Oregon Medical Malpractice: Stephens v. Multnomah

Page 1 NOTICE OF APPEAL
Karellen Stephens
Renee Stephens
7135 SW 54
th
Avenue
Portland, OR 97219
503-977-7935
karellen.stephens@comcast.net
renee.stephens1@comcast.net

Plaintiff in Pro Per

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

KARELLEN STEPHENS, et al.,
Plaintiffs,
v.
MULTNOMAH COUNTY, et al.,

Defendants.
Case No. 3:11-cv-00171-MO

NOTICE OF APPEAL

Notice is hereby given that plaintiffs in the above named case, hereby appeals to the
United States Court of Appeals for the Ninth Circuit from the final judgment entered in this
action on the 13
th
day of July, 2012.
Pursuant to FRAP Rule 3-1, the plaintiff need not pay the docket fee upon filing this
notice of appeal because the district court has granted the plaintiff status in forma pauperis
which is attached hereto as Document [5].


BASIS ON APPEAL
The appellants seek review from the Ninth Circuit Court of Appeals for the purpose of
determining violations of the appellants Seventh Amendment US Constitutional rights of a trial
by jury and Fourteenth Amendment US Constitutional rights of due process. This appeal is not
made for the purpose of malicious or vexatious litigation. The appellants were not given an
opportunity to present proof of their claims to the district court. Attached as Exhibit A to this
notice of appeal is initial documented evidence supporting the appellants claims.

The appellants were also not given notice that the district court intended to impose a pre-
filing order against the appellants and were not given an opportunity to oppose such an order.
The fact that the Vangelisti Kocher defendants requested a pre-filing order is not notice from the
court that the court will in fact issue the pre-filing order. See Molski v. Evergreen Dynasty Corp.,
500 F.3d 1047 (9th Cir. 2007), citing De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir.1990).
Furthermore, the pre-filing order that was issued against appellants makes little sense because it
was put in place due to Qadiras alleged injury where there is no alleged injury. Qadiras
burn injury is a well documented fact and can and was proven by the testimony of the people
who burned Qadira, the testimony of Sophie Burkholder who was a witness, and the testimony of
Qadira; as well as many others who were witnesses to the injury and the damage suffered by
Qadira from the injury. Pictures of Qadiras injury were taken by Qadiras parents, Scott Kocher
of Vangelisti Kocher, and Beth Phipps from State Farm insurance company. Medical reports, a
DHS report, and a police report were generated in regards to the incident. There is also Qadiras
compounding medical complications that continue to arise from the non-treatment of her burn
injury, which to date are: Osteopenia, Scoliosis, Type 1 diabetes, possible liver damage, and

possible nerve damage to her left leg which continues to have occasional spasms causing her
severe pain sometimes to the degree that she is prevented from walking and has to use crutches.

It must be unprecedented for a court to block guardian ad litem appointed by a court from
protecting an injured child from further harm, especially when the court has made no effort to
meet with the child or guardian ad litem or view any of the evidence to be presented in the case.
The Doctrine of Res Judicata cannot apply in this case because the appellants were bringing
many of these claims for the first time. It should be noted that none of the appellants claims
have ever gone to a jury and all of their claims have been repeatedly dismissed without opinion,
explanation, or discussion. See Allen v. McCurry, 449 US 90 (1980) and Kremer v. Chemical
Construction Corp., 456 US 461 (1982) at 482. Also, An injunction cannot issue merely upon a
showing of litigiousness. The plaintiff's claims must not only be numerous, but also be patently
without merit. See Moy v. United States, 906 F.2d 467 at 470 (9th Cir.1990)

Failure to State a claim is not appropriate because if the judge had some trouble believing
the appellants complaint he could have asked the appellants to produce evidence, and compelled
the defendants to actually produce answers. A complaint may only be dismissed if it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief. Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9thCir. 2011) (quotation omitted).
The appellants in this case were prepared and are prepared to present compelling evidence to
support all facts and allegations asserted in their complaint and have attached some of the most
important pieces of evidence to this appeal.


The Federal Marshals office was still in the process of serving the complaint when Judge
Mosman, with no notice to appellants, haphazardly closed the case. The appellants had just
filed their second amended complaint in response to defendants Nike and Phil Knights motion
to dismiss under FRCP Rule 15(a)(1)(B) when the judge suddenly issued the opinion and order,
not even requiring the opposing parties to respond to the second amended complaint. When the
order was issued there were parties in default and parties still being served which has added to
the confusion. The appellants only named defendants in this case who had knowledge of
Qadiras injury and were in some way involved in the actions taken against them which deprived
them of their rights. The appellants did not haphazardly assert allegations, and did include over
30 pages of documented facts in their 68 page complaint.

The judge in this case was also clearly biased because he was more concerned for the
financial welfare of the defendants then the right of the appellants. The appellants claims are
not frivolous, unreasonable, or without foundation and the appellants are not bent on endless
litigation. The appellants filed this case and specifically asked that all judgments in their prior
cases be vacated in favor of having this case move forward unimpeded to resolve these issues
once and for all. The appellants have also requested counsel numerous times and that request
has been repeatedly denied.
The district court asserted that the appellants claims are not plausible in its opinion and
order granting the defendants various motions to dimiss [103], but that was not the courts
responsibility. What the district court should have determined is why the hospitals did not treat
Appellant Qadira for her burn; why the Police, FBI, and various public official defendants did
not investigate, Appellant Qadiras child abuse, and why the Oregon Judicial Department
allowed and ran a fraudulent trial where Appellant Karellen Stephens was appointed the guardian
ad litem of her abused daughter against federal statute. What happened in this case was nothing
short of a criminal conspiracy to cover up the abuse of Appellant Qadira. This is why the
appellants seek appeal and why this Court must remand this case for trial.
Dated: August 10,2012
Respectfully Submitted by,
R! nee Stephens
7135 SW 54
th
A venue
Portland, OR 97219
503-977-7935
karellen.stephens@comcast.net
renee.stephens1@comcast.net
Plaintiff in Pro Per
Page 5 - NOTICE OF APPEAL
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
Karellen Stephens et al. ORDER
Plaintiff, CV 3:12-cv-00171 MO
v.
Multnomah County et al,
Defendant.
IT IS ORDERED that plaintiff's motion to proceed in forma
pauperis is granted. This action may go forward without the
payment of fees or costs.
Pursuant to 28 U.S.C. '1915(d), the U.S. Marshal's Office is
directed to serve the summons, complaint and any LR16.1(d)
scheduling orders on the defendant pursuant to Fed. R. Civ. P.
4(e).
For each defendant named in the action, Plaintiff is
responsible for 1) completing and submitting to the United
States District Court, District of Oregon, Clerk's Office, 1000
1 - ORDER
Case 3:12-cv-00171-MO Document 5 Filed 02/23/12 Page 1 of 2 Page ID#: 71
SW 3rd Avenue, Room 740, Portland, Oregon 97204 an original and
one copy of the summons for issuance by the Clerk. 2) providing
the Clerk with a copy of the complaint for service; and 3)
completing and submitting instructions for service of process on
a form USM285 to the Clerk's Office. Summons forms and the USM285
may be obtained on request from the Clerk's Office.
The Clerk is directed to issue summons in this case and to
forward to the United States Marshal the papers received from the
plaintiff for service of process, including the completed USM285.
IT IS SO ORDERED.
DATED: February 23, 2012
/s/ Michael W. Mosman

Michael W. Mosman
United States District Judge
2 - ORDER
Case 3:12-cv-00171-MO Document 5 Filed 02/23/12 Page 2 of 2 Page ID#: 72
Renee Stephens
7135 SW 5411l Ave.
Portland, OR 97219
Renee.stephens1@comcast.net
H 503--977-7935 C 503-545-2509
OBJE.CTlVE:
Create products that redefine boundaries and inspire human potential.
Work Experience:
FOOTWEAR DESIGNER 2.05 -10.07
. Exeter Brand GroupsfNIKE Inc. - Beaverton. OR
Created concepts for the NASCAR initiative. Created and effectively
communicated product's POV to possible retail accounts and Exeter-Nike
leadership Teams. Efficiently and effectively communicated product details and
technical aspects of footwear to Asian factory partner through detailed design
schematics and technical packages. Developed apparel line and color strategy
for NASCAR based on motor-sport teams.
Extensively researched professional history and personal attributes of recently
signed NBA All Star basketball player Elton Brand to help create a unique POV
for Starter in basketball. Met. conveyed. and confirmed findings with Elton Brand,
Exeter, and Nike Basketball leadership. Deyeloped brand identification for Etton
product collection. Developed insights for product details based on first-hand
with Elton. Developed Game Shoe for Elton Brand.
Created footWear designs for the Starter Brand. Established creative direction
of footwear categories for placement in Traveled to Asia to work with
factory partners on honing product detail. Created 2nd top selling shoe for Starter
Brand at Wal-Mart. Supported Tailwind Brand initiative for. Payless Shoe Stores.
Acted as key liaison in exploring concept and ideation process with Nike's digital
3D design tools for Exeter Brand Group.
DESIGNER 9.99 -2.05
NIKE Inc. - OR
.' *
Created category creative direction, footwear designs, and implemented color
strategy for Kids Footwear Group, Responsibilities included, but were not
limited to product story telling through Power Point and Acrobat presentations;
inspiration development boards; trend forecasting; color story and color palette
creation wi technical Implementation; 20 to 3D sample creation wI emphasis an
factory manufacturing technique exploration; extensive material
research/exploration and story telling through material application. Generated
footwear designs and color strategy based on Globat Corporate Color Direction
for the Custom Footwear/Strategic Department Store groups.
EXHIBIT: --tlt---
WIT:
Bridge City Legal
STEPHENS001144
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-- ---- -----
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FOOTWEAR COLOR DESIGNER 10.96 ~ 6.99
ADICAS International - Portland, OR
Established color direction and executed footwear color designs for the Kids.
Basketball. Originals. and SMU categories. Responsibilities Included'
establishing color inspiration/direction; color palette creation; presentation
formatting; merchandising tool production; digitalline-artlphoto art preparation;
partial -materials research; and product color technical development support.
MODEL SHOP/FOOTWEAR DESIGN ASSISTANT 5.94 -4.96
ADI DAS International - Portland, OR
. Interned model making. Responsibilities included footwear model/marketing
sales sample painting; general model shop organization. ASsisted footwear
designers in rendering/presentation preparation and general errands.
Educatlon.Skills.Personal Qualities:
Portland State University. Urban League IS.E.I & Adidas joint venture: the
Adidas Academy Footwear School. Proficiency in Adobe CS3 and familiar with
Alias StudioTools, Maya, Powershape, Rhino3D. Comfortable in both PC and
Mac environments. Comfortable in fast-pace work environment, hard working,
personableJeasy to work with, and self-motivated. Maintains a "can do" aHitude
and always treats every obstacle as an opportunity for growth.
STEPHENS001145
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\\1\S l"S

-r\-t A-::r .w A"7:> C::::>\ \I &l \'0
March 9. 2007
}-A.6" Af"T"e-P- T'-+"H<-
Confidential
Renee Stephens
RE: Complaint and/or workplace concerns
Dear Renee:
. This letter follows our discussion earlier this week. As you know, fact-finding process
was initiated based on the concems you reported. The allegations are summarized as
follows You alleged that your co-worker: .
. J",.R
Touched you in a sexually suggestive way on two occasions, grabbing.Rts11ips and
mimicking sex or
Directed the same type of JgKavior toward another co-worker. and
Made comments about sexual behavior.
As a result of these concerns, we immediately began a fact-finding process. We
conducted two interviews. including individuals you specifically recommended.
Our fact-finding process and review concluded on March 8, 2007.
The fact-finding process revealed evidence of behavior which is inconsistent with Nike
policy. This issue is being appropriately addressed by the management team.
I am confident that the behavior will not recur, and that you and your co-workers will
enjoy a professional and pleasant working relationship. When wespoke, you asked
whether you and Randy will speak to each other about this incident, and I told you that
was your choice. Randy has expressed a desire to speak with you, to apologize for
making you feel uncomfortable, but has also recognized that you might prefer not to
have that discussion. So we will defer to your preference in this matter - Mary Brunke.
your HR partner, can discuss it further with you.
Renee, I want to assure you that Nike takes complaints of this nature very seriously.
We are strongly cominitted to maintaining a work environment that is free from
. harassment. discrimination, or any inappropriate conduct inconsistent with Nike policy.
also want to remind you that Nike does not tolerate retaliation agains1 anyone who
reports his or her concerns or participates in a fact-finding interview process. If you
have further conCElrns. or believe that you being retaliated against in any way, please
contact me immediately. However, I will be out of town until March. 22, so in the
meantime, you can also bring your concerns to the atlention of my co-worker Alison
Daugherty. Employee Relations Director, or Tracy Healy, Global Director of Employee
Relations. r---...--_.
EXHIBIT; 2.(

Brfdge Cily Legal
NIKE, INC. ONE BOwfRM.AN DRIVE BEAVERTON. OREGON NIKE.COM
STEPHENS000583
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Page 3 of 542
J

On a related note, I want to remind you of our discussion regarding confidentiality.
While it is entirely appropriate, and encouraged, that you bring these concerns to the
attention of your immediate supervisor, department manager, Human Resources, or
Employee Relations, it is not appropriate for you to discuss this matter with fellow Nike
employees. Your understanding and full cooperation is requested. Other individuals
involved in the fact-finding process have been similarly advised.
Thank you for allowing me the opportunity to respond to your concerns. Please feel free
to contact Alison at extension 32-9213 should you h ~ v e any questions. Unless I hear
o1herwise, I will consider this fact-finding process to be closed.
Sincerely,
Melissa Marks
Employee Relations Director
Global strategic Processes
Ext. 32-6213
STEPHENSOO0584
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Page 4 of 542
EEOC Form 5 (5101 J
CHARGE OF
Charg esented To: Agency(ies) Charge No(s):
This form is affected by the Privacy Act of 1974. See enclosed Privacy Act
D
FEPA
Statement and other information before completing this form.
0
EEOC
551-2007-01130
Oregon Bureau of Labor and Industries - Civil Rights Division and EEOC
Slate or local Agency, if any
One Bowerman Dr., Beaverton, OR 97005
Name No. Employees, Members
Phone No. (Include Area Code)
Street Address City, State and ZIP Code
DISCRIMINATION BASED ON (Check appropriate box(es)) DATE(S) DISCRIMINATION TOOK PLACE
Earliest Latest
DRACE o COLOR [KJ
SEX o RELIGION o NATIONAL ORIGIN
03-05-2007
o RETALIATION D AGE
0
DISABILITY o OTHER (Specify below.)
D CONTINUING ACTION
THE PARTICULARS ARE (If additional paper is needed, attach extra sheet(s)):
Beginning approximately in February 2007, I have been subjected to unwelcome verbal and physical sexual
conduct by a senior coworker. The coworker had grabbed my hips and attempted to thrust his pelvis into my
buttocks, and had stated that he intended to do so again. He stated that I was "too virile a young man to not
have tried sleeping with another man." He also stroked my buttocks.
On or about March 6,2007, I reported my concerns to Respondent. On or about March 9,2007, Respondent
informed me that the conduct I reported had violated its policy. Respondent asserted that the conduct was not
likely to recur. However, I still work with the senior coworker and feel that the work environment has been
damaged by this conduct. I believe that it is not sufficient corrective action to have the work relationship
continue.
I believe that I have been sexually harassed, and that Respondent has failed to take appropriate corrective
action, in violation of Title VII of the Civil Rights Act of 1964, as amended.
... . __
-=RECEIVED IN
I want this charge filed with both Ihe EEOC and the Stale or local Agency, if any. I
NOTARY Whennece
sary for Stale
will advise the agencies if I change my address or phone number and I will cooperate
fully with ihem in the processing of my charge in accordance with their procedures.
I swear or affinn that

ue to
I declare under penalty of perjury that the above is true and correct the best of my knowl. ( .
SIGNATURE OF COMP :J"<TNR.''4

m
><

:-;t :!i

CD
SUBSCRIBED AND SWORN TO BEFORE ME THIS DATE
:::I.
a.
(month, day, year)
IC
CD
I DaTe
,/
j
Chargmg Party Signature

r

;..
Name (indicate Mr., Ms., Mrs.) Home Phone (Incl. Area Code) Date of Birth
Mr. Renee Stephens (503) 977-7935 05-05-1978
7135 S.W. 54th Avenue Portland, OR 97219
Named is the Employer, Labor Organization, Employment Agency, Apprenticeship Committee, or State or Local Government Agency That I Believe
Discriminated Against Me or Others. (If more than two, list under PARTICULARS below.)
Name
Exeter Brands/NIKE
No. Employees, Members
500 or More
Phone No. (Include Area Code)
(503) 671-6453
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Page 5 of 542
Frances F. Palmer
Enforcement Supervisor
EEOC SEATTLE
EEOC, Seattle Field Office
909 First Ave., Suite400
Seattle, WA 98104
March 28, 2007
Re: Renee Stephens, EEOC Charge #551-2007-01130
Dear Ms. Palmer:
Thank you for the opportunity to respond to this complaint. Renee Stephens' ("Stephens") claim
that he was subjected to sexual harassment is unfounded; further, Exeter Brands Group (a
wholly owned affiliate of Nike, Inc.) ("Exeter") took immediate and appropriate corrective
measures to ensure that any behavior in violation of Exeter policy stopped and did not recur.
For all these reasons, Exeter asks that the complaint be dismissed.
,-
The information provided is subject to the confidentiality provisions of the Information Practices
Act of 1977 and its state counterparts, and should not be disclosed to anyone except in
accordance with those acts. By providing this information, Exeter does not waive its right to
challenge the jurisdiction of the BOll or the EEOC over the matters raised in this complaint or
any other defenses. 1
Exeter's policies prohibit sexual harassment
Exeter is fully committed to providing equal employment opportunity and equal treatment to all
its employees without regard to age, race, ethnic group, religion, disability, sex, sexual
orientation or other protected class status. To that end, Exeter:
Does not tolerate discrimination, harassment or other inappropriate conduct;
Encourages employees and applicants to report any instances of alleged
discrimination, harassment, and/or other inappropriate conduct;
Promptly investigates complaints of discrimination, harassment, and/or
inappropriate conduct and takes appropriate, effective remedial action; and
1 The statement of facts and positions set forth herein is based upon the undersigned's understanding and
investigation of the facts at the time of this statement of position. By submitting the instant statement of position, ---_r!#I
Respondent in no way waives its right to present new or additional facts or arguments based upon subsequently
l)
acquired information or evidence. Further, this statement of pOSition, while believed to be true and correct in all
respects, does not constitute an affidavit and is not intended to be used as evidence of any kind in any BOll, EEOC
or court proceeding in connection with the above referenced charge.
N I KE, INC. ONE BOWERMAN DRIVE BEAVERTON, OREGON 970056453 T 503.671.6453 F: 503.671.6300 NIKE.COM
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Page 6 of 542
--
EEOC #551-2007-01130
Page 2 of4
C)
Does not tolerate retaliation against any individual who brings forth a good
faith claim and/or complaint of discrimination, harassment, and/or any
other inappropriate conduct.
Exeter's policies prohibiting discrimination are discussed with all employees as part of new
hire training. All Exeter employees receive access to Exeter's Employee Handbook that
contains Exeter's "Matter of Respect (anti-harassment and anti-discrimination)", "No
Retaliation", and "Let's Talk About It" policies. (Exhibits 1 through 3).
Stephens complained of inappropriate workplace
responded with an effective investigation.
conduct, and Exeter promptly
On March 5, 2007, Stephens made a complaint to his manager regarding alleged
inappropriate workplace behavior. His manager discussed the complaint that day with
Human Resources, who immediately contacted Employee Relations.
On March 6, 2007, Employee Relations interviewed Stephens. He alleged that three times
since February 2007, his co-worker made him feel uncomfortable by engaging in suggestive
behavior. He alleged that:
1. After asking if he could help mounting boards, his co-worker dropped his pants (not
his underwear), leaned on a table, and said "yes, start mounting." Stephens alleged
that a witness was present for this incident.
2. On another occasion, according to Stephens, his coworker "tried to grab me by the
hips from behind as if to thrust his pelvis into my backside." Stephens alleged that a
witness was present for this incident, as well.
3. Finally, while walking and talking on his cell phone, Stephens alleges that his co
worker "walked up close behind me and touched my rear end."
Both the second and third incident allegedly lasted fewer than five seconds. In addition,
Stephens said that the witness to the events (a second co-worker) was the subject of similar
behavior.
The next day, Exeter interviewed the alleged witness. The witness did not corroborate any of
Stephens' allegations. In a subsequent re-interview, he maintained his statements and again
failed to corroborate Stephens' allegations.
Two days after the initial interview with Stephens, Exeter interviewed the alleged wrongdoer.
He denied the incidents in which he was alleged to have mimicked sex and made sexual
comments. He acknowledged that he "patted" Stephens on the buttocks as Stephens was
leaving work. He said he could tell Stephens was upset and regretted the action. He denied
any sexual intent and described his behavior as "roughhousing."
After the investigation concluded, Exeter took appropriate action to ensure the alleged
behavior did not recur.
Based its investigation, Exeter made recommendations to address the behavior, and
implemented corrective measures including coaching for the alleged wrongdoer on
appropriate workplace behavior and training on Exeter's Matter of (anti-harassment
and anti-discrimination) policy. On March 9, 2007, Exeter informed Stephens that the

