTERNOON, EVERYONE. GOOD AFTERNOON. GOOD AFTERNOON. WE HAVE A VERDICT FROM THE JURY. I THOUGHT THAT BEFORE I CALLED THEM IN I WOULD LET YOU KNOW THAT I SEE THAT THERE ARE THINGS THAT WERE FILED ON THE DOCKET WITH RESPECT TO PUNITIVES LIABILITY. AS I INDICATED BEFORE, I'M GOING TO -- I DON'T KNOW WHAT 12 THE VERDICT IS, BUT TO THE EXTENT THAT A PUNITIVES FINDING IS 13 POSSIBLE, I AM GOING TO INSTRUCT THE JURY AS SUCH. 14 TO DEAL WITH IT POST-TRIAL, I WILL DO SO. 15 TO WASTE THE OPPORTUNITY TO HAVE THE JURY WEIGH IN ON THAT 16 QUESTION. 17 BUT I'M NOT GOING I UNDERSTAND THAT IT LOOKS LIKE THE PLAINTIFFS JUST FILED 18 SOMETHING. 19 RECEIVED A COURTESY COPY. I HAVEN'T EVEN HAD A CHANCE TO READ IT. ALL RIGHT. 21 (PROCEEDINGS HELD IN THE PRESENCE OF THE JURY.) CALL THE JURY IN. 22 THE CLERK: ALL RISE. 23 THE COURT: GOOD AFTERNOON. 25 RECORD. I JUST SO, WE'RE GOING TO MOVE FORWARD. 20 24 IF I NEED YOU MAY BE SEATED. WE ARE BACK ON THE THE RECORD WILL REFLECT THE JURY IS WITH US. FOREPERSON, NO. 2, RIGHT? I UNDERSTAND YOU HAVE A DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1245 1 UNANIMOUS VERDICT. 2 JUROR: 3 THE COURT: OKAY. THE CLERK: LADIES AND GENTLEMEN OF THE JURY, YOU 4 WE DO, YOUR HONOR. HAND THIS TO THE COURTROOM DEPUTY TO READ. 5 6 WILL LISTEN TO THE VERDICT -- I'M SORRY, YOU WILL LISTEN TO 7 THE READING OF THE VERDICT. 8 9 WE ARE CALLING C-17-3961 CIARA NEWTON VERSUS EQUILON ENTERPRISES, LLC, DOING BUSINESS AS SHELL OIL PRODUCTS U.S. 10 11 WE, THE JURY, IN THE ABOVE-ENTITLED CASE, UNANIMOUSLY RENDER THE FOLLOWING VERDICTS: 12 QUESTION NO. 1. DID CIARA NEWTON ESTABLISH HER FIRST 13 CLAIM FOR HARASSMENT BASED ON GENDER BY A PREPONDERANCE OF THE 14 EVIDENCE? 15 YES. QUESTION NO. 2. DID CIARA NEWTON ESTABLISH HER SECOND 16 CLAIM OF GENDER DISCRIMINATION BY A PREPONDERANCE OF THE 17 EVIDENCE? 18 NO. QUESTION NO. 3. DID CIARA NEWTON ESTABLISH HER THIRD 19 CLAIM OF FEHA RETALIATION BY A PREPONDERANCE OF THE EVIDENCE? 20 NO. 21 22 23 24 25 IF YOU ANSWERED "NO" TO ALL THE QUESTIONS 1, 2 AND 3, PLEASE PROCEED TO QUESTION 5. IF YOU ANSWERED "YES" TO ANY OF QUESTIONS 1, 2 OR 3, PLEASE ANSWER QUESTION 4. QUESTION 4. DID CIARA NEWTON ESTABLISH HER FOURTH CLAIM DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1246 1 FOR FAILURE TO PREVENT HARASSMENT DISCRIMINATION OR 2 RETALIATION BY A PREPONDERANCE OF THE EVIDENCE? 3 YES. YOUR HONOR, THEY ALSO DID ANSWER 5. 4 THE COURT: THAT WOULD BE APPROPRIATE. 5 THE CLERK: DID CIARA NEWTON ESTABLISH HER FIFTH 6 CLAIM OF WHISTLEBLOWER RETALIATION BY A PREPONDERANCE OF THE 7 EVIDENCE AND DEFENDANT FAILED TO ESTABLISH BY CLEAR AND 8 CONVINCING EVIDENCE THAT IT WOULD HAVE TERMINATED CIARA NEWTON 9 ANYWAY AT THAT TIME FOR LAWFUL INDEPENDENT REASONS? 10 PLEASE SIGN AND DATE BELOW AND GIVE THIS VERDICT FORM TO 11 THE CLERK. 12 NO. 2. 13 14 NO. IT'S DATED DECEMBER 19TH, 2018, FOREPERSON JUROR THE COURT: LADIES AND GENTLEMEN OF THE JURY, ARE THE VERDICTS AS JUST READ YOUR TRUE AND CORRECT, VERDICTS? 15 JURORS: 16 THE COURT: 17 MR. LAFAYETTE: 18 MS. NUGENT: 19 THE COURT: IF THE COURTROOM DEPUTY WILL POLL THE THE CLERK: YES, YOUR HONOR. 20 YES, YOUR HONOR. YES, YOUR HONOR. JUROR NO. 1, FRANK LUNA, WHAT IS YOUR VERDICT? 23 JUROR NO. 1: 24 THE CLERK: 25 COUNSEL, DO YOU WANT THE JURY POLLED? JURY. 21 22 YES. YES. JOSHUA THELIN, JUROR NO. 2, WHAT IS YOUR VERDICT? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1247 1 I'M SORRY. 2 JUROR NO. 2: 3 THE COURT: 4 YES. LET ME ASK IT SEPARATELY. WE'LL ASK IT A SLIGHTLY DIFFERENT WAY. 5 JUROR NO. 2: 6 THE COURT: I'M SORRY, WITH REGARD TO CLAIM 1? LET ME ASK THIS QUESTION: AS I CALL YOUR 7 JUROR NUMBER, PLEASE INDICATE BY SAYING "YES" OR "NO" IF THE 8 VERDICTS AS WE JUST READ THEM ARE YOUR TRUE AND INDIVIDUAL 9 VERDICTS. 10 JUROR NO. 1? 11 JUROR NO. 1: 12 THE COURT: 13 JUROR NO. 2: 14 THE COURT: 15 JUROR NO. 3: 16 THE COURT: 17 JUROR NO. 4: 18 THE COURT: 19 JUROR NO. 5: 20 THE COURT: 21 JUROR NO. 6: 22 THE COURT: 23 JUROR NO. 7: 24 THE COURT: 25 JUROR NO. 8: YES. JUROR NO. 2? YES. JUROR NO. 3? YES. JUROR NO. 4? YES. JUROR NO. 5? YES. JUROR NO. 6? YES. JUROR NO. 7? YES. JUROR NO. 8? YES. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1248 1 THE COURT: ALL RIGHT. THE JURY HAS BEEN POLLED AND 2 I FIND THE VOTE IS UNANIMOUSLY AFFIRMED. 3 RECORD THE VERDICTS. THE DEPUTY CLERK CAN 4 THE CLERK: YOUR HONOR, THE VERDICTS ARE RECORDED. 5 THE COURT: IF YOU WILL FILE STAMP IT FOR ME. 6 7 ANYBODY WANT THEM REREAD NOW THAT WE HAVE RECORDED THE ORIGINAL? 8 MS. NUGENT: 9 THE COURT: NO, YOUR HONOR. MR. LAFAYETTE? 10 MR. LAFAYETTE: 11 THE COURT: 12 NO, YOUR HONOR. OKAY. ALL RIGHT. NOW, I HAVE MORE INSTRUCTIONS FOR YOU. BECAUSE I DIDN'T 13 KNOW WHAT YOUR VERDICT WAS GOING TO BE, I DON'T HAVE COPIES 14 FOR YOU, BUT I WILL SEND COPIES IN. 15 OKAY? I'M GOING TO GIVE YOU SOME INSTRUCTIONS. I'M GOING TO LET 16 THE PARTIES DO A SHORT ARGUMENT WITH RESPECT TO WHAT I'M GOING 17 TO INSTRUCT YOU ON, AND THEN YOU'LL GO BACK IN AND DELIBERATE 18 SOME MORE. 19 SO NOW THAT YOU HAVE DECIDED THAT CIARA NEWTON HAS PROVED 20 AT LEAST ONE CLAIM AGAINST DEFENDANT EQUILON ENTERPRISES DOING 21 BUSINESS AS SHELL OIL PRODUCTS U.S., YOU MUST DECIDE HOW MUCH 22 MONEY WILL REASONABLY COMPENSATE CIARA NEWTON FOR HER HARM. 23 THIS COMPENSATION IS CALLED DAMAGES. 24 THE AMOUNT OF DAMAGES MUST INCLUDE AN AWARD FOR EACH ITEM 25 OF HARM THAT WAS CAUSED BY DEFENDANT'S WRONGFUL CONDUCT, EVEN DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1249 1 2 IF THE PARTICULAR HARM COULD NOT HAVE BEEN ANTICIPATED. CIARA NEWTON DOES NOT HAVE TO PROVE THE EXACT AMOUNT OF 3 DAMAGES THAT WILL PROVIDE REASONABLE COMPENSATION FOR THE 4 HARM. 5 DAMAGES. 6 HOWEVER, YOU MUST NOT SPECULATE OR GUESS IN AWARDING THE ARGUMENTS OF THE ATTORNEYS ARE NOT EVIDENCE OF 7 DAMAGES. 8 APPLIED TO THE TESTIMONY OF THE WITNESSES AND THE OTHER 9 EVIDENCE THAT HAS BEEN ADMITTED DURING TRIAL. 10 YOUR AWARD MUST BE BASED ON YOUR REASONED JUDGMENT FURTHER, YOU MUST NOT CONSIDER OR INCLUDE AS ANY PART OF 11 ANY AWARD ATTORNEYS' FEES OR EXPENSES THAT THE PARTIES 12 INCURRED IN BRINGING OR DEFENDING THE LAWSUIT. 13 CIARA NEWTON SEEKS DAMAGES FROM THE DEFENDANT UNDER MORE 14 THAN ONE LEGAL THEORY. 15 AWARDED ONLY ONCE, EVEN IF PLAINTIFF HAS PROVED LIABILITY ON 16 MORE THAN ONE LEGAL THEORY. 17 HOWEVER, EACH ITEM OF DAMAGES MAY BE THE FOLLOWING ITEMS OF DAMAGES ARE RECOVERABLE ONLY ONCE. 18 ONE, PAST LOST EARNINGS, TWO, FUTURE LOST EARNINGS AND, THREE, 19 PAST AND FUTURE MENTAL SUFFERING AND EMOTIONAL DISTRESS. 20 CIARA NEWTON SEEKS RECOVERY OF ALL THREE ITEMS OF DAMAGES. 21 SO, FIRST, TO RECOVER DAMAGES FOR PAST LOST EARNINGS, 22 CIARA NEWTON MUST PROVE THE AMOUNT OF INCOME, EARNINGS, 23 SALARY, WAGES, AND/OR BENEFITS THAT SHE HAS LOST TO DATE. 24 25 TWO, TO RECOVER DAMAGES FOR FUTURE LOST EARNINGS, CIARA NEWTON MUST PROVE THE AMOUNT OF INCOME, EARNING, SALARY, DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1250 1 WAGES, AND/OR BENEFITS SHE WILL REASONABLY -- SHE WILL BE 2 REASONABLY CERTAIN TO LOSE IN THE FUTURE AS A RESULT OF 3 DEFENDANT EQUILON ENTERPRISE'S ACTIONS. 4 IF YOU DECIDE THAT CIARA NEWTON'S HARM INCLUDES FUTURE 5 LOST EARNINGS, THEN THE AMOUNT OF THOSE EARNINGS -- AMOUNT OF 6 THOSE FUTURE LOST EARNINGS MUST BE REDUCED TO THEIR PRESENT 7 CASH VALUE. 8 WILL, THROUGH INVESTMENT, GROW TO A LARGER AMOUNT IN THE 9 FUTURE. 10 THIS IS NECESSARY BECAUSE MONEY RECEIVED NOW DEFENDANT MUST PROVE THE AMOUNT BY WHICH LOST EARNINGS 11 SHOULD BE REDUCED TO PRESENT VALUE. 12 PRESENT CASH VALUE, YOU MUST DETERMINE THE AMOUNT OF MONEY 13 THAT, IF REASONABLY INVESTED TODAY, WILL PROVIDE CIARA NEWTON 14 WITH THE AMOUNT OF HER FUTURE LOST EARNINGS. 15 16 17 TO PRESENT -- TO FIND YOU MAY CONSIDER EXPERT TESTIMONY IN DETERMINING THE PRESENT CASH VALUE OF FUTURE LOST EARNINGS. LAST, NUMBER THREE. TO RECOVER DAMAGES FOR PAST AND 18 FUTURE MENTAL SUFFERING AND EMOTIONAL DISTRESS, NO FIXED 19 STANDARD EXISTS TO DECIDE THE AMOUNT. 20 JUDGMENT TO DECIDE A REASONABLE AMOUNT BASED ON THE EVIDENCE 21 AND YOUR COMMON SENSE. 22 YOU MUST USE YOUR TO RECOVER FOR FUTURE MENTAL SUFFERING OR EMOTIONAL 23 DISTRESS, CIARA NEWTON MUST PROVE THAT SHE IS REASONABLY 24 CERTAIN TO SUFFER THAT FUTURE HARM. 25 FOR FUTURE MENTAL SUFFERING OR EMOTIONAL DISTRESS, DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1251 1 DETERMINE THE AMOUNT IN CURRENT DOLLARS PAID AT THE TIME OF 2 THE JUDGMENT THAT WILL COMPENSATE HER FOR FUTURE MENTAL 3 SUFFERING OR EMOTIONAL DISTRESS. 4 SUFFERING OR EMOTIONAL DISTRESS DAMAGES SHOULD NOT BE FURTHER 5 REDUCED TO PRESENT CASH VALUE. 6 THE AMOUNT OF FUTURE MENTAL WITH RESPECT TO HER FIRST CLAIM IN WHICH YOU FOUND IN 7 FAVOR OF HER, THE FOLLOWING INSTRUCTION APPLIES. 8 YOU WILL HAVE ALL THIS IN WRITING INSIDE THE JURY ROOM. 9 AND, AGAIN, IF CIARA NEWTON PROVES, AS YOU HAVE FOUND, THAT A 10 SUPERVISOR HARASSED HER BASED ON HER GENDER, DEFENDANT EQUILON 11 ENTERPRISES IS RESPONSIBLE FOR HARM TO CIARA NEWTON CAUSED BY 12 THAT HARASSMENT. 13 HOWEVER, DEFENDANT CLAIMS THAT CIARA NEWTON COULD HAVE 14 AVOIDED SOME OR ALL OF THE HARM WITH REASONABLE EFFORT. 15 SUCCEED, DEFENDANT EQUILON ENTERPRISES MUST PROVE ALL OF THE 16 FOLLOWING: 17 TO ONE, THAT THE DEFENDANT TOOK REASONABLE STEPS TO PREVENT 18 AND CORRECT WORKPLACE GENDER HARASSMENT, TWO, THAT CIARA 19 NEWTON UNREASONABLY FAILED TO USE THE PREVENTIVE AND 20 CORRECTIVE MEASURES FOR GENDER HARASSMENT THAT DEFENDANT 21 PROVIDED AND, THREE, THAT THE REASONABLE USE OF DEFENDANT'S 22 PROCEDURES WOULD HAVE PREVENTED SOME OR ALL OF CIARA NEWTON'S 23 HARM. 24 25 YOU SHOULD CONSIDER THE REASONABLENESS OF CIARA NEWTON'S ACTIONS IN LIGHT OF THE CIRCUMSTANCES FACING HER AT THE TIME, DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1252 1 INCLUDING HER ABILITY TO REPORT THE CONDUCT WITHOUT FACING 2 UNDUE RISK, EXPENSE, OR HUMILIATION. 3 4 5 THIS INSTRUCTION, THIS NEXT ONE, APPLIES TO HER FOURTH CLAIM IN WHICH YOU FOUND IN HER FAVOR. DEFENDANT EQUILON CLAIMS THAT IF CIARA NEWTON IS ENTITLED 6 TO DAMAGES, THE DAMAGES SHOULD BE REDUCED BY THE AMOUNT THAT 7 SHE COULD HAVE EARNED FROM OTHER EMPLOYMENT. 8 DEFENDANT MUST PROVE ALL OF THE FOLLOWING: 9 TO SUCCEED, ONE, THAT EMPLOYMENT SUBSTANTIALLY SIMILAR TO CIARA 10 NEWTON'S FORMER JOB WAS AVAILABLE TO HER, TWO, THAT CIARA 11 NEWTON FAILED TO MAKE REASONABLE EFFORTS TO SEEK THIS 12 EMPLOYMENT AND, THREE, THE AMOUNT THAT CIARA NEWTON COULD HAVE 13 EARNED FROM THIS EMPLOYMENT. 14 IN DECIDING WHETHER THE EMPLOYMENT WAS SUBSTANTIALLY 15 SIMILAR, YOU SHOULD CONSIDER, AMONG OTHER FACTORS, WHETHER, A, 16 THE NATURE OF THE WORK WAS DIFFERENT FROM CIARA NEWTON'S 17 EMPLOYMENT WITH THE DEFENDANT, B, THE NEW POSITION WAS 18 SUBSTANTIALLY INFERIOR TO HER FORMER POSITION, C, THE SALARY, 19 BENEFITS, AND HOURS OF THE JOB WERE SIMILAR TO HER FORMER JOB, 20 D, THE NEW POSITION REQUIRED SIMILAR SKILLS, BACKGROUND, AND 21 EXPERIENCE, E, THE JOB RESPONSIBILITIES WERE SIMILAR AND, F, 22 THE JOB WAS IN THE SAME LOCALITY. 