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Page 7 of 542
EEOC #551-2007-01130
Page 30f4
investigation had concluded, that appropriate measures had been taken to ensure no further
inappropriate behavior recurred, and that if the alleged behavior did in fact recur, Stephens
should immediately report the behavior to his manager, Human Resources, or Employee
Relations. Stephens was also reminded of Exeter's policy against retaliation, as he was at
the beginning of the interview process.
Exeter concluded the investigation and implemented the corrective measures on Friday,
March 9, 2007. The co-worker against whom Stephens made a complaint was gone from
work, on vacation, the week beginning March 12. Stephens filed charge with your agency on
March 14 - before he even resumed working alongside the co-worker and was able to gauge
the effectiveness of Exeter's remedy.
The events alleged are not actionable.
In order for hostile environment sexual harassment to be actionable under Title VII, it must
be so "severe or pervasive" that it "alter[s] the conditions of [the plaintiffs] employment and
create[s] an abusive working environment." Faragher v. City of Boca Raton, 524 U.S. 775,
786 (1998) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986. Simple
teasing, offhand comments, and isolated incidents do not constitute actionable sexual
harassment. Id. at 788 (citations omitted). Here, even if Stephens is to be believed, the
incidents alleged fall woefully short of the conditions required to show hostile work
environment sexual harassment.
Furthermore, even if Stephens had proffered sufficient evidence of a hostile work
environment, Exeter can be held liable for Stephens' coworkers conduct only if it failed to
take corrective action reasonably likely to prevent future harassment. Burlington Indus., Inc.
v. Ellerth, 524 U.S. 742, 764-65 (1998). It is well-settled that the complainant does not get to
dictate the employer's appropriate response. In Baldwin v. Blue Cross/Blue Shield of
Alabama, 2007 WL 805528 (11
th
Cir. 2007), the Court granted summary judgment to the
employer. The Court's statement on corrective action applies equally to Stephens' charge:
This is not a case where the employer's first remedy proved
inadequate, and it failed to take further action to correct the
problem. It is instead a case where the complainant refused to
cooperate with the first step. She did that because she was not
happy with Blue Cross' proposed remedy. She not only
refused to give Blue Cross' remedy a chance but also insisted
that she would not work with Head again. As we have
indicated before, the complainant does not get to choose the
remedy. See Farlev v. Am. Cast Iron Pipe Co.! 115 F.3d 1548,
1555 (11th Cir.1997).
Here, when Stephens later complained that he was not satisfied with the resolution because
he no longer wished to work with his co-worker, he acknowledged at the same time that no
inappropriate behavior had recurred since he complained. Stephens is not entitled to the
remedy of his choice; Exeter made reasonable efforts to resolve any inappropriate behavior
and is satisfied that the corrective measures taken have been and will continue to be
effective.
u
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Page 8 of 542
EEOC #551-2007-01130
Page 4 of4
In sum, Stephens' allegations are without merit. Stephens was not subject to a hostile work
environment; nevertheless, when he made a complaint of inappropriate workplace behavior,
Exeter promptly investigated his complaint and took appropriate remedial action. There is no
evidence or reason to believe that the corrective measures have been ineffective. For these
reasons, Exeter requests that the agency dismiss Stephens' complaint.
Sincerely,
J 1 u M ~
Melissa Marks
Nike, Inc. Employee Relations
503-532-6213
o
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PROVIDENCE ST. VINCENT MEDICAL CENTER
9205 SW BARNES ROAD PORTLAND OR 97225 PHONE (503) 216-1234
EMERGENCY REPORT
Julie W. Andrews, MD
Admitting: Julie W. An
LOC: PT TYPE: E/R
Adm Date: 04/12/2007
Ext Pt ID:
drews, MD
Stephens, Qadira Liana
MR t: 00-01-41-86-74
Account t: 0710215278
DOB: 09/27/1998
CHIEF COMPLAINT: Burn.
HISTORY: Qadira is an 8-year-old little girl who was at a
friend's house when friend's mom heated water in a tea kettle and
accidentally spilt it on her leg. The parents now bring her in
for evaluation. She is complaining of a burn to the medial
aspect of her right leg. She denies any other pain or i n j u r y ~
The parents adamantly deny any possibility of abuse and the
daughter reiterates the history.
PAST MEDICAL HISTORY: None.
MEDICATIONS: None.
ALLERGIES: NONE.
PHYSICAL EXAM:
GENERAL: This is a well-developed, well-nourished female who is
alert, crying.
EXTREMITIES: On her right leg, she has a second-degree burn off
the medial a of her left knee. There are no circumferential
burns. There is good capillary refill.
MEDICAL DECISION MAKING: The patient was brought back after
initial evaluation. I thought she had evidence of a
second-degree burn to her left leg. She was given Motrin and
Tylenol with codeine for pain control. Silvadene cream was
applied to the area and a dressing was placed. She felt
significantly improved after above.
ASSESSMENT: Second-degree burn, left leg.
PLAN: Motrin as needed. She was referred to follow up with her
pediatrician tomorrow for dress change. Return for any
worsening condition.
, MD
Dictated by Julie W. Andrews, MD 04/15/2007 7:16 P
Transcribed on 04/19/2007 7:52 A by cw Job t 000021304
cc: Nancy Gordon-Zwerling, FNP
Authenticated by Julie Ward Andrews, MD On 04/19/2007 09:42:55 AM
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Providence 5t Vincent Medical Center Emergency Department
9205 SW Barnas Rd, Portland, OR 97225
(503) 216-2361
Patient: QAOIRA STEPHENS, Data: 04112/2007 Tlma: 23:09
Discharge Teaching Instructions
Learning Needs Identified: Illness, Medication. Follow-up
Care
Language/Cultural-Religious Assessment of Patient or
Caregiver: English
School Aga Status: QADIRA is school-aged. Supplemental
education is not needed.
Barriers Identified: None
Intervention for Barriers to Learning: Involve family or
primary caregiver
Teaching Methods Used: Printed patient instruction, Verbal
Instruction and, Interactive Discussion
IMPORTANT: We examined and treated QADIRA today on
an emergency basis only. This was not a substitute for or an
effort to provide complete medical care. in most cases, you
must let your doctor check QADIRA again. Ten your doctor
about any new or lasting probaems that QAOIRA has. We
cannot recognize and treat all injuries or illnesses in one
Emergency Department visit. If QADIRA has special tesls,
such as X-rays, we will review them within a day. We will call
you if there are new suggestions. After you leave, follow the
instructions below.
QADIRA was treated today by JULIE ANDREWS. MD.
THIS INFORMATION IS ABOUT QADIRA's FOLLOW UP
CARE
Call as soon as possible to make an appointment in dressing
change tom morrow. for your child to see MARIAH TAYLOR,
RN. You can reach MARIAH TAYLOR at (503) 284-5239.
5311 N. VANCOUVER AVE., PORTLAND, OR. 97217 . If
your child has any problems before this appointment, call the
office.
SPECIAL INFORMATION
Use Motrin as needed for pain. Follow up with Dr. Taylor or
come back to emergency room for dressing change
tommorrow.
THIS INFORMATION IS ABOUT QADIRA'S DIAGNOSIS
PARTIAL THICKNESS OR MODERATE BURN (Second
Degree).
The partial burn has destroyed lhe outer layers of OADIRA's
skin. The skin is reddened and will have blisters. That
increases the chance for Infecllon. It may take up to 3 weeks
to heal this burn. The deeper and larger the bum, the longer it
may take to heal. Some bums cause scars. Young children
show fewer signs and symptoms of illness, so theyneed to be
followed up closely by your regular doclor.
Follow these instructions:
Wash your hands with soap and water before and after
caring for your burn.
Keep the burned area clean. ,
Use aclean cloth to wash it each day with soap and waler.
00 not break any blisters.
Apply a burn cream on the area to flQht infection.
Keep the skin around the burn clean. Wash it each day
with soap and water. Pat it dry with a clean towel.
Put slerile dressings over the burn. This will keep the burn
clean to protect it from further damage.
Keep QADI RA's follow-up appointment. Follow-up is very
important.
Call your doctor if QADIRA has:
increased drainage. redness, pain. or swelling.
pus or red streaks from the bum.
fever.
any new or severe symptoms.
THIS INFORMATION IS ABOUT QADIRA's MEDICINE
Acetaminophen and Codeine
Give QAOIRA this medicine by mouth with food in the
following dose: 1 teaspoon every 6 hours..
This Is a mixture of !WO pain relievers. Acetaminophen is
used for mild pain. Codeine is used for mUd to moderate pain.
Codeine is in a drug Class called narcotic pain relievers.
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Providence St Vincent Medical Center Emergency Department
9205 SW Barnes Rd, Portland, OR 97225
(503) 2162361
Patient: QADIRA STEPHENS, Date: 04/1212007 Time: 23:09
Narcotics can cause sleepiness and addiction or
dependence on the drug. Together they can relieve
moderate to severe pain. Acetaminophen/codeine may also
be presaibed to reduce a cough. This combination medicine
may be used for other reasons, as prescribed by QADI RA's
doctor.
Side effects may include:
sleepiness
upset stomach
constipation (hard stools)
dizziness
drowsiness
mood changes
Other side effects may occur, but are not as common.
Allergy would show up as: rash or itching. facial or throat
swelling. wheezing or shortness of breath. -rhis medicine
can be habit forming if used for a long period of time.
Before giving this medicine, tell your doctor If QADIRA:
is allergic to any medicines, foods or dyes. especially
acetaminophen or codeine.
has a history of liver disease or hepatitis.
has severe diarrhea or colitis.
has lung or breathing problems, such as asthma.
has seizures or a history of brain trauma or disease.
Follow these instructions:
Give this medicine with food to avoid an upset stomach.
To avoid constipation, give QADIRA plenty of liquids to
drink.
Never give more of this medicine than prescribed.
Read the labels on all non-prescription medicines before
giving them to QADIRA. Many contain acetaminophen.
To avoid an overdose, do not give any other medicines
that contain acetaminophen.
Do not share this medicine with others as this medicine is
a controlled-substance. Sharing this medicine with others
is against the law.
Store this medicine away from heat. moisture or direct
light.
If QADlRA is taking this on a regular schedule and you
miss a dose. give it as soon as possible. If it is almost time
for QADIRA's next dose. skip the missed dose and return
to the regular schedule. Do not double the doses.
Talk with the doctor before giving any other medicines
(Including herbals) as QADIRA may require additional
monitoring especially:
monoamine oxidase inhibitors rMAOI") such as Marplan.
Nardil or' Parnate taken in the 18Sl14 days. Dangerous
side effects could occur.
naltrexone
other pain medicines
seizure medicines, such as phenytoin (Oilantin),
phenobarbital. carbamazepine
other medicines that cause sedation (dangerous sedation
or sleepiness can occur):
sleeping pills
antihistamines such as Benadryt, Dimetane,
Chlor-Trimeton, others
antidepressant medicines
antianxiety medicines such as Xanax. Ativan.
others
anticholinergics such as Atrovent, Pro-Banthine.
levsin. Anaspaz, Donnatal, Quarzan, Benly\,
Anlispas, scopolamine
phenothiazines such as Thorazine, Prolixin. MeJlaril.
Compazine, others
any sign of allergy.
slow or irregular breathing.
slow or irregular heart beat.
a yellow-color to the skin or eyes, or dark urine.
stomach pain.
unusual or extreme tiredness.
SILVER SULFADIAZINE CREAM (Silvadene).
Use this medicine on QAOIRA's skin in the following dose:
Apply a thin layer of the cream 2 limes a day after gently
washing off the wound.
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9205 SW Sames Rd, Portland, OR 97225
(503) 21&-2361
Patient: QADIRA STEPHENS, Date: 0411212007 Time: 23:09
This is an anlibiotic cream. It treats and prevents skin
infections caused by bacteria. Allergy would show up as:
increased redness, pain or itching in or around the
affected area.
Follow these Instructions:
Wash your hands before you use this cream.
Gently wash QADIRA's wound with soap and water; pat it
dry.
Apply a thin layer of cream to the wound.
Reapply the cream if it has been wiped off during activity.
Cover the wound with a clean dressing or bandage each
lime you use this cream.
Store this medicine away from heat, moisture or direct
light.
If you miss a dose. apply the dose as soon as possible. If it
is almost time for QAOIRA's nexl dose, skip the dose. Do
not double the doses.
any sign of anergy.
redness, swelling increased pain or drainage from the
wound.
-
Important infonnation about QAOIRA's HOME
MEDICINE: Continue aU of your chid's regular home
medications as ordered by your prescribing doctor.
***'*'**
You and QAOIRAare the most importantfactor In QADIRA's
recovery. Follow the above instructions carefully. Give
QADIRA the medicines exactly as prescribed. Most
important, see a doctor again as discussed. If QADIRA has
problems that we did not discuss. call or visit your doctor
IMMEDIATELY. If you cannot reach your doctor, retum to the
Emergency Department If you have questions. call us.
.., have received this Information and my questions have
been answered. I have discussed any challenges I see
with this plan with the nurse or physician."
Responsible Person for QADIRA STEPHENS has
received this infonnation and tells me thai all questions have
been answered.
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1
SupERB
OREGON HEALTH & SCIENCE UNIVERSITY HOSPITALS AND CLINICS
3181 SW Sam Jackson Park Rd., Portland, OR 97201-3098 (503)494-9000
** Confidential Health Information Copy **
STEPHENS ,QADIRA MR#: 06075458 Bdate: 09/27/1998 Sex F Clinical Reports
------------------------------------ ----------------------------------Page
Telephon 04/14/07
Date Provider Department Center
4/14/2007 30632-S0LONDZ, DAVID K FAMREG Gabriel Park
Message:
DAVID SOLONDZ MD Sat Apr 14, 2007 5:21 PM signed
Qadira Stephens is a 8 y.o. Female who sustained a 2nd/3rd burn on LE >24h
r
priori evaluated in clinic yesterday and already has plastics flu for 4/16/
07.
Calling b/c one of the blisters popped and she is unsure what to do. She is
bathing once a day and doing bid dressing changes with silvadene. No fevers
, no
purulent discharge, no increased rash/change in colors.
Plan: Re-assured mother she is doing appropriate care. May use anti-biotic
ointment as well. Will flu as scheduled.
Allergies As of Date: 04/14/2007
(No Known Allergies)
Date Reviewed: 04/13/2007
Encounter Information
Date
4/14/07
rk
Time
5:10 PM
Provider
SOLONDZ, DAVID K(30632)
Department
FAMREG
Center
Gabriel Pa
Reason for Call:
Burn (13550)
Printed By: MICHELLE FISCHER Date: 081907
Dept: HIS Phone:?
09:19 08/19/07 FROM Z3FS,OIPRTGF1
268788
STEPHENS0026
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EOC FormS
CHARGE OF DISCRhydNATION
_X'
form is affected by the Privacy Act of 1974. See enclosed Privacy Act
.,,----------------r
Charge Prese. .J To: Agency(ies) Charge No(s):
D
FEP,l
o EEOC 551 -02221
Oregon Bureau of Labor & Industries - Civil Rights Division and EEOC
Stale or local Agency, if any
4ame (indicate Mr" Ms., Mrs.) Home Phone (Incl. Area Code) Date of Birth
Mr. Renee Stephens (503) 977-7935 05-05-1978
3treet Address City, State and ZIP Code
7135 S.W. 54th Avenue Portland, OR 97219
Discriminated Against Me or Others. (If more than two, list Under PARTICULARS below.)
Name
No. Employees, Members, Phone No. (Include Area Code)
EXETER BRANDS 500 or More! (503) 671-6453
Street Address
One Bowerman Dr.
City, State and ZIP Code
Beaverton, OR 97005
Name No. Employees, Members Phone No. (Include Area Code)
DISCRIMINATION BASED ON (Check appropriate box(es))
D
RACE COLOR
oS
I D AGE
D RELIGION
DISABILITY D
THE PARTtCULARS ARE (If additional paper is needed, attach extra shee/(s)).
DATE(S) DISCRIMINATION TOOK PLACE
Earliesl Latest
NATIONAL ORIGIN

OTHER (Specify below.)
D CONTINUING ACTION
I filed EEOC Charge No. 551-2007-01130 on March 12,2007,
Onor about August 13, 2007, I was informed that I was being laid off from my employment
I believe that I am laid off in retaliation for filing an EEOC charge, in violation of Title VII of the Civil Rights
Act of 1964, as ame'Qeed.

<.,,)
CO',
Iwant this charge filed with both the EEOC and the State or local Agency, if any, I
will advise the agencies if I change my address or phone number and I will cooperate
fully with them in the processing of my charge in accordance with their procedures.
i
\"
OFFICIAL SEAL
BRADLEY McCREARY
NOTARY PUBLIC OREGON
COMMISSION NO, 412943
MY COMMISSION EXPIRES DEC. 27, 2010
for JaJp "JJ'i-Local Agency Requirements
I- _/P'" /// '."-f'.-tc;.
-''/ ....,.. " \'2.-1 "l-1-1'k>\O
1-.,-...,-...,-_.......,__ or affirm tha1' I charge and that it is true to
I dedare under penalty of perjury that the above is true and correct. the best of my knowledge information and belief.
IJ/lb/O}-
I
Date ;, Charging Party Signature
OF COMPLAI NT I ._"
iLo ' Lv ....._
SLBSCRIBED AND TO BEFORE ME THIS DATE
(month, day, year) ".-------_.
EXHIBIT: I 1
WIT: illrk:t\L2>
Bridge City Legal
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t'age 1 011.
Stephens, Renee
From: Brunke, Mary
Sent: Satur.uaV. September 15, 2007 9:25 AM
To: Stephens, Renee
cC: Marks, Melissa
Subject: RE:
Renee.
Severance packages are not negotiable. We have a consistent standard practice.
Mary Brooke
HR Oir, Nike Arfiliales & Exeter Brands Group
(503) 532344 ( work
(503) 329',2795 cell
FM)nI: Stephens, Renee
Sent: friday,'September 14, 2007 4:48 PM
To: Brunke, Mary
Cc: Marks, Melissa
Subject: RE:
Hello Mary. '
Thank you for answering my questions. Is my severance package negotiable?
Renee
FM)m: Brunke, Mary
Sent: Wed 9/12/2007 4:08 PM
To: Stephens, Renee
Cc: Marks, Melissa
Subject: '
Renee,
Please,let me address two of your most recent emails to bo1h Melissa and me in this response.
First I'd like to clarity for you the practice when an el'l'llloyee makes a complaint. As you know, a fact-finding is
conducted, and appropriate recommendations ara made and implemented to remedy any problems that are
discovered. Then, involved parties are given a closure letter, like you received, summarizing the process, .
reminding of expectations regarding confidentiality and retaliation, and providing the names of appropriate
resources if further concems exist. Neither the fact-finding documents nor the closure letters are maintained in the
personnel file. II the reoommendations include documented Corrective Action, that Corrective Action document
would be stored in a personnel file, as would any coaching provided in a performance ljJValuation or o1her written
coaching document fike an Action Plan. .
09/1512007
STEPHENSOOO30S
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,
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This is a matter 01 document management and best practice, it has nothing to do wilh the validity of anyone's
complaint and is certainly not meant to imply that an incident "never happened.' Relevant fact-finding files are
stored within the ER department's intemal files. '.
I'd also like to clarify for you the reorganization/reduction in force (RIF) process in general, and this RIF in
particular. From time to time; Nike business units decide that are-organization is,necessary to best meet
business neeas. Sometimes, thjs reorganization will result in the need to eliminate positions and/or create new
.. ones. Your question ("Why has my head count been eliminated when all that happened is a reorg?") illustrates a
not-uncommon misunderstanding _. reorganizaUons often result in reductions in force, and attendant reductions in
headcount.
In your case, an entire function was eliminated. As part 01 a review of Exeter'S business plan, every NASCAR
position is being eliminated and the headcount associated with those positions will no longer exi5t after the end of
. the month. No new positions are being created in the Exeter function. And, there are no currently vacant positions
within the exeter business unit for which you qualify (If there were, you would be placed in such a position).
Therefore, in accordance with Nike's guidelines, you wm be offered a severance package consistent with that
offered to others in the same situation if you do nol findanother position within Nike by the time your employment
ends. Of course, we hope that you will be able to find another position within Nike, and f am more than willing to
aid you in your efforts, as we have discussed several limes in the past. .
Plesse also take a d v a n t a ~ of Right Management, an outplacement resource which Nike is glad to offer to you
and others who's positions have been eliminated. I hope this has cleared up any remaining confusion.
Regards
Mary
09/1512007
STEPHENS000306
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Item 1.01 Entry into a Material Definitive Agreement.

On November 15, 2007, Iconix Brand Group, Inc., a Delaware corporation (the Registrant), entered into
an asset purchase agreement (the Purchase Agreement) with Exeter Brands Group LLC, an Oregon limited
liability company (the Seller), and NIKE, Inc., an Oregon corporation (Parent) .

Upon the closing of the transactions contemplated by the Purchase Agreement, the Registrant will acquire
certain of the Sellers and Parents assets and rights related to the business of designing, marketing, licensing and/or
managing the Startername, brand, trademarks, intellectual property and related names worldwide (the Starter
Assets).

The Purchase Agreement provides for a purchase price for the Starter Assets of (i) $60,000,000 in cash and
(ii) the assumption of certain liabilities of the Seller related to the Starter Assets.

Upon the closing of the transactions contemplated by the Purchase Agreement, the Seller will deliver or
cause to be delivered all of the right, title and interest in the Starter Assets to a subsidiary of the Registrant, which
will enter into a transition services and license agreement with the Seller.

The Purchase Agreement contains customary representations, warranties and covenants, and the
transactions contemplated by the Purchase Agreement are subject to customary closing conditions including
clearance under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. The Registrant and the
Seller have each agreed to indemnify the other for damages arising for the breach of its representations, warranties,
covenants or obligations in the Purchase Agreement. Parent has agreed to guarantee all of the Sellers
indemnification obligations under the Purchase Agreement upon the closing of the transaction.

On November 14, 2007, the Registrant signed a commitment letter (the Commitment Letter) with
Lehman Brothers Inc. (LB), Lehman Brothers Commercial Bank (LBCB) and Lehman Commercial Paper Inc.
(LCPI and, together with LBCB, the Underwriters) whereby the Underwriters agreed, subject to the terms and
conditions set forth in the Commitment Letter, to provide or cause one or more of their respective affiliates to
provide to the Registrant the financing for up to $60,000,000 of funds necessary to consummate the transactions
contemplated by the Purchase Agreement. The Commitment Letter, which obligates the Underwriters to provide the
financing, does not obligate the Registrant to request such financing.