23 NOW THAT YOU HAVE DECIDED THAT THE DEFENDANT'S CONDUCT 24 CAUSED CIARA NEWTON HARM, YOU MUST ALSO DECIDE WHETHER CIARA 25 NEWTON HAS PROVED THAT THE DEFENDANT, AS AN EMPLOYER, IS DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1253 1 GUILTY OF MALICE, FRAUD, OR OPPRESSION BASED UPON THE CONDUCT 2 OF ONE OR MORE OF ITS EMPLOYEES. 3 YOU MAY FIND AN EMPLOYER GUILTY OF OPPRESSION, MALICE, OR 4 FRAUD BASED UPON CONDUCT OF AN EMPLOYEE, BUT ONLY IF, YOU FIND 5 BY CLEAR AND CONVINCING EVIDENCE THAT, ONE, THE CONDUCT OF THE 6 EMPLOYEE WAS DONE WITH OPPRESSION, MALICE, OR FRAUD AND, TWO, 7 THE EMPLOYER AUTHORIZED OR RATIFIED THE CONDUCT FOUND TO BE 8 OPPRESSION, MALICE, OR FRAUD. 9 WHEN THE EMPLOYER IS A CORPORATION, THE AUTHORIZATION OR 10 RATIFICATION MUST BE DONE BY AN OFFICER, DIRECTOR, OR MANAGING 11 AGENT OF THE CORPORATION. 12 13 14 FOR PURPOSES OF THIS INSTRUCTION, THE FOLLOWING DEFINITIONS APPLY: THE TERM "MANAGING AGENT" INCLUDES ONLY THOSE CORPORATE 15 EMPLOYEES WHO EXERCISE SUBSTANTIAL INDEPENDENT AUTHORITY AND 16 JUDGMENT IN THEIR CORPORATE DECISION MAKING SO THAT THEIR 17 DECISIONS ULTIMATELY DETERMINE CORPORATE POLICY. 18 TO HIRE AND FIRE EMPLOYEES IS NOT IN AND OF ITSELF SUFFICIENT. 19 CORPORATE LIABILITY FOR PUNITIVE DAMAGES DOES NOT DEPEND UPON 20 AN EMPLOYEE'S MANAGERIAL LEVEL, BUT ON THE EXTENT TO WHICH 21 THAT EMPLOYEE EXERCISES SUBSTANTIAL DISCRETIONARY AUTHORITY 22 OVER DECISIONS THAT ULTIMATELY DETERMINE CORPORATE POLICY. 23 IN THIS CASE, PLAINTIFF ARGUES THAT MICHAEL BECK WAS A THE ABILITY 24 MANAGING AGENT OF DEFENDANT. 25 YOU SHOULD EVALUATE WHETHER THAT PERSON WAS A MANAGING AGENT. IN APPLYING THESE INSTRUCTIONS, DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1254 1 "RATIFICATION" IS -- OR MEANS THE CONFIRMATION AND 2 ACCEPTANCE OF A PREVIOUS ACT. 3 CONFIRM AND ACCEPT THAT WHICH IT DOES NOT ACTUALLY KNOW ABOUT. 4 IN ORDER TO ESTABLISH RATIFICATION, PLAINTIFF MUST PROVE THAT 5 AN OFFICER, DIRECTOR, OR MANAGING AGENT HAD ACTUAL KNOWLEDGE 6 OF THE MALICIOUS CONDUCT AND ITS OUTRAGEOUS CHARACTER. 7 A CORPORATION CANNOT AFFIRM -- NEXT, "MALICE" MEANS CONDUCT DONE WITH THE INTENT TO CAUSE 8 INJURY OR CONDUCT THAT WAS DESPICABLE AND DONE WITH A WILLFUL 9 AND KNOWING DISREGARD OF THE RIGHTS OR SAFETY OF CIARA NEWTON. 10 A PERSON ACTS WITH KNOWING DISREGARD WHEN HE OR SHE IS AWARE 11 OF THE PROBABLE DANGEROUS CONSEQUENCES OF HIS OR HER CONDUCT 12 AND DELIBERATELY FAILS TO AVOID THOSE CONSEQUENCES. 13 NEXT, "OPPRESSION" MEANS CONDUCT THAT WAS DESPICABLE AND 14 SUBJECTED CIARA NEWTON TO CRUEL AND UNJUST HARDSHIP IN KNOWING 15 DISREGARD OF HER RIGHTS. 16 NEXT, FRAUD. "FRAUD" MEANS INTENTIONALLY MISREPRESENTING 17 OR CONCEALING A MATERIAL FACT AND DOING SO WITH THE INTENT TO 18 HARM CIARA NEWTON. 19 NEXT, DESPICABLE. "DESPICABLE CONDUCT" MEANS CONDUCT THAT 20 IS SO VILE, BASE, OR CONTEMPTIBLE THAT IT WOULD BE LOOKED DOWN 21 ON AND DESPISED BY REASONABLE PEOPLE. 22 PROOF BY CLEAR AND CONVINCING EVIDENCE MEANS THAT 23 PLAINTIFF MUST PRESENT EVIDENCE THAT LEAVES YOU WITH A FIRM 24 BELIEF OR CONVICTION THAT IT IS HIGHLY PROBABLE THAT THE 25 FACTUAL CONTENTIONS OF THE CLAIM ARE TRUE. THIS IS A HIGHER DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1255 1 STANDARD OF PROOF THAN PROOF BY A PREPONDERANCE EVIDENCE, BUT 2 IT DOES NOT REQUIRE PROOF BEYOND A REASONABLE DOUBT. 3 ALL RIGHT. I'M GOING TO ALLOW THE ATTORNEYS TO MAKE SOME 4 ARGUMENT WITH RESPECT TO THESE PHASE OF QUESTIONS. 5 NOT BE TOO LONG SINCE IT'S LIMITED IN SCOPE. 6 7 MR. LAFAYETTE: IT WILL I HAVE A COMMENT, YOUR HONOR. I NEED TO MAKE IT BEFORE WE GIVE THE ARGUMENT. 8 THE COURT: 9 (DISCUSSION HELD AT SIDEBAR; NOT REPORTED.) 10 THE COURT: ALL RIGHT, SIDEBAR. LADIES AND GENTLEMEN, BEFORE I HAVE 11 ARGUMENT, I NEED YOU TO LEAVE THE COURTROOM FOR A FEW MINUTES 12 AND I'LL BE CALLING YOU BACK FOR THE ARGUMENT. 13 BEAR WITH US. 14 (PROCEEDINGS HELD OUTSIDE THE PRESENCE OF THE JURY.) 15 16 THE CLERK: REMAIN SEATED. COME TO ORDER. COURT IS BACK IN SESSION. 17 THE COURT: ALL RIGHT. THE SIDEBAR CONCERNED THE 18 DAMAGES WHICH ARE APPROPRIATE GIVEN THE FINDINGS, AND I THINK 19 THAT MR. LAFAYETTE IS ACTUALLY RIGHT. 20 BECAUSE THERE WAS NO FINDING ON GENDER DISCRIMINATION OR 21 FEHA, ONLY ON THE HARASSMENT AND THEN THE FAILURE TO PREVENT 22 THE HARASSMENT, I DON'T THINK THAT THE ECONOMIC DAMAGES ARE 23 ACTUALLY RECOVERABLE. 24 BEFORE. 25 I WISH I WOULD HAVE THOUGHT ABOUT THAT ARGUMENT? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1256 1 MS. NUGENT: 2 WANT TO LOOK AT THE AUTHORITY. 3 THE COURT: HE MAY BE RIGHT, YOUR HONOR. I JUST IF THAT'S THE CASE, THEN WHAT I CAN TELL 4 THE JURY IS THAT THE ONLY DAMAGES -- AND WE'LL CHANGE THE 5 VERDICT FORM SO IT ONLY GIVES THEM THE ABILITY TO GIVE THE 6 EMOTIONAL DISTRESS DAMAGES, UNLESS YOU WANT ME TO REINSTRUCT 7 THEM. 8 9 MS. NUGENT: CASE. WE ARE STILL LOOKING AT THE TRUJILLO IT APPEARS THAT PLAINTIFF DIDN'T PREVAIL ON ANYTHING 10 EXCEPT FOR THE FAILURE TO PREVENT. 11 SOME AUTHORITY FOR OUR PARTICULAR SITUATION. SO WE ARE TRYING TO FIND 12 (THE JUDGE LEAVES THE BENCH.) 13 (PAUSE IN THE PROCEEDINGS.) 14 15 16 THE CLERK: REMAIN SEATED. THIS COURT IS BACK IN SESSION. (PAUSE IN THE PROCEEDINGS.) 17 THE COURT: 18 MR. LAFAYETTE: ANYTHING? 19 CAL. APP. FOURTH -- 20 THE COURT: 21 MR. LAFAYETTE: 22 COME TO ORDER. DICKSON V. BURKE WILLIAMS, INC., 234 234 CAL. APP. FOURTH. 1307. AND THIS IS A CASE WHERE THE COURT INSTRUCTED ON THE 23 FAILURE TO PREVENT AFTER THERE WAS A FINDING THAT THERE WASN'T 24 DISCRIMINATION AND THERE WASN'T HARASSMENT IN THE CASE. 25 AND THE COURT OF APPEALS FINDS THAT IN THE ABSENCE OF THE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1257 1 FINDING, THERE CANNOT BE A VALID CLAIM FOR FAILURE TO PREVENT. 2 AND IT ANALYZES EACH ONE OF THOSE SEPARATELY BEFORE IT GOES ON 3 TO RENDER ITS TOTAL OPINION. 4 SO OUR POSITION IS THAT TO THE EXTENT THAT THERE WERE TWO 5 OTHER CLAIMS -- THE ONLY CLAIMS IT COULD HAVE INCLUDED THE 6 ECONOMIC LOSS CLAIMS WERE THE RETALIATION AND THE 7 DISCRIMINATION CLAIMS, THOSE WERE LOST. 8 THERE DON'T APPLY. 9 THE HARASSMENT CLAIM, AND THAT HARASSMENT CLAIM IS LIMITED TO AND SO THOSE DAMAGES THE FAILURE TO PREVENT CAN ONLY APPLY TO 10 EMOTIONAL DISTRESS. 11 THE COURT: 12 MS. NUGENT: RESPONSE? WELL, FROM WHAT I JUST HEARD AND A QUICK 13 READ OF IT, THAT SEEMS TO BE THE SIMILAR SITUATION AS 14 TRUJILLO. 15 DISCRIMINATION OR HARASSMENT CLAIMS, BUT A FAILURE TO PREVENT. 16 THERE WAS NO LIABILITY ON THE UNDERLYING WE ARE LOOKING AGAIN AT THE JURY INSTRUCTION FOR FAILURE 17 TO PREVENT AND -- BECAUSE IT DOES SAY THERE ARE LOST WAGES ON 18 THERE. 19 BUT WE CAN'T FIND ANYTHING ON THAT. I UNDERSTAND THE THEORY; OF COURSE IT DOES MAKE SENSE, 20 THE COURT: 21 MR. LAFAYETTE: 22 THE COURT: MR. LAFAYETTE, LET ME ASK YOU THIS. YES, YOUR HONOR. I TEND TO AGREE WITH YOU. I GUESS THE 23 QUESTION IS, GIVEN THAT THE ECONOMIC -- GIVEN THAT THE VERDICT 24 FORM SEPARATES THEM OUT, SHOULD I JUST -- A PERSPECTIVE ON 25 WHETHER I SHOULD JUST TAKE THE VERDICT WITH THE NUMBERS AND DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1258 1 THEN DEAL WITH IT AFTER THE FACT? 2 MR. LAFAYETTE: I DON'T THINK SO, YOUR HONOR. 3 BECAUSE THAT MEANS I'M STANDING UP GIVING AN ARGUMENT, AND I 4 DON'T WANT TO ADDRESS THAT BECAUSE THAT'S NOT PART OF THE 5 CASE. IT JUST PUTS ME IN A VERY AWKWARD POSITION. 6 MS. NUGENT: AND I DON'T WANT TO DO THAT EITHER. 7 THE COURT: WELL, MY INCLINATION IS TO ADVISE THEM 8 THAT UPON FURTHER REFLECTION THE ECONOMIC DAMAGES DO NOT 9 APPLY. 10 PERHAPS IF WE FOUND SOME CASE TOTALLY TO THE CONTRARY, I 11 COULD ALWAYS AMEND THE VERDICT MYSELF IN THE FUTURE. 12 CERTAINLY THE PAST WAGES IS A KNOWABLE NUMBER. 13 WOULD BE FUTURE. 14 HAVE THE EMOTIONAL DISTRESS LINE. 15 MR. LAFAYETTE: 16 MS. NUGENT: 17 SO -- AND THEN THE VERDICT FORM WOULD ONLY THE COURT: 19 THAT'S CORRECT, YOUR HONOR. I THINK THAT IS THE SAFEST COURSE OF ALL RIGHT. LET'S CALL THEM BACK IN. (WATCH PHONE RINGS) 20 MR. LAFAYETTE: HONOR. IT THINKS I'M TALKING TO IT, YOUR SORRY. 22 THE COURT: 23 MR. LAFAYETTE: 24 THE CLERK: 25 THE ONLY THING ACTION AT THIS MOMENT. 18 21 I MEAN CAREFUL, THEY ARE COLLECTING EVERYTHING. THEY ARE. ALL RISE. (PROCEEDINGS HELD IN THE PRESENCE OF THE JURY.) DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1259 CLOSING ARGUMENT - NUGENT 1 THE CLERK: YOU MAY BE SEATED. 2 THE COURT: OKAY. 3 LADIES AND GENTLEMEN, THANK YOU FOR YOUR PATIENCE. 4 IN LIGHT OF YOUR DECISION, I HAVE CONFERRED WITH THE 5 LAWYERS AND I AM GOING TO AMEND THE INSTRUCTIONS THAT I JUST 6 GAVE YOU. 7 FIRST OF ALL, BECAUSE YOU ONLY FOUND ON THE HARASSMENT 8 CLAIM AND THE FAILURE TO PREVENT BASED UPON QUESTION ONE, THE 9 ONLY MEASURE OF DAMAGES THAT ARE ACTUALLY RECOVERABLE ARE PAST 10 11 12 13 AND FUTURE MENTAL SUFFERING AND EMOTIONAL DISTRESS. SO PAST LOST EARNINGS AND FUTURE LOST EARNINGS ARE ACTUALLY NOT RECOVERABLE GIVEN YOUR FINDINGS. SO MY INSTRUCTIONS RELATIVE TO THE EMOTIONAL DISTRESS ARE 14 THE ONES THAT APPLY HERE. 15 DO THEIR ARGUMENT ON THAT BASIS, AND I WILL BE BACK -- I'LL 16 HAVE MORE TO SAY TO YOU AFTER THEY ARE DONE WITH THEIR 17 ARGUMENT. I'M GOING TO ALLOW THE ATTORNEYS TO 18 WE WILL START WITH YOU, MS. NUGENT. 19 AND PUNITIVES, THE ISSUES WITH RESPECT TO PUNITIVES ARE 20 21 22 23 STILL IN PLAY, JUST LIMITING THE NATURE OF THE DAMAGES. THE CLERK: TECHNOLOGY? MS. NUGENT: 24 25 WILL YOU BE USING THE MONITORS, THE YES, PLEASE. CLOSING ARGUMENT MS. NUGENT: OKAY. OKAY. OKAY. WELL, THANK YOU DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1260 CLOSING ARGUMENT - NUGENT 1 VERY MUCH. THIS IS GOING TO BE A LITTLE FLY BY THE SEAT OF 2 OUR PANTS. WE HAVE HEARD WHAT YOU HAD TO SAY. 3 FIRST OF ALL, THANK YOU SO MUCH FOR ALL OF THE ATTENTION 4 THAT YOU'VE GIVEN TO THIS CASE AND ALL THE TIME. 5 COMMENTED ON THE FACT THAT WE REALIZE HOW SERIOUSLY YOU ARE 6 TAKING YOUR DUTY. 7 LITTLE BIT MORE, AND I WILL BE QUICK. 8 9 WE REALLY APPRECIATE THAT. WE HAVE ALL SO JUST A SO, WHEN THINGS LIKE THIS HAPPEN, WHEN COMPANIES HARASS AN EMPLOYEE, CAUSE HER HARM, THE LAW PROVIDES REMEDIES FOR THAT. 10 THE LAW CANNOT PUT MS. NEWTON BACK INTO THAT JOB. 11 CANNOT PUT HER BACK INTO A JOB WHERE SHE WAS SO EXCITED TO BE 12 THERE, WHERE SHE WAS SO PROUD. 13 PRACTICALLY BRAGGING TO THE REST OF THE FAMILY ABOUT THAT JOB. 14 WE CAN'T PUT HER BACK IN THAT MOMENT OF TIME. 15 WE CAN DO IS TRY TO MAKE HER WHOLE NOW. 16 SHE (SIC) HER SISTER DESCRIBED HER AS WE CAN'T. ALL AND THE LAW PROVIDES THOSE REMEDIES, AND THE LAW SAYS THAT 17 YOU, AS A JURY, GET TO DISPENSE SOME JUSTICE FOR THAT AND TRY 18 AND MAKE HER WHOLE. 19 SO IN THIS PHASE OF THE DELIBERATIONS, YOU WILL BE 20 DECIDING TWO THINGS: 21 TO COMPENSATE MS. NEWTON FOR THE HARM THAT SHELL CAUSED HER 22 WHILE SHE WAS AT THAT JOB AND AFTERWARDS AND ALSO TO MAKE 23 SHELL FINALLY TAKE RESPONSIBILITY FOR ITS MALICIOUS CONDUCT. 24 YOU HEARD MS. NEWTON'S TESTIMONY ABOUT THIS JOB OF A 25 LIFETIME. THE AMOUNT OF EMOTIONAL DISTRESS DAMAGES YOU HEARD ABOUT THE HUMAN SUFFERING, THE HUMAN DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1261 CLOSING ARGUMENT - NUGENT 1 DAMAGES THAT SHE ENDURED. 