On November 9, 2007, the Registrant entered into a new lease with 1450 Realty Associates LLC with
respect to the Registrants offices located at 1450 Broadway in New York, New York (the Lease). The Lease,
among other things, covers approximately 30,550 square feet of office and showroom space on two floors of the
building (the Main Premises) and the lease of the Main Premises will expire 15 years after the date of delivery of
the Main Premises to the Registrant (Commencement Date). The Commencement Date will occur after the
landlord completes certain work on the Main Premises, which is expected to occur on or prior to November 15, 2008.
The Lease provides for total annual base rental payments for the Main Premises of approximately $27.4 million
(ranging from approximately $1.528 million in the first year of the Lease to approximately $2.157 million in the last
year of the Lease), with such payments commencing on the 181st day following the Commencement Date (the
Rent Commencement Date). The Lease also provides for the temporary rental by the Registrant of (i)
approximately 15,000 square feet of office space in the building consisting of the office space currently occupied by
the Registrant until 91 days after the Rent Commencement Date at an annual rent of approximately $452,000 with
the Registrants right to extend the lease term of this space for a term co-terminus with the lease of the Main
Premises for an annual rent of approximately $764,000 and (ii) approximately 7,000 square feet of office space on
another floor of the building for a term expiring on the Rent Commencement Date at an annual rent of $315,000.
The Registrant will also be required to pay its proportionate share of any increased taxes attributed to the premises.

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OCT 1 . 2007
Roderick Ustanik
909 First Ave., Suite 400
Seattle, WA 98104
October 18, 2007
Dear Mr. Ustanik:
Thank you for the opportunity to respond to this complaint. Renee Stephens' ("Stephens")
claim that he was terminated in retaliation for filing an EEOC charge (#551-2007-01130;
Nike's response attached as Exhibit 1) is entirely unfounded.
Exeter Brands Group, a wholly owned affiliate of Nike, Inc., ("Exeter") conducted a business
review and decided to eliminate the function in which Stephens worked. This decision was
made based on company-wide legitimate business reasons and was entirely unrelated to
Stephens or his complaint. Further, after the decision was made, Stephens was offered the
exact same support and benefits as were all other employees in his business function, all of
whom also subject to position elimination. For these reasons, Exeter asks that the complaint
be dismissed.
The information provided is subject to the confidentiality provIsions of the Information
Practices Act of 1977 and its state counterparts, and should not be disclosed to anyone
except in accordance with those acts. By providing this information, Exeter does not waive
its right to challenge the jurisdiction of the BOll or the EEOC over the matters raised in this
complaint or any other defenses. 1
Exeter uses standard, consistent, and fair processes to guide Reduction in Force
decisions. All positions in Stephens' business unit have been eliminated.
Exeter has initiated an ongoing strategic review of all its business functions and initiatives. As
an initial result of that review, Exeter made the business decision to eliminate its "NASCAR"
investigation at the time. By submitting the instant position statement, Respondent in no way waives its right to
present new or additional facts or arguments based upon subsequently acquired information or evidence.
Further, this statement, while believed to be true and correct in all respects. does not constitute an affidavit and is
not intended to be used as evidence of any kind in any BOll. EEOC or court proceeding in connection with the
above referenced charge.
NIKE, INC ONE BOWERMAN DRIVE BEAVERTON, OREGON 970056453 T:503.671.6453 F:503.671.6300 NIKECOM
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Page2of2
function. Five Exeter employees made up the NASCAR business unit. All five positions will
be eliminated by December, 2007 - four (including Stephens') were eliminated on
September 30, 2007; the fifth is the most senior on the team and will exist for several more
months to ensure that business commitments are met and the closure of the function
proceeds smoothly. No employee similarly situated to Stephens received more favorable
treatment than Stephens.
Stephens was offered the same benefits and support as were all his co-workers in the
NASCAR business unit.
Like his co-workers, Stephens was given more than 30 days' advance notice of the position
elimination. Like his co-workers, he was offered the support of his HR partners as he
searched for a new position. And like his co-workers, he was offered a generous severance
package consistent with Nike's established guidelines (see Exhibit 2, a letter summarizing
Nike's offer to Stephens).
Stephens refused Nike's offer of support, and even refused to accept an interview for
a suitable position he might have been offered.
Stephens did not take advantage of his HR partner's offer to help him in his job search; nor
did he take advantage of the outplacement services offered. In fact, when he was
approached to interview for a potential position in another business unit, he refused the
interview (see an email exchange between Stephens and a Staffing recruiter, Exhibit 3).
Others in the NASCAR group were able to find other positions within Nike before their
positions were eliminated. Finally, Stephens refused to accept Nike's offer of severance.
In sum, Stephens' allegations are without merit. The idea that Exeter decided to close down
an entire business function based on the meritless complaint of one employee is absurd.
Stephens was treated the same as all his co-workers in the NASCAR business unit. Exeter
requests that the agency dismiss both of Stephens' complaints.
Sincerely,
J 1 u A 1 ~
Melissa Marks
503-532-6213
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Frances F. Palmer
Seattle, WA 98104
March 28, 2007
Dear Ms. Palmer:
Thank you for the opportunity to respond to this complaint. Renee Stephens' ("Stephens") claim
that he was subjected to sexual harassment is unfounded; further, Exeter Brands Group (a
wholly owned affiliate of Nike, Inc.) ("Exeter") took immediate and appropriate corrective
measures to ensure that any behavior in violation of Exeter policy stopped and did not recur.
For all these reasons, Exeter asks that the complaint be dismissed.
The information provided is subject to the confidentiality provisions of the Information Practices
Act of 1977 and its state counterparts, and should not be disclosed to anyone except in
accordance with those acts. By providing this information, Exeter does not waive its right to
challenge the jurisdiction of the BOll or the EEOC over the matters raised in this complaint or
any other defenses. 1
Exeter's policies prohibit sexual harassment
Exeter is fully committed to providing equal employment opportunity and equal treatment to all
its employees without regard to age, race, ethnic group, re!jgion, disability, sex, sexual
orientation or other protected class status. To that end, Exeter:
Does not tolerate discrimination, harassment or other inappropriate conduct;
Encourages employees and applicants to report any instances of alleged
discrimination, harassment, and/or other inappropriate conduct;
Promptly investigates complaints of discrimination, harassment, and/or
inappropriate conduct and takes appropriate, effective remedial action; and
investigation of the facts at the time of this statement of position. By submitting the instant statement of position,
Respondent in no way waives its right to present new or additional facts or arguments based upon subsequently
acquired information or evidence. Further, this statement of position, while believed to be true and correct in all
respects, does not constitute an affidavit and is not intended to be used as evidence dfany kind in any BOll, EEOC
or court proceeding in connection with the above referenced charge.
Exhibit 1
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Does not tolerate retaliation against any individual who brings forth a good
faith claim and/or complaint of discrimination, harassment, and/or any
other inappropriate conduct.
Exeter's policies prohibiting discrimination are discussed with all employees as part of new
hire training. All Exeter employees receive access to Exeter's Employee Handbook that
contains Exeter's "Matter of Respect (anti-harassment and anti-discrimination)", "No
Retaliation", and "Let's Talk About It" pOlicies. (Exhibits 1 through 3).
Stephens complained of inappropriate workplace conduct, and Exeter promptly
responded with an effective investigation.
On March 5, 2007, Stephens made a complaint to his manager regarding alleged
inappropriate workplace behavior. His manager discussed the complaint that day with
Human Resources, who immediately contacted Employee Relations.
On March 6, 2007, Employee Relations interviewed Stephens. He alleged that three times
since February 2007, his co-worker made him feel uncomfortable by engaging in suggestive
behavior. He alleged that:
1. After asking if he could help mounting boards, his co-worker dropped his pants (not
his underwear), leaned on a table, and said "yes, start mounting." Stephens alleged
that a witness was present for this incident.
2. On another occasion, according to Stephens, his coworker "tried to grab me by the
hips from behind as if to thrust his pelvis into my backside." Stephens alleged that a
witness was present for this incident, as well.
3. Finally, while walking and talking on his cell phone, Stephens alleges that his co
worker "walked up close behind me and touched my rear end."
Both the second and third incident allegedly lasted fewer than five seconds. In addition,
Stephens said that the witness to the events (a second co-worker) was the subject of similar
behavior.
The next day, Exeter interviewed the alleged witness. The witness did not corroborate any of
Stephens' allegations. In a subsequent re-interview, he maintained his statements and again
failed to corroborate Stephens' allegations.
Two days after the initial interview with Stephens, Exeter interviewed the alleged wrongdoer.
He denied the incidents in which he was alleged to have mimicked sex and made sexual
comments. He acknowledged that he "patted" Stephens on the buttocks as Stephens was
leaving work. He said he could tell Stephens was upset and regretted the action. He denied
any sexual intent and described his behavior as "roughhousing."
After the investigation concluded, Exeter took appropriate action to ensure the alleged
behavior did not recur.
Based its investigation, Exeter made recommendations to address the behavior, and
implemented corrective measures including coaching for the alleged wrongdoer on
appropriate workplace behavior and training on Exeter's Matter of Respect (anti-harassment
and anti-discrimination) policy. On March 9, 2007, Exeter informed Stephens that the
Exhibit 1
Page 2 of 4
Ex A
Page 46 of 542
EEOC #551-2007-0113u
Page 2 of 4
investigation had concluded, that appropriate measures had been taken to ensure no further
inappropriate behavior recurred, and that if the alleged behavior did in fact recur, Stephens
should immediately report the behavior to his manager, Human Resources, or Employee
Relations. Stephens was also reminded of Exeter's policy against retaliation, as he was at
the beginning of the interview process.
Exeter concluded the investigation and implemented the corrective measures on Friday,
March 9, 2007. The co-worker against whom Stephens made a complaint was gone from
work, on vacation, the week beginning March 12. Stephens filed charge with your agency on
March 14 - before he ~ v e n resumed working alongside the co-worker and was able to gauge
the effectiveness of Exeter's remedy.
The events alleged are not actionable.
In order for hostile environment sexual harassment to be actionable under Title VII, it must
be so "severe or pervasive" that it "alter[s] the conditions of [the plaintiffs] employment and
create[s] an abusive working environment." Faragher v. City of Boca Raton, 524 U.S. 775,
786 (1998) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986. Simple
teasing, offhand comments, and isolated incidents do not constitute actionable sexual
harassment. Id. at 788 (citations omitted). Here, even if Stephens is to be believed, the
incidents alleged fall woefully short of the conditions required to show hostile work
environment sexual harassment.
Furthermore, even if Stephens had proffered sufficient evidence of a hostile work
environment, Exeter can be held liable for Stephens' coworker's conduct only if it failed to
take corrective action reasonably likely to prevent future harassment. Burlington Indus., Inc.
v. Ellerth, 524 U.S. 742, 764-65 (1998). It is well-settled that the complainant does not get to
dictate the employer's appropriate response. In Baldwin v. Blue Cross/Blue Shield of
Alabama, 2007 WL 805528 (11
th
Cir. 2007), the Court granted summary judgment to the
employer. The Court's statement on corrective action applies equally to Stephens' charge:
This is not a case where the employer's first remedy proved
inadequate, and it failed to take further action to correct the
problem. It is instead a case where the complainant refused to
cooperate with the first step. She did that because she was not
happy with Blue Cross' proposed' remedy. She not only
refused to give Blue Cross' remedy a chance but also insisted
that she Would not work with Head again. As we have
indicated before, the complainant does not get to choose the
remedy. See Farlev v. Am. Cast Iron Pipe Co., 115 F.3d 1548,
1555 (11th Cir.1997).
Here, when Stephens later complained that he was not satisfied with the resolution because
he no longer wished to work with his co-worker, he acknowledged at the same time that no
inappropriate behavior had recurred since he complained. Stephens is not entitled to the
remedy of his choice; Exeter made reasonable efforts to resolve any inappropriate behavior
and is satisfied that the corrective measures taken have been and will continue to be
effective.
Exhibit 1
Page 3 of 4
Ex A
Page 47 of 542
EEOC #551-2007-0113u
Page 4 of4
In sum, Stephens' allegations are without merit. Stephens was not subject to a hostile work
environment; nevertheless, when he made a complaint of inappropriate workplace behavior,
Exeter promptly investigated his complaint and took appropriate remedial action. There is no
evidence or reason to believe that the corrective measures have been ineffective. For these
reasons, Exeter requests that the agency dismiss Stephens' complaint.
Sincerely,
Melissa Marks
503-532-6213
Exhibit 1
Page 4 of 4
Ex A
Page 48 of 542
CON FIDENTIAL
August 26,2007
Renee Stephens, Employee #56860
Associate Footwear Designer
Re: Proposed Severance Package
Dear Renee:
As you know, we have decided that a reorganization of our department is necessary to
meet the needs of our business. As a result, your position will be eliminated effective September
30,2007. We hope that you will find another position within Nike before that time, and will support
you in your efforts to do so. Should you not find a position by the last day of your employment,
however, this letter describes NIKE's offer concerning the terms and conditions of your
severance.
Upon your separation from employment, you will receive your final pay, including pay for
any accrued, unused PTO, less standard withholdings and authorized deductions.
NIKE will provide you with career transition services through Right iVlanagement
Consultants for a period of three months. Please contact Emily Everett at Right Management at
their Lake Oswego, Oregon office at (800) 536-8689 to arrange for services at the Right
Management location most convenient to you. You may also email Emily directly at:
Emily. Everett@right.com.
Your existing group health insurance coverage will continue through September 30,
2007. After that time, provided that you are eligible, you may choose to continue your group
health coverage under a federal law called COBRA. COBRA provides for continued coverage for
eligible individuals and dependents at the full premium rate plus an administrative fee for up to an
eighteen (18) month period. You will receive additional information regarding COBRA eligibility
and continuation in the near future.
NIKE EAP services are available for 90 days after your termination; however, your
participation in other NIKE benefit programs would terminate according to the information in the
attached Frequently Asked Questions document. Please refer to the Frequently Asked Questions
document that is attached to this letter or contact NIKE's Human Resource Service Center at
(503) 532-3402 or (888) 360-6453 with any benefits questions you may have.
Pursuant to NIKE policy, if contacted by a third party concerning your employment, NIKE
will verify only your most current position title and the dates of your employment. All requests for
references should be directed to NIKE's Human Resources Service Center at (503) 532-3402, or
(888) 360-6453.
Exhibit 2
Page 1 of 2
Ex A
Page 49 of 542
SEVERANCE CONSIDERATION
In addition, although not obligated to do so, NIKE would like to offer you the following severance
benefits to assist you during your transition period. The following benefits are part of a severance
package, contingent upon your agreement with a Release of Claims which you will receive on
your last day of employment.
1. Severance Pay: NIKE is offering you severance pay in the amount of $18,192.31, less
standard withholdings and authorized deductions, representing 16 weeks' salary, as
severance compensation.
2. Health Benefits: If you are otherwise eligible for and you elect to continue health-care
coverage through COBRA, NIKE will pay the cost of the monthly premiums for you and
your eligible dependents, if any, for the first three months following your date of
termination. After this time, you may continue COBRA coverage at your sole expense,
subject to your continued eligibility.
I expect that you will keep confidential the information contained in this letter, and the
content of our discussion, except that you may discuss this offer with your attorney, spouse and
tax advisor. Of course, if you have any questions regarding this proposal, please contact me, or
Melissa Marks, Employee Relations, at 503-532-6213.
Sincerely,
Mary Brunke
Nike Human Resources
Exhibit 2
Page 2 of 2
Ex A
Page 50 of 542
Cheryl A. Milner
ADR Assistant
Seattle, WA 98104
VIA Fax and US Mail
December 17, 2007
Re: Renee Stephens, EEOC Charge #551-2007-02268f
Dear Ms. Milner:
Thank you for the opportunity to respond to this third complaint from former Nike
employee Renee Stephens (IIStephens
ll
). As with his original and second claim, this
most recent allegation regarding negative employment references is entirely
unfounded.
Stephens' position with Exeter Brands Group, a wholly owned affiliate of Nike, Inc.,
(IIExeter") was eliminated along with all the other position in the business function in
which Stephens worked (since filing our response to Stephens' second charge in
November 2007, in fact, the entire Exeter business has been sold). The decision to
eliminate Stephens' position was made based on company-wide legitimate business
reasons and was entirely unrelated to Stephens or his complaint. Stephens was
offered the exact same support and benefits as were all other employees in his
business function, all of whom were also subject to position elimination. Finally, since
Stephens' employment ended, neither his former manager or the person against
whom Stephens' original complaint was made have provided any kind of employment
reference or other information regarding Stephens, his employment, his allegations, or
his subsequent claims with the EEOC. For these reasons, Exeter asks that the
complaint be dismissed.
The information provided is subject to the confidentiality provisions of the Information
Practices Act of 1977 and its state counterparts, and should not be disclosed to
anyone except in accordance with those acts. By providing this information, Exeter
does not waive its right to challenge the jurisdiction of the BOll or the EEOC over the
matters raised in this complaint or any other defenses. 1
I The statement of facts and positions set forth herein is based upon the undersigned's understanding and
investigation at the time. By submitting the instant position statement, Respondent in no way waives its right to
present new or additional facts or arguments based upon subsequently acquired information or evidence. Further, thi
statement, while believed to be true and correct in all respects, does not constitute an affidavit and is not intended to
be used as evidence of any kind in any BOll, EEOC or court proceeding in connection with the above referenced
charge.
NtKE, INC. ONE BOWERMAN DRIVE BEAVERTON, OREGON 97005.6453 T: 503.671.6453 F: 503.671.6300 NIKE.COM
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Ex A
Page 51 of 542
EEOC #551-2007-02268
2of3
Stephens' multiple complaints demonstrate that emotion rather than reason is
governing his actions and view of events.
In March, 2007, Stephens made a complaint of inappropriate workplace behavior to
Exeter's Employee Relations group. Employee Relations did a thorough investigation
into Stephens' allegations, and some but not all of Stephens' allegations were
substantiated. Accordingly, Nike took effective corrective action to ensure that the
behavior did not continue or recur. Before Stephens even had a chance to interact
again with the person against whom be complained, he filed his first complaint with
your agency. This action demonstrates Stephens' unwillingness to allow the corrective
measures taken by Exeter to work before pursuing his agenda.
In the period between Stephens' first and second charges with your agency, Stephens
made no further complaint to Employee Relations, his manager or any other Exeter or
Nike employee. A business decision to eliminate his department, NASCAR was made
by Exeter (and shortly thereafter, the entire Exeter business was eliminated as well).
Like all his peers in the same situation, Stephens was offered a generous severance
package, including outplacement assistance, and was even offered the opportunity to
interview for another job within Nike. However, he rejected all offers, choosing instead
to file a second charge with your agency.
Most recently, he filed his third charge that his manager and/or the person against
whom he made a complaint provided false or inaccurate information about his
employment. This is patently false; it contradicts Nike and Exeter policy, and further is
contradicted by the fact that Nike offered a job interview to Stephens, which
Stephens rejected as described above.
This history demonstrates that Stephens is motivated by emotion rather than fact to
the point where he is willing to overlook opportunities for employment, transition
assistance, and other benefits in order to pursue a personal agenda based on
meritless claims.
Exeter has an established policy regarding requests for employment references;
only position title and dates of employment are shared.
Like most companies, Exeter only reveals position held and dates of employment
when an outside employer seeks reference information. Both Stephens' former
manager and the person against whom he made his original complaint were aware of
the policy, and neither shared any employment information with any potential
employers, either external or within Nike. In fact, no potential employer sought any
information about Stephens from them.
Stephens himself hindered his job opportunities by rejecting an opportunity to
interview for an internal Nike position and refusing Nike's offer of support.
When his position was identified for elimination, Exeter offered Stephens support in
the form of outplacement services, Human Resources partnership, and even an
Ex A
Page 52 of 542
EEOC #551-2007-02268
Page 3 of3
interview for a position within Nike for which he might have been chosen. Stephens
did not take advantage of any of these offers of support.
In sum, Stephens' allegations are without merit. Neither Stephens' former manager,
nor the person about whom he complained, have discussed Stephens, his
employment, or his EEOC complaints with any prospective employer. Stephens'
allegations are unfounded. Stephens was treated the same as all his co-workers in the
NASCAR business unit. Exeter requests that the agency dismiss all three of Stephens'
complaints.
Sincerely,
~
Melissa Marks
503-532-6213
Ex A
Page 53 of 542
Ex A
Page 54 of 542
Ex A
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r
EEOC Form 161 (3/98) U.S. _.JUAL EMPLOYMENT OPPORTUNITY COMlwu.)SION
DISMISSAL AND NOTICE OF RIGHTS
To: Renee Stephens
7135 S.W. 54th Avenue
Portland, OR 97219
From: Seattle Field Office
909 First Avenue
Suite 400
Seattle, WA 98104
D
EEOC Charge No.
On behalf of person(s) aggrieved whose identity is
CONFIDENTIAL (29 CFR 1601.7f!!ll
EEOC Representative
..
Telephone No.
5512007-01130
Mathew L. Cleman.
Investigator (206) 2206862
THE EEOC IS CLOSING ITS FILE ON THIS CHARGE FOR THE FOLLOWING REASON:
D
The facts alleged in the charge fail to state a claim under any of the statutes enforced by the EEOC.
D
Your allegations did not involve a disability as defined by the Americans With Disabilities Act.
D
The Respondent employs less than the required number of employees or is not otherwise covered by the statutes.
D
Your charge was not timely filed with EEOC; in other words, you waited too long after the date(s) of the alleged discrimination to file your
charge
D
Having been given 30 days in which to respond, you failed to provide information, failed to appear or be available for
interviews/conferences, or otherwise failed to cooperate to the extent that it was not possible to resolve your charge.
D
While reasonable efforts were made to locate you. we were not able to do so.
D
You were given 30 days to accept a reasonable settlement offer that affords full relief for the harm you alleged.
[KJ The EEOC issues the following determination: Based upon its investigation, the. EEOC is unable to conclude that the information obtained
establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to
any other issues that might be construed as having been raised by this charge.
D
The EEOC has adopted the findings of the state or local fair employment practices agency that investigated this charge.
D
Other (briefly state)
- NOTICE OF SUIT RIGHTS
(See the additional information attached to this form.)
Title VII. the Americans with Disabilities Act. and/or the Age Discrimination in Employment Act: This will be the only
notice of dismissal and of your right to sue that we will send you. You may file a lawsuit against the respondent(s) under
federal law based on this charge in federal or state court. Your lawsuit must be filed WITHIN 90 DAYS of your receipt
of this notice; or your right to sue based on this charge will be lost. (The time limit for filing suit based on a state claim may
be different.) .
Equal Pay Act (EPA): EPA suits must be filed in federal or state court within 2 years (3 years for willful violations) of the
alleged EPA underpayment. This means that backpay due for any violations that occurred more than 2 years (3 years)
before you file suit may not be collectible.
JAN 302008
Enclosures(s)
(Date Mailed)
cc: EXETER BRANDS/NIKE
One Bowerman Dr.
Beaverton, OR 97005
()
{l.i ,;
Ex A
Page 56 of 542
IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MULTNOMAH
KARELLEN STEPHENS guardian )
ad litem for Qadria Stephens,)
)
Plaintiff, )
)
v. ) No. 0711-13836
)
AIMEE McQUISTON, )
)
Defendant. )
DEPOSITION OF QADRIA STEPHENS
Taken in Behalf of Defendant
February 26, 2008
1.<11 ..
."tII'" '.'"
1