2 FIGURE IT OUT. 3 IN HERE AND GIVING YOU ANY NUMBERS. 4 YOU. 5 6 7 AND THERE IS NO FORMULA FOR YOU TO THERE ISN'T. THERE WAS NO, NO EXPERT COMING THIS IS GOING TO BE UP TO BUT, AGAIN, IT'S NOT JUST THE HARM SHELL CAUSED MS. NEWTON BECAUSE SHE WAS FIRED, BUT ALSO WHILE SHE WAS THERE. AND SO I WANT TO REMIND YOU OF SOME OF THE THINGS THAT SHE 8 TOLD YOU ABOUT HOW IT FELT TO BE THERE. 9 MR. FISCHER SAY TO HER THAT SHE WAS, YOU KNOW, COULDN'T PUT 10 HER ON A TEAM BECAUSE THERE WAS ALREADY A GIRL ON THAT TEAM. 11 SHE SAID IT MADE HER FEEL INFERIOR; THAT SHE WAS BEING PLACED 12 IN A SMALL BOX. 13 WHEN SHE FOUND THAT STICKER ON HER DESK, SHE TOLD YOU THAT 14 SHE WAS SHAKING, RIGHT? 15 SINGLED OUT. 16 HOW IT FELT TO HEAR EVERYONE WAS LOOKING AT HER. SHE WAS SHE ALSO TALKED ABOUT MR. FISCHER AND THE WAY HE 17 INTIMIDATED HER, THE WAY HE RESPONDED TO HER, THE THINGS THAT 18 HE WAS SAYING TO HER, THREATENING HER, WALKING WOMEN TO THE 19 GATE. 20 HER THAT? 21 WHY WOULD HE TELL HER THAT? AND THESE ARE IN THE FIRST FEW MONTHS OF A JOB THAT SHE TRIED REALLY HARD TO GET. 23 TOLD YOU THAT, TOO. 25 WHY WOULD HE TELL SHE SAID, I FELT LIKE HE WAS THREATENING ME. 22 24 RIGHT? AND WAS REALLY LUCKY TO GET. SHE FELT REALLY LUCKY TO GET THAT JOB. AND WHEN SHE WAS BEING HARASSED, IT WAS EMBARRASSING. WAS EMBARRASSING. SHE SHE WAS HUMILIATED. SHE WAS ASHAMED. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC IT 1262 CLOSING ARGUMENT - NUGENT 1 SHE TOLD YOU ABOUT HOW IT FELT AFTER SHE GOT FIRED. SHE 2 FELT DEFEATED, EMBARRASSED, DEPRESSED ABOUT IT. 3 OF ANXIETY. 4 THE TIME, RUMINATING WHAT HAPPENED, WHAT HAPPENED TO THIS ONCE 5 IN A LIFETIME OPPORTUNITY. 6 SHE HAD A LOT AS YOU CAN IMAGINE, SHE WAS THINKING ABOUT IT ALL SHE HAD A COUSIN'S WEDDING SHE DIDN'T WANT TO GO TO, OTHER 7 SOCIAL SITUATIONS SHE AVOIDED, RIGHT? 8 SISTER SAID, EVERYBODY KNEW THAT SHE HAD THAT JOB. 9 WERE ALL ASKING HER ABOUT IT. 10 DON'T WORK THERE ANY MORE. 11 THERE ANYMORE? EVERYONE KNEW -- HER AND THEY SHE WOULD HAVE TO SAY, WELL, I WELL, WHY, WHY DON'T YOU WORK 12 THERE WERE -- YOU CAN GO BACK. 13 SHE TOLD YOU SHE WORKED HARD FOR IT IN THAT CAREER AND YOU CAN GO BACK, YEAH. 14 THAT OPPORTUNITY WAS TAKEN AWAY FROM HER. 15 TO TELL SHELL TO COMPENSATE HER FOR HOW IT MADE HER FEEL. 16 THIS IS YOUR JOB TO MAKE HER AS WHOLE AS POSSIBLE. 17 SO THIS IS YOUR JOB HER SISTER CAME AND TALKED TO YOU ALSO ABOUT THE CHANGES 18 SHE SAW. 19 EXCITED SHE WAS, AND HOW SHE'S DIFFERENT NOW. 20 CONFIDENT SISTER THAT THEY WOULD GO SNOW BOARDING AND TO THE 21 BEACH WITH, WHO NEVER HAD ANY PROBLEMS IN SOCIAL SITUATIONS, 22 WAS TOO COOL FOR HER SISTER, WHO WAS SO SELF-ASSURED, WHO HAD 23 WANTED A JOB AT THE REFINERY SINCE SHE WAS A TEENAGER. 24 25 I ALREADY SAID WHEN MS. NEWTON GOT THE JOB HOW THAT'S NOT WHO HER SISTER SEES NOW. HER DOWN. THOSE WERE BRIANNA'S WORDS. SHE'S NOT THAT THIS FIRING KNOCKED SHE'S NOW LESS DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1263 CLOSING ARGUMENT - NUGENT 1 CONFIDENT. 2 SEES IT. 3 MS. NEWTON TOLD YOU THAT HERSELF AND HER SISTER SHE'S MORE RESERVED. IT TOOK HER A LONG TIME. SHE DOUBTS HERSELF. SHE'S A WORKER. SHE DOES HAVE A 4 JOB NOW. 5 ANOTHER CORPORATION, AND SHE'S HOPING TO CLIMB HER WAY UP. 6 SHE HAS TO TRAVEL A LONG WAY, BUT SHE IS WORKING FOR BUT HER SISTER SEES THE ANXIETY AND SEES HOW LOW SHE GOT 7 AND HOW SHE COULDN'T HELP HER MOM ANY MORE AT A TIME WHEN HER 8 MOM REALLY NEEDED HER. 9 SO I TALKED IN THE OPENING ABOUT DAMAGE TO THE WALLET, 10 RIGHT? 11 THINK THAT HUMAN SUFFERING IS WORTH MORE THAN DAMAGE TO THE 12 WALLET IN THE END. 13 GOING TO BE UP TO YOU COLLECTIVELY. 14 THAT YOU ARE GOING TO COME UP WITH A FIGURE TO COMPENSATE HER 15 FOR WHAT SHE WENT THROUGH THERE, TO HAVE THAT DREAM CRUSHED. 16 WE TRUST YOU. 17 BUT THIS IS HUMAN SUFFERING. AND A LOT OF PEOPLE AND SO IT'S GOING TO BE UP TO YOU. WE TRUST YOU. TWICE THAT, THAT SAME AMOUNT. 19 THAT SHELL SHOULD PAY TO COMPENSATE HER. 20 LESS, BUT IT'S UP TO YOU. PROVE, BUT THEY DIDN'T. 23 CONSEQUENCES IN YOUR BOOKLET. 25 SOME PEOPLE THINK MORE THAN SOME PEOPLE THINK LET'S LOOK AT ONE DEFENSE THAT SHELL HAS THE BURDEN TO 22 24 WE TRUST SOME PEOPLE TRY AND TIE IT TO SOME ECONOMIC DAMAGES, MAYBE 18 21 IT IS IT'S GOING TO BE CALLED AVOIDABLE YOU HAVE ALREADY FOUND THAT SHELL FAILED TO PREVENT HARASSMENT, SO WHEN YOU LOOK AT THIS, I THINK YOU WILL SEE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1264 CLOSING ARGUMENT - NUGENT 1 THAT SHELL HAS NOT PROVED THIS DEFENSE. 2 REASONABLE STEPS TO PREVENT THIS. 3 SHELL DID NOT TAKE YOU KNOW THAT. WHEN MS. NEWTON FIRST COMPLAINED TO ERIC PEREZ ABOUT 4 HOSTILE AND HARASSING TREATMENT IN MARCH OF 2016, SHE FOLLOWED 5 UP ALMOST EVERY MONTH AFTER THAT. 6 GOING TO TALK ABOUT IN A MOMENT, KNEW IT. 7 KNEW IT THE ENTIRE TIME. 8 9 HE KNEW IT. HE HER EMAIL FOLLOWING UP ON THE STICKER IN SEPTEMBER, ON TWO DATES IN SEPTEMBER, THEY WENT TO MIKE BECK. 10 ERIC JUST FORWARDED IT TO HIM. 11 FIRE HER. 12 AND MIKE BECK, WHO WE ARE IN FACT, ONE TIME HE DIDN'T DO ANYTHING EXCEPT THEY -- TWO MORE WORDS, CHRISTINE LAYNE. SHE ADMITTED TO 13 YOU THAT MS. NEWTON KNEW -- THAT SHE KNEW THAT MS. NEWTON WAS 14 COMPLAINING ABOUT DISCRIMINATION, MAYBE NOT USING THAT WORD. 15 SHE KNEW WHAT IT MEANT. 16 NOT USING THAT WORD. 17 EVEN DISCOURAGED HER FROM COMPLAINING. 18 COMPLAINING ABOUT HARASSMENT, MAYBE MS. LAYNE KNEW WHAT IT MEANT. MS. NEWTON KNEW SHELL'S OWN POLICIES. YOU HAVE THOSE 19 EXHIBITS BACK THERE. 20 AND 103. 21 BEFORE THAT AUGUST 2ND MEETING SHE LOOKED AT THEM. 22 THOSE EXACT WORDS TO TRY TO COMPLAIN. 23 MS. LAYNE YOU MAY HAVE ALREADY LOOKED AT THEM, 102 AND MS. NEWTON USED THOSE WORDS IN THE POLICIES. SHELL DID NOTHING. SHE USED MS. LAYNE TOLD YOU ABOUT ALL OF THE 24 AVENUES THAT EMPLOYEES CAN USE TO COMPLAIN. 25 JUST ABOUT EVERY SINGLE ONE OF THOSE. MS. NEWTON USED SHE RATTLED OFF ALL THE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1265 CLOSING ARGUMENT - NUGENT 1 PEOPLE SHE COMPLAINED TO. 2 NOT PROVEN THIS DEFENSE. 3 SHELL STILL DID NOTHING. SO LET'S TALK ABOUT PUNITIVE DAMAGES. SHELL HAS YOU WERE JUST 4 INSTRUCTED ON A QUESTION THAT YOU'RE GOING TO HAVE TO ANSWER, 5 SO THIS WILL BE ON YOUR VERDICT FORM. 6 YOU ARE GOING TO BE LOOKING AT THIS CONDUCT, SEEING WHETHER IT 7 CONSTITUTES MALICE, OPPRESSION, OR FRAUD. 8 DEFINITIONS. 9 10 THIS IS THE QUESTION. YOU'VE HEARD THE YOU'LL HAVE THEM. AND WAS IT BY A MANAGING AGENT OF EQUILON, AND THAT'S MIKE BECK. 11 AND, YES, HE DID. MIKE BECK TOLD YOU HE'S A MANAGING AGENT. HE HAS BEEN 12 THERE SINCE 1988. 13 HIM. 14 THE OPERATION CENTRAL DEPARTMENT. 15 IT. 16 THE AUTHORITY TO MAKE DECISIONS TO HIRE AND FIRE. 17 THAT. 18 DEPARTMENT. 19 30 YEARS. HE TOLD YOU THE BUCK STOPS WITH HE TOLD YOU HE WAS RESPONSIBLE FOR ALL THE OPERATIONS IN HE HAD TOTAL CONTROL OVER HE WAS RESPONSIBLE FOR ALL THE EMPLOYEES THERE. HE HAD HE TOLD YOU HE WAS RESPONSIBLE FOR ALL THE PROJECTS IN THE HE TOLD YOU THAT, TOO. AND HE ACTED WITH MALICE. HE KNEW IT. HE WAS CONSCIOUS 20 OF EVERYTHING THAT WAS GOING ON AND HE FIRED MS. NEWTON 21 ANYWAY. 22 AND THAT IS DESPICABLE. HE RECEIVED THOSE EMAILS. DID HE FOLLOW UP WITH 23 MS. NEWTON? HEY, YOU GOT THIS STICKER ON YOUR DESK. I AM SO 24 SORRY. NOTHING. DID HE 25 ENSURE THAT CHRISTINE LAYNE DID? NO. NEVER TALKED TO HER ABOUT IT. NO. HE SAID HE EXPECTED HER DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1266 CLOSING ARGUMENT - NUGENT 1 2 TO. DID HE EVER CHECK? NO. SAME THING WITH ERIC PEREZ. AND, OF COURSE, MR. BECK WAS IN THAT MEETING WITH RICHARD 3 METCALF AND ERIC PEREZ WHEN THEY PRESSURED HIM, METCALF TO 4 CHANGE HIS RATINGS SO THEY COULD FIRE HER. 5 WANTED IT TO HAPPEN. 6 HAPPEN. 7 HE WANTED TO FIRE HER. HE MADE IT MR. METCALF SAYS, YEAH, TWO MONTHS, 57 DAYS I'VE BEEN SUPERVISING HER. 9 AND BECK SAID CHANGE IT. YOU'RE A GOOD OPERATOR. 10 WITH THIS, CHANGE IT. 11 END HER CAREER LIKE THAT. HERE'S YOUR REVIEW. WE'VE DECIDED TO FIRE HER, WE CAN'T THAT'S MALICIOUS. THAT'S OUTRAGEOUS TO SOMETHING ELSE HE WAS ON; THIS EMAIL AT THE END. THEY 13 NEEDED MORE TO FIRE HER, SO THEY CAME UP WITH THIS HOT WORK 14 PERMIT FOR MIKE CUTSHAW. 15 YOU DID SEE EXHIBIT 68 WHERE HE DIDN'T WANT HIS NAME ON IT. 16 DID THEY BRING HIM IN HERE AND SAY IT HAPPENED? 17 PAPER TRAIL, MORE DOCUMENTATION TO GET HER OUT OF THERE. 18 DID YOU SEE MIKE CUTSHAW IN HERE? AND MIKE BECK WAS IN ON THAT. 19 DOING. 20 PARTICIPATED IN IT. 21 REPREHENSIBLE. 22 OF IT. 23 HE THAT IS MALICIOUS. 8 12 HE WAS THERE. NO. MORE HE KNEW WHAT THEY WERE IT WAS A CAMPAIGN TO DRIVE HER OUT, AND HE THAT WAS THEIR PLAN. IT WAS HE'S THE HEAD OF THE DEPARTMENT. HE WAS PART THEY ENDED HER CAREER. AND ANSWER "YES" TO THIS QUESTION, AND THAT WILL ALLOW YOU 24 TO SEND A LOUD AND CLEAR MESSAGE TO SHELL, TO HOLD IT 25 ACCOUNTABLE FOR WHAT IT DID TO MS. NEWTON WHILE SHE WAS THERE, DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1267 CLOSING ARGUMENT - NUGENT 1 AND THE EFFECTS AFTERWARDS, AND THAT WILL ALLOW YOU TO ENSURE 2 THAT THIS DOES NOT HAPPEN TO ANY OTHER WOMAN AT THAT REFINERY. 3 THE COURT: 4 MR. LAFAYETTE: 5 THE CLERK: 6 MR. LAFAYETTE: 7 MR. LAFAYETTE. THANK YOU, YOUR HONOR. WILL YOU ALSO BE USING THE TECHNOLOGY? YES. (PAUSE IN THE PROCEEDINGS.) 8 THE CLERK: 9 MR. LAFAYETTE: 10 ARE YOU CONNECTING TO -DEFENSE MONITOR. (PAUSE IN THE PROCEEDINGS.) 11 THE CLERK: I'LL -- 12 THE COURT: CAN WE INSTANT MESSAGE DOUG? 13 THE CLERK: SURE. 14 THE COURT: I KNOW HE TRIED A BUNCH OF THINGS AND THE CLERK: OKAY. 15 16 FOUND IT. 17 18 19 (SYSTEM CONNECTED) THE COURT: THANK YOU. THANK YOU. (PAUSE IN THE PROCEEDINGS.) 20 THE COURT: 21 MR. LAFAYETTE: 22 THERE IT IS. MR. LAFAYETTE, ARE YOU READY? I LOST MY POWER POINT. I JUST HAVE TO PULL IT BACK UP. 23 (PAUSE IN THE PROCEEDINGS.) 24 (DISPLAYED ON SCREEN.) 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1268 CLOSING ARGUMENT - LAFAYETTE 1 CLOSING ARGUMENT 2 MR. LAFAYETTE: GOOD AFTERNOON. I LISTENED TO 3 CAREFULLY TO WHAT YOU SAID, AND THE CASE HAS CHANGED FROM ONE 4 OF MILLIONS OF DOLLARS IN ECONOMIC LOSS TO ONE OF EMOTIONAL 5 DISTRESS. 6 THIS AFTERNOON. 7 WHAT I THINK THE DAMAGES ISSUES ARE. 8 9 AND THAT'S WHAT I AM GOING TO TALK TO YOU ABOUT I'M GOING TO GO THROUGH THIS AND TALK ABOUT WE TALKED ABOUT ALL OF THESE DIFFERENT THINGS, BUT THE ONE THING I WANT TO REMIND YOU OF IS THIS: THE BURDEN OF PROOF. 10 IN THIS CASE IT'S NOT UP FOR THE DEFENDANT TO DENY ANYTHING, 11 IT'S NOT UP FOR THE DEFENDANT TO SAY ANYTHING OTHER THAN -- OR 12 TO MAKE A BURDEN. 13 PREPONDERANCE OF THE EVIDENCE WHAT SHE HAS NOW CLAIMS THAT 14 SHE'S LOST, THE VALUE OF HER ECONOMIC DAMAGES. 15 IT'S THE PLAINTIFF'S BURDEN TO PROVE BY A AND YOU MAY RECALL THAT WHEN WE -- AND THAT'S BY A 16 PREPONDERANCE. 