P,O. Box 82925
Pon!and, OR 91282-0925
(i'N Brenda Y. Qoe,ers
503-422-2532

Court Reporter
Ex A
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BE IT REMEMBERED That, pursuant to
Oregon Rules of Civil Procedure, the deposition of
QADRIA STEPHENS was taken before Brenda Y. Rogers,
Certified Shorthand Reporter for the State of Oregon,
on Tuesday, February 26, 2008, commencing at the hour
of 9:17 a.m. in the law office of Lachenmeier Enloe
RaIl & Heinson, 9600 Southwest Capitol Highway, in the
City of Portland, County of Multnomah, State of
Oregon.
-
.
'
APPEARANCES
Vangelisti Kocher
By Mr. Scott F. Kocher
Appearing in behalf of Plaintiff
Lachenmeier Enloe RaIl & Heinson
By Mr. Rudy R. Lachenmeier
Appearing in behalf of Defendant
Also present: Karellen Stephens
Aimee McQuiston
Susan O'Leary
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EXAMINATION INDEX
Examination by Mr. Lachenmeier
EXHIBIT INDEX
No. Description
1 Diagram
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MR. LACHENMEIER: Hi.
MISS STEPHENS: Hi.
MR. LACHENMEIER: What's your name?
MISS STEPHENS: Qadria.
MR. LACHENMEIER: Qadria, this is a
court reporter, and her name is Brenda Rogers, and she
is writing down every single thing that either one of
us says. Do you understand that?
MISS STEPHENS: Uh-huh.
MR. LACHENMEIER: It's easier if you
say yes or no rather than uh-huh so we don't have to
argue later about who said what. Okay?
MISS STEPHENS: Okay.
MR. LACHENMEIER: This is being put
down and is going to go into a book. If it was used
later, if you said something different than you did
today, it can be pointed out. But as long as you tell
the truth, we have nothing to worry about, right?
MISS STEPHENS: (Nodded)
MR. LACHENMEIER: That's yes, for the
record?
MISS STEPHENS: Yes.
MR. LACHENMEIER: Okay. Do you know
what it means to tell the truth?
MISS STEPHENS: Uh-huh, yep.
Hlftt]Brenda Y. QOBers, C<,Q
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1 MR. LACHENMEIER: She's going to give
2 you an oath and ask you if you're going to tell the
3 truth. And that's what this is all about. If you
4 agree, you can just say yes. And if you don't, we
have to figure out why. Okay?
6 MISS STEPHENS: Okay.
7
8 QADRIA STEPHENS
9 was thereupon called as a witness and, after having
been first been administered a child's oath to tell
11 the truth, was examined and testified as follows:
12
13 EXAMINATION
14 BY MR. LACHENMEIER:
Q
Let's start with some easy questions. Okay?
16 A (Nodded)
17 Q
How old are you?
18 A Nine.
19 Q
Nine? Where do you go to school?
A Hayhurst.
21 Q
Hayhurst. Okay.
22 A Elementary School.
23 Q
What was the last part? I'm a little bit
24 deaf.
Do you have any friends or grandpas or
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anything that are hard of hearing? I'm a little hard
of hearing.
A Well, yeah, I have a grandmother that I have
to speak up for my grandma.
Q
I know it's a little intimidating for a
lawyer to ask you silly questions, but I need you to
speak up loud. Okay? I listened to too much loud
music when I was a kid, and I don't hear as well as I
once did. Okay?
A Okay.
Q Are you missing school today?
A No.
Q Is it a day off?
A No.
Q Tell me the rest of it, then. How come
you're not missing school and it seems like a school
day?
A I'm just gOlng to go after this deposition
thing.
Q
Oh, okay. Fair enough.
Tell me a little about Sophie. You
know Sophie, don't you?
A Uh-huh.
Q How long have you known Sophie? Long time?
A When I was in kindergarten. That's how
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long.
Q Is that where you met her?
A I met her at Maplewood. We were in
kindergarten when we met. After first grade, I
decided to move to Hayhurst, and I told her if she
wanted to, and her parents agreed. So we - yeah, we
just went to the same school, and I got into second
grade.
Q
My understanding is Hayhurst has a regular
public school and another school, and you're in the
other school, right?
A There's like, okay, two hallways. One is
like, yeah, just a regular school, and then one
hallway is like the Odyssey side, which the Odyssey
side is more like learning and history and more like
experience.
For one thing, I'm studying Native
Americans and, like, we dressed for powwow. And we're
going to start studying -- we're going to start
studying, like, the white men's perspective. And
we're going to go to the Yakima reservation for a
three-day, two-night trip, and we're going to sleep in
teepees and sketch pictures and stuff of how the
Yakima reservation looks like.
Q Are you an artist? Do you draw pretty well?
y. QOBers, C<>Q
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1 A Yeah, pretty much.
2 Q I think you told us that you actually made
3 your headband, right?
4 A Yep.
Q Is that a school thing too?
6 A Yeah.
7 Q
Very nice, very nice.
8 Before this incident occurred - and
9 we're going to call it an incident with the hot water.
Before this incident, had you ever been to Sophie's
11 house?
12 A Uh-huh, yes.
13
Q Had you stayed overnight before?
14 A Yes.
Q Had you taken a bath with Sophie before?
16 A No.
17 Q
That was the first time?
18 A Yes.
19 Q Okay. The day that happened, was it a
school day or a not school day or what was going on?
21 A I think it was a Friday.
22 Q Okay. Do you remember whether or not you
23 went to school that day?
24 A Yeah, I went to school on Friday. I'm
pretty sure it was a Friday. I'm not sure, but pretty
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sure.
Q
It was a Friday anyway, whether it was a day
on or a day off, right?
A Uh-huh.
Q
So when did you first talk to Sophie that
day?
A Well, I'm not pretty -- I'm not sure.
Q
When did you do you remember whether you
saw her in the morning or saw her for lunch? Or
when's the first time you're sure you were with
Sophie?
A Well, in the morning. In the morning when
school started.
Q
Hmm?
A In the morning when school started.
Q In the morning when school
A Yeah, when we were in our classroom.
Q What about the afternoon? What do you do?
A After school?
Q Yes.
A Well, I think Aimee picked us up and
well, I'm not sure, but I think we dropped off Jeremy,
Sophie's carpool, first; then we went to Sophie's
house. Then we just, like, played.
Q
Was that planned ahead of time? In other
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words, did you know the day before that you were going
to go to the Sophie's house that day?
A Yes.
Q
And you were going to Sophie's house to do
what?
A Spend the night.
Q
And you'd spent the night there before?
A (Nodded)
Q
Yes?
A Yes.
Q
And she'd spent the night at your house
before?
A Yes, yes.
Q I forgot to ask you. Do you have brothers
and sisters?
A Yes, three siblings.
Q How old are they?
A I have a sister who, right now, is four, and
she's going to turn five June 1st.
Q What's her name?
A Kamyah.
Q What other siblings do you have?
A I have a brother named Kymani. Right now,
he's seven, and he's going to turn eight September
13th. And I have a little brother who's three. And
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his name lS Kaiden, but we call him Tevvy.
Q Call him what?
A Tevvy.
Q How come?
A I don't know.
Q Just for fun?
A Yep.
Q Okay.
A And it's his nickname.
Q All right.
A His birthday lS December -- December -
what's his?
MS. STEPHENS: It's okay.
BY MR. LACHENMEIER (Continuing):
Q That's all the brothers and sisters?
A Yep. And I'm the oldest.
Q You're what?
A The oldest.
Q What was your date of birth?
A September 27th.
Q What year? This is a test here.
A 1998.
Q Okay. So you end up at Sophie's house after
school, in the afternoon anyway, right?
A Uh-huh.
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1 Q Who's there at the house?
2 A Aimee, Todd. Not very sure if Sophie's
3 sister was there. But I know that Aimee and Todd were
4 there.
Q And Sophie, of course?
6 A Yeah.
7
Q When you first got there, do you remember
8 what you did? Did you play?
9 A Yeah, we played.
Q What did you play?
11 A I'm not sure, but we played.
12 Q What kinds of things did you usually play?
13 A Well, like, we did karaoke, and, like, we -
14 Q Do they have a karaoke machine?
A Yes.
16 Q What did you sing?
17 A I'm not sure either, but I know I sang the
18 songs.
19 Q What else did you do that day that you
remember?
21 A We played with this - with these little
22 Polly Pocket thingies. I'm not sure.
23 Okay. I had one, and it was from,
24 like, China. My dad brought one. It's like these
little tiny girl peoples, and there's stores and stuff
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1 and house and stuff.
2 Q So teeny dollhouse, sort of?
3 A Yeah.
4 Q Whose idea was it to take a bath?
A Sophie's.
6
Q What was the idea? Were you going to play
7 in the tub?
8 A I guess, yeah.
9 Q
Did she have any bathtub toys?
A No, we were just going to splash around or
11 something.
12 Q Splash around in the water. So what happens
13 next? Somebody decides you're going to take a bath.
14 So what happens?
A Okay. So we wait for a while. We were
16 going to playa game board, but we didn't end up doing
17 that. So we took a bath.
18 We turned on the water, and Sophie told
19 me that her mom, like like, makes this hot boiling
water and pours it in the tub so it's hotter, because
21 we both like really hot water.
22 Q Do you usually take baths at home or do you
23 usually take showers?
24 A Showers.
Q So Sophie had told you you might have to get
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some hot water to get it hot enough?
A No, she told me, like, "Do you want to
get do you get the -- do you want me to have my mom
get hot water and pour it in the tub so it's hotter?"
I said yeah, because -
Q Usually like hot water? You take hot
showers?
A Yeah. Well, not very hot, but hot enough.
Q Have you ever been in a hot tub?
A No.
Q No. Okay. So were you in the tub a while
before the hot water came in?
A Yeah.
Q How long? Any idea how long? Were you
playing for a while or -
A Yeah, we were playing for a while. And then
when Aimee came in with the hot boiling water, Sophie
stood on one side of the corner of the tub and I stood
on the other side. And when she was pouring the hot
water, I slipped. And then it got on me, the hot
water got on me, and then she stopped pouring.
And Todd came in, and Aimee said,
"Don't come in here." And she put her robe on me and
put me on the upstairs couch, and I waited there a
little bit with Sophie.
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And then they moved me downstairs so
could watch a movie. And I was crying. "I want to go
home. I want to see my mommy and daddy."
After a while, I calmed down. And then
Aimee told me that she would go to the house -- go to
my mom and dad's house. She would put me in the car
and take me to my mom and dad's house, because she was
trying to call them, but they didn't answer.
And then I guess what mom said was
Kamyah, she really wanted -- she really wanted to call
me, and she was like -- she was crying and stuff, and
finally they let her call me. And then that's how
they found out that I was burned.
Q Let's back up a little bit. Okay?
A (Nodded)
Q
I want to make sure I understand how this
happened. NOw, you're in the bathtub with Sophie.
That's where we are. And Aimee comes in with the
teakettle, right?
A Yeah.
Q At that point, do you get out of the
bathtub?
A Yes, I get out and stand on the corner and
hang onto the edge of the wall.
Q
You were on the edge, balancing?
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A I was right here and hanging onto the wall,
2
1
and here was Sophie. And I slipped and she was still
3 pouring. That's when I got burned.
4 Q What I want to understand is, first of all,
the bathtub sits a little higher off the floor, right?
6 A Yep.
7 Q When she was pouring, were you standing on
8 the edge of the bathtub or on the floor of the
9 bathtub?
A I was standing on the edge of the bathtub,
lIon the corner.
12 Q But on the bathtub itself?
13 A Yes.
14 Q Was Sophie standing on the other side of the
tub or was she completely out of the tub?
16 A She was on the other side of the tub.
17 Q Completely out of the tub?
18 A Yes.
19 Q What were you holding onto?
A I was holding onto the corner, onto the
21 wall. I was just holding onto the wall.
22 Q So Aimee starts pouring the water?
23 A Yes.
24 Q Was she halfway between you and Sophie?
A Yes.
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Q Is there anything else that happens that
scares you or causes you to fall, or what happened?
A I slipped and I hurt myself. I hurt
myself I slipped on -- in the water where she was
pouring, and like I was like, "I got burned, I got
burned."
Q I understand that. What I'm trying to
figure out is what caused you to slip. Do you
remember?
A The water. I think some water on the tub.
Q Was there soap in the water?
A I'm not sure. I think there probably was,
but I think it was just the water.
Q Well, for instance, was there a bubble bath
going on?
A No.
Q No bubbles?
A I'm not sure.
Q Any toys?
A No.
Q Any squirt guns?
A No.
Q No? Guess that's a boy thing.
So nothing scared you; you weren't
trying to get away from anything; you just slipped
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1 into the tub?
2 A Uh-huh.
3 Q
Is that right?
4 A Well, wait. I remember then, like, Todd
coming in and I trying to hide so he wouldn't see me,
6 and then slipping.
Q
So Todd came into the bathroom or you just
8
7
heard his voice or what?
A He came into the bathroom. That's when
Aimee said, "Oh, don't come in here." Then I slipped
11
9
because I didn't want to be seen.
12 Q
So you were trying to get around the edge of
13 the tub?
14 A Yes. This is where the tub is, and this is
the water running, and this is where she's pouring,
16 and this is me. And I hear him coming in, and I tried
17 to move right here, and I slipped.
18 Q Sounds like you could draw this. Could you?
19 A I guess.
Q Let's give it a try and see. If it gets too
21 hard, we just won't do it. All right?
22 A (Drawing) I'm just going to draw stick
23 people.
24 Q What I want to know is right before you
fell. That's what I want to see.
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A Okay.
Q
You can put anything else you want in the
diagram.
A (Drawing) This is supposed to be Sophie.
Looks like she's falling down.
Q
write a little S on her somewhere.
A Okay. And this is me.
Q
Perfect.
A And this is we kind of look like we're
falling down right now.
Q
Well, you're doing better than I can draw.
A Just drawing stick people. I can draw
better than this.
Q
Well, I can't.
Is that right ~ n the doorway? Is that
where Todd was?
A This is the sink thingy. This ~ s the sink.
So this is kind of where I was.
Q So what was Todd doing coming in the
bathroom? Was he asking you where you were going to
sleep?
A I don't know.
Q
Was he saying something to somebody
A I don't know. I'm not sure.
Q
Did he get clear in the bathroom or just in
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the door?
A He was like -- here's the door. He was
about right here (drawing).
Q Right in the doorway?
A Yeah.
Q Was the door open halfway or all the way?
A All the way.
Q
Did it open in or open out?
A This way here, out.
Q
Okay. What did Todd say? Anything?
A He didn't say anything.
Q What did Aimee say?
A Well, what -- I'm not sure what she said,
but all I know lS kind of like how it happened, like
when they pour 'cause I forgot.
Where she poured, she was like, "Oh,
no," and she gave me the robe and all that stuff.
Q Your voice is getting so soft.
Then she gave you a robe, and then
what?
A I just sat on the couch, and Sophie and Todd
said, "Just try not to think of what just happened and
it won't hurt that much. Try not to think of how it
hurts."
And I just cried. And I stopped a
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second and I started crying. When I got downstairs, I
stopped and, "I want my mommy."
Q Let's talk about the water itself. It's
coming out of the teakettle?
Yes.
And it hit what leg?
It hit me -
The one you just showed us, right?
Which one is that? You know your right and
I guess it was my right.
Well, tell me this -
Or my left.
Tell me this.
This way.
What direction were you facing when you
Were you facing towards the wall behind the
tub? Towards the front?
A This was me, and I fell down right here, and
I was, like, right here.
Q Looking which way?
A This way.
Q Right, towards Aimee?
A Yeah.
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Q Okay. That's fine. That's enough drawing
though. If you draw anymore, I'll get confused.
A Okay.
Q When we're done here, remind me to mark
that.
Obviously, it hurt.
A Yes.
Q
So somebody gives you a robe. Was that
Aimee?
A Uh-huh.
Q
Did somebody get some frozen peas or
something to put on it?
A Yes.
Q
Did you go down to the basement?
A First, I went on the upstairs couch, then to
the basement.
Q
Did you get the peas right away?
A Yes. But first she put water on me.
Q From the tub?
A Yes.
Q She ran cold water on it right away?
A Yes.
Q
Did that help? Did it take some of the
sting out of it or not?
A Not really how I felt, didn't really -
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'cause I wasn't thinking about anything else but -
Q
Okay. And so who took you to the basement?
A I think Todd carried me down.
Q
Okay. And then what happened after that?
You were watching movies or TV while they're trying to
call your mom?
A Uh-huh, watching a movie.
Q Eventually, they get hold of your mom; is
that right?
A Well, they don't get ahold of her -- they
don't get ahold of my mom. Kamyah really wanted to
call me, and then pretty soon my mom and dad just
called so Kamyah can get on the phone. So that's when
they heard about it.
Q You're saying Kamyas?
A Kamyah.
Q
That is who?
A My sister.
Q
Oh, okay. I'm sorry.
Then who comes to pick you up?
A My mom and dad. And then they take - then
we go to the house first. I'm not sure why. Then we
go to the hospital.
Q
Okay.
A And, like, then I, like, go to the emergency
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room. I'm in a wheelchair because I don't want to
walk.
Q
What did they do for you ~ n the hospital?
A They gave -- they, like, put this cream
on -- first I went to the emergency room, and they put
this cream on me at first
Well, first I waited a little bit.
Then they put this cream on me at first, then this
wrapping on me. And then, like, I just -
Q
Did they give you anything for your pain?
A Yes, they gave me, like, a teddy bear or
something.
Q
Oh, cool. Did you have to take any pain
medication?
A No.
Q
By the time you left the emergency, was it
better?
A Yes.
Wait. I'm not sure if they gave me
pain medication. They probably did.
Q Every time I've been in emergency, they take
forever to get to me. Did they take forever for you,
or did they get you pretty quick?
A They took forever.
Q
You must have priority. Usually they take
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the heart attacks first, and seems like they take
forever if you have anything else.
A Yes, they took forever. Then they took me.
When I got home, I stayed home for a
while. That night, when I slept, I just slept. And
in the morning, like, that's when it got into, like -
well
Q
That's when what happened? The next morning
what happened?
A The next morning I got, like, candy and
stuff, and I got to sit in my mom and dad's bed. And
I got to have Sour Skittles and -- yeah.
Q
So you got treated pretty special for a
while, huh?
A Yeah. But the thing is, I missed a lot of
school. And it was division unit and stuff, and I
missed all that. And now I have to restudy my math a
lot.
Q So when you got home, it was in a wrap,
right? A dressing wrapped around your leg?
A Just like
Q Band-Aids sort of?
A Yeah.
Q And they probably changed those a few times
a day?
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A Yeah, and they had to change it. Sooner or
later -- sooner or later, my dad got me crutches
because I didn't like to walk. It was hard to walk.
Q
Okay. How long did you use crutches?
A For a few days.
Q Okay.
A And sooner or later, my leg got better, and
we went to, like, this doctor -- this doctor. And my
leg just turned into, like, a bruise thingy.
And and I went to this doctor, and
he said I was fine and I could go back to school. So
I went back to school.
Q
How much did you miss? A week? Two weeks?
A I think it was two weeks, or maybe a week.
Q When you were home, did you do homework and
stuff? Did somebody bring you homework?
A Yes, I'm pretty sure.
Q But you got behind a little bit in division?
A Yeah.
Q Did you get caught up? Can you do division
well now?
A No.
Q No?
A But, like, Sophie came over sometime with
Todd, and, like, they gave me, like, this video game,
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because I have a Game Cube. And they gave me a video
game, a Mario video game and a little stuffed animal.
Sophie played with me for a little bit. Then, yeah,
they just left, and I just played the video game.
moved downstairs.
Q When you were home, did you have to sit on
the couch? Or what did you have to do?
A I sat -- I just laid in my bed a lot and
just I got served, like, lunch and stuff in bed.
And after a while, I began to, like,
walk around and stuff. And sooner or later, felt like
I can just go to school.
Q Do you know what it means to get infected?
A Yeah.
Q Did it get infected?
A No.
Q
No? Okay.
A Only I knew if it got infected or not,
because they told me if it got white, if it was
whitish, it would be, like, infected.
Q And that didn't happen?
A No.
Q I saw some pictures where your leg was
really red. Did they put some red dye on you or
something-
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A No. That's just how it looked like.
Q
That's not medicine?
A No.
Q
So you went back to school. After you went
back to school, what problems did you have, if any,
with your leg?
A Well, I showed my friends it -- well, I
showed some of my friends, and they said, "Ew, it's
gross."
And I'm like, "It's not that gross."
wasn't really like embarrassed at all. And
Q
You were not embarrassed?
A I wasn't very embarrassed, no.
Q
After you went to school, did you have any
trouble walking?
A No.
Q
Did you have to be careful what clothes you
had on?
A Yes.
Q
Is that because it was still in a wrap?
Still had cloth around it and bandages?
A Well, actually -- well, I wore short pants
and stuff because -- I didn't have to be in bandages
anymore, but -- actually, I had to wear long pants
because I had to sun-block it all the time, and it was
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really sunny.
Q Okay. Did you make up all the school that
you missed? Did you get caught up?
A I'm not sure. I think I was doing my
homework at horne.
Q Do you have any problems with your leg right
now?
A No.
Q
Okay. When's the last time you saw a doctor
for your leg?
A Last time? I think it was that time -- that
day where I just went to the doctor's, went to the
doctor, and they told me that my leg was fine, that it
didn't need a bandage anymore. And I had to
moisturize it every day and put sunblock.
Q Are you planning to see more doctors, or are
you all done with the doctors?
A All done with the doctors.
Q
I want to know what you do for fun. Do you
play sports?
A I play tetherball.
Q
You have a couple little marks on your legs,
little scars from playing soccer or something? I've
got them allover my body_ Do you have ever play
soccer?
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A No.
Q Do you know what I'm talking about? Like
little bruises on your leg?
A Yeah, I have some of those, yeah.
Q Where did you get them from?
A (Shrugged)
Q Don't know?
A I don't know.
Q Didn't stop you, whatever it was, huh?
Are you a dancer?
A I used to be.
Q Were you a skater?
A No. Well, I like to go roller-skating a
lot, and I hardly got to go roller-skating, but like
to go roller-skating and ice-skating. I was scared to
go on ice before.
Q Did you ever get an ice lesson?
A No.
Q Did you get roller-skate lessons?
A No, I just learned how to roller-skate.
Q Where you did you skate?
A I roller-skated at Oaks Park. For
ice-skating, I went to, like, The Alley, and, like, at
the mall is the ice-skating rink, I guess. I think it
was with my friend, Sadira.
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Q Tell me about the dancing. Were you dancing
where?
A Well, I danced at the - the dance class
thingy.
Q The what?
A The academy thingy.
Q The Dance Academy?
A Yeah.
Q Where lS it?
A It's somewhere here, around here.
Q What did you do for the - with the Dance
Academy?
A Well, first when I was really little, I
danced. And when I got older, I started doing ballet.
And I did tap for a long time, and I started jazz last
year. But I quit all of them.
Q Why?
A Just because I didn't want to do dancing
anymore. Took up too much of my week.
Q You were dancing how many days a week?
A I think Monday was ballet, Tuesday, Saturday
or something. It was a lot, and I just hated the
going, constantly going to all those dance classes.
took jazz and tap at a time. I took two of those on
the same day, and I took ballet separately.
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Q
So did you learn how to shuffle off to
2
1
Buffalo, all that good stuff that all the tap people
3 learn?
A I didn't learn that much, but I learned a
lot.
4
Q
Slap-tap?
7
6
A Yeah. So I learned a lot, but I just didn't
8 want to do it anymore.
9 Q
But your giving up dance didn't have
anything to do with your knee, did it?
A No.
12
11
Q Are you having any pain now at all?
13 A No, not at all.
14 Q Does it keep you from doing anything?
A No.
16 Q Does it bother you at all?
17 A No.
18 Q Okay. You mentioned that you had to stay
19 out of the sun or something like that, right?
A I had to have sunblock on my leg if I went
21 to go, like, play in the sun and play in the water and
22 stuff.
23 Q
Hopefully, you put sunblock more than just
24 your leg, don't you?
A Yes.
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Q other than having to put sunblock on it, 1S
there anything else that is an inconvenience or
bothers you in any way about your burn?
A No. Except one thing I really don't like
about it is just I missed a lot of math, and, like,
I'm behind on third grade stuff. And I have to get
caught up on division and stuff. Mom and dad are
working on that.
Q They're working on your division?
A Working on my times, division. I'm in a
first grade book.
Q What grade are you in? I forgot.
A Third grade.
Q
Okay. Are you and Sophie still friends?
A Yeah.
Q But you don't do anything together anymore?
A Not really. We don't have play dates and
stuff, but we play at school together sometimes, just
like basketball with her friends. Sometimes I just
play with my friends, like with Jenny, one of my
friends, and Ellie and Charlotte, tetherball.
Q So you play tetherball and sometimes you
play basketball?
A Yeah.
Q Can you play with a ten-foot hoop? Can you
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get the ball all the way up there? Or do you have
lower hoops?
A They're not like baby sizes. They're about
this high if this is a person.
But not as tall as the adult ones?
I think they're about as high as the adult
Okay. Are you pretty good?
Are you pretty good at other sports too?
What do you mean?
I mean dribble sometimes with the right hand
and sometimes with the left hand.
A Yeah.
Q Which are you? Are you right-handed or
left-handed normally?
A Right-handed.
Q You never played soccer, you said?
A Yeah, I never took soccer, never played it.
Q Are you doing anything this spring at
school? I know you're going to the cool thing with
the Indian reservation.
A Yeah.
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Q
But are you doing any plays or -
A I just did a powwow, and I think I'm going
to do another play thingy, because I'm doing two
units.
Q Do you act at the powwow? Do you pretend to
be an Indian or
A Yeah, you pretend to be an Indian, do the
traditional dances, and yeah.
Q Sounds like a nice school.
A (Nodded)
Q Little classes? How many people in your
classes?
A Well, I have two teachers. There's like
so, like, In the Odyssey, it's K -- kindergarten,
first grade, second grade; that's one, all clustered.
And then third grade, fourth grade, fifth grade, all
clustered.
I have two rooms. So some of the third
graders, fourth graders, fifth graders in this room
and some of the third graders, fourth graders, fifth
graders in this room. And K through -- K -
kindergarten through second graders are in other
rooms.
Q
Do you do physical education at school?
A Yeah, I do, like, gym. My school goes up to
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eighth grade.
Q But in your gym classes, what did you do
this year?
A Just all the normal -- I just, like, do
warmups, pushups, gymnastics, like climbing ropes and
stuff.
Q You can do that?
A Yes. And soccer. I actually play soccer in
gym.
Q Are you pretty good?
A No.
MR. LACHENMEIER: I think I'm done, but
I need to talk to my client for just a minute. But
think I'm done. Okay?
THE WITNESS: Okay.
(Recess 10:00 to 10:04 a.m.)
(Exhibit 1 marked)
MR. LACHENMEIER: I have nothing
further.
(Deposition concluded at 10:04 a.m.)
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.-.
CERTIFICATE
I, Brenda Y. Rogers, a Certified
Shorthand Reporter for Oregon, empowered to administer
oaths to witnesses pursuant to Oregon Revised Statute
44.320, hereby certify that, pursuant to stipulation
of counsel for the respective parties, hereinbefore
set forth, QADRIA STEPHENS personally appeared before
me at the set time and place set forth in the caption
hereof; that at said time and place, I reported in
Stenotype all testimony adduced and other oral
proceedings had in the foregoing matter; that
thereafter my notes were transcribed using
computer-aided transcription under my direction; and
the foregoing transcript constitutes a full, true, and
correct record of such testimony adduced and oral
proceedings had and of the whole thereof, to the best
of my belief and ability.
Witness my hand and seal at Portland,
Oregon, this 22nd day of June, 2008.
Brenda Y. Rogers
Certified Shorthand Reporter
For Oregon; No. 90-0225
Ex A
Page 93 of 542
)
Plaintiff, )
)
v. ) No. 0711-13836
)
AIMEE McQUISTON, )
)
Defendant. )
DEPOSITION OF SOPHIE KRISTINE BURKHOLDER
Taken in Behalf of Plaintiff
February 26, 2008
P.O. Box 82925
Portland, OR. 97282-0925
[i'N Brenda Y. Qq)ers 503-422-2532
depo@breoda-coul1J"q!Ol'lcom
Court Reporter
Ex A
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2
SOPHIE KRISTINE BURKHOLDER was taken before Brenda Y.
Rogers, Certified Shorthand Reporter for the State of
Oregon, on Tuesday, February 26, 2008, commencing at
the hour of 11:11 a.m. in the law office of
Lachenmeier Enloe RaIl & Heinson, 9600 Southwest
Capitol Highway, in the City of Portland, County of
Multnomah, State of Oregon.
-'-
.
APPEARANCES
Vangelisti Kocher
Also present: Aimee McQuiston
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EXAMINATION INDEX
Page
Examination by Mr. Kocher
4
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/' . ~ - - - - -
MR. KOCHER: Good morning, Sophie.
MISS BURKHOLDER: Good morning.
MR. KOCHER: My name is Scott Kocher.
I'm the lawyer for the Stephens family. And I'm going
to ask you some questions today. And the first thing
I want to know is whether you're going to be able to
tell me the truth today.
MISS BURKHOLDER: I will.
MR. KOCHER: Will you?
MISS BURKHOLDER: Yeah.
MR. KOCHER: Okay. Do you know what it
means to tell the truth?
MISS BURKHOLDER: Yeah.
MR. KOCHER: Our court reporter is
going to ask you to give an oath to tell the truth.
SOPHIE KRISTINE BURKHOLDER
was thereupon called as a witness and, after having
been first given a child's oath, was examined and
testified as follows:
EXAMINATION
BY MR. KOCHER:
Q Sophie, you have been friends with Qadria;
is that right?
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1 A Yeah.
2 Q Do you remember when you first met Qadria?
3 A In kindergarten. Now I'm in third grade.
4 So three years, four years.
Q Okay. Would you help me a little bit? I
6 can't hear you very well.
7 A Okay.
8 Q If I could ask you to speak up a little bit,
9 that is going to be really helpful.
A Okay.
11 Q I understand you met when you were in
12 kindergarten. Is that the first time you met?
13 A Yeah.
14 Q
Were you in the same class in kindergarten?
A Yes.
16 Q
Were you friends with Qadria in
17 kindergarten?
18 A Yes.
19
Q How about first grade, were you ln the same
class with her then?
21 A Yeah.
22 Q And second grade?
23 A Yeah.
24 Q And third grade?
A Yeah.
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Q So you've been in the same classroom with
Qadria since kindergarten?
s.
Are you in the same classroom with her right
And are you still friends with her?
Do you remember the day that she got burned
at your house?
A Yes.
Q
Okay. Before that day, had Qadria been to
your house before?
A Yeah.
Q Had she slept over at your house before?
A Yeah.
Q
Had you and she ever had a bath when she was
at your house before?
A Once.
Q
Before that day, you had had a bath once?
A Yeah.
Q When was that?
A I don't know. I just know that we had it
once before.
Q
Once before she got burned or just the time
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1 she got burned?
2 A Once before she got burned.
3
Q And was that a sleepover time or just a play
4 date?
5 A Sleepover.
6
Q Do you remember the first time you had a
7 bath with her, not the time she got burned, but the
8 first time you had a bath, do you remember whose idea
9 it was to have a bath?
10 No.
11 Do you take a bath every night?
12 Like, once every two nights.
13 Do you shower sometimes also when you're at
14
16 The first time you and Qadria had a bath
17 together, did anybody get hurt?
18 A No.
19 Q Except for the time she got burned, had
20 Qadria ever gotten hurt when she was at your house?
21 A No.
22 Q Okay. The first time that you had a bath
23 with Qadria at your house, do you remember if your mom
24 brought hot water to the bath?
25 A She didn't.
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Q She did not the first time.
A No.
Q And the second time was the time Qadria got
burned, right?
A Yes.
Q And that time your mom brought some hot
water to the bath?
A Yes.
Q Do you remember the time Qadria got burned
who was the one who thought it would be a good idea to
have a bath together?
A No.
Q Did your mom make you take a bath that day?
A No. Well, I know why we took a bath,
because she had gone over in the first place to meet
our new cat, but she's allergic to cats, so she wanted
to wash it off.
Q Do you know why your mom was bringing hot
water to the bath the time Qadria got burned?
A Because it was really cold and there was no
hot water left.
Q Did she bring the hot water just once or did
she bring a couple of batches?
A Once.
Q Other times when you'd had a bath at your
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house, has your morn brought you hot water to make it
warmer?
A Yeah.
Q And do you get out of the water before she
pours the hot water in?
A Sometimes. Sometimes I just scrunch up at
the end.
Q The time Qadria got burned, did you get out
or were you scrunched up at the end.
A We got out.
Q
Both you and Qadria got out?
A Yeah.
Q Where were you when your morn started pouring
the water?
A I was on the right side of her. I was right
here and she was, and then Qadria.
Q
And what were you standing on when she
started pouring the water?
A Just on the floor.
Q
Where was Qadria standing?
A She was standing on the left side of her.
Q Was Qadria standing on the floor or was she
standing somewhere else?
A On the floor.
Q You were both standing on the floor outside
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of the bathtub?
A Yeah.
Q Can you tell me, in your own words, what you
remember about how Qadria got burned?
A Well, we got out, and my mom started pouring
the water. And my dad was shouting to us. And I
think that Qadria was afraid that she might have seen
him -- that he might have seen her, and she jumped
back in.
She told me the next day that she had
jumped -- because we have these little ledges on the
side of our tub, that she tried to jump on one of
those and slipped.
MR. KOCHER: Can we go off the record
for just a moment?
(Discussion off the record)
BY MR. KOCHER (Continuing):
Q I want to talk to you right now about
exactly what you remember, not what anybody else told
you. Okay?
A Okay.
Q About how Qadria got burned. You said that
your mom was there and your dad was shouting?
A Yeah, he was asking where we wanted to
sleep_
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Q
Okay. And did you tell him where you wanted
to sleep?
A Yeah, we wanted to sleep in the living room.
Q
Did you tell him that right as he was
shouting or did you -- or not?
A We told him when he was shouting.
Q
Okay. Do you remember when -- do you
remember how the hot water got onto Qadria?
A She just jumped or slipped right into it.
Q Was the water In a teakettle?
A Yeah.
Q Was the teakettle full?
A Yeah.
Q And is your bathtub -- my bathtub at home,
if you're standing on the bathroom floor, then there's
a wall, which is the edge of the tub, and then you go
over the wall and you're in the bathtub. Is your
bathtub like that?
A Kind of.
Q Is your bathtub different from that? How is
your bathtub?
A Well, we have the same -- we have like a
wall, and the bathtub is, like, set into the wall.
Q To get into the bathtub, do you have to take
a big step up over to get in?
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1 A Well, yeah, pretty much.
2 Q Okay. And do you have to kind of climb
3 over?
4 A No.
Q Can you step all the way over?
6 A Yeah.
7 Q All right. And you mentioned a ledge. Does
8 your bathtub have ledges on the side?
9 A Yeah, they're small, but you can stand on
them.
11 Q Where are the ledges?
12 A Around the sides of the bathtub. They go
13 all around.
14 Q Okay.
MR. LACHENMEIER: I think she's talking
16 about the bathtub itself, not anything separate from
17 the tub.
18 BY MR. KOCHER (Continuing):
19 Q Okay. Just a little hard for me to picture
here.
21 When Qadria jumped or slipped, where
22 was she standing when she started to jump or slip?
23 A She was over there (indicating).
24 Q She was to your left?
A Yeah. She was on the other side of my mom.
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Q Okay. And I guess did - where did she
land?
A In the center of the tub, right where the
water was hitting.
Q
Okay.
A So she was right in the path of it.
Q Did she have to get over the wall somehow?
A She just jumped or leaped or something.
Q
Okay. So she jumped from the bathroom floor
over the wall into the water? Is that what she did?
A Yeah.
MR. LACHENMEIER: Counsel, it's not a
separate wall; it's just the side of the tub.
MR. KOCHER: Okay. I think I've got
the right picture, but it's a little hard without
having seen it.
THE WITNESS: It's kind of weird.
Q Okay. What happened next?
A Then I just heard her screaming and my mom
stopped pouring as soon as she saw it, and she turned
the cold water on and put Qadria's leg under it and
called to my dad.
After we stopped pouring cold water on
it -- well, my dad was helping her cool her leg off.
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My mom went to call her parents, but they weren't
there. And then we got her robe, and we went
downstairs to the basement.
And then my parents called Kaiser. And
finally, her parents came as we were leaving to go to
Kaiser.
Q
After Qadria went out of the bathroom, did
she go straight downstairs or did she go somewhere
else first?
A We went straight -- I think she went to the
couch first.
Q Where's the couch?
A It's in the living room. So you're in the
bathroom, and you walk straight down the hallway, and
then there's the living room with the couch.
Q So you have a living room on the ground
floor; is that right?
A Yeah.
Q And you have a basement downstairs?
A Yeah.
Q
If you're in the living room, do you have an
upstairs also, a second floor?
A Yeah.
MR. LACHENMEIER: Here's Todd's
diagram, which he's not here to identify, but you can
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see how it's set up there. There's the bathroom down
at the bottom.
MR. KOCHER: So this is our sink?
MR. LACHENMEIER: That's the sink and
that's the tub. And that's the toilet.
MR. KOCHER: Fiberglass-type tub?
MR. LACHENMEIER: No, I think it's cast
iron.
MS. McQUISTON: It's old.
MR. KOCHER: Is it claw-foot type -
MS. McQUISTON: No, no, it's definitely
built in.
Q When Qadria was downstairs, did you go down
there to be with her?
A Yeah, we watched a movie while we waited for
her parents.
Q
Okay. Did she have some ice for her burn?
A We gave her some frozen peas.
Q
And do you know how long it was before
Qadria's mom came over?
A No.
Q Was it pretty quick or did it take a while?
A We called a couple times, so it took, yeah,
a little while.
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Q
And Qadria's mom came and picked her up. Is
that what happened?
A Yeah.
Q
After Qadria and her mom left, what happened
next?
A Well, we probably just went to bed or read
or did something.
Q Were you worried about Qadria?
A Yeah.
Q Do you remember when you first heard about
how she was doing after that?
A Yeah. It was the next day I saw her. It
was, I think, about two weeks later she came to
school.
Q
Did you go see her the day after she got
burned?
A No, but a few days afterwards, we brought
her a video game and a stuffed animal. And a couple
days later, we brought her the class cards everybody
had made for her.
Q
You took the video game and the stuffed
animal over to her house?
A Yeah.
Q
Did one of your parents go with you?
A My dad.
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Q And how was Qadria doing when you saw her
that day?
A She was still laying down, but she was doing
better.
Q That day when you saw her, was Qadria mad?
A No.
Q Or either of her parents mad?
A No.
Q
Okay. Have you ever seen either of Qadria's
parents upset or mad?
A Huh-uh.
Q
That a no?
A Yeah.
Q When Qadria came back to school, did she
have a bandage on her leg?
A No, but she was showing it to everybody, the
scar. She didn't have a bandage.
Q Did you see it?
A Yes.
Q What did it look like?
A Her skin was lighter on that part, and there
was a bunch of dots.
Q
Do you remember, was she wearing a skirt or
pants that day?
A No.
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1 Q
Don't remember what she was wearing?
2 A No.
3 Q
When she came back to school, did the class
4 do something to talk to her about her burn or to
welcome her back or anything like that?
6 A Everybody was happy she was back, but that
7 was it.
8 Q
Before Qadria got burned, did she used to
9 play with you on the playground?
A Yes.
11 Q
After she got burned, did she do that?
12 A Yes.
13 Q
Did she do the same things afterwards or
14 were there some things she didn't do afterwards.
A She did the same things.
16 Q Did you notice that she was different at all
17 after she got burned?
18 A No.
19 Q Did you ever go over to her house to play
after she got burned?
21 A No.
22 Q Did she ever come over to your house to play
23 after she got burned?
24 A No.
Q
Did you play together on the playground
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after she got burned?
A Sometimes. We did last year, but this year,
we don't play together.
MR. KOCHER: I'm going to take a moment
and ask to take a look at Rudy's computer -
MR. LACHENMEIER: Let me bring you the
set of pictures that goes with Aimee, and I'll see if
my legal assistant can put it on a laptop and bring it
in here.
MR. KOCHER: So we're going to take a
little break, and we're almost done.
(Recess 11:35 to 11:41 a.m.)
(Deposition concluded at 11:41 a.m.)
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1 CERTIFICATE
2
3 I, Brenda Y. Rogers, a Certified
4 Shorthand Reporter for Oregon, empowered to administer
6 44.320, hereby certify that, pursuant to stipulation
7 of counsel for the respective parties, hereinbefore
8 set forth, SOPHIE KRISTINE BURKHOLDER personally
9 appeared before me at the set time and place set forth
in the caption hereof; that at said time and place, I
11 reported in Stenotype all testimony adduced and other
12 oral proceedings had in the foregoing matter; that
13 thereafter my notes were transcribed using
14 computer-aided transcription under my direction; and
16 correct record of such testimony adduced and oral
17 proceedings had and of the whole thereof, to the best
18 of my belief and ability.
19 Witness my hand and seal at Portland,
Oregon, this 27th day of July, 2008.
21
22
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U.nlBrenda y. QOBers, C&Q
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Ex A
Page 113 of 542
)
Plaintiff, )
)
v. ) No. 0711-13836
)
AIMEE McQUISTON, )
)
Defendant. )
DEPOSITION OF AIMEE MICHELLE MCQUISTON
Taken in Behalf of Plaintiff
February 26, 2008
.:.t.