17 WHAT THAT SHOULD BE, THEN THAT BURDEN HASN'T BEEN MET. 18 WHERE WE START WITH THIS. 19 SO IF YOU ARE SO EVENLY DIVIDED AGAIN AS TO SO WHAT IS EMOTIONAL DISTRESS DAMAGES? THAT'S TO RECOVER FOR 20 FUTURE MENTAL SUFFERING OR EMOTIONAL DISTRESS, MS. NEWTON MUST 21 PROVE THAT SHE IS REASONABLY CERTAIN TO SUFFER THAT HARM IN 22 THE FUTURE, MEANING YOU HAVE TO BELIEVE THAT AS OF THIS MOMENT 23 NOW, SHE IS GOING TO CONTINUE TO HAVE EMOTIONAL INJURY AND 24 YOU'RE GOING TO HAVE TO PUT A DOLLAR VALUE ON THAT. 25 SO FOR FUTURE MENTAL SUFFERING OR EMOTIONAL DISTRESS DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1269 CLOSING ARGUMENT - LAFAYETTE 1 DETERMINE THE AMOUNT IN CURRENT DOLLARS. 2 MENTAL SUFFERING OR EMOTIONAL DISTRESS DAMAGES SHOULD NOT BE 3 FURTHER REDUCED TO PRESENT VALUE DOLLARS. 4 THE AMOUNT OF FUTURE NOW, FOR PAST, I WANT YOU TO THINK ABOUT A COUPLE OF 5 THINGS. 6 THAT NINE MONTHS, SHE NEVER DID ANYTHING TO SEEK ANY TYPE OF 7 MEDICAL ASSISTANCE. 8 NO EVIDENCE HERE THAT SHE DID ANYTHING OUT OF THE ORDINARY 9 OTHER THAN WHAT YOU OR I OR ANYONE ELSE MAY DO. 10 SHE WORKED FOR A COMPANY FOR NINE MONTHS. SHE NEVER TOOK ANY MEDICATION. DURING THERE'S THAT'S THE EVIDENCE IN THIS CASE AS WE'RE TALKING ABOUT 11 WHAT HER EMOTIONAL INJURY IS IN THIS CASE. 12 ABOUT SOMETHING THAT'S THE NORMAL THINGS THAT EVERYBODY GOES 13 THROUGH. 14 TALKING ABOUT SOMETHING THAT'S BEYOND THE NORMAL THAT WE ALL 15 GO THROUGH ON A DAY-TO-DAY BASIS. 16 PAY SOMEONE FOR SOMETHING ABOVE THAT, THEN YOU ARE PAYING THEM 17 FOR SOMETHING THAT WE ALL GO THROUGH ON A DAY-TO-DAY BASIS. 18 THAT'S NOT WHAT WE TALKING ABOUT HERE. 19 WE'RE NOT TALKING THAT'S NOT WHAT WE ARE TALKING ABOUT. SO LET'S LOOK AT IT. WE ARE BECAUSE IF YOU'RE GOING TO I DON'T HAVE AN IDEA AS TO WHICH 20 ONES OF THE THINGS THAT YOU GUYS LOOKED AT AND YOU SAID THIS 21 IS WHAT CAUSES HER TO HAVE BEEN HARASSED AND THIS IS WHAT 22 CAUSES THE EMOTIONAL INJURY, SO I HAVE TO SPEAK A BIT BROADLY 23 ABOUT THIS. 24 25 I SORT OF LOOK AT THIS AS TWO DIFFERENT AREAS WHERE THERE COULD POSSIBLY BE EMOTIONAL INJURY. ONE, ASSOCIATED WITH DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1270 CLOSING ARGUMENT - LAFAYETTE 1 WHATEVER HAPPENED WHEN SHE WAS WORKING WITH MR. FISCHER. 2 OTHER IS THE STICKER. 3 THE NOW, IF I AM LOOKING AT WHAT HAPPENS WITH MR. FISCHER, 4 THERE ARE A COUPLE OF THINGS I LOOK AT. 5 TO SAY IT BECAUSE I HAVE TO SAY IT, AND THAT IS WHATEVER THAT 6 WAS, THAT HAPPENED PRIOR TO MAY 23RD. 7 ONE IS -- I'M GOING SO NOW WHAT WE ARE LOOKING AT IS TRYING TO COMPENSATE HER 8 FOR SOMETHING THAT TOOK PLACE MORE THAN A YEAR BEFORE SHE 9 FILED HER CLAIM. WE TALKED ABOUT THAT IN THE FIRST SET OF 10 INSTRUCTIONS. 11 YOU THINK ABOUT WHAT HAPPENED WITH MR. FISCHER, I WANT YOU TO 12 THINK ABOUT SOME OF THE OTHER TESTIMONY. 13 I'M NOT GOING TO TALK ABOUT THAT AGAIN. YOU HAD MR. PATRIK NEUMAN COME IN. BUT IF AND PATRIK NEUMAN SAID 14 HE COULD SEE NO ANY DISCERNIBLE DIFFERENCE BETWEEN WHAT HE 15 WENT THROUGH AND WHAT SHE WENT THROUGH WORKING WITH 16 MR. FISCHER. 17 MR. NEUMAN IS YOUR GUIDEPOST. MR. NEUMAN BECOMES THE 18 PERSON THAT YOU SORT OF LOOK TO. 19 CLAIM FOR EMOTIONAL DISTRESS INJURY. 20 A PERSON THAT GOES THROUGH WHATEVER THEY GO THROUGH ON A 21 DAY-TO-DAY BASIS AT WORK, WHETHER OR NOT YOU LIKE IT OR DON'T 22 LIKE IT, BUT HE'S YOUR GUIDEPOST. 23 BECAUSE HE DOESN'T HAVE A HE IS ONE OF US. ONCE WE GET PASSED HIM, WE THEN GET TO THE STICKER. HE IS AND 24 THE STICKER IS THERE; BUT A PRESENTATION OF A STICKER THAT 25 NEVER APPEARED AFTER THAT, THAT NEVER APPEARED BEFORE THAT, DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1271 CLOSING ARGUMENT - LAFAYETTE 1 NOR ANYTHING ELSE BEFORE THAT. 2 WHERE SOMEONE IS SAYING THEY WERE SEXUALLY HARASSED BECAUSE 3 PEOPLE WERE USING DEROGATORY NAMES ABOUT WOMEN. 4 THAT. 5 WE DON'T HAVE A CASE HERE WE DON'T HAVE WE HAVE A CASE WHERE SOMEONE SAYS THAT WOMEN DON'T MAKE 6 IT. 7 NEVER GET HIS NAME RIGHT -- SAID DURING THE TRIAL, HE SAID IT 8 WAS IN REFERENCE NOT TO -- THAT MR. FISCHER DIDN'T WANT THEM 9 THERE, BUT THAT IT WAS SOMETHING THAT WAS OBSERVED, THAT WOMEN 10 11 BUT IF YOU LISTENED, IF YOU LISTEN TO WHAT MENA -- I CAN DIDN'T STAY IN THE DEPARTMENT. SO, EMOTIONAL DISTRESS INJURY, HOW DO YOU COMPENSATE FOR 12 THIS? 13 SOME POINT I PROBABLY WILL TALK ABOUT A SUM OF MONEY, ABOUT 14 WHAT YOU PAY SOMEONE UNDER THESE CIRCUMSTANCES. 15 THE END OF THE DAY THAT'S WHAT WE ARE TALKING ABOUT HERE. 16 SO THEN YOU GET TO -- SO WHAT AM I POINTING HERE? PLAINTIFFS HAVE NOT TOLD YOU A SUM OF MONEY. 17 NEVER SOUGHT MEDICAL TREATMENT. 18 EQUILON. 19 THAT'S NOT THERE. 20 AND AT BECAUSE AT SHE SHE NEVER SOUGHT IT WHILE AT SHE HASN'T SOUGHT IT AFTER SHE GOT TERMINATED. MOST OF THESE CASES THAT YOU LOOK AT, YOU KIND OF SEE THAT 21 PEOPLE GO TO A DOCTOR. 22 PERSON WHO'S TESTIFIED ABOUT GOING TO GET SOME MEDICATION AND 23 GOING TO A DOCTOR IS CAMERON CURRAN. 24 BECAUSE HE SAID IT KEPT HIM UP. 25 TESTIMONY FROM MS. NEUMAN -- MS. NEWTON. THEY GET SOME MEDICATION. THE ONLY HE'S THE ONLY ONE I DIDN'T HEAR THAT TYPE OF NO MEDICAL BILLS. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1272 CLOSING ARGUMENT - LAFAYETTE 1 2 NO EVIDENCE OF EMOTIONAL DISTRESS. AND SHE TOOK ALL OF HER VACATION. FIRST, SHE TOOK THE 3 BEREAVEMENT LEAVE, BUT THAT'S BECAUSE IT WAS NECESSARY. 4 SHE TOOK ALL OF HER VACATION BEFORE SHE WENT ON SHIFT. 5 THEN THEY GAVE HER ADDITIONAL VACATION AND TIME OFF TO GO TO 6 DEAL WITH THE WEDDING SHE WANTED TO APPEAR IN. 7 THEN AND SO FUTURE EMOTIONAL DISTRESS, WHERE IS THE EVIDENCE THERE? 8 WHERE'S THE EVIDENCE THAT SHE IS STILL GOING THROUGH 9 SOMETHING? ONE OF THE THINGS THAT WE CAN TALK ABOUT, AND I 10 HAVE TO SAY THIS, BECAUSE YOU HAVE ALREADY DETERMINED THAT HER 11 TERMINATION CLAIMS DON'T SURVIVE, SHE DOESN'T GET DAMAGES FOR 12 THAT. 13 WHAT THAT MEANS IS THIS: IF SHE'S ACTUALLY SAYING HOW 14 BADLY SHE FELT BECAUSE SHE GOT TERMINATED, THAT'S NOT PART OF 15 THE EMOTIONAL DISTRESS DAMAGES THAT GOES TO THE HARASSMENT; 16 THAT WOULD HAVE BEEN PART OF THE EMOTIONAL DISTRESS DAMAGES 17 THAT WOULD HAVE BEEN ASSOCIATED WITH HER TERMINATION. 18 SHOULDN'T BE LOOKING AT THAT. 19 SO WE WE SHOULD ONLY BE LOOKING AT HOW SHE FELT RELATIVE TO THE 20 THINGS THAT SHE SAID HAPPENED TO HER WHILE SHE WAS AN 21 EMPLOYEE. 22 NOT HOW SHE FELT AS A RESULT OF HER TERMINATION BECAUSE THAT'S 23 GONE NOW. 24 25 THAT'S THE ONLY THING THAT WE SHOULD BE LOOKING AT; I DIDN'T HEAR HER SAY THAT BECAUSE OF WHAT HAPPENED TO HER SHE HAS PLANS FOR TREATMENT. THERE IS NO EVIDENCE OF THAT. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC I 1273 CLOSING ARGUMENT - LAFAYETTE 1 DON'T HEAR HER SAYING THAT ANYTHING IS HAPPENING AS A RESULT 2 OF WHAT HAPPENED OTHER THAN HER TERMINATION. 3 NOW, THE AVOIDABLE CONSEQUENCES DOCTRINE. THIS BECOMES 4 SORT OF AWKWARD BECAUSE I AM NOT EXACTLY SURE WHERE THE 5 EMOTIONAL DISTRESS -- WHERE THE HARASSMENT TAKES PLACE. 6 THIS IS AN INSTRUCTION THAT PUTS THE BURDEN ON THE 7 DEFENDANT. 8 HER BASED UPON HER GENDER, THEN THE DEFENDANT IS RESPONSIBLE 9 FOR HARM. IF CIARA NEWTON PROVES THAT A SUPERVISOR HARASSED HOWEVER, WE CLAIM THAT CIARA NEWTON COULD HAVE 10 AVOIDED SOME OR ALL OF THE HARM WITH REASONABLE EFFORT. 11 SUCCEED, THE DEFENDANT TOOK REASONABLE STEPS TO PREVENT AND 12 CORRECT WORKPLACE GENDER HARASSMENT. TO SO LET'S START THERE. 13 DO WE HAVE POLICIES AND PROCEDURES IN PLACE? 14 DO WE EDUCATE PEOPLE ON THE POLICIES AND PROCEDURES? 15 16 17 18 YES, WE DO. YES, WE DO. DID SHE GET EDUCATED ON THE POLICIES AND PROCEDURES? YES, SHE DID. DO WE GIVE PEOPLE ALTERNATE AVENUES OF COMPLAINING? YES, 19 MANAGEMENT, HUMAN RESOURCES, 800 NUMBER, THE UNION, ALL OF 20 THOSE. 21 I HEARD A COMMENT THAT SHE HAD USED ALL OF THOSE. 22 LISTENED CAREFULLY TO HER UNION STEWARD'S TESTIMONY. 23 IT ON THE AUGUST 2 MEETING. 24 ASIDE AND THE TWO OF THEM SPOKE. 25 WANTED TO DELAY PROVIDING NAMES, SHE WANTED TO DELAY I HE SAYS DURING THE MEETING HE TOOK HER AND THAT'S WHEN SHE SAID SHE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1274 CLOSING ARGUMENT - LAFAYETTE 1 IDENTIFYING EVENTS. 2 THAT THEY THEN AGREED AND TOOK A BREAK AND THEY SAID THEY 3 WOULD COME BACK AFTER THE LONG CHANGE. 4 THAT'S WHAT HE TESTIFIED TO. AND HE SAID WELL, WE KNOW THAT'S THE END OF AUGUST IS THE LONG CHANGE. 5 AND THAT'S WHEN SHE WOULD PROVIDE SOME ADDITIONAL INFORMATION 6 ABOUT THE NAMES, THE PEOPLE, THE EVENTS. 7 BEFORE THAT MEETING ON AUGUST 2, SHE SAID SHE ALSO HAD 8 SOME NOTES THAT SHE WOULD GIVE. 9 GAVE THE NOTES. 10 WE ALL KNOW THAT SHE NEVER THOSE WERE THE ONES SHE PREPARED ON AUGUST 1. SHE NEVER GAVE THOSE. 11 SO NOW, THE NEXT THING WE KNOW IS ON AUGUST 29 THERE ARE 12 TWO THINGS THAT HAPPENED. 13 AUGUST 29, I THINK THAT MS. NEWTON FOCUSES, TOO, IS THE 14 STICKER. 15 MR. PEREZ TRAVELING FROM HIS LOCATION TO HERS TO ASK HIM TO 16 FOLLOW UP ON WHAT HAD BEEN AGREED TO ON AUGUST 2; THAT IS FOR 17 HER TO PROVIDE THE ADDITIONAL INFORMATION SO THEY COULD LOOK 18 INTO THINGS. 19 ONE THING THAT HAPPENS ON THE OTHER THING THAT HAPPENS ON AUGUST 29 IS NOW, I AM SIMPLY NOT STANDING HERE AND RELYING ON THE 20 TESTIMONY THAT CAME OUT OF THE MOUTH OF CHRISTINE LAYNE OR 21 CAME OUT OF THE MOUTH OF ERIC PEREZ, I'M TELLING YOU ABOUT THE 22 TESTIMONY THAT CAME FROM THE MOUTH OF HER UNION STEWARD WHO 23 CAME BECAUSE HE THOUGHT SHE WAS GOING TO GET TERMINATED ON THE 24 2ND. 25 THAT'S WHAT I'M TALKING ABOUT. BECAUSE HE SAID A COUPLE OF THINGS. HE SAID YOU COULD DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1275 CLOSING ARGUMENT - LAFAYETTE 1 COME TO THE UNION AND PRESENT SOMETHING TO THE UNION AND WE 2 COULD TAKE THAT TO MANAGEMENT ON YOUR BEHALF. 3 SAID. 4 NOT ME. THAT'S WHAT HE THAT'S WHAT HE SAID. HE SAID SHE NEVER DID THAT BECAUSE SHE SAID SHE THOUGHT 5 EVERYTHING WAS OVER AS OF THE MEETING ON AUGUST 2. 6 WHAT HE SAID, EVERYTHING WAS OVER AS OF THAT DAY. 7 THAT'S SO NOW, WHAT WE MOST NEEDED FROM HER WE NEVER GOT. THAT'S 8 A REALITY OF IT BECAUSE IT'S NOT -- THERE'S NO DOUBT THAT WE 9 NEVER GOT IT. I KNOW PLAINTIFF'S COUNSEL SAYS, WELL, DID WE 10 REALLY NEED IT? 11 GET IT. 12 IT'S LIKE A NEEDLE IN A HAYSTACK IF YOU DON'T NORMALLY WHEN SOMEONE COMES TO YOU AND THEY SAY, JOE, OR 13 JIM, OR JOHN, THESE ARE THE WITNESSES. 14 HEARD THAT. 15 SAY, DID THAT HAPPEN? DID YOU SEE THAT? 16 DIFFERENTLY THAN HER? WERE THEY NOT WRITING UP OTHER PEOPLE 17 WHEN THEY WERE WRITING UP HER? 18 COULD TELL MANAGEMENT. 19 COURTROOM AND SAID, I SAW THAT HAPPEN. 20 THEN, AND IT DIDN'T HAPPEN IN THIS COURTROOM. 21 THEY DID THIS. THEY SAW THIS. THEY AND THEN YOU CAN GO TO THEM AND WAS SOMEONE TREATED AND THEY COULD COME AND THEY AND THEY COULD HAVE COME INTO THIS BUT IT DIDN'T HAPPEN THAT'S THE DILEMMA WE ARE ALL CONFRONTED WITH. THAT'S THE 22 DILEMMA THAT MANAGEMENT IS CONFRONTED WITH WHEN IT DOESN'T GET 23 THAT ASSISTANCE WHERE IT CAN ACTUALLY HELP, THEN IT IS 24 CONSTRAINED TO HELP. 25 DONE SOMETHING WHEN YOU DIDN'T DO WHAT YOU NEEDED TO DO AND AND TO THEN SAY THAT THEY SHOULD HAVE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1276 CLOSING ARGUMENT - LAFAYETTE 1 THEREIN LIES MY HARM, THAT'S WHAT THE AVOIDABLE CONSEQUENCES 2 DOCTRINE IS ALL ABOUT. 3 YOU SEE, AT ITS CORE, IT IS SOMETHING THAT DOESN'T RELATE 4 TO LAW, IT'S SOMETHING THAT RELATES TO HUMAN BEHAVIOR. 5 CAN I SUE FOR A HARM THAT I COULD HAVE AVOIDED? 6 AVOIDED WALKING OUT IN FRONT OF THE CAR. 7 WALKING UNDERNEATH THE LADDER. 8 COULD HAVE AVOIDED, AND THIS IS THE ISSUE OF THE AVOIDABLE 9 CONSEQUENCES DOCTRINE. 10 11 HOW I COULD HAVE I COULD HAVE AVOIDED ALL OF THESE THINGS PEOPLE THAT'S WHAT WE ARE TALKING ABOUT. AND NOW IT'S BEEN SORT OF REDUCED TO THIS. SO WERE THERE REASONABLE STEPS? YES. THE FIRST OF THOSE 12 REASONABLE STEPS IS THE IMPLEMENTATION OF POLICIES AND 13 PROCEDURES. IT'S THE TRAINING OF PEOPLE ON THE POLICIES AND 14 PROCEDURES. IT IS ADVISING PEOPLE OF THE POLICIES AND 15 PROCEDURES TO CREATE AN OPPORTUNITY WHERE SOMEONE CAN COME 16 FORWARD AND COMPLAIN. 17 THAT EXISTED. AND JUST LIKE IN THE JULY 22 MEETING WHEN SHE SAID THAT 18 THERE WAS A CONCERN THAT SHE WASN'T BEING TREATED FAIRLY WITH 19 REGARD TO THE ATTENDANCE POLICY, YOU SAW THAT THEY WENT AND 20 GOT WHAT THEY COULD TO EVALUATE THE MERITS OF THAT. 21 AND PULLED THE GATE LOGS. 22 HOURS WERE, AND THEY TRIED TO DETERMINE IF ANYBODY ELSE WAS 23 LATE OTHER THAN SHE WAS. 24 25 THEY WENT THEY TRIED TO DETERMINE WHAT THE AND YOU'VE ACTUALLY HEARD THOSE WITNESSES COME IN AND SAY THEY WERE NOT. EACH AND EVERY ONE OF THEM. THEY DID WHAT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1277 CLOSING ARGUMENT - LAFAYETTE 1 THEY COULD HAVE DONE ONCE SHE PROVIDED THE INFORMATION. 2 WHEN SHE DIDN'T, IT CONSTRAINED THEM. 3 BACK AND SAY THAT EVEN THOUGH I DIDN'T PROVIDE THE 4 INFORMATION, THEY ARE RESPONSIBLE FOR MY HARM IS NOT 5 CONSISTENT WITH THE LOGIC THAT WE THINK OF, WHICH IS WHAT THE 6 AVOIDABLE CONSEQUENCES DOCTRINE IS. 7 WAS HER FAILURE UNREASONABLE? BUT AND TO SOMEHOW COME WELL, STOP FOR A SECOND. 8 WHO ALL TOLD HER? 9 IF SHE DIDN'T GET IT ON THE ONBOARDING OR THE MATERIAL SHE GOT FIRST, SHE LEARNED IT ON THE ONBOARDING. 10 LIKE THE ANTI-HARASSMENT POLICY, AND EVERYTHING ELSE, IF SHE 11 DIDN'T GET IT THERE, SHE GOT IT FROM HER UNION. 12 FROM THEM MOST DEFINITELY ON AUGUST 2. 13 ABOUT THAT. 14 SHE GOT IT THERE IS NO DOUBT AND IF SHE DIDN'T GET IT THERE, THEN SHE GOT IT FROM HER 15 SISTER, BRIANNA, WHO CAME AND TESTIFIED THAT SHE'S IN HUMAN 16 RESOURCES AND SHE TOLD HER WHAT SHE NEEDED TO DO. 17 SO NOW I'M LOOKING AT THIS, AND I WANT YOU TO SEE WHAT I 18 SEE; THAT POLICIES AND PROCEDURES, SHE'S REPEATEDLY TOLD WHAT 19 SHE NEEDS TO DO, AND SHE DOESN'T DO IT. 20 NEVER DOES THAT. 21 NEVER DOES THAT. SO THAT THE REASONABLE USE OF DEFENDANT'S PROCEDURES WOULD 22 HAVE PREVENTED SOME OR ALL OF CIARA NEWTON'S HARM. 23 OF THOSE THINGS WHERE WE ALL SORT OF SIT THERE AND WE SAY, 24 OKAY, AT WHAT POINT? 25 THAT'S ONE MAYBE YOU BELIEVE THAT SHE TOLD ERIC PEREZ BACK IN MARCH DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1278 CLOSING ARGUMENT - LAFAYETTE 1 THAT OTHER THAN I DIDN'T THINK MR. FISCHER WAS A GOOD PERSON, 2 ALL RIGHT, OR I DIDN'T THINK HE WAS A GOOD INSTRUCTOR, IT'S 3 NOT ABOUT WHETHER HE'S A GOOD INSTRUCTOR. 4 WHETHER OR NOT HE'S TERSE OR FIRM OR IRASCIBLE, OR GETS 5 FRUSTRATED WITH PEOPLE, BECAUSE HE GOT FRUSTRATED WITH 6 EVERYBODY. 7 WOMAN AS OPPOSED TO ANYTHING ELSE. 8 9 10 11 IT'S NOT ABOUT IT'S NOT WHETHER OR NOT HE DID IT BECAUSE SHE'S A HE DID IT NOT BECAUSE HE'S A DRILL SERGEANT TYPE PERSON, BUT HE DID IT BECAUSE HE'S (SIC) A WOMAN AND IT COULD HAVE BEEN AVOIDED IF SHE HAD SAID THAT. AND I DON'T THINK THAT THERE IS ANY TESTIMONY THAT SHE 12 SAYS ANYTHING OTHER THAN VAGUE REFERENCES, NOT COMING IN AND 13 SAYING HE'S TREATING ME DIFFERENTLY, HE'S SAYING THINGS TO ME 14 DIFFERENTLY BECAUSE I'M A WOMAN AND I NEED YOU TO MAKE THAT 15 STOP. 16 HEAR HER SAY SHE SAID IT. 17 I DIDN'T HEAR ANYBODY SAY THEY HEARD THAT AND I DIDN'T AND WHEN WE START TALKING ABOUT A FAILURE TO PREVENT HERE, 18 NOW THIS COMES BACK TO US AGAIN. 19 COULD HAVE DONE, AND THAT'S REALLY THE QUESTION, IS THERE MORE 20 THAT SHE COULD HAVE DONE. 21 I HAVE A DAUGHTER. 22 WAS THERE MORE THAT SHE I ONLY HAVE ONE KID, ONE DAUGHTER. AND WITH MY DAUGHTER -- 23 MS. NUGENT: 24 THE COURT: 25 MR. LAFAYETTE: OBJECTION, YOUR HONOR. SUSTAINED. I AM OF THE VIEW THAT WHAT YOU HAVE DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1279 CLOSING ARGUMENT - LAFAYETTE 1 TO DO IS THINK WHAT CAN I DO. 2 THINK TO YOURSELF THERE'S MORE SHE COULD HAVE DONE, MORE SHE 3 COULD HAVE SAID -- 4 MS. NUGENT: 5 MR. LAFAYETTE: 6 THE COURT: 7 OBJECTION, YOUR HONOR. IT GOES TO THE BURDEN OF PROOF. THE OBJECTION IS OVERRULED ON THAT PARTICULAR STATEMENT. 8 9 AND IF YOU SIT THERE AND YOU MR. LAFAYETTE: IF YOU THINK THAT THERE'S MORE SHE COULD HAVE DONE, THERE'S MORE SHE COULD HAVE SAID TO HAVE 10 STOPPED WHATEVER SHE SAYS WAS HAPPENING TO HER, THEN YOU HAVE 11 TO SAY SHE SHOULD HAVE DONE THAT. 12 RESPONSIBILITY TO MAKE SURE THAT SHE IS SAFE, TO MAKE SURE 13 THAT SHE'S NOT BEING HARMED, TO MAKE SURE THAT SHE'S NOT BEING 14 INJURED. 15 ACCOUNTABLE TO THAT. 16 BECAUSE THAT'S HER THAT'S HER RESPONSIBILITY. AND YOU HAVE TO HOLD HER NOW, IT'S EASY FOR ANYBODY TO SAY I'M AFRAID TO COMPLAIN. 17 WHERE DO WE DRAW THE LINE? 18 TELL THEM THE POLICIES CLEARLY ABSOLUTELY SAY THERE WILL BE NO 19 RETALIATION. 20 AND WE'LL DEAL WITH IT. 21 SAYS I'M AFRAID TO COMPLAIN, WHERE COULD YOU EVER DRAW THE 22 LINE? 23 YOU CAN PREACH TO PEOPLE. YOU CAN IF THERE IS RETALIATION, LET US KNOW ABOUT THAT, BUT IF SOMEONE SIMPLY SITS THERE AND HOW COULD YOU EVER MANAGE THAT? THAT'S NOT REASONABLE. MAYBE IF SHE HAD COME IN AND SHE SAID, JEFF FISCHER OR 24 SOMEBODY TOLD ME THEY WERE GOING TO GET ME IF I EVER 25 COMPLAINED, THAT WOULD BE DIFFERENT. I DIDN'T HEAR ANYTHING DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1280 CLOSING ARGUMENT - LAFAYETTE 1 2 LIKE THAT. INSTEAD, WHAT I HEARD WAS JEFF FISCHER WAS HELPFUL. 3 I NEEDED TO SIT DOWN WITH HIM, HE SAT DOWN WITH ME. 4 NEEDED INSTRUCTION, HE GAVE ME THAT. 5 THAT INDICATED THAT THERE WAS ANY REASON TO BE FEARFUL OF 6 RETALIATION FROM JEFF FISCHER. 7 SO YOU HAVE TO LOOK AT ALL THE EVIDENCE. 8 THAT MAY COME OUT OF SOMEONE'S MOUTH ON THESE ISSUES. 9 WHEN WHEN I I DIDN'T HEAR SOMETHING SO THAT'S NOT REASONABLE, AND SO NOW WE GET TO PUNITIVE DAMAGES. NOT JUST OF THINGS THIS IS WHERE SOMEONE 10 WANTS TO TAKE A BUNCH OF MONEY FROM SOMEBODY ELSE, TO BE 11 CLEAR. 12 BECAUSE WHEN YOU LOOK AT THIS, THE BURDEN HAS NOW CHANGED. 13 IT'S NO LONGER A PREPONDERANCE OF THE EVIDENCE. 14 SOMETHING THAT'S CALLED CLEAR AND CONVINCING EVIDENCE, LEAVES 15 YOU WITH A FIRM BELIEF OR CONVICTION. 16 FIRM BELIEF AND CONVICTION. 17 AND THIS IS NOT SOMETHING THAT'S DONE LIGHTLY. IT IS NOW LET'S LISTEN TO THAT, THAT'S ONE OF THOSE THINGS WHERE IF ANYTHING EVER GETS TO 18 THE POINT OF BEING AS CLOSE TO AN ABSOLUTE CERTAINTY WITH YOU, 19 THIS IS THAT. 20 THIS. 21 THINK YOU SHOULD BE LOOKING AT HERE AS YOU COME TO THESE 22 QUESTIONS, AS YOU COME TO THESE QUESTIONS. 23 NO. THIS IS NOT WHERE I'M BALANCING SOMETHING LIKE THIS IS CERTAINTY, UNHESITATING. THAT'S WHAT I SO YOU SEE THAT THE COURT TELLS YOU, THIS IS A HIGHER 24 STANDARD OF PROOF THAT BY PREPONDERANCE OF THE EVIDENCE. DO 25 YOU SEE THAT? SO THAT'S WHAT IT SAYS. AND THAT'S THE LAW. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1281 CLOSING ARGUMENT - LAFAYETTE 1 YOU CAN'T JUST SORT OF WILLY-NILLY GO WITH THIS. 2 YOU HAVE TO GRAPPLE WITH THIS AND SAY I GOT IT. 3 PROVED IT BY CLEAR AND CONVINCING EVIDENCE. 4 5 6 WHAT IS IT THEY HAVE TO PROVE? OPPRESSION. YOU CAN'T. THEY'VE MALICE, FRAUD, OR MALICE, FRAUD, OPPRESSION. THEN THEY HAVE TO SHOW THAT MIKE BECK, NOT THAT HE WAS 7 AWARE SHE WAS GETTING FIRED, NOT THAT HE WAS AWARE OF 8 SOMETHING GENERAL, BUT HE WAS SPECIFICALLY AWARE THAT THERE 9 WAS MALICE, THAT THERE WAS OPPRESSION, AND THAT THERE WAS 10 11 FRAUD. THAT'S WHAT MIKE BECK HAS TO BELIEVE. AND IF YOU DON'T HAVE CLEAR AND CONVINCING PROOF OF THAT, 12 THEN YOU CAN'T DO THAT. 13 THERE. 14 YOU CAN'T DO THAT. YOU CAN'T GO SO NOW, SO WITH REGARD TO THIS, HE AUTHORIZED OR RATIFIED 15 THE CONDUCT, THE CONDUCT FOUND TO BE OPPRESSIVE, MALICIOUS, OR 16 FRAUDULENT. 17 THAT'S THERE, YOU HAVE TO BELIEVE THAT IN MIKE BECK'S MIND HE 18 BELIEVED THE EXISTENCE OF THAT, THAT THERE HAD BEEN THAT. 19 NOT THAT HE WAS GENERALLY AWARE OF SOME STUFF, BUT OF THAT MEANS FOR WHATEVER IT IS THAT YOU THINK 20 THAT, OF THAT; THAT SHE WAS BEING SEXUALLY HARASSED. 21 TO HAVE KNOWN THAT THAT ACTUALLY EXISTED. 22 ALLEGED IT. 23 IT ACTUALLY EXISTED IS WHAT HE HAS TO KNOW. 24 25 HE HAD NOT THAT SHE HAD NOT THAT SOMEONE HAD GENERALLY SAID IT, BUT THAT SO NOW, WHEN THE EMPLOYER IS A CORPORATION, THE AUTHORIZATION MUST BE BY AN OFFICER, DIRECTOR, OR MANAGING DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1282 CLOSING ARGUMENT - LAFAYETTE 1 AGENT OF THE CORPORATION. 2 CLEAR AND CONVINCING AGAIN. SO WHAT IS A MANAGEMENT 3 AGENT? 4 EVIDENCE, BY CLEAR AND CONVINCING EVIDENCE IF MIKE BECK IS A 5 MANAGING AGENT. FIRST, YOU HAVE TO DECIDE BY CLEAR AND CONVINCING 6 NOW, LET'S TALK ABOUT THIS FOR A SECOND FOR A SECOND. 7 EXERCISE SUBSTANTIAL INDEPENDENT AUTHORITY AND JUDGMENT IN THE 8 CORPORATE DECISION MAKING SO THAT THEIR DECISIONS ULTIMATELY 9 DETERMINE CORPORATE POLICY. THE ABILITY TO HIRE AND FIRE 10 PEOPLE IS NOT IN ITSELF SUFFICIENT. 11 PUNITIVE DAMAGES DOES NOT DEPEND UPON AN EMPLOYEE'S MANAGERIAL 12 LEVEL, BUT ON THE EXTENT TO WHICH THAT EMPLOYEE EXERCISES 13 SUBSTANTIAL DISCRETIONARY AUTHORITY OVER DECISIONS THAT 14 ULTIMATELY DETERMINE CORPORATE POLICY. 15 CORPORATE LIABILITY FOR ULTIMATELY DETERMINE CORPORATE POLICY. NOT WHAT HAPPENS 16 ON A PARTICULAR SHIFT, CORPORATE POLICY. 17 BY CLEAR AND CONVINCING EVIDENCE, THAT'S THE STANDARD THAT HAS 18 TO BE MET. 19 LET'S TALK ABOUT HIM. THAT'S THE STANDARD. IS THERE ANY EVIDENCE THAT HE WAS 20 AN OFFICER OR DIRECTOR OF EQUILON OR OF THE SHELL OIL COMPANY? 21 NO. 22 THERE ISN'T ANYTHING LIKE THAT HERE. WAS HE THE TOP PERSON IN THE REFINERY SUCH THAT HE COULD 23 DICTATE WHAT HAPPENS IN THE REFINERY? 24 SUPERVISION OVER 60 PEOPLE OUT OF 700 PEOPLE WHO WORKED AT THE 25 REFINERY. NO. AT BEST, HE HAD THERE IS NOTHING THAT DISPUTES THAT. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1283 CLOSING ARGUMENT - LAFAYETTE 1 COULD HE INDEPENDENTLY HIRE AND FIRE PEOPLE? NO. THERE'S 2 A BUZZ WORD HERE, THE BUCK STOPS HERE, BUT LET'S PROBE A 3 LITTLE DEEPER BEHIND WHAT THAT MEANS TO SAY THE BUCK STOPS 4 HERE. 5 CAN HE HIRE SOMEONE WITHOUT -- NO, HE CAN'T. 6 TALK TO OTHER PEOPLE. 7 THAT EITHER. 8 HUMAN RESOURCES BEFORE HE DOES THAT. 9 NYGAARD BEFORE HE DOES THAT. 10 11 12 13 BEFORE THAT. CAN HE FIRE SOMEONE? HE CAN MAKE A RECOMMENDATION. NO, HE CAN'T DO HE HAS TO TALK TO HE HAS TO TALK TO THOR HE HAS TO TALK TO TOM RIZZO HE CAN'T DO THAT ON HIS OWN. SO WHERE IS THE TESTIMONY THAT HE CAN DO SOMETHING THAT SETS CORPORATE POLICY? SO LET'S CHECK THESE OFF. COULDN'T FIRE WITHOUT TALKING TO SOMEONE. HE COULDN'T SET 14 ANY POLICIES WITHOUT TALKING TO SOMEONE. 15 RESPONSIBILITY FOR ANY OTHER REFINERY OPERATIONS. 16 HE HAS TO HE DID NOT HAVE AND THEN WHAT WE REALIZE IS EQUILON IS MORE THAN JUST THE 17 MARTINEZ REFINERY, RIGHT? 18 LEAST AT A MINIMUM. 19 ANY RESPONSIBILITIES OVER HOW THEY RUN THOSE REFINERIES DOWN 20 THERE? 