PO. Box 82925
Pordaod, 01.91282-0925
[i'tl Brenda Y. Qq)ers
503-422-2532

Court Reporter
Ex A
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",
AIMEE MICHELLE McQUISTON was taken before Brenda Y.
Rogers, Certified Shorthand Reporter for the State of
Oregon, on Tuesday, February 26, 2008, commencing at
the hour of 11:47 a.m. in the law office of
Lachenmeier Enloe RaIl & Heinson, 9600 Southwest
Capitol Highway, in the City of Portland, County of
Multnomah, State of Oregon.
-'.
APPEARANCES
Vangelisti Kocher
Ex A
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EXAMINATION INDEX
Examination by Mr. Kocher
EXHIBIT INDEX
No. Description
1 Diagram
2 Handwritten
marked
note dated 4-13-07,
2 Referenced
OBJECTIONS
Page Line
30 15 By Mr. Lachenmeier
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Ex A
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1 AIMEE MICHELLE MCQUISTON
2 was thereupon called as a witness and, after having
3 been first duly sworn, was examined and testified as
4 follows:
6 EXAMINATION
7 BY MR. KOCHER:
8 Q Good morning, Ms. McQuiston. We just met.
9 My name is Scott Kocher. You understand I'm the
attorney for the Stephens family?
11 A Yes.
12 Q
Have you ever had your deposition taken
13 before?
14 A No.
Q
You sat through the ground rules earlier,
16 but they are, very briefly, to give audible
17 yes-no-type answers rather than nods or uh-huhs.
18 Would you help me with that?
19 A Yes.
Q
If you don't understand any of my questions,
21 will you ask me to clarify?
22 A Yes.
23 Q
I want to make sure that we're on the same
24 page all the way through.
Are you married?
1,-IBrenda 1. QOBers, Cc,Q
503.422.2532
Ex A
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A Uh-huh, yes.
Q
What is your husband's name.
A Todd Burkholder.
Q
Is Todd any relation to Rex?
A Yes, brothers.
Q What's your current address?
A It's 7508 Southwest 51st Avenue.
Q Okay. I think your husband actually drew
this, but it may be helpful for us as well.
Is this sheet of paper I'm handing you
an accurate, if hand-drawn, drawing of your first
floor?
A Yes.
MR. KOCHER: Can we mark this, please?
(Exhibits 1 and 2 marked)
BY MR. KOCHER (Continuing) :
Q You're looking at Exhibit 1 . Is that an
accurate, if hand-drawn, layout of your first floor?
A Yes.
Q Bathroom here at the top of the page in the
middle?
A Yes.
MR. LACHENMEIER: For the record, when
you say, "accurate", you don't mean to scale, but
MR. KOCHER: Not to scale. Yeah,
1. Qogers, Ce,Q
503.422.2532
Ex A
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that's fine.
Q The day that Qadria got burned, you were
standing next to the tUb; is that right?
A Right.
Q On this diagram, can you put a very small A
to show where you were standing when you were pouring
water into the tub?
A (Complying)
Q Could you draw a very small S to show where
your daughter Sophie was when Qadria got burned?
A (Complying)
Q I'd like you to draw a Q specifically where
Qadria was standing -
A Oh, I guess -
Q You put an S there for Sophie. Let's not
put a Q, but let's just talk about this.
A Actually, this is a little bigger. This 1S
the toilet here. The wall is a little closer.
Q So the toilet is closer to the wall?
A No, no. It's just the wall is a little
closer yeah, yeah.
Q Without marking this, could you point to
where Qadria was before you started pouring the hot
water?
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Ex A
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A (Complying)
Q Where was she standing?
A She was standing to my left slightly behind
me.
Q
And was she standing on the bathroom floor
or the edge of the tub?
A Bathroom floor.
Q
And when you started pouring the water, at
some point, did Qadria move?
A Well, yeah.
Q What happened?
A It was very fast. She -- I actually didn't
see it. She was behind me one minute and then ln the
bathtub the next. It was very fast.
Q
Do you know why she moved?
A I don't know exactly, but I think I do.
Q
What do you think?
A I think she was nervous about Todd, Todd's
voice getting closer, possibly coming in.
Q
Were the girls wearing any clothing at that
point?
A No.
Q
At that point, do you know if Todd knew that
the girls were nude and bathing in the bathroom?
A Yes.
0.-11Brenda Y. Qosers, C<>Q
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Ex A
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Q That is to say that Todd did know
A He knew they were in the bath.
Q Do you know whether he knew they were naked
at that point?
A No.
Q That's to say you don't know one way or
another or -
A Yeah, I don't know.
Q Okay. Why were you pouring hot water into
the tub?
A Because I was heating it -- heating it up.
Q Was your hot water heater such that it was
not able to keep the water hot on its own?
A Yes.
Q Before that bath, had Qadria ever had a bath
at your house before?
A I don't remember. I think she did, but -
Q Had you ever poured hot water near Qadria
before that time?
A No.
Q Was the water -- you brought it from the
kitchen?
A Yes.
Q Is it a gas stove or electric stove you
heated the pot?
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A Gas.
Q
And you've brought the teakettle here today;
is that right?
A Yes.
Q
I'm not going to have it marked as an
exhibit, but I would ask if, between you and your
lawyer, you'd be sure you save it. Would you do that
for me?
A Oh, yes, yes.
Q
Was the water boiling when you brought it
from the kitchen?
A Actually, Todd tested it with his finger.
It was not whistling.
Q Does the pot whistle?
A Yes, when it's boiling.
Q Was Todd involved in heating the water or
did you do it?
A He did it.
Q
Do you know how he came to be doing that?
Did somebody ask him to or did he decide it needed to
be done?
A Yes. He was helping me out, just assuming,
because that's who he is.
Q
Did you ask Todd to heat the water?
A Probably not. I don't remember though.
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Q Do you know if one of the girls asked him to
heat water?
A Well, the girls asked if we would do it, if
we would heat water for the bath.
Q Meaning that they told you it was getting
cold and they wanted it hotter?
A Uh-huh, Sophie wanted to show Qadria how we
heat the bath.
Q
Did you hear Sophie talking to Qadria about
that?
A They both yelled from the bathroom. But,
no, I did not hear that.
Q Tell me, as near as you can remember, what
happened starting when -- from the time that you
brought the water from the kitchen into the bathroom.
A I walked into the bathroom. I asked the
girls to get out of the bathtub, and I started pouring
the water in.
Q
Remember saylng anything else to the girls
other than, get out of the bathtub?
A Between -- well, no, not specifically.
Q Did both the girls get out when you asked?
A Yes.
Q They were playing nicely at that point?
A Yes, they were having fun.
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Q
Had you ever seen Qadria and Sophie play in
any way that wasn't nice?
A No.
Q
They seem like great girls, both of then.
Do you have any different opinion?
A No, no.
Q
So I understand: you told the girls to
get out, they got out, and you started pouring; is
that correct?
A Yes.
Q
What happened next?
A It happened very fast. I noticed Qadria
seemed agitated. About the same time, I noticed Todd
was yelling about the beds - or asking, but in a
voice. He wasn't actually yelling.
She seemed agitated, and I asked her,
"Why don't you grab a towel." And I just remember
looking over at Todd -- or towards the doorway. I
mentioned that he shouldn't come in here.
And then all of a sudden, I turned
around, and Qadria's in the bathtub, and I pulled it
away.
Q
At the point that Qadria -- did Qadria go
into the tub water?
A Yes.
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503.422.2532
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Q Not just the hot water you're pouring, but
in the bathtub water?
A Yes.
Q At the time she was getting into the bathtub
water, you were looking towards Todd; is that correct?
A Yes.
Q That a yes?
A Yes. Sorry.
Q Thank you. That's when you were telling
Todd, don't come in here?
A Yes.
Q Do you remember if you told Qadria, "Why
don't you grab a towel," before or after you told Todd
not to come into the bathroom?
A No.
Q Did Qadria grab a towel?
A No.
Q Was there a towel there that she could have
grabbed?
A Yes, right next to her.
Q Do you know why she didn't grab a towel?
A No.
Q Did you point the towel out to her?
A Yes.
Q Did you hand it to her?
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503.422.2532
Ex A
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A No.
Q And did you point the towel out to Qadria
right ln that moment as you were telling her, "Why
don't you grab a towel"?
A Yes.
Q And these things were happening as you were
pouring the water?
A Yes.
Q I'm looking at our teapot here. Was it full
or close to full when you started pouring?
A Full.
Q
Did you stop pouring right after Qadria got
burned?
A Yes.
Q
Did you at that point had you poured most
of the pot or just a little bit out of the pot?
A I don't remember.
Q
Looks like it has a small spout and it might
take some time to pour the whole thing. that true?
A I don't know, relative to -- yeah, I don't
know.
Q After Qadria was burned, what did you do?
What happened next?
A I turned on the cold water, and I called for
Todd. And I tried to soothe her.
1. Qqgers. C&Q
503.422.2532
Ex A
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Q Did Todd corne in?
A Yes.
Q Did someone get her a robe?
A Yes.
Q Who was that?
A I believe it was Todd.
Q Where was Todd when you were telling him not
to come into the bathroom?
A He was in -- in the hallway. He was corning
from the kitchen coming down there, the tiny hallway
from the kitchen
Q You could see him from the -
A No, I could just hear his voice coming
closer.
Q Okay. After Todd got a robe, what happened
next?
A At one point, we got her ice. I believe
I -- I mean, I was the one that was calling Karellen,
and Todd took her downstairs and put on a video.
Q Do you have an upstairs also as well as a
basement?
A It's actually above the garage. It's not a
full upstairs.
Q Did Qadria go up there at some point after
she got burned?
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A No, no.
Q There a couch in the upstairs above the
garage?
A Yes.
Q
Eventually in calling Karellen, did you get
through to her?
A No, she actually ended up calling us.
Q
Okay. Do you know how many times you called
her before she called you?
A Seemed like a lot, but I would say three or
four.
Q
Okay. Did you call anybody else?
A We called Kaiser after we couldn't get hold
of them.
Q
Why did you call Kaiser?
A We have an advice nurse through our
insurance, and we just wanted some advice to make sure
we're doing everything right.
Q
What did the advice nurse tell her?
A The advice nurse said to bring her in, that
without seeing the burn, she just thought that was the
most prudent thing.
Q
Did she give you advice about how to deal
with the burn right then and there?
A I don't remember that. I'm sure she did,
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Q Other than getting ice and the cold water in
the tub, was there anything else that you or Todd did
for Qadria's burn while she was at your house?
A Well, we switched it to frozen peas.
Q Switched the ice to frozen peas?
A Yes.
Q Why did you do that?
A I don't remember, actually. I don't
remember if it was Todd being burned before or if it
was the advice nurse. I don't know. We just thought
that would be better.
Q
Aside from you and Todd and Sophie, was
anybody else home at that time?
A No.
Q When Karellen called you, did she come over
after that?
A Yes.
Q
And between the time she called and the time
she got there, do you think she came directly from her
house, or wherever she was, to your house?
A Yes.
Q
And she picked Qadria up and took her home;
is that right?
A Yes.
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Q After Karellen left with Qadria, what's the
next what did you do after that?
A I don't know. I remember sitting down and
talking to Todd.
Q Aside from talking to Todd, anything else
related to the burn that evening?
A No.
Q What about the next day?
A Oh, well, Todd went over to their house.
Q When did Todd go over to their house?
A They called about a half hour later to see
if one of us could corne over to watch their other kids
so they could take Qadria to the emergency room.
Q You said that was about half an hour after
Qadria left with Karellen?
A Yeah, approximately.
Q How do you know that time frame?
A Well, we were sitting at the table. You
know, I'm not sure. Could have been 20 minutes. It
,wasn't right away. But we were still sitting down and
talking when they called.
Q Ask you to take a look at Exhibit 2. Are
these notes that you took around the time Qadria got
burned?
A Yes.
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Q
Why did you take these notes?
A I actually took them a couple of days later
after -- they just seemed -- I don't know. Just
seemed it might be necessary.
Q
At some point, did Renee call and ask you
for your insurance information?
A Yes, the next morning.
Q
I'm sorry. That was Renee that called; ~ s
that right?
A Yes.
Q
In your interactions with Renee and Karellen
after Qadria got burned, were they ever angry with you
or inappropriate with you in any way?
A No. His phone call was strange.
Q
What was strange about his phone call?
A I don't know. I don't know. Just seemed
strange.
Q
Strange to ask for your insurance
information?
A I thought it seemed kind of soon, yes,
especially waking us up in the morning.
Q
What time did he call?
A 6:45 ~ n the morning. He was very -- didn't
speak very much. He seemed angry. I don't know if he
was angry. He just seemed
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Q He was short?
A Short, yeah.
Q Did he tell you that he was taking Qadria to
the doctor that morning?
A No.
Q Do you know whether he did so?
A No. I believe they took her pretty soon,
but
Q I had a little trouble reading some of your
handwriting here.
A Oh, that's okay.
Q It's not too long. Could you just read it
aloud?
A Yes. "Qadria burned. Called parents
multiple times. Todd talked to Karellen. When he got
off, mused that she asked if she should corne over.
Karellen
"
Q I'm sorry. Todd talked to Karellen when he
got off
A The phone. So she called -
Q Who was he on the phone with?
A Karellen.
Q Oh, I see. So Todd talked to Karellen,
period. When he got off
A -- he mused.
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Q What does "mused" mean?
A He was surprised that she asked if she
should even come over when we were telling her that
Qadria was burned.
Q
What do you mean by that?
A He mentioned to me that she asked if she
should come over.
Q
Why did that seem -
A Because we both talked to her on the phone
and told her that she needed to come over because
Qadria had been burned.
Q
Was it your impression that she wasn't
taking the situation sufficiently seriously?
A Yes.
Q
You had told her that the burn was severe?
A I don't know that we said "severe," but we
related that we were -- I was very upset. I thought
that was odd, I guess. And we did tell her that she
was crying and calling for her.
Q
And then you note that you offered ice bags?
A Yes. We asked if she wanted to take the
frozen peas with her.
Q You wrote "ice bags." Do you know if it was
ice bags or frozen peas?
A No, it was frozen peas.
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1 Q In the next paragraph, it says, "Called a
2 little after 10:00 to see if one of us could come over
3 to watch their children."
4 That was a call from Karellen to you?
A I believe - no - well, Todd answered the
6 phone. I believe it was Karellen.
7 Q Starting on the next page, could you read
8 that for me?
9 A "Todd went, came home about an hour later.
Said Karellen's mom had come and Karellen called while
11 they were both there saying that it was fine, mostly
12 first degree burns and some second degree."
13 I think I have, "per Todd."
14 "As grandma, listening, flipping
through junk mail, Todd amazed, Todd said he was going
16 home because they stopped talking about Qadria and he
17 was told that she was fine."
18 Q
What is the reference to grandma there?
19 A Grandma came about I just have about
halfway_ I mean, after he'd been for there about half
21 an hour. And she came to the house.
22 Q What was Todd amazed about?
23 A I think we - he was amazed that she - she
24 was otherwise doing something else.
Q She being the grandmother?
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A Yes. Didn't seem very concerned about it.
And I believe he told me they started gossiping about
some family members, so that's about when he said,
"Well, I think I'll be going."
Q And the next page lS your notes of Renee's
call about the insurance?
A Yes.
Q
I'm sorry; was that call to you or to Todd?
A I answered the phone.
Q Aside from what you have here, do you
remember anything else said in that conversation?
A I said I'm sorry, multiple times. That's
about it. I said, "Why do you need it?"
I didn't really understand. I was also
half awake -- or half asleep. He didn't answer me.
I said, "Oh, okay." And I said, "Well,
I'll have to call you back."
Q Did Renee respond to your apology at all?
A He just -- yeah, yeah, he did.
Q
Do you remember how he responded?
A Nicely. I mean, I think he said thank you.
He wasn't yelling at me or anything. He was -- yeah.
Q And there are notes from a 9:00 a.m. call.
Is that on the 14th?
A Yes.
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1 Q And do you remember anything other than
2 what's noted here about what was going on?
3 A No, only that Todd called her because of the
4 6:45 a.m. call.
Q
Okay. After that 9:00 a.m. phone call, I
6 think there was testimony earlier that Todd and Sophie
7 went over to visit their house. Do you remember when
8 that was?
9 A Yes.
Q When was that?
11 A It was that Sunday.
12 (Discussion off the record)
14 Q
Did Todd or Sophie say anything to you about
their visit that Sunday?
16 A Yes.
17 Q
What did they tell you?
18 A That they went to drop off the presents and
19 that she seemed fine and that she was actually sitting
on the burn at one time. They were surprised. We all
21 felt good that she must be fine.
22 Q
Aside from sitting on her burn, was there
23 anything that Todd or Sophie said was surprising
24 during that visit?
A No.
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1 Q After that visit, do you recall any other
2 communications between the Stephens family and you or
3 your family about the burn?
4 A Well, Renee called back that same day to see
5 if we had found our number yet.
6 Q Your insurance policy number?
7 A Yes. And I know Karellen called after each
8 doctor visit, about three doctor visits, I think.
9 Q I'm sorry. Who called after each visit?
10 A Karellen, to let us know how she was doing.
11 And she always just happened to talk to Todd.
12 Q Do you remember if you ever talked to her?
13 A No. No, I didn't.
14 Q At that point, did you ever talk to Karellen
15 or Renee about Qadria's burn?
16 No, no.
17 Have you seen Qadria from time to time after
18
24 Have you noticed anything different about
25 Qadria after the burn as compared to before?
U.ftl Brenda Y. Qogers, C8>Q
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1 A No.
2 Q
After the burn, have you ever seen Qadria
3 wear shorts or short skirts at school?
4 A Yes.
Q
When she has done that, has her burn been
6 visible?
7 A I thought I saw it, but I tried not to
8 stare.
9 Q Was that on more than one occasion?
A Yes.
11 Q Many occasions or just a few times?
12 A Just when I noticed that she was wearing a
13 skirt. So a few.
14 Q Have you ever been to any school
performances where you saw Qadria perform?
16 A Yes.
17 Q
What were those?
18 A The end of year performance last year, she
19 spoke a line or two. They both did.
Q Was she wearing clothing that showed her
21 burn during that performance?
22 A I don't think so. I think she had a
23 longish-type skirt.
24 Q
Any other performances since that type?
A Just the one that just happened, the powwow.
1. Q08ers,
503.422.2532
Ex A
Page 138 of 542
26
1 Q Did you see Qadria perform at the powwow?
2 A Yes.
3
Q Was she wearing a costume or outfit that
4 showed her burn during the powwow?
5 A Could have. It was an Indian-type dress.
6 But I wasn't looking.
7 Q Was it a short dress or long dress?
8 A Hit her kneecaps. They were dancing. It
9 was very dark though. I saw her at the parade too,
10 and she had a short skirt on.
11 Which parade was that?
12 It was the storybook Halloween parade this
13
17 Yes.
18 This stack of photographs here - and I'm
19 not going to ask you to mark them at this time, but I
20 want you to tell me if there are any of these
21 photographs you can identify as having been taken
22 after the burn.
23 A Oh, no. I can tell you that.
24 Q These are all before the burn?
25 A Right.
y. QOBers.
503.422.2532
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1 Q
These are photographs from you or your
2 husband or your family?
3 A Right. They're mostly parties, because
4 that's where we took pictures.
Q
Okay.
6 A Or, you know, events.
7 MR. KOCHER: Rudy, would you mind
8 having these marked as 3? Do you have any objection
9 to that?
MR. LACHENMEIER: Well, I have no
11 objection. It's not very wieldy. Do you want copies
12 of the photos?
13 MR. KOCHER: Yes, I'd just ask if I
14 could get a copy of this stack.
MR. LACHENMEIER: As long as you pay
16 for them, we'll make copies.
18 Q Did you review any documents to prepare for
19 your deposition today?
A No.
21 Q
Aside from these notes that are marked as
22 Exhibit 2, do you have anything written down that
23 relates to Qadria or her burn?
24 A No.
Q Before you poured the water into the tub,
u.ltlBrenda 1. Rogers, C ~ R
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Ex A
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1 had you touched it to test its temperature?
2 A Todd did.
3 Q Had you touched it to test its temperature?
4 A No.
Q
Do you remember whose idea it was to take a
6 bath that evening?
7 A I don't know because they both were talking
8 about it.
9 Q
Did you feel that having the girls take a
bath was something that you should call Karellen to
11 ask about whether it was okay?
12 A No.
13 Q
Had you called Karellen at all before the
14 burn that day?
A No.
16 Q
Had Karellen called you at all before the
17 burn that day?
18 A Just before Qadria came over.
19 Q
What do you remember about that call?
A They were supposed to be there at a certain
21 time, and Karellen was calling to say she was going to
22 be late.
23 Q
Was it Karellen who was bringing Qadria over
24 to your house that day?
A I believe so. I was actually upstairs
n.ntlBrenda Y. Qogers, Cc,Q
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8
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16
17
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19
21
22
23
24
working and Sophie kept coming up because she was
upset that they were late. Actually, I didn't even
talk to her. I think Sophie told me that Karellen
would be dropping her off.
Q Was there any particular game the girls were
playing in the bath?
A No. Probably Barbies. That's what they
usually did.
Q You heard some testimony earlier from
Karellen about a little boy who drew a picture of
Karellen naked
A Qadria.
Q I'm sorry. Qadria naked and a situation
where a little boy named Alex had once or twice tried
to pull Qadria's pants down.
A Uh-huh.
Q Was there anything about the testimony you
heard earlier that seemed inaccurate to you?
A No.
Q Having listened to Ms. Stephens', Karellen
Stephens' deposition, is there anything that stands