21 22 23 THERE ARE TWO OTHER REFINERIES AT PUGET SOUND AND ONE IN ALABAMA. HE'S GOT NO. CAN HE SAY ANYTHING TO THEM ABOUT POLICIES? NO, HE CAN'T. HE CAN'T. SO WHERE IS THE EVIDENCE THAT MIKE BECK CAN DO ANYTHING, 24 ANYTHING TO SET CORPORATE POLICY AND DECISION MAKING? 25 COULDN'T. AND WHATEVER HE COULD DO WAS ALL SUBJECT TO DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC HE 1284 CLOSING ARGUMENT - LAFAYETTE 1 2 OVERSIGHT. SO ONCE WE DO THAT, WE THEN SAY IF YOU GET TO THE POINT 3 WHERE YOU CONCLUDE THAT MIKE BECK IS NOT A MANAGING AGENT, 4 THEY HAVEN'T MET THEIR BURDEN TO START TALKING ABOUT PUNITIVE 5 DAMAGES IN THIS CASE. 6 IF THEY DO, WHICH I DON'T THINK THEY CAN BASED UPON WHAT 7 I'M LOOKING AT HERE AND BASED ON WHAT I'M SEEING THE LAW TO 8 BE, ULTIMATELY DETERMINE CORPORATE POLICY, IT'S NOT MIKE BECK. 9 10 11 BUT ASSUMING YOU DIFFER WITH ME, IS THAT THE END OF THE STORY? NO. THEY HAVE TO DO SOMETHING ELSE. THEY HAVE TO SHOW THAT HE 12 WAS AWARE OF AND THAT HE RATIFIED THE SPECIFIC MALICIOUS 13 CONDUCT. 14 SPECIFIC MALICIOUS CONDUCT. SO THIS IS -- START HERE. 15 16 THIS IS EXHIBIT 33 AND 34A. (DISPLAYED ON SCREEN.) SO LET'S LOOK AT THIS. WHAT DID MIKE BECK KNOW? LOOK AT 17 THIS. 18 IN THIS PASSAGE RIGHT HERE THAT SHE HAD BEEN DISCRIMINATED 19 AGAINST? DO YOU SEE SOMEONE CONCLUDING THAT SHE HAD BEEN 20 HARASSED? DO YOU SEE SOMEONE CONCLUDING THAT THEY HAVE 21 INVESTIGATED AND MADE A DETERMINATION THAT ANY OF THESE 22 STATEMENTS ARE TRUE? 23 DO YOU SEE A CONCLUSION? NO. DO YOU SEE SOMEONE CONCLUDING THESE ARE JUST ALLEGATIONS. NOW WHEN WAS THIS DOCUMENT CREATED? 24 WHEN YOU GO BACK IN THERE. 25 AUGUST 2 MEETING. YOU CAN LOOK AT IT THIS IS CREATED LEADING UP TO THE THESE ARE MR. PEREZ'S NOTES SUMMARIZING DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1285 CLOSING ARGUMENT - LAFAYETTE 1 WHAT HE WANTS TO TALK TO HER ABOUT WHEN THEY GET TO THE 2 AUGUST 2 MEETING. 3 TRYING TO GET MORE INFORMATION FROM HER ABOUT WHEN THEY GO TO 4 THE AUGUST 2 MEETING. THAT IS WHAT THESE ARE. THIS IS WHAT HE'S THIS IS WHAT SHE NEVER GIVES. 5 SO, THE INSTRUCTION SAYS THERE HAS TO BE CLEAR AND 6 CONVINCING EVIDENCE THAT HE WAS AWARE OF MALICIOUS CONDUCT, 7 FRAUDULENT CONDUCT, OPPRESSIVE CONDUCT, AND THAT HE BASICALLY 8 SAID THAT'S ALL RIGHT WITH ME. 9 WITHOUT HER GIVING US THESE ANSWERS TO THESE QUESTIONS, 10 FILLING IN THE GAPS HERE, HOW CAN HE POSSIBLY SAY THAT'S ALL 11 RIGHT WITH ME? 12 SO NOW THIS DOCUMENT. 13 14 HE CAN'T. (DISPLAYED ON SCREEN.) THIS IS THE AUGUST 29 EMAIL. AND I SHOW YOU THIS BECAUSE 15 YOU CAN SEE MR. BECK IS REFERENCED HERE IN THIS EMAIL, RIGHT? 16 HE IS. 17 THAT HE IS RATIFYING, LET'S LOOK AND SEE IF HE'S RATIFYING 18 SOMETHING SAYING TO SOME CONDUCT IS ALL RIGHT WITH ME. 19 HE GETS THIS EMAIL. BUT WITH REGARD TO THE CONDUCT AND THE FIRST PARAGRAPH HERE, MR. PEREZ IS SAYING SHE'S 20 NOT GIVING HIM THE INFORMATION SUCH THAT HE CAN DO SOMETHING. 21 RIGHT? 22 THAT'S WHAT HE'S SAYING. AND IN THE BOTTOM PARAGRAPH, HE'S ACKNOWLEDGING THE 23 EXISTENCE OF THE STICKER, BUT HE SAYS HERE, I TOLD HER THE 24 STICKER WAS NOT APPROPRIATE AND THIS WILL NOT BE TOLERATED AT 25 MARTINEZ. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1286 CLOSING ARGUMENT - LAFAYETTE 1 SO TO THE EXTENT THAT MR. BECK IS ACKNOWLEDGING ANYTHING 2 AND RATIFYING ANYTHING, HE'S RATIFYING THAT STATEMENT THAT 3 THIS IS NOT SOMETHING THAT WILL BE TOLERATED. 4 HOW CAN YOU FLIP THAT AND SAY THAT SOMEHOW HE'S 5 ACKNOWLEDGING AND RATIFYING SOMETHING DIFFERENT? 6 YOU GO THAT WITH CLEAR AND CONVINCING EVIDENCE? 7 THAT DOESN'T EXIST. 8 9 AND HOW CAN YOU CANNOT. SO NOW, I TALKED ABOUT THIS PHRASE "RATIFICATION". YOU SEE, RATIFICATION IS THE CONFIRMATION AND ACCEPTANCE OF A 10 PREVIOUS ACT. 11 THINK THAT'S FINE? 12 THESE CORRESPONDENCE AND HE DIDN'T SAY IT IN THIS COURTROOM. 13 CLEAR AND CONVINCING EVIDENCE DID NOT HAPPEN. 14 SO WITH REGARD TO THE STICKER, DID HE SAY I I'M GOOD WITH THAT? HE DIDN'T SAY IT IN WHAT HE HAD TO DO... WHERE HE SAID HE ACCEPTED SOME ACT 15 THAT WAS MALICIOUS CONDUCT THAT WAS OUTRAGEOUS. 16 EXIST HERE. 17 THAT DOESN'T MALICE, CONDUCT THAT WAS DESPICABLE AND DONE WITH THE 18 WILLFUL AND KNOWING DISREGARD OF THE RIGHTS. 19 RATIFYING ANYTHING, HE'S RATIFYING TRYING TO GET THE ANSWERS, 20 TRYING TO FIND OUT WHAT IT'S ABOUT. 21 THINK THAT SOMETHING HAPPENED TO HER AND I THINK IT'S ALL 22 RIGHT WITH ME, THAT'S NOT WHAT'S HAPPENING HERE BY CLEAR AND 23 CONVINCING EVIDENCE. 24 OPPRESSION? 25 WELL, IF HE'S IT IS NOT SAYING THAT I CONDUCT THAT WAS DESPICABLE, DESPICABLE. HE RATIFY SOME CONDUCT THAT WAS DESPICABLE, OPPRESSIVE, OR DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC DID 1287 CLOSING ARGUMENT - LAFAYETTE 1 FRAUDULENT? 2 AND CONVINCING. 3 NO EVIDENCE. BECK DID NOT RATIFY. SO YOU CAN'T SAY THERE WAS CLEAR HE WAS NEVER TOLD THAT THERE WAS THE 4 EXISTENCE OF AS OPPOSED TO THE ALLEGATION OF SOMETHING, AND AS 5 TO THE ALLEGATION, THERE WAS NO EVIDENCE FORTHCOMING TO VERIFY 6 IT. 7 WHEN HE HEARD ABOUT THE STICKER, HE TESTIFIED HERE THAT HE 8 REQUESTED AN INVESTIGATION. 9 TO GO TALK TO HER? NO. DOES THAT MEAN THAT HE'S SUPPOSED AND IF HE DID DO THAT OR DIDN'T DO 10 THAT, WOULD THAT BE CLEAR AND CONVINCING EVIDENCE THAT HE 11 RATIFIED SOMETHING? 12 VERIFICATION OF RATIFICATION BY CLEAR AND CONVINCING EVIDENCE. NO. 13 NO KNOWLEDGE. 14 SO WE GET TO THIS. 15 THE COURT: 17 MR. LAFAYETTE: 18 THE COURT: I DON'T HAVE -- THAT'S FINE. YOU CAN USE IT, BUT BECAUSE ECONOMIC DAMAGES ARE NOT AT ISSUE -MR. LAFAYETTE: 21 THE COURT: 23 AND I THINK THIS IS THE FORM THAT YOU THAT WILL BE REVISED OR HAS BEEN REVISED. 20 22 IT'S NOT GUYS GET TO, AND THIS IS WHERE I HAVE TO TALK ABOUT -- 16 19 IT'S JUST A SOUND BITE. YES, I UNDERSTAND, YOUR HONOR. -- IT WILL BE TAKEN OUT. GO AHEAD. MR. LAFAYETTE: THANK YOU. 24 I AM STRIKING OUT 2 BECAUSE 2 IS NO LONGER WITH US. 25 WE AWARD CIARA NEWTON DAMAGES FOR PAST AND FUTURE MENTAL DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC OKAY? 1288 CLOSING ARGUMENT - LAFAYETTE 1 SUFFERING AND EMOTIONAL DISTRESS. 2 AWARD SOMEONE? 3 HOW MUCH MONEY DID SHE MAKE? SO, HERE, HOW MUCH DO YOU THAT'S ONE THING YOU CAN 4 LOOK AT. 5 X AMOUNT OF DOLLARS WHEN SHE WAS WORKING THERE AND MAYBE WE 6 PAY HER THAT. 7 WE PAY HER $25,000. 8 HAVE A BENCHMARK AND YOU DON'T HAVE A GUIDE. 9 HOW MUCH MONEY SHE MADE, AND MAYBE YOU USE THAT AS YOUR GUIDE. 10 YOU SAY, OKAY, SHE WENT TO WORK EVERY DAY. SHE MADE OR MAYBE WE PAY HER A FRACTION OF THAT. MAYBE. IT'S UP TO YOU. MAYBE BUT YOU DON'T ALL YOU KNOW IS NOW, ONCE YOU DO THAT THEN, YOU HAVE TO DECIDE SOMETHING. 11 COULD SHE HAVE AVOIDED SOME OF IT? 12 AVOIDABLE CONSEQUENCES DOCTRINE COMES IN. 13 THAT SHE COULD HAVE DONE TO HAVE AVOIDED SOMETHING. 14 IF SHE COULD HAVE, THEN YOU HAVE TO REDUCE IT BY THE AMOUNT 15 THAT SHE COULD HAVE AVOIDED. 16 YOU SEE, THIS IS WHERE THE IS THERE SOMETHING BECAUSE THERE'S A RANGE, AND I AM GOING TO TELL YOU ABOUT THE 17 RANGE. 18 SO IF IN YOUR MIND YOU THINK THAT IF SHE HAD BEEN MORE DIRECT, 19 MORE FORTHCOMING, THAT SHE COULD HAVE SAID SOMETHING TO HAVE 20 AVOIDED ALL OF HER HARM SO THAT PEOPLE COULD HAVE COME IN AND 21 DONE THE THINGS THAT THEY DO, THEN THAT WOULD MEAN SHE HAS NO 22 HARM, THAT SHE HAS NO DAMAGES. 23 THE INSTRUCTION SAYS ALL OR PART OF. ALL OR PART OF. AND THAT WOULD BE A ZERO. IF YOU THINK THAT THERE IS SOME HARM THAT BECAME, THIS IS 24 THE MAGIC PIECE OF THIS, SEVERE AND PERVASIVE, BEFORE SHE 25 COULD HAVE ACTED, BEFORE SHE COULD HAVE ACTED, THEN SHE WOULD DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1289 CLOSING ARGUMENT - LAFAYETTE 1 BE ENTITLED TO THAT. 2 HAPPEN ALL THE TIME, IT WAS LIKE REALLY, REALLY BAD. 3 COULD HAVE STEPPED IN AND STOPPED IT BEFORE IT GOT TO THAT, 4 THEN SHE WOULDN'T HAVE HAD ANY HARM, WOULD SHE? 5 SEVERE AND PERVASIVE MEANS IT WOULD IF SHE BUT IF SOMETHING HAD RISEN TO THE LEVEL OF BEING SEVERE 6 AND PERVASIVE BEFORE SHE COULD HAVE REASONABLY ACTED, THEN YOU 7 SHOULD GIVE HER THAT. 8 THINGS THAT YOU GUYS HAVE TO CONSIDER WHEN YOU GO BACK IN 9 THERE AND TALK SOME MORE. 10 BUT THAT'S THE -- THAT'S ONE OF THE NOW, I THINK I LIKE TO HOLD PEOPLE ACCOUNTABLE FOR 11 MANAGING THEIR OWN LIFE. 12 SOMETHING IS HAPPENING THAT YOU DON'T LIKE, SPEAK UP. 13 THE SYSTEM IS DESIGNED FOR YOU TO SPEAK UP. 14 TO ENCOURAGE PEOPLE NOT TO SPEAK UP BY REWARDING THEM. 15 IN MY WORLD, I LIKE TO SAY IF MY CLIENT WANTS TO DO THE RIGHT THING. BECAUSE AND I DON'T LIKE SPEAK UP. AND 16 WHEN PEOPLE DON'T SPEAK UP, WE WIND UP HERE. 17 REWARD THAT AND I AM GOING TO ASK YOU NOT TO REWARD THAT. 18 19 20 21 I DON'T LIKE TO NOW, I THEN GET TO DID AN AGENT OR AN EMPLOYEE ENGAGE IN CONDUCT WITH MALICE, OPPRESSION, OR FRAUD? WHO WAS THAT? STICKER? WAS THAT THE PERSON WHO BROUGHT IN THE WAS IT WITH MALICE? 22 WAS IT WITH OPPRESSION? 23 WAS IT JEFF FISCHER? 24 SITTING ON THE STAND. 25 MALICIOUS ABOUT HIM? WE DON'T KNOW. WE DON'T KNOW. I WANT YOU TO THINK ABOUT HIM WAS THERE ANYTHING THAT YOU THOUGHT WAS DID ANYBODY COME IN HERE AND TELL YOU DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1290 CLOSING ARGUMENT - LAFAYETTE 1 THAT THEY THOUGHT HE WAS A MEAN, MALICIOUS PERSON? 2 NO. CAMERON CURRAN TRIED TO HELP HER, FOLLOWED HER, DID 3 EVERYTHING. 4 MALICIOUS THERE? 5 DEANNA MARTINEZ TOLD US THAT. NO. SOMETHING THERE WASN'T MALICIOUS. SO, FIRST OF ALL, THERE WAS NO MALICE, THERE WAS NO 6 OPPRESSION, AND THERE WAS NO FRAUD HERE BY CLEAR AND 7 CONVINCING EVIDENCE. 8 9 NO. I AM HESITATING. THEN ASSUME YOU FIND SOMETHING LIKE THAT, SO I WOULD ASK YOU TO PUT A "NO" THERE, AND I'LL GO HOME. OKAY? BUT EVEN IF 10 YOU PUT A "YES" THERE, DID ONE OR MORE OFFICERS, DIRECTORS, OR 11 MANAGING AGENTS KNOW OF THE CONDUCT AND AUTHORIZE OR RATIFY 12 IT? 13 AND THAT'S ABSOLUTELY A NO. FIRST OF ALL, WE DON'T HAVE SUCH A PERSON. SECOND OF ALL, 14 TO THE EXTENT THAT THEY SAY IT'S MIKE BECK, AS I'VE TOLD YOU 15 OVER AND OVER AGAIN NOW, HE DIDN'T DO THAT. 16 17 SO I WILL SAY THIS: IF YOU WANT TO GIVE HER SOMETHING, IF THAT'S WHERE WE ARE, GIVE HER $25,000. 18 3 AND 4, THOSE ARE NOS. 19 I APPRECIATE THE WORK THAT YOU GUYS HAVE DONE. AND THAT'S THE END OF THIS. I REALLY 20 DO. 21 SOMETHING THAT OFFENDS ANYBODY, DON'T HOLD IT AGAINST MY 22 CLIENT. 23 EXUBERANT, AND SOMETIMES I CAN BE EXCITED ABOUT WHAT I DO. 24 25 I KNOW THIS IS HARD AND THIS IS DIFFICULT. IF I DO SOMETIMES I CAN BE OVERZEALOUS, SOMETIMES I CAN BE BUT I STAND UP HERE NOT FOR ME, NOT FOR EQUILON, I STAND UP HERE FOR ALL OF THOSE GUYS AND WOMEN WHO CAME IN AND DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1291 REBUTTAL CLOSING ARGUMENT - NUGENT 1 TESTIFIED. 2 THAT. 3 YOU WORKED BEFORE AND WORK HARD AGAIN, AND HOPEFULLY COME BACK 4 WITH A RESULT THAT TALKS ABOUT DAMAGES AND A RESULT THAT SAYS 5 THIS IS NOT A PUNITIVE DAMAGES CASE, AND WE ARE NOT GOING TO 6 GO THERE. 7 THAT'S WHAT I DO. I WANT YOU GUYS TO THINK ABOUT THINK ABOUT THEM, TOO, AND GO BACK AND WORK AS HARD AS THANK YOU. 8 IT IS PLAINTIFF'S BURDEN, REBUTTAL. THE COURT: 9 REBUTTAL CLOSING ARGUMENT 10 MS. NUGENT: WELL, SHELL KEEPS TRYING TO MISLEAD YOU. 11 WE HEARD WHAT YOU -- WHAT WE MOST NEEDED FROM MS. NEWTON IS 12 FOR HER TO SPEAK UP. 13 SOMETHING THAT WE DIDN'T GET. 14 GOTTEN? 15 COMPANY. 16 WHAT WE MOST NEEDED FROM HER IS AND YOU KNOW WHAT WE HAVE NOT NOT ONE OUNCE OF RESPONSIBILITY. NOT ONE FROM THAT NOT ONE. YOU HAVE SPOKEN. YOU HAVE SPOKEN UP. MS. NEWTON SPOKE 17 UP. 18 TELLING THEM ALL THOSE TIMES, I FEEL SINGLED OUT, I FEEL LIKE 19 I'M BEING TREATED UNFAIRLY, I FEEL LIKE I'M NOT BEING TREATED 20 LIKE ANYONE ELSE. 21 EXHIBITS. MARCH, APRIL, MAY, JULY, ARE YOU KIDDING ME? HERE SHE IS THOSE ARE EXACT WORDS FROM ALL THOSE EXACT WORDS. SHE DID EVERYTHING THAT SHE COULD DO. 22 AND ARE YOU TELLING ME THAT SHELL STILL REFUSES TO THIS 23 DAY TO TAKE ANY RESPONSIBILITY FOR ANYTHING THAT HAPPENS AT 24 THAT REFINERY? 25 THAT'S WHAT THEY ARE TELLING YOU. WE HEARD A MENTION OF MR. EKELEMU. HE SAID SOMETHING DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1292 REBUTTAL CLOSING ARGUMENT - NUGENT 1 REALLY IMPORTANT ON THE FIRST DAY, SOMETHING REALLY IMPORTANT. 2 HE SAID THAT THIS REFINERY HAS NOT TAKEN THE STEPS TO PREPARE 3 ITS WORKERS FOR THE CHANGES IN THE WORKFORCE, FOR THE 4 DIVERSITY THAT'S HAPPENING. 5 AND HE TOLD YOU THAT. 6 TAKING ANY RESPONSIBILITY OR PREPARING THAT WORKFORCE AT ALL, 7 AS YOU'VE HEARD, FOR THE CHANGES IN IT. 8 RESPONSIBILITY TO MAKE THEM HEAR IT. 9 I KEEP HEARING ANOTHER LIE, TOO. HE HAS BEEN THERE, HE'S SEEN IT, AND THEY ARE STILL NOT HEARING OR AND IT IS YOUR NOTHING HAPPENED AFTER 10 MAY 23RD. 11 WHITED OUT THOSE SIGNATURES ON MAY 27TH. 12 THAT. 13 NOTHING HAPPENED AFTER MAY 23RD. JEFF FISCHER I JUST KEEP HEARING I JUST CAN'T LET THAT GO. AND NOW WE'RE SUPPOSED TO BELIEVE THAT BECAUSE MS. NEWTON 14 TOOK HER VACATION, SHE WASN'T HARMED? 15 WAS SUPPOSED TO GET MARRIED. 16 DIED, SHE DIDN'T GET MARRIED THAT WEEK; SHE DID TAKE THE 17 VACATION. 18 FOR TAKING THAT TIME TO PUT HERSELF BACK TOGETHER? 19 WHAT YOU ARE HEARING. 20 YOU HEARD THAT. AFTER HER DAD AND NOW YOU ARE SUPPOSED TO HOLD THAT AGAINST HER THAT'S AND YOU HEARD SOMETHING ELSE REALLY, REALLY IMPORTANT 21 HERE. 22 NEUMAN, HE'S ONE OF US. 23 THAT WAS THE WEEK SHE THINK ABOUT ALL THOSE GUYS AT THE REFINERY. WE ALSO KEEP HEARING ABOUT RAY JONES. PATRIK HE TOLD YOU HE TOOK 24 HER ASIDE IN THAT MEETING BECAUSE HE THOUGHT SHE WAS 25 COMPLAINING ABOUT HARASSMENT. THAT'S WHY THERE WAS A BREAK. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1293 REBUTTAL CLOSING ARGUMENT - NUGENT 1 2 CHRISTINE LAYNE, HR, SHE HAS A MASTER'S IN HR. YOU ABOUT A MASTER'S IN HR. SHE TOLD SHE DIDN'T KNOW THAT? 3 ERIC PEREZ TOLD YOU HE KNEW THEY DIDN'T NEED NAMES. 4 DIDN'T NEED EXACT NAMES, EVEN THOUGH HE KNEW WHO THEY WERE. 5 HE TRIED TO TELL YOU, OH, I THOUGHT SHE WAS SAYING SHE WAS 6 TREATED UNFAIRLY ABOUT WERE THE TARDIES. 7 THREE PEOPLE IN THE CLASS? 8 TALKED TO THOSE PEOPLE. 9 WHO WERE THE OTHER HE KNEW HE COULD HAVE GONE AND I WANT TO TALK A LITTLE BIT ABOUT MIKE BECK. 10 EXACT TESTIMONY. 11 THE WHOLE DEPARTMENT. HE HE IS A MANAGING AGENT. HERE'S HIS HE'S IN CHARGE OF HE WAS ASKED: 12 "WELL, DURING THE TIME PERIOD THAT YOU WERE THE 13 PRODUCTION UNIT MANAGER FOR OPCEN, YOU ARE 14 RESPONSIBLE FOR ALL THE OPERATIONS OF THE UNITS 15 WITHIN THAT DEPARTMENT, CORRECT? 16 "CORRECT. 17 "YOU ARE RESPONSIBLE FOR ALL OF THE EMPLOYEES IN THE 18 OPCEN DEPARTMENT, CORRECT? 19 "CORRECT. 20 "YOU WERE RESPONSIBLE FOR ALL OF THE PROJECTS IN THE 21 OPCEN DEPARTMENT? 22 "CORRECT. 23 "YOU WERE RESPONSIBLE FOR THE TURNAROUND, CORRECT? 24 "CORRECT. 25 "YOU WERE RESPONSIBLE FOR THE CHANGES THAT WENT ON ON DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1294 REBUTTAL CLOSING ARGUMENT - NUGENT 1 OPCEN? 2 "YES. 3 "AND THEN, OF COURSE, WHEN IT CAME TO OPCEN, THE BUCK 4 STOPS WITH YOU? 5 "CORRECT. 6 "DURING THE TIME YOU WERE THE PRODUCTION UNIT 7 MANAGER, YOU HAD THE AUTHORITY TO MAKE DECISIONS TO 8 HIRE AND FIRE, CORRECT? 9 "CORRECT." 10 HE ALSO APPARENTLY HAD AUTHORITY TO GO AGAINST WHAT 11 SHELL'S WRITTEN POLICIES WERE BY NOT ENFORCING THEM. 12 POLICY IN ITSELF. 13 JUST DIDN'T DO ANYTHING. 14 THEY DON'T, WHO GETS FINAL SAY ON THAT? 15 THAT'S A HE KNEW HE COULD GO AGAINST THEM, SO HE THE POLICY IS TO INVESTIGATE; IF MIKE BECK. GOING BACK FOR A SECOND TO WANTING THIS INFORMATION FROM 16 HER AND NOT GETTING THIS INFORMATION FROM HER, THAT IS JUST 17 NOT CREDIBLE. 18 HER THREE CLASSMATES WERE. 19 PERMISSION. 20 TO THEM. 21 SHE COMPLAINED MANY OTHER TIMES. 22 IT'S JUST NOT. MS. NEWTON SAID MANY TIMES WHO YEAH, SHE WANTED TO ASK THEIR MANAGEMENT DOESN'T NEED THEIR PERMISSION TO TALK SHE DIDN'T WANT TO GET 'EM IN TROUBLE. SO WHAT? MANY OTHER TIMES. SHELL'S COUNSEL SHOWED YOU SOME EXHIBITS. THERE'S ALSO AN 23 EXHIBIT 45 WHERE IT SHOWS THAT MR. BECK KNEW PLAINTIFF WAS 24 CONCERNED ABOUT MR. FISCHER AND RETALIATION BY HIM AGAINST HER 25 CLASSMATES. SAME EMAIL WHERE NEWTON SAYS THEY NEED TO DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1295 REBUTTAL CLOSING ARGUMENT - NUGENT 1 2 INVESTIGATE. OKAY. YOU'VE HEARD A LITTLE BIT ABOUT AN AMOUNT. 3 I SAID WE TRUST YOU TO COME UP WITH AN AMOUNT. 4 NOW ECONOMIC DAMAGES ARE NOT IN THE CASE. 5 SOME WAY TO... TO PEG SOME AMOUNT. 6 TRUST YOU TO COME UP WITH IT. 7 AGAIN, AND YOU KNOW THAT IS USUALLY AGAIN, WE ARE GOING TO THIS IS THE ONLY WAY THAT YOU ARE GOING TO COMPENSATE 8 MS. NEWTON FOR GOING INTO THAT REFINERY EVERY DAY, INTO AN 9 ENVIRONMENT WHERE SHE FELT INTIMIDATED AND THREATENED FROM THE 10 BEGINNING, AND SHE KEPT TRYING TO WORK HARD, SHE CAUGHT UP ON 11 HER OWN AFTER HER FATHER'S DEATH. 12 AND COMPLAINS, AND THEN THAT STICKER ON HER DESK. 13 TO COMPENSATE HER FOR THAT. 14 FINALLY MAKE SHELL TAKE RESPONSIBILITY. 15 SHE COMPLAINS AND COMPLAINS SO YOU NEED YOU NEED TO FINALLY, FINALLY, AND SO WHETHER THAT IS SOMETHING IN THE NEIGHBORHOOD OF 16 WHAT HER PAST LOST WAGES ARE, $250,000, OR DOUBLE THAT, 17 $500,000, OR MAYBE YOU THINK SHELL NEEDS TO PAY MORE TO 18 COMPENSATE HER FOR THAT FOR GOING THROUGH THAT, OR LESS, IT'S 19 UP TO YOU. 20 YOUR HANDS. 21 22 23 AND WE TRUST YOU. AND ONCE AGAIN, THE CASE IS IN THANK YOU. THE COURT: ALL RIGHT. THANK YOU. LADIES AND GENTLEMEN, IF THE COURTROOM DEPUTY 24 WILL PASS OUT THESE INSTRUCTIONS, I JUST WANT TO FLIP THROUGH 25 THEM WITH YOU AGAIN SO THAT I DON'T HAVE TO -- I'M NOT GOING DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1296 1 TO REREAD THEM TO YOU OMITTING CERTAIN MATERIALS, BUT I DO 2 WANT YOU TO FLIP THROUGH THEM WITH YOU. 3 (DOCUMENTS HANDED TO COUNSEL AND JURY.) 4 THE COURT: ALL RIGHT. SO YOU HAVE YOUR COPY THERE. 5 SO AS YOU CAN SEE, THE INTRODUCTION IS -- TO DAMAGES IS THE 6 SAME ABOUT HAVING ACKNOWLEDGED YOUR DECISION TO AWARD DAMAGES 7 AND THE ATTORNEYS' ARGUMENTS ARE NOT DAMAGES AND THE 8 ATTORNEYS' FEES AND EXPENSES DO NOT -- ARE NOT TO BE 9 CONSIDERED. 10 THERE ARE STILL TWO LEGAL THEORIES, RIGHT, BECAUSE YOU 11 FOUND ON TWO CLAIMS, BUT THE ONLY AVAILABLE DAMAGES, AS THE 12 ATTORNEYS HAVE ARGUED, ARE FOR EMOTIONAL DISTRESS PAST AND 13 FUTURE. 14 TAKEN IT OUT. 15 16 17 SO EVERYTHING I SAID ABOUT THE ECONOMIC DAMAGES, I'VE IT DOESN'T APPLY. THE AVOIDABLE CONSEQUENCES, WHICH IS THE NEXT PAGE, STILL APPLIES. AND THEN I READ YOU A FULL PAGE ABOUT MITIGATION OF 18 DAMAGES. 19 IN THERE BECAUSE IT DOESN'T APPLY. 20 THAT ALL RELATED TO ECONOMICS. YOU DON'T SEE THAT ALL RIGHT? SO THEN THE FINAL PAGES RELATE TO THE PUNITIVES. I THINK 21 THE ATTORNEYS HAVE DONE A GREAT JOB OF FOCUSING ON THE LAW 22 THAT APPLIES, AND I DON'T THINK THAT ANYBODY WANTS ME TO 23 REREAD THESE, ESPECIALLY BECAUSE YOU PROBABLY DON'T REMEMBER 24 EXACTLY WHAT I SAID AND NOW YOU HAVE THEM IN WRITING IN FRONT 25 OF YOU. DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1297 1 ARE THERE ANY QUESTIONS? 2 YES, MA'AM. 3 JUROR: 4 IF WE WON'T BE FINISHED BY THE END OF THE DAY, WILL WE COME BACK TOMORROW? 5 THE COURT: I CAN'T TELL YOU. I DON'T KNOW HOW LONG 6 YOU'RE GOING TO DELIBERATE. 7 ARE ALL DONE, OKAY? 8 ALL RIGHT. ANY OTHER QUESTIONS? 9 ALL RIGHT. THEN WE WILL WAIT TO HEAR BACK FROM YOU. 10 SO JUST KEEP PLUGGING UNTIL WE I WILL BE HERE TOMORROW IF I HAVE TO BE. NO? (PROCEEDINGS HELD OUTSIDE THE PRESENCE OF THE JURY.) 11 THE COURT: I DIDN'T WANT THERE TO BE ANY CONFUSION, 12 SO I'M GOING TO GIVE THE COURTROOM DEPUTY NOW THE VERDICT 13 FORM. 14 COURT REPORTER. 15 SO LET'S GIVE ONE TO EACH OF THE LAWYERS AND ONE TO THE THEN IF YOU HAVE THE RED ENVELOPE. 16 THE CLERK: I DO. 17 THE COURT: I ALMOST CHANGED THE COLOR OF THAT 18 19 20 ENVELOPE AFTER THE MESS UP WITH THE ACADEMY AWARDS. ALL RIGHT. FOR EACH OF THEM. 21 (DOCUMENTS HANDED TO COUNSEL.) 22 23 24 25 SO THERE IS THE ORIGINAL AND HERE IS ONE COPY THE COURT: ALL RIGHT. FOLKS WE WILL STAND IN RECESS UNTIL -MS. SMALLETS: YOUR HONOR, CAN I DRAW YOUR ATTENTION TO ONE CASE ON THE ISSUE OF THE ECONOMIC DAMAGES? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1298 1 THE COURT: I THINK WITH RESPECT TO THAT ISSUE, THE 2 SHIP HAS SAILED. 3 NEED TO REDO AFTER ALL OF THIS IS DONE, WILL BE DONE ON 4 POST-TRIAL MOTIONS. 5 GOING TO THINK ABOUT REDOING IT AT THIS POINT, MS. SMALLETS. 6 ANYTHING THAT WE WANT -- THAT YOU THINK I I AM NOT GOING TO THINK ABOUT -- I'M NOT MS. SMALLETS: OKAY. THERE'S CASE LAW THAT INDICATES 7 THAT ECONOMIC DAMAGES ARE RECOVERABLE UNDER THESE 8 CIRCUMSTANCES. 9 THE COURT: WELL, THAT WILL BE A POST-TRIAL ISSUE. 10 MS. SMALLETS: 11 THE COURT: 12 13 THANK YOU, YOUR HONOR. ALL RIGHT. THEY COME BACK. I WOULD SUGGEST THAT PERHAPS YOU STAY AT THE ATTORNEY 14 LOUNGE OR SOMEWHERE CLOSE. 15 TAKE THEM. I DON'T KNOW HOW LONG THIS WILL OKAY? 16 MR. LAFAYETTE: 17 THE COURT: 18 WE WILL STAND IN RECESS UNTIL THANK YOU, YOUR HONOR. THEN WITH RESPECT TO PUNITIVES, IF WE GET THERE, NO MORE THAN TEN MINUTES OF ARGUMENT FOR EACH SIDE. 19 WE WILL STAND IN RECESS. 20 (RECESS TAKEN AT 2:33 P.M.; RESUMED AT 3:00 O'CLOCK P.M.) 21 (PROCEEDINGS HELD OUTSIDE THE PRESENCE OF THE JURY.) 22 23 24 25 THE COURT: ALL RIGHT. LET'S GO ON THE RECORD. THE RECORD WILL REFLECT THAT I HAVE THE LAWYERS BACK. I DO WANT TO TALK ABOUT THE NEXT PHASE IN CASE I GET A VERDICT BACK FROM THE JURY THAT FINDS A LIABILITY FINDING ON DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1299 1 2 PUNITIVES. FIRST OF ALL, WHAT EVIDENCE DO YOU WANT TO PUT IN, CAN 3 THERE BE STIPULATIONS IN THIS REGARD TO FACILITATE AND 4 STREAMLINE THIS PHASE? 5 BEEN LODGED WITH THE COURT. 6 WE DO HAVE THE FINANCIALS WHICH HAVE DO WE NEED LIVE TESTIMONY OR CAN THERE BE STIPULATIONS? 7 MR. LAFAYETTE: YOUR HONOR, IN THE UNDER SEAL 8 DOCUMENTS YOU HAVE, THERE IS A DECLARATION AFFIRMING THAT 9 THOSE ARE THE FINANCIALS. 10 I THINK WE CAN JUST STIPULATE THAT THAT'S WHAT IT IS. 11 MS. NUGENT: YEAH. I HAVEN'T SEEN THEM, BUT ASSUMING 12 THEY ARE WHAT THEY NORMALLY LOOK LIKE, I DON'T THINK WE ARE 13 GOING TO NEED ANY LIVE TESTIMONY. 14 ELECTRONIC COPY OF THEM SO WE CAN BE PREPARED AND JUST ARGUE 15 OFF OF WHAT THEY SAY. 16 17 THE COURT: OKAY. ANY OBJECTION TO ME OPENING UP THIS PACKET? 18 MR. LAFAYETTE: 19 MS. NUGENT: 20 THE COURT: 21 I HAVE ASKED FOR AN NO, YOUR HONOR. NO, YOUR HONOR. I DIDN'T KNOW THAT YOU HAVE A BASIS TO OBJECT. 