out in your mind as having been inaccurate?
A Well, that did seem more serious. She acted
to me like it was more serious than she acted in this
Ulft;]Brenda 1. QOBers, C<>Q
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lone.
2 Q This is when Karellen was talking to you
3 about the situation with the neighbor boy?
4 A Yeah. I do remember it being serious, that
the parents weren't even talking to each other because
6 of that. But that's how it was related to me.
7 Q You were here for Qadria's deposition as
8 well, and she described - I think she said that she
9 was standing on the edge of the tub when she slipped
in, and that's a difference I noticed between her
11 testimony compared to yours.
12 Aside from that, did you notice
13 anything else about Qadria's deposition that stands
14 out in your mind as wrong?
MR. LACHENMEIER: For the record, I
16 object to the extent that she's being required to
17 remember everything that Qadria said.
18 THE WITNESS: No, I was just thinking
19 that, actually.
21
Q No, I understand you may not remember
22 everything, but is there anything else that stands out
23 in your mind other than the difference in recollection
24 as to where she was standing before she was burned.
Anything else that stood out in your mind as being
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3
4
6
7
8
9
11
12
13
14
16
17
18
19
21
22
23
24
different or incorrect about what Qadria said?
A No, not that stands out. I don't remember
why she said they were taking a bath, and that was -
that's the only thing.
MR. KOCHER: That's all I have. Thank
you.
(Deposition concluded at 12:26 p.m.)
U.ntlBrenda y. QOBers, C ~ Q
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Ex A
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1
2
CERTIFICATE
3 I, Brenda Y. Rogers, a Certified
4 Shorthand Reporter for Oregon, empowered to administer
6 44.320, hereby certify that, pursuant to stipulation
7 of counsel for the respective parties, hereinbefore
8 set forth, AIMEE MICHELLE MCQUISTON personally
9 appeared before me at the set time and place set forth
in the caption hereof; that at said time and place, I
11 reported in Stenotype all testimony adduced and other
12 oral proceedings had in the foregoing matter; that
13 thereafter my notes were transcribed using
14 computer-aided transcription under my direction; and
16 correct record of such testimony adduced and oral
17 proceedings had and of the whole thereof, to the best
18 of my belief and ability.
19 witness my hand and seal at Portland,
Oregon, this 28th day of July, 2008.
21
22
23 Brenda Y. Rogers
24
U.BPlBrenda Y. QOBers, C&Q
503.422.2532
Ex A
Page 145 of 542
Page 1
KARELLEN STEPHENS GUARDIAN AD
LITEM FOR QADIRA STEPHENS,
Plaintiff,
vs. No. 0711-13836
AIMEE MCQUISTON,
Defendant.
DEPOSITION OF TODD BURKHOLDER
Taken in behalf of Plaintiff
February 26, 2008
* * *
Ex A
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Todd Burkholder February 26, 2008
Page 2
11 BE IT REMEMBERED THAT,pursuant to Oregon Rules
2 of Civil Procedure, the deposition of
3 TODD BURKHOLDER was taken before Bob A. Zaro,
4 Registered Professional Reporter and
CSR No. 90-0119, on Tuesday, February 26, 2008,
6 commencing at the hour of 1:59 p.m., the
7 proceedings being reported in the law offices of
8 LACHENMEIER, ENLOE, RALL& HEINSON, 9600 S.W.
9 Capital Highway, Portland, Oregon.
*
* *
11
APPEARANCES
12
i
13 VANGELISTI KOCHER, LLP
14 9755 S. W. Barnes Road, Sui te 450
Portland, OR . 97225
16 By Mr. Scott F. Kocher
17 Appearing for Plaintiff
18
19 LACHENMEIER, ENLOE, RALL & HEINSON
9600 S.W. Capitol Highway
21 Portland, OR 97219
22 By Mr. Rudy R. Lachenmeier
23 Appearing for Defendant
24
\
*
* *
Beovich Walter & Friend
Ex A
Page 147 of 542
Todd Burkholder February 26. 2008
Page 3
) 1
EXAMINATION INDEX
2
3
Examination by Mr.
4
5
6
7
8
9
10
11
12
14
15
16
17
18
19
20
21
22
23
24
I
25
Page
Kocher 4
* * *
Ex A
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Todd Burkholder Febnw.;y 26,2008
Page 4
!1
TODD BURKHOLDER,
2 having first been sworn, testified under oath as
3
follows:
4
EXAMINATION
6
BY MR. KOCHER:
7
Q. Good afternoon, Mr. Burkholder. My name is Scott
8 Kocher. You understand I'm the lawyer for the
9 Stephens family in this case?
A. Right.
11
Q. Have you ever had a deposition taken before?
12
A. No.
~ 3
Q. Okay. I "11 just go over very briefly some ground
14
rules: One is that you're under oath, and the
testimony that you give today is the same that you
16
would give in a courtroom. Do you understand that?
17
A. Right.
18
Q. And you also should understand that everything we
19
say is being written down by our court reporter and
that it's important that you and I try to avoid
21
not - try to avoid talking over each other,
22
because our court reporter can't take it down.
23
Will you help me do that?
24
A. Sure.
Q. And the last thing is - and you're doing fine so
Ex A
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Page 5
I
/1
far, but I mess this up sometimes -- the court
2 reporter can't record a nod of the head or an
3 "uh-huh" or a "huh-uh"; so we'll try not to use
4 those ways to communicate, if we could do that?
A. All right. Sounds good.
6
Q. Okay. You are the husband of Aimee McQuiston; is
7
that right?
8
A. Correct.
9
Q. And you live with her?
A. Correct.
11
Q. Okay. You understand that this case relates to the
12 burn that Qadira had at your house in April 2007?
i
13
A. Correct.
14
Q. Okay. When do you recall first meeting Qadira or
her parents?
16
A. When Sophie, our daughter, was in kindergarten.
17
Q. Were they together in kindergarten through first
18
grade at school?
19
A. They are still in school together; so kindergarten
through third grade.
21
Q. Yeah. And they became friends in kindergarten and
22
have more or less -
23
A. Yes.
24
Q. -- stayed friends through that time period?
\
A. Until the incident.
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Page 6
Q. Okay.
2 MR. LACHENMEIER: Off the record for just a
3
second.
4
MR. KOCHER: Sure.
(Off the record)
6
THE WITNESS: I guess I can just say I think
7
they're still kind of friends, but not like they
8
were.
9
Q. (BY MR. KOCHER) Okay. Before Qadira was burned,
had she ever spent the night at your house before?
11
A. Yes.
12
Q. Do you know how many times?
1
13
A. Several.
14
Q. And Sophie had spent the night at Qadira's house?
A. Yes.
16
Q. Do you know if Qadira had ever had a bath at your
17
house before the time she got burned?
18
A. My memory is y e ~ .
19
Q. Do you remember when that was?
A. No.
21
Q. Was it on a sleep-over night?
22
A. Is "probably" an answer?
23
Q. Yes.
24
A. I'd say, no, I don't remember.
Q. That's fine. Do you know on the -- whether she had
Ex A
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Page 7
II
bathed previously more than once at your house?
2
A. No.
3
Q. That is to say you don't know or -
4
A. I don't know -
Q. Okay.
6
A. how many times.
7
Q. Do you know if on the previous occasion or
8
occasions when Qadira may have bathed at your house
9
whether you or your wife or anyone poured extra hot
water into the tub?
11
A. They no, they did not.
12
Q. It's my understanding that your wife was pouring a
13
kettle of hot water into the tub when Qadira got
14
burned; is that correct?
A. Right.
16
Q. Is that something that you or your wife or others
17
regularly did with baths at your house to make the
18
water hotter?
19
A. Yes, and it has something to do with "Little House
on the Prairie."
21
Q. I'm sorry?
22
A. "Little House on the Prairie," or is it "Little
23
Women," the Laura Ingalls book? Well, that was why
24 Sophie and Qadira wanted to do it was my
understanding.
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Page 8
1
Q. They were reenacting something?
2
A. It was like something they do in the book, yeah.
3
Q. They wanted to have hot water poured in from a
4 kettle because that's the way they did it in the
old days?
6
A. Yes. It was a combination of -- we do it, you
7
know, especially for Sophie, heat up her water, but
8 I've always done it myself. But, yeah, it was also
9 because they were talking about the book and how it
would be fun to do -- playacting, I guess, yeah.
11
Q. And you sound like you're not sure whether it was
12 "Little House on the Prairie" or "Little Women,"
13
but one of those
14
A. No. It's one of the books that their mother read
with Sophie.
16
Q. A book about colonial -
17
A. Girls living on the prairie.
18
Q. Pioneer children?
19
A. Yeah, I think it's "Little House on the Big
Prairie," whatever it's called, yeah.
21
Q. It was it was you that put the water on the
22
stove; is that correct?
23
A. I'm not sure.
24
Q. Okay. Were you involved in preparing the hot water
at all?
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Todd Burkholder February 26,2008
Page 9
/ 1
A. Yes.
2
Q. What do you recall about that?
3
A. I turned off the gas before the whistle blew; so I
4 lifted off the top and stuck my finger in it to see
if it was hot enough.
6
Q. Could you was it making some noises that
7
suggested to you that it was getting warm?
8
A. I don't remember.
9
Q. When you put your finger in, was it hot?
A. It was hot, yeah. Didn't burn my finger, though.
11
Q. Did you put your finger in a prolonged fashion?
12
A. No, no. Did that, right.
I
13
Q. Just a very quick dip in and out?
14
A. Right, right, right. Like I said, I was actually
checking to see if it was hot enough.
16
Q. Okay.
17
A. Not too hot.
18
Q. And, indeed, it was hot enough?
19
A. Yeah.
Q. Can you say that it was close to boiling at that
21
point?
22
A. I don't know. That's why I checked.
23
Q. Okay.
24
A. I don't remember hearing something. It probably
wasn't. That's probably why I checked.
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Page 10
il
Q. Is this -
2
A. It definitely wasn't boiling, you know -- I guess
3 I'd say no, it wasn't making a boiling sound,
4 because when it does, it starts to whistle, and it
was not -- I know it wasn't doing that. That's why
6 I opened it just to see if it's hot yet.
7
Q. Okay. Is this the pot that we have here in the
8
room?
9
A. That's it.
.
Q. Okay. And we have not marked this as an exhibit,
11
but just in case it's ever within your control,
12
we're asking that this be saved for the case.
13 A. We'll save it.
14 Q.. Please do.
MR. LACHENMEIER: Doesn't mean you can't use
16
it.
17
THE WITNESS: Right, right. I was thinking of
18
getting my wife a new one, and they cost a lot of
19
money. I won't be throwing it away.
Q. (BY MR. KOCHER) It was your wife that took the
21
water into the bathroom; is that right?
22
A. Right.
23
Q. Was she in the kitchen with you when you tested the
24
temperature with your finger?
I
j
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Page 11
11
Q. Do you remember talking to her, something like,
2 "Hey, the water is ready. Corne get it," something
3 like that?
4
Q. Okay.
6
A. But probably.
7
Q. After you tested the water temperature, do you
8 remember what you did next?
9
A. Not -- the -- not immediately afterwards.
Q. Do you remember generally what happened next?
11
A. Yeah, I -- well, so, you know, fill in the gap, of
12 course, wife took the kettle into the bathroom, and
\
13 I needed -- I wanted to go watch "Sopranos" on DVD
14 that I had, and so I realized I needed to set up
the girls' beds before I did that, and I was in
16 the -- I remember being in the kitchen, and it
17 might have been right after I gave the kettle to my
18
wife, and she walked in there. I can't remember
19
that part. And that's when I started talking
loudly, which is common in our house, also.
21
Q. You were talking
22
A. To my daughter -- you know, I knew she was in the
23
bathroom, and, you know, maybe I could hear them,
24
you know, and so I knew she could hear me, and I
was -- so if you had the diagram of the house, you
I
,
Ex A
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Page 12
)1
could see how this worked, but -
2
Q. I have seen the layout.
3
A. Okay.
4
Q. Unfortunately we don't have it in front of us, but
I understand that the kitchen and the bathroom are
6 near each other. They're just kind of at right
7 angles around the corner of the hallway.
8 A.. Right, and then my daughter's bedroom is also right
9 next to the bathroom.
Q. Okay.
11
A. So my intent was to -- I needed to go in and get
12 the mattresses either out of both bedrooms are
!
13 right next to each other, my two daughters. So I
14 needed to get the mattress from the older
daughter's bedroom, who wasn't there that night,
16 and depending on where the girls wanted to sleep,
17
I'd have to get the other mattress from Sophie's
18
bedroom.
19
Q. Right.
A. So, anyway, I'm walking towards to go into the
21
bedroom to grab a mattress, and as I do that, I'm
22
going to go by the bathroom, and while I'm doing
23
that, I'm talking, "Where do you girls want to
24
sleep? Do you want to sleep in Sophie's room or in
I
the living room?" which they like to do, and
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2
Q.
3
A.
4
Q.
6
7
A.
8
Q.
9
A.
11
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Q.
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A.
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A.
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Q.
17
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A.
19
21
Q.
22
A.
23
Q.
24
A.
I
Page 13
they've done that before.
And did you get a response?
Yeah. Sophie was telling me that they wanted to
sleep in the living room.
At that point were you walking from the kitchen to
one of the bedrooms?
Yes. So I was walking -- right.
Okay.
Came back from the kitchen into-- towards Sophie's
bedroom, which you go past the bathroom door when
you do that.
Did you see into the bathroom as you walked by?
Yes.
The door was open?
Yes.
And do you remember where people were standing in
the bathroom or where they were?
My daughter was back by the - you know, back by
the toilet, that end of the bathroom, so the far
end.
Farthest from the door?
Right.
Okay.
And she was looking at me, talking to me, and my
wife was telling me to get out of there, and all I
Ex A
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Page 14
'I
saw was Qadira's back as she disappeared behind the
2 wall. There's a wall the bathtub is i n s e t ~ So
3 there's actually a wall. You can't see the bathtub
4
from the door.
Q. Uh-huh.
6
A. And well, can't see into it. All I saw was
7
her her back kind of disappearing into the
8 behind the wall and going down into the tub.
9
Q. Okay. And is that the moment when she was burned?
A. I don't know.
11
Q. Okay.
12
A. At that time I didn't know she was burned. That's
13 why I say that.
14
Q. Okay. What did happen next as far as what you saw?
A. I shuffled off, since I was shooed off.
16
Q. Okay.
17
A. I went to the living room, and I sat down - I
18
remember sitting in a chair. I don't know why.
19
Maybe I didn't quite get the answer, but, anyway
so I - because then it seemed like some time
21
had passed. I mean, it could have been 30 seconds,
22
whatever, but then my wife goes - started calling
23
me from the bathroom.
24
Q. You recall your wife calling you rather than
)
hearing any other commotion?
Ex A
Page 159 of 542
Todd Burkholder February 26.2008
Page 15
Yeah. I never heard anything, right.
You never heard any screaming or anything like
that?
No.
So you came from the living room back to the
bathroom in response to your -
Right.
-- wife telling you to corne?
Right.
Okay. And-
MR. LACHENMEIER: Let him finish his sentences
before you answer
THE WITNESS: Sorry.
MR. LACHENMEIER: so we have all of the
questions on one part and all of the answers on the
other part.
THE WITNESS: Okay.
(BY MR. KOCHER) You went to the bathroom next?
Yes.
And what did you see when you got there?
Aimee was running the cold water from the spigot
onto Qadira's leg.
This is the main tub
Right.
-- spigot?
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Page 16
i 1
A. Right.
2
Q. Okay. And she told you what had happened?
3
A. Yes, you know, at some point.
4
Q. Okay.
A. Probably while I was walking down the hallway, she
6 was probably telling me she was burned.
7
Q. Okay.
8
A. You know, I can't remember.
9
Q. Did she tell you how it happened at that point?
A. Probably. I don't remember when she told me.
11
Q. Okay. What is your understanding of how it
12
happened?
13
A. My understanding is that Qadira heard my voice
14
approaching, became agitated and jumped into the
tub so that I wouldn't see her, and Aimee was still
16
pouring the water, not you know, not knowing
17
that was going to happen.
18
Q. And just from what I understand, you didn't see
19
that exact sequence of events in terms of hearing
your voice approaching, becoming agitated and
21
jumping into the tub, but this is your
22
understanding from what Aimee told you or others?
23
A. Right.
24
Q. Was it Aimee that told you that or Sophie or both?
A. Both, and Qadira, actually.
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I 1
Q. Okay. Was there any - and let's try to break it
2 out. Do you remember specifically what Aimee told
3 you as opposed to what Qadira or Sophie told you?
4
A. No.
Q. Do you remember specifically anything that Sophie
6 or Qadira told you that one of the others didn't
7
tell you? I recognize it's a long time ago, but
8
A. Well - well - okay. So Aimee told me that she
9 was noticing Qadira becoming quite agitated, and
so - and that's why she was - you know, shooing
11
me away by the time, you know, I crossed to the
12 hallway.
\
13
Q. Okay.
14
A. I mean, there's so much. Let's see. Everybody was
kind of confused. But - and then later when
16
Karellen was there - I remember Qadira saying that
17
she had slipped off the edge of the bathtub, and if
18
not before, at that time Aimee said, "Yes. Well,
19
she was on the floor, and then she had stepped up
onto it and must have slipped or jumped in." She
21
wasn't sure at that time what she thought.
22
Q. And I have seen a picture of your bathtub. It
23
looks to me like in the, corner closest to the door
24
and the corner closest to the back wall, the wall
)
of the tub kind of curves, and there's a little bit
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more space. Maybe you've got some lotions sitting
2
there or something?
3
A. Right, yeah. That's correct.
4
Q. If someone were to try to stand, there's kind of a
corner area which might - might be a place a
6
person could stand; is that correct, or a little
7
person could stand?
8
A. They could have one foot on that -
9
Q. Okay.
A. - not two.
11
Q. Okay. And was it your understanding from what
12
Qadira said when Karellen was there that she was
13
trying to stand on that corner of the tub?
14
A. She wasn't that
Q. No, please, please, go ahead.
16
A. She wasn't that specific.
17
Q. Okay. And from your vantage point and the moment
18
that you did see what was happening in the
19
bathroom, it sounds like you couldn't tell one way
or the other what Qadira's planned movement was?
21
A. Right. She was already in motion.
22
Q. Yeah. Based on what you saw, rather than what
23
anybody else told you, could you tell whether
24
Qadira came to any kind of a stop or a slow
!
slowed motion at the top of the tub wall?
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I
A. No.
Q. And is that to say you couldn't tell one way or the
other, or she did not?
A.
She was already -- she was already descending into
the tub when I saw her. That's what I only saw was
a glimpse of her back as she was going down.
Q. Yeah. As Qadira was descending into the water, was
your wife talking to you?
A. I would say that the first thing I saw was a flash
of Qadira, you know -- you know, I saw my
daughter -- I mean, it's about three feet across
between the tub and the wall; so I see all of them
at once.
Q. Uh-huh.
A. But, you know so the very, you know, split
second I came in front of the door where I could
see in, Qadira was already going down, and I
remember seeing my daughter looking at me, and she
was, like, still talking and my wife going like
this and telling me, you know, "Go, go, go."
Q. She was gesturing at you?
A. To leave, you know, to leave.
Q. Okay. And with one hand she's pouring water at
that point; is that correct?
A. I don't know.
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Q. Okay. Was she gesturing with the hand closer to
2 you or the hand farther away?
3
A. The closer.
4
Q. Okay. And from where you were, you couldn't see
what she was doing with her other hand; is that
6 correct?
7
A. No, I wasn't -- no, didn't notice.
8
Q. From that moment when you saw Qadira descending
9
into the water until the time your wife was yelling
to you to come, can you estimate how long it was?
11 MR. LACHENMEIER: I think he already did.
12
Q. (BY MR. KOCHER) I think you said it was about 30
13
seconds; is that right?
14
A. I'm just guessing.
Q. Yeah. But it was long enough for you to go from
16
there -- did you go directly to the living room or
17
did you go -
18
A. Yeah.
19
Q. -- into one of the bedrooms?
A. Yeah. No, I went -- I went into the living room
21
and sat down on our chair, and then she was -- then
22 she started telling me to -
23
Q. Okay.
24
A. -- come back, and I was, like, "What? What now?"
I
Q. From the time you were shushed away, then, you went
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)1
directly to the living room -
2
A. Yeah.
3
Q. even though it had been your intent to go to one
4
of the bedrooms to get a mattress -
A. Right.
6
Q. -- is that right?
7
A. Right.
8
Q. Okay. So you -- your wife called you back into the
9
bathroom. You went back to the bathroom, and your
wife was pouring cold water from the spigot. At
11
that point, what happened.next?
12
A. I grabbed Sophie's robe off the back of the -- or
13 her sister's robe, one -- the robe off the back of
14
the bathroom door and put it around Qadira.
Q. Were the children both naked at that point?
16
A. They were both in the tub still, yeah '-
17
Q. Yeah. And
18
A. -- or they were both in there. I don't know.
19
Q. Yeah. And before you walked in or before you saw
Qadira's back going down into the tub, did you know
21
that the children were bathing naked at that time?
22
A. Yes, yes.
23
Q. Okay. What happened after you put Sophie's
24
sister's robe around Qadira?
I
A. I basically was called in to, you know, take over.
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'1
SO, you know, we ran - looked at it as it was
2 running under the cold water. Then - and she was,
3 you know, kind of crying, but wasn't - you know,
4
she wasn't screaming or anything like that, and -
but there was some nice, you know, big blisters.
6 So I took her down to our basement to - just
7 so she could relax and calm down, and I treated her
8 for shock and put - we got ice and put ice on it,
9 frozen peas and put on a movie or something on the
TV, and she was - actually, she had calmed down,
11
and that -
12
Q. What do you do for a living, Mr. Burkholder?
13
A. I'm a writer.
14
Q. Have you been a writer for Some time?
A. Yes.
16
Q. Do you write for a particular publication or for
17
yourself or
18
A. I work at a corporation
19
Q. Who do you work for?
A. Mentor Graphics.
21
Q. What sort of writing do
now.
you do for them?
22
A. It's about high technology, and I write articles
23
for magazines and help engineers write articles and
24
conference papers
Q. Yeah.
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,
}1
A. -- kind of research papers.
2
Q. Does your wife work?
3
A. At the home.
4
Q. Yeah. Has she worked -- I would use the word
homemaker. She's raising children?
6
A. Right.
7
Q. So she does work, indeed. Has that been her work
8 for the last several years, at least?
9
A. Yes.
Q. Okay. Going back to the evening Qadira was burned,
11
you mentioned that you treated Qadira for shock.
12
What did that involve?
J.3
A. It was just having her -- you know, so we had her
14 lay down on the couch, and I raised elevated her
feet.
16
Q. And -
17
A. Tried to make her comfortable.
18
Q. This was in the basement?
19
A. Yes.
Q. When you were in the basement, did you at some
21
point take another look at her leg to see how it
22
was doing?
23
A. Oh, yeah, of course.
24
Q. Okay. And what did you see?
I
A. I saw, you know, the loose skin from a blister. It
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\
11
reminded me of burns I'd gotten myself up mountain
2
climbing.
3
Q. Those would be sunburns, mountain climbing?
4,
A. Yes, yes. And, you know, so they're large, large
blisters, but you know, so, therefore, you know,
6 it looked'bad to me, but I wasn't terribly alarmed,
7
but I always -- anything like that, I, you know,
8
make a person comfortable and treat them for shock,
9
basic first aid.
Q. Do you have basic first aid training?
11
A. Yes.
12
Q. Do you have any kind of certification for first
i3
aid?
14
A. Not current.
Q. Okay. During the time that Qadira was at your
16
house, I understand at some point Qadira's mom came
17
and picked her up; is that right?
18
A. Yes.
19
Q. Until the time Qadira's mom came and picked her up
or during that time she was at your house, do you
21
remember any of the blisters rupturing?
22
A. No. They were -- they were already broken.
23
Q. Did some of the skin come off of her leg?
24
A. Not that I saw.
!
\
Q. Okay. Could you see the tissue beneath the broken
Ex A
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2
A.
3
4
Q.
5
A.
6
7 Q.
8
9
10
A.
11
12
Q.
A.
14
15
Q.
16
17
18
19
A.
20
Q.
21
22
A.
23
Q.
24
A.
\
.c:5
Q.
blisters?
It was hard to tell.
was still on. There
Yeah.
Probably could see a
imagine.
Page 25
Mostly the top of the blister
was a couple; so, yeah.
little bit, yes, I would
And at that time when she was in your basement, was
there redness around the burn or around the burned
area?
I remember it more being a different shade of brown
than her, you know, complexion.
Was it lighter or darker than the surrounding skin?
Oh, man. I would say darker. I should probably
say I don't know for sure. I can't remember.
Okay. That's fine. I understand that some phone
calls were made to the Stephens family. Did you
use the phone to attempt to reach the Stephens
family, or was it your wife?
My wife.
Did you make any phone calls during the time that
Qadira was at your house relating to her burn?
Yes.
Who did you call?
Kaiser Permanente.
Who did you talk with?
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Page 26
A. Probably the advice nurse. Yes, the advice nurse.
2
Q. Do you remember what the advice nurse told you?
3
A. She said that it's best to bring her in just to
4 make sure.
Q. Did the advice nurse give you any guidance on how
6 to care for the burn up to the point when she was
7
able to go in?
8
A. If she did, it was just what I was already doing.
9
Q. And you mentioned ice, frozen peas
A. Just frozen peas.
11
Q. Okay. You mentioned frozen peas and elevating her
12 feet, lying on the couch, and it sounds like she
I
~ 3
was watching a movie. Was there anything else that
14
you recall doing to help Qadira with her burn?
A. We put some Aloe Vera on it.
16
Q. Do you remember talking to the advice nurse about
17
Aloe Vera?
18
A. No.
19
Q. Was that your suggestion?
A. Yeah, that was my doing, yes.
21
Q. Can you estimate how long Qadira was in the
22
basement before her mom came?
23
A. Just a guesstimate?
24
Q. As best you can estimate.
)
A. I'd say about 15 minutes, at least -- well, okay.
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Let me -- yeah, 15 minutes, half an hour by the
2
time her mom got there.
3
Q. And what happened when Mrs. Stephens got there?
4
A. You mean
Q. This -
6
A. -- how what was her behavior?
7
Q. Yeah. She came, and presumably she was coming
8 because she was told that her daughter had been
9 burned; although, I think that wasn't your phone
ca.lling.
11
A. Actually, I was on that call.
12
Q. Okay. Tell me what you remember about that call.
13
A. Well, I told her that we were just about to take
14
her to the emergency room, and told her what
happened, and then she -- she kind of said, "Oh,
16
well, what? Do you want us to come over and get
17
her?" and I said, "Yes, of course" -
18
Q. Okay.
19
A. -- "unless you want us to take her to the
hospital."
21
Q. Yeah. And did she come get her?
22
A. She came, yes.
23
Q. Okay. Do you remember anything specifically -
24
obviously well, did you tell Karellen that -
l
were you the one that told Karellen that Qadira had
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'1
been burned in that conversation? Is that the
2
first time she got that information?
3
A. I don't remember. Aimee probably left it on the
4
message.
Q. Okay. And during that phone conversation with
6
Karellen, did you tell her more about the
7
circumstances of the burn?
8
A. I don't recall.
9
Q. Do you remember telling her how it happened?
A. No.
11
Q. Do you remember telling her how bad it was?
12
A . No, just that it was - you know, it looked bad,
.l3
bad enough to take her to the hospital.
14
Q. After that conversation, can you estimate how long
it took Karellen to get over there?
16
A. No. I'd just be guessing.
17
Q. Okay. Did it seem like an
18
period of time to you, or
19
reasonable period of time?
A. It was reasonable.
21
Q. Do they live nearby?
22
A. Yes.
unusually short or long
did it seem like it was a
23
Q. Was it your understanding she was
24
house at that point?
)
A. Yes.
coming from her
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il
Q. When Karellen came, did you take her downstairs to
2
see Qadira?
3
A. Of course.
4
Q. And what was Karellen's reaction when she got to
the basement?
6
A. She thought we were overreacting, and she said,
7 "Accidents happen," and she was laughing.
8
Q. And what was Qadira doing at that time?
9
A. Her and Sophie were down there watching the show.
She started crying when her mom came, but just
11
stayed, you know, where she was.
12
Q. Did you talk with her mom in the basement?
13
A. Yes.
14
Q. What did you talk about?
A. What happened, a little bit. She asked Qadira what
16
happened, but she didn't ask us what happened.
17
Q. Was Qadira able to explain to her mother what had
18
happened?
19
A. She gave a -- yeah, a short version.
Q. And after Qadira gave her short version of what
21
happened, do you remember what happened in the
22
conversation after that?
23
A. Yes. Aimee tried to say that she had been on
24
the -- you know, out of the tub and had hopped up
on the edge and slipped in, because Qadira had said
Ex A
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Todd Burkholder February 26) 2008
Page 30
i 1
that -- all she had said was, "I slipped and fell
2
into the tub," or -- so we were trying to explain
3 it a little bit more what happened.
4
Q. And at least that evening it doesn't sound like
Karellen was angry or upset; she was -- sounds like
6 she was in a good mood; is that correct?
7
A. That's correct.
8
Q. What happened next?
9
A. Well, let's see. Next thing I remember, which, you
know, is probably several minutes later, was
11
Karellen was going to leave and take Qadira. So
12
she took her home, and we I suggested that she
i3
take the -- keep the peas on her burn, frozen peas,
14
and she told me they have food at home and declined
to take it with her.
16
Q. Do you recall specifically that they did not take
17
the peas with them?
18
A. Yes, because I was -- thought it was peculiar, and
19
it's also important to keep ice on the burn.
Q. Is it your recollection that Karellen and Qadira
21
left your house with nothing cold for her burn?
22
A. Exactly.
23
Q. After they left, what did you do?
24
A. Tne next thing I remember is they called to ask if
I
one of us, Aimee or If would come watch their other
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children while they took Qadira to the emergency
2
room.
3
Q. And was it you that did that?
4
A. Yes.
Q. Did you go straight over after they called?
6
A. Yes.
7
Q. And did you watch their other children while they
8
took Qadira to the emergency room?
9
A. Yes.
Q. And at some point when you were there, did
11
Karellen's mother corne?
12
A. Yes.
13
Q. And after Karellen's mother carne, you left?
14
A. Not no.
Q. Okay.
16
A. Not immediately.
17
Q. How long did you stay there after Karellen's mother
18
arrived?
19
A. Enough time for two phone calls from Karellen from
the .hospital.
21
Q. And were those phone calls to you?
22
A. No, to her morn.
23
Q. So you stayed to see how things were going at the
24
emergency room?
A. Yes.
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11
Q. And did you talk to Karellen's mother about what
2 she had learned from Karellen about what was going
3 on in the emergency room?
4
A. Yes.
Q. What do you recall about that?
6
A. That she had either first or second degree burns.
7
First is the least severe; correct? I always get
8
those confused. So whichever one it was. Because
9 her mother made fun of me, because I got the first
and third degree burns confused. That's why I
11
remember that. So it was the least - you know,
12 least severe and second degree burns, predominantly
13
second, and that she was okay, and then they
14
changed - they started talking about something
else.
16
Q. Do you remember what else they talked about?
17
A. A family member's finances.
18
Q. Did they talk at length about that?
19
A. I thought you put both phone calls together, yes,
and I left during the second one while they were
21
still talking about it.
22
Q. You left during the second phone call?
23
A. Yeah.
24
Q. Whose family member's finances were they talking
]
about?
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A. I have no idea.
2
Q. Do you remember the name of the individual?
3
A. No, I don't think they even said a name. Sounded
4 like a family member that they were talking about.
Q. Was there some issue with that family member's
6 finances?
7
A. Must have been.
8
Q. Do you remember what the issue was?
9
A. No. I just thought it strange that the
conversation switched so quickly both times. But
11
at the same time I guess it was reassuring. Must
12
not be too bad.
13
Q. Did you talk to Karellen's mother before you left,
14
or did you just kind of wave yourself out because
she was on the phone?
16
A. On the second time? Yeah, right. No, I just left.
17
I probably said -- yeah, waved myself out, waved
18
and left.
19
Q. Was it your understanding that they no longer
needed your assistance at that point?
21
A. Exactly.
22
Q. Did you hear anything more about the situation that
23
evening?
24
A. No.
i
Q. Now, when is the next you heard about the
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I
.J 1
situation?
2
A. We received a call very early the next morning that
3 woke us up from Rene.
4
Q. And what was he calling for?
A. Our insurance policy number.
6
Q. Did you give it to him?
7
A. Not at that time.
8
Q. Why not?
9
A. We told him we had to dig it up, didnrt have it,
you know, out.
11
Q. Did you dig it up?
12
A. Yes.
13
Q. And were you able to give it to him?
14
A. Yes.
16
A. It was probably around noon-ish, later that day.
17
Q. Did he say why he needed your insurance info?
18
A. Well, he talked to my wife the. first time. Then he
19
called a second time, and I think I talked to him.
I remember him saying something, you know, like,
21
they needed it for the emergency room or something
22
like that. I canrt - but I can't remember. I was
23
trying to.
24
Q. Is it your understanding that that next morning he
was taking Qadira back to a doctor?
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j 1
A. No, not that morning.
2
Q. Did he say why he was calling you so early?
3
A. Not that I know of.
4
Q. Did you ask why he was calling you so early?
A. My wife was on the call, not me.
6
Q. Okay. Did she tell you anything about why he
7
called so early?
8
A. Well, she said he was calling for our insurance
9 policy number.
Q. And what time do you think it was that you talked
11
with him that next day?
12
A. I think that was later that morning, maybe 10:00 or
i
13
something like that.
14
Q.
Was that when you were calling him back with the
insurance information?
16
A. No. We were I can't remember the sequence of
17
events, but, of course, we called our insurance
18
company. You know, I told him - we told him right
19
away, of course, "Oh, we'll get it for you. No
problem," you know, and, you know - you know -
21
you know, we wanted to help - we wanted to take
22
care of things, of course, and, yeah, so but
23
then we - we - I don't know. We had to get the
24
number from them, because we couldn't find it, but
I also wanted to ask my insurance company what to
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) 1
do, and I hadn't done it yet by the time he called
2 the second time, and then shortly thereafter, we
3 called him back with that information.
4
Q. Was he calling the second time, also, trying to get
the insurance information, or was there some other
6 purpose of his calIon that second call?
7
A. That was the purpose of the second call.
8
Q. Okay. All right. And it sounds like the second
9 call and then the one around noon were both between
you and Renei is that correct?
11
A. Yes. The second time he called, I answered, and
12
then I called him back, right.
13
Q. Okay. Did you talk about anything in those
14
conversations other than insurance?
A. Not that I remember. I'm sure we talked about how
16
Qadira was.
17
Q. Yeah. At that point do you remember what you
18
learned about how Qadira was?
19
A. At that point it was the same as what I'd heard the
night before. We also - I also talked with
21
Karelleni so I'm not sure who said what, to be
22
honest, on that score.
23
Q. Did any of the conversations you had with Karellen
24
or Rene after the evening Qadira got burned talk
,
about how the burn occurred, what had happened that
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11
night?
2
A. No, they never asked us how it happened, and I
3 tried to tell them, talk to them -- you know, just
4 because you feel apologetic that something happened
in your house. And, to me, it was kind of
6 remarkable they didn't want to hear about it.
7
Q. Did you have any other conversations with your wife
8
about what had happened in the bathroom when Qadira
9
got burned?
A. Of course.
11
Q. Okay. And you've glven us a description, I think,
12
already of what happened. Did any of the other
1.3 conversations add to that description or flush it
14
out at all?
A. Of what I told you here?
16
Q. Yes.
17
A. No.
18
Q. Have you told me everything that you remember about
19
what happened or have been told about what happened
in the bathroom that evening?
21
A. I've told you everything that I witnessed. I don't
22
know if I've said everything that Aimee said or
23
that Sophie said.
24
Q. Okay. In terms of how it happened, sort of where
i
Qadira was and what was happening with the tea
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\
11
kettle, these sorts of things, is there anything
2 you remember hearing that you have not shared so
3
far today?
4
A. Well, I might have shared it already. I can't
remember.
6
Q. Okay.
7
A. I'll tell you what I've been told, if that's what
8 the question is.
9
Q. Yeah, if you could, please.
A. Yeah. Okay.
11 MR. LACHENMEIER: Wait a minute. I'll object
12 as asked and answered. You can answer it one more
13 time, but that's all.
14
Q. (BY MR. KOCHER) Yeah. I just want to make sure
that we've got as complete a sequence of events as
16 possible, and I think we've covered it, but if you
17
could - if you could tell me -
18
MR. LACHENMEIER: One last time.
19
MR. KOCHER: Yeah.
THE WITNESS: Okay. All right. Aimee took the
21
teapot in, had the girls get out of the bathtub.
22
Sophie was on the far end of the bathroom.
23
Qadira -- Aimee was in the middle, and Qadira was
24
to Aimee's left. Aimee started pouring the water
I
in. I started talking and blundering down the
Ex A
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hall - or the kitchen, and so Aimee saw Qadira
2 becoming agitated, asked her if she wanted a towel.
3 Next thing she knew, Qadira was in the bathtub.
4
Q. (BY MR. KOCHER) Did you hear your wife ask Qadira
if she wanted a towel?
6
A. No.
7
Q. She told you that she did that?
8
A. Yes. You're asking me what I learned from other
9
people.
Q. Yeah. I hope that description included everything
11 that you have learned from other people; is that
12
right?
A. Yes, and that's also what Sophie said about them
14 both being out of the tub and -
Q. I'll ask you to take a look at Exhibit 1. Is this
16 a sketch that you drew earlier today?
17
A. Yes.
18
Q. And this is the bathroom at the top center?
19
A. Right.
Q. And you describe walking from the kitchen towards
21
one of the bedrooms -
22
A. Right.
23
Q. - just before you were shushed away -
24
A. Right.
Q. - is that correct?
Ex A
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11
A. Right.
2
Q. Which bedroom were you headed towards?
3
A. So I was going like this, and I was corning like
4 that (indicating).
Q. So you carne from the stove area through the kitchen
6
door?
7
A. Yeah. So this is all, you know, an open space,
8 right. So I was corning from here, and I was right
9 here when, you know, everything changed, but my
intention was to go into Sophie's room or maybe
11
into Flynn's. You know, I can't really remember
12
that exactly, but that's where the two beds were
I
13 that I had to get.
14 Q.. What do you mean by "everything changed"?
A. Well,that's when all of a sudden Aimee is shooing
16
me away. So I -- you know, we didn't figure out
17
where they wanted to sleep. You know, so I just
18
probably went down there to wait until, you know,
19
the commotion died down and the excitement had gone
down.
21
Q. Went down to the living room?
22
A. Went down to the living room and sat down in a
23
chair here, and Aimee is, like, "Corne back here."
24
So I went back down.
i
Q. Okay.
Ex A
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A. Is that clear?
2
Q. Yeah, that is helpful.
3 At some point after Qadira was burned, you went
4 with Sophie over to their house; is that correct?
A. That's correct.
6
Q. Do you remember which day that was?
7
A. I believe it was Sunday or -- wait, wait. You
8 know, it was probably Saturday. I keep on
9 forgetting it happened on a Thursday night.
Q. So this is, perhaps, two days after it happened?
11
A. Yeah, yeah.
12
Q. You took a video game, a stuffed animal?
13
A. Right. We went over and brought her something for
14
her to do while she's recuperating and a card,
get-well card.
16
Q. Did you go in the house on that visit?
17
A. Yes.
18
Q. What do you recall talking about or seeing at the
19
house?
A. Qadira was sitting on the couch playing one of
21
these same kind of games, and sat down and just
22
kind of visited a little bit. I did notice that
23
Qadira was sitting on that leg, and Rene told
24
her you know, she was happily playing. I mean,
\
she was -- you know, there was no sign of pain or
Ex A
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,
}1
anything. Not that I'm saying there wasn't, you
2 know, but she was enjoying playing the game. She
3 was real excited that Sophie came by. But Rene had
4 her, nOh, you shouldn't be sitting on your injury."
That's why kind of why I remember that.
6
Q. You're sitting in a chair right now.
7
A. So she was on her side like this playing the game
8 (indicating) .
9
Q. So she was -
A. I mean, she was like this on the couch; right? And
11
she was burned on this -
12
Q. She was leaned over towards one side with her
leg
14
A. She's on a couch; right? Yeah, so she's like that,
had it kind of tucked up underneath her.
16
Q. The lower of her two legs was the one that was
17
burned?
18
A. Right.
19
Q. Do you remember if that was the left or the right
leg?
21
A. Left.
22
Q. Was her leg bandaged at that point?
23
A. Yes.
24
Q. During the time that you visited, did that bandage
come off?
Ex A
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il
A. No.
2
Q. From thereafter, did you ever see Qadira's leg
3 unbandaged before the time she went back to school,
4 at least?
A. No.
6
Q. Okay. Did that visit go okay in terms of your
7
interactions with Qadira and her parents?
8
A. Yes.
9
Q. Did you ever have any interactions with Qadira's
parents after the burn that you felt were
11
inappropriate, somebody was being angry or .-
12
A. No.
13
Q. -- outbursts, anything like that?
14
A. No.
Q. Do you remember, after that visit, when was the
16
next time you saw Qadira?
17
A. I think it was after she recently you know,
18
within a few days after she returned to school.
19
Q. You saw her at the school?
A. Yes.
21
Q. Do you remember what she was doing when you saw
22
her?
23
A. The girls were all in a group outside the school.
24
It was pick up picking them up from school.
\
1
Q. Did Qadira have a bandage on her leg at that time?
Ex A
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'1
A. I was told that she did not, because Sophie wanted
2
her to show me her scar because she had been
3
showing kids her scar at school that day.
4 Q. Did Qadira show you her scar?
A. No.
6 Q. But Sophie asked Qadira to show you her scar?
7 A. Yes.
8 . Q. Qadira declined?
9 A. She said no, and we dropped it.
Q. So at that point her leg was covered with pants or
11
a long skirt or something?
12 A. I think she was yeah, right, something.
13 Q. Have you ever seen Qadira's leg since that time,
14 actually the leg itself where it was burned?
A. Not closely. I've seen her in skirts.
16 Q. Have you seen her in short skirts that show where
.17
the burned area was?
18
A. Yes.
19
Q. When have you seen her in those short skirts?
A. Could have been -- I can't remember. You know, we
21
see them in school all the time, see her at school.
22
Q. You see her in short skirts where you could see her
23
burned area all the time?
24
A. Not every single time, no. She's also worn jeans,
but I've seen her in skirts where her knees are
Ex A
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1
i1
exposed.
2
Q. Okay. Have you seen or heard anything to suggest
3
that Qadira is changed in any way other than the
4
scar that she has on her leg?
A. No.
6
Q. Apart from at school, have you seen Qadira since
7
her burn?
8 A.No -- well, yes, one time.
9 Q. When was that?
A. At a birthday party.
11 Q. Whose birthday party was that?
12
A. A girl named -- just slipped my mind. It was a
13
mutual friend, classmate of both of theirs. She
14
had a birthday party at the community center,
Southwest Community Center.
16
17
A. It was probably in May. Could have been April.
18
Q. That being later in the month or within a month of
19
the time of her burn?
A. It was pretty -- yeah, pretty close. I'd say
21
around a month, yeah.
22
Q. Did you talk to Qadira on that occasion?
23
A. Yeah, yeah.
24
Q. What did you talk about with her?
A. Oh, Qadira?
Ex A
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Todd Burkholder . February 26,2008
Page 46
il
Q. Yeah.
2
A. Just, "Hi. How are you doing?" you know, like you
3
talk to kids.
4 Q. Did she talk back with you?
A. Yeah.
6 Q. What did she say?
7 A. Don't remember. "Fine."
8
Q. Short conversation?
9
A. Yeah, yeah. They're just, you know --. I wasn't -
didn't stay at the party. Just dropping off and
11
picking up.
12
Q. Was Qadira's mom with her when you talked with her?
13
A. I think she was there. I can't remember, to be
14
honest.
Q. Did you talk with Qadira's mom on that occasion?
16
A. I guess I