22 MS. NUGENT: 23 THE COURT: THAT'S TRUE. NO STANDING FOR THAT. SO, MR. LAFAYETTE, I'VE OPENED IT UP. 24 DON'T SEE A DECLARATION. 25 BE THE EXACT SAME THING, WHICH IS THE CONSOLIDATED FINANCIAL I I SEE THREE COPIES OF WHAT APPEAR TO DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1300 1 2 3 STATEMENTS. MR. LAFAYETTE: I HAVE IT HERE. I CAN PUT IT ON THE SCREEN FOR YOUR HONOR. 4 THE COURT: 5 MS. NUGENT: 6 MR. LAFAYETTE: OKAY. EXCUSE ME. I WAS JUST GOING IT TO USE THIS. 7 (PAUSE IN THE PROCEEDINGS.) 8 (DISPLAYED ON SCREEN.) 9 10 THE COURT: ALL RIGHT. THE NEXT PAGE. ALL RIGHT. ANY OBJECTION TO ME HANDING A COPY OF THESE TO THE 11 PLAINTIFFS FOR THEIR SOLE PURPOSE OF THEIR REVIEW AND 12 PREPARATION FOR THE NEXT PHASE, TO THE EXTENT THAT IT IS 13 APPROPRIATE? 14 IF IT IS ULTIMATELY NOT, THEY WOULD BE RETURNED TO THE 15 COURT AND I WOULD ULTIMATELY RETURN THEM TO YOU. 16 FINANCIAL STATEMENTS WOULD ONLY BE GIVEN UNDER THE ORDER THAT 17 THEY CAN BE USED FOR NO OTHER PURPOSE AND THEY CANNOT BE 18 COPIED OR OTHERWISE DISSEMINATED BEYOND THE NEED TO USE THEM 19 FOR THIS CASE. 20 MR. LAFAYETTE: 21 THE COURT: 22 MR. LAFAYETTE: 23 THE COURT: THESE THAT'S FINE. ANY OBJECTION? NO, YOUR HONOR. ALL RIGHT. SO I WILL KEEP A COPY. 24 MS. NUGENT, THERE IS A COPY FOR YOU. 25 COPY SO YOU KNOW WHAT IT IS WE HAVE. MR. LAFAYETTE, JUST A DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1301 1 I NEED YOU TO EMAIL THAT DECLARATION TO ME. 2 MS. NUGENT: 3 THE COURT: 4 I'LL DO IT. AND WE NEED THE ORIGINAL. I DON'T KNOW WHERE IT IS. 5 (DOCUMENT HANDED TO COURT AND COUNSEL.) 6 THE COURT: IS THERE A STIPULATION THAT THE COURT CAN 7 ADMIT THE DECLARATION AND THE EXHIBIT AS EVIDENCE FOR THE JURY 8 TO CONSIDER? 9 MS. NUGENT: YES, YOUR HONOR. 10 MR. LAFAYETTE: 11 THE COURT: 12 YES, YOUR HONOR. ALL RIGHT. GIVEN THAT, IS THERE A STIPULATION THAT NO FURTHER EVIDENCE IS NEEDED? 13 MS. NUGENT: I HAVEN'T LOOKED AT IT YET, SO I 14 DON'T -- I NOTICE THERE IS NO AUDITED FINANCIAL STATEMENT FOR 15 EQUILON. SO WITHOUT LOOKING AT IT, I DON'T KNOW. 16 THE COURT: 17 MS. NUGENT: 18 THE COURT: YOU UNDERSTAND WHAT THE DECLARATION SAYS? YES. THAT THERE IS -- THAT IT ONLY COMES IN -- 19 THAT THERE IS NO SEPARATE FINANCIAL, THAT IT IS PART OF THE 20 SHELL'S DISCLOSURES. 21 MS. NUGENT: 22 THE COURT: 23 YES. SO I WILL GIVE YOU TIME TO LOOK AT IT. AND WHEN YOU'VE HAD A CHANCE TO LOOK AT IT, LET ME KNOW. 24 (PAUSE IN THE PROCEEDINGS.) 25 (DOCUMENT HANDED TO COURT AND COUNSEL.) DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1302 1 2 MR. LAFAYETTE: ADDRESS. 3 4 5 6 THE COURT: JUST SEND IT TO CHAMBERS. NOT TO ME SPECIFICALLY. I SAW THAT MS. LYONS PASSED THESE OUT, BUT WHERE IS THE ORIGINAL TO BE FILED? 7 8 YOUR HONOR, I THINK I NEED YOUR EMAIL MS. LYONS: WE RECEIVED IT BY PDF, YOUR HONOR, OVER THE INTERNET. 9 (PAUSE IN THE PROCEEDINGS.) 10 THE COURT: SO, MR. LAFAYETTE, I DON'T SEE A SINGLE 11 REFERENCE TO EQUILON ENTERPRISES IN THIS DOCUMENT. 12 IT YOU ARE WAIVING THE ARGUMENT THAT SOMETHING OTHER THAN THE 13 FULL VALUE OF SHELL SHOULD BE ARGUED FOR PUNITIVES PURPOSES? 14 IN FACT, THE WORD "EQUILON", FROM WHAT I CAN TELL, MY 15 QUICK REVIEW, NEVER APPEARS. 16 MR. LAFAYETTE: I THINK YOU'RE RIGHT IT DOESN'T 17 APPEAR. 18 THE ONLY THING I HAVE IS THIS CONSOLIDATED FINANCIAL 19 STATEMENT. BUT THIS IS ALL I'VE GOT. 20 THE COURT: 21 MR. LAFAYETTE: 22 23 SO I TAKE SO AT THE END OF THE DAY, SO THE WAIVER IS -- ARE YOU WAIVING? "WAIVER" IS A STRONG WORD, YOUR HONOR -THE COURT: WELL, WE ARE IN TRIAL. FIRST OF ALL, WE 24 ARE IN TRIAL. 25 ORDER TO HAVE A PERSON WITH INFORMATION AND KNOWLEDGE TO SECOND OF ALL, YOU WERE UNDER A FEDERAL COURT DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1303 1 DISCUSS THE FINANCIAL STATUS OF THE RELEVANT PARTY, NAMELY, 2 YOU, SHELL, EQUILON AVAILABLE ON ONE HOUR'S NOTICE FROM WHEN 3 THE JURY DELIBERATIONS BEGAN, WHICH WAS LAST MONDAY. 4 HAVE BEEN ON NOTICE. SO YOU THIS IS COURT ORDER DOCKET 201. 5 AND YOU WERE ORDERED TO FILE WITH THE COURT AND LODGE, NOT 6 FILE BUT LODGE WITH THE COURT ALL OF THE DEFENDANT'S FINANCIAL 7 INFORMATION. 8 9 10 THIS IS WHAT YOU'VE GIVEN ME. SO, IN MY VIEW, GIVEN THAT THE WORD DOESN'T EVEN SHOW UP, YOU HAVE WAIVED UNLESS THERE IS SOME OTHER REASON TO THINK OTHERWISE. 11 MR. LAFAYETTE: 12 THIS: 13 WAIVED, THEN I'VE WAIVED. 14 YOUR HONOR. I HAVE NOTHING ELSE. THE COURT: 16 MS. NUGENT: 20 BUT I HAVE NOTHING ELSE TO GIVE, ALL RIGHT. THE COURT DEEMS IT WAIVED. THIS IS THE INFORMATION WE HAVE, AND WE WILL STIPULATE THAT WE WILL ARGUE FROM THIS. 18 19 AND IF THAT MEANS THAT I HAVE THAT'S ALL I'M SAYING. 15 17 ALL I CAN TELL YOU, YOUR HONOR, IS THE COURT: GOOD ENOUGH. OKAY. WE WILL STAND IN RECESS UNTIL WE HEAR FROM THE JURY. 21 (RECESS TAKEN AT 3:13 P.M.; RESUMED AT 4:10 P.M.) 22 (PROCEEDINGS HELD OUTSIDE THE PRESENCE OF THE JURY.) 23 24 25 THE COURT: WE RECEIVED -- WE ARE BACK ON THE RECORD. THE RECORD WILL REFLECT THAT THE PARTIES ARE PRESENT. WE RECEIVED THE FOLLOWING QUESTION AT 4:00 O'CLOCK: DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1304 1 2 3 "WHAT CAN WE EXPECT WILL HAPPEN IF WE CANNOT AGREE ON AN AMOUNT NOW OR FIVE DAYS FROM NOW?" THOUGHTS? START WITH THE PLAINTIFF. 4 MS. NUGENT: 5 MR. LAFAYETTE: 6 MS. NUGENT: 7 8 I THINK THEY NEED TO KEEP TRYING. I COULDN'T HEAR, I'M SORRY. I SAID I THINK THAT THEY NEED TO KEEP TRYING. MR. LAFAYETTE: IF I THINK I UNDERSTAND IT, THEN IF 9 THEY DON'T REACH A NUMBER, THEN THERE'S PROBABLY A MISTRIAL. 10 BUT I HAVEN'T BEEN IN THIS POSITION BEFORE, YOUR HONOR, SO I 11 PROBABLY NEED TO TAKE A LOOK. 12 BUT IF THEY ARE ASKING FOR A DIRECTIVE, I -- THERE'S A 13 SPECULATIVE PART TO THE QUESTION, BUT I THINK THAT WHAT WE 14 TELL THEM TO TRY, AND IF THEY CAN'T REACH A DECISION, THEN I 15 THINK THERE IS A CHARGE THAT'S GIVEN. 16 TO -- AND THERE'S A CHARGE THAT'S GIVEN, BUT THAT'S ALL I 17 THINK I KNOW OF. 18 THE COURT: I'VE NEVER HAVE HAD WHAT I COULD DO IS -- WELL, IT MAY BE 19 THAT I NEED TO TELL THEM TO GO HOME AND REST AND COME BACK AND 20 TAKE A FRESH LOOK AT IT IN THE MORNING. 21 THERE IS THE INSTRUCTION 3.7 WHICH JUST REMINDS THEM 22 THAT -- OF THEIR DUTY TO -- YOU CAN ALL READ IT -- BUT TO TRY 23 TO REACH A VERDICT, BUT THAT THEY SHOULD ONLY DO SO AFTER, YOU 24 KNOW, CONSCIENTIOUSLY THINKING ABOUT THE OTHERS. 25 TELLS THEM TO PERHAPS QUESTION THE CORRECTNESS OF YOUR PRESENT AND IT ALSO DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1305 1 2 POSITION. BUT THEY HAVE BEEN WORKING HARD ALL DAY AND THEY ARE 3 PROBABLY TIRED. 4 REST AND COME BACK, AND THEN THAT WILL GIVE YOU AN OPPORTUNITY 5 OVER THE EVENING TO THINK ABOUT IT. AND IT MAY BE WORTHWHILE FOR THEM TO GO AND 6 THE -- MY INSTINCT IS TO SAY THAT THERE WOULD BE A 7 MISTRIAL BECAUSE ALL OF THE ELEMENTS HAVEN'T -- THEY CAN'T 8 RESOLVE ALL OF THE ELEMENTS. 9 POINT OF ONLY EMOTIONAL DISTRESS DAMAGES, THEY COULDN'T HAVE 10 SOME OTHER JURY DECIDE THAT TOPIC WITHOUT RE-LISTENING TO ALL 11 OF THE EVIDENCE AGAIN. 12 MISTRIAL, BUT I DON'T KNOW THAT I AM INCLINED TO TELL THEM 13 THAT RIGHT NOW. 14 AND CERTAINLY WE ARE AT THE SO I THINK I WOULD HAVE TO DECLARE A I DID INSTRUCT THEM ON THAT TOPIC ORIGINALLY, SO IT'S IN 15 THEIR INSTRUCTIONS THAT IF THEY DON'T AGREE, I THINK THERE IS 16 A REFERENCE TO A MISTRIAL, BUT I AM NOT INCLINED TO DO THAT 17 RIGHT THIS MINUTE. 18 MS. NUGENT: 19 MR. LAFAYETTE: 20 21 I WOULD AGREE. BEFORE WE BRING THEM OUT, I HAVE A DOCTOR'S APPOINTMENT ON MY KNEE AT 9:30. I AM ASSUMING THAT'S OUT NOW. 22 THE COURT: 23 MR. LAFAYETTE: 24 THE COURT: 25 THAT'S FINE, YOUR HONOR. I WOULD THINK SO. THANK YOU, YOUR HONOR. DO YOU WANT ME TO READ TO THEM 3.7, WHICH IS BASICALLY, YOU KNOW, GO BACK AND TRY AGAIN TO REMIND DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1306 1 THEM -- IT ESSENTIALLY REMINDS THEM OF THEIR DUTY, OR JUST 2 SAY, LOOK, YOU'VE BEEN WORKING REALLY HARD, GO HOME, REST -- 3 4 MR. LAFAYETTE: YOUR HONOR. 5 6 I WOULD GIVE THEM THAT ONE FIRST, MS. NUGENT: YEAH, YOU CAN READ 3.7. KNOW THAT, THOUGH. 7 THE COURT: 8 MR. LAFAYETTE: 9 MS. NUGENT: YOU'RE SAYING NOT TO DO 3.7? I WOULD SAY NOT TO DO -- OH, GREAT. LET THEM GO HOME. 10 MR. LAFAYETTE: 11 THE COURT: LET'S BRING THEM ON IN. 12 THE CLERK: ALL RIGHT. 13 16 SO SAY THAT. LET THEM GO HOME. (PROCEEDINGS HELD IN THE PRESENCE OF THE JURY.) 14 15 I THINK THEY THE COURT: WE ARE BACK ON THE RECORD. YOU MAY BE YOU ALL LOOK EXHAUSTED TO ME. AND THAT SEATED. WELCOME BACK. 17 TELLS ME, AS I KNOW IS THE CASE, YOU HAVE BEEN WORKING REALLY 18 HARD. 19 IN THE MORNING AND SEE IF YOU CAN FIGURE IT OUT WITH A GOOD 20 NIGHT'S SLEEP. 21 I THINK YOU SHOULD ALL GO HOME AND REST AND COME BACK THAT'S WHAT I THINK. I AM NOT GOING TO ANSWER THIS QUESTION RIGHT NOW, BUT I 22 THINK YOU'VE PUT A LOT OF EFFORT INTO THIS CASE, THE PARTIES 23 HAVE PUT A LOT OF EFFORT INTO THIS CASE, GO HOME AND REST AND 24 COME BACK IN THE MORNING. 25 ANY QUESTIONS OR CONCERNS? NO? DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1307 1 JUROR: WOULD YOU OBJECT IF... WE WERE WAITING FOR 2 THIS ANSWER, WOULD YOU OBJECT IF WE WENT IN TO DECIDE TONIGHT 3 OR NOT? 4 5 YOU CAN STAY HERE AS LONG AS YOU WANT. THE COURT: AS LONG AS YOU WANT. 6 JUROR: 7 THE COURT: MAY WE HAVE ANOTHER 15 MINUTES? YOU CAN HAVE AS LONG AS YOU WANT. I MEAN 8 I KNOW I GAVE YOU GUYS A DEADLINE, BUT THIS IS FEDERAL COURT. 9 AND IN FEDERAL COURT, I CAN KEEP PEOPLE HERE UNTIL 6:00, 7:00, 10 8:00 O'CLOCK AT NIGHT IF I WANT TO. 11 DO THAT, BUT YOU CAN HAVE AS MUCH TIME AS YOU WANT. I DON'T THINK I WANT TO 12 YES, MA'AM. 13 JUROR: 14 THE COURT: 15 DON'T KNOW IF IT EVER CLOSES. 16 FOR MY LAW CLERKS GIVEN THAT THEY ARE HERE PRETTY LATE AT 17 NIGHT. WHAT TIME DOES THE PARKING CLOSE? 18 JUROR: 19 THE COURT: OKAY. 20 RIGHT. 21 AS YOU NEED US TO. 22 23 24 25 I THINK IT CLOSES LIKE AT MIDNIGHT. I THAT WOULD BE A REAL PROBLEM THANK YOU. I'LL SEND IN SOME CANDY, HOW ABOUT? I'LL SEND IN SOME CANDY. ALL WE WILL WAIT FOR YOU AS LONG OKAY. GARAGE CLOSES AT 11 P.M. I'M TOLD. JUROR: THANK YOU. (PROCEEDINGS HELD OUTSIDE THE PRESENCE OF THE JURY.) THE COURT: OKAY. THE RECORD WILL REFLECT THAT THEY DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC 1308 1 HAVE LEFT. HERE'S THE THING FOLKS: 2 IF THEY COME BACK, THERE IS ONE 3 MORE PHASE. AND GIVEN HOW TIRED THESE FOLKS LOOK, I THINK I 4 MAY ONLY GIVE YOU FIVE MINUTES TO CLOSE ON PUNITIVES. 5 MS. NUGENT: 6 THE COURT: 7 IT. THAT SOUNDS GOOD. I JUST, YOU KNOW. ABSOLUTELY. ANYWAY. THINK ABOUT WE WILL STAND IN RECESS UNTIL WE HEAR BACK FROM THEM. 8 (JURY LEAVES AT 4:15 P.M.) 9 (PROCEEDINGS ADJOURNED AT 4:20 P.M.) 10 11 12 13 CERTIFICATE OF REPORTER I, DIANE E. SKILLMAN, OFFICIAL REPORTER FOR THE 14 UNITED STATES COURT, NORTHERN DISTRICT OF CALIFORNIA, HEREBY 15 CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM THE 16 RECORD OF PROCEEDINGS IN THE ABOVE-ENTITLED MATTER. 17 18 _____________________________ 19 DIANE E. SKILLMAN, CSR 4909, RPR, FCRR 20 WEDNESDAY, DECEMBER 19,2018 21 22 23 24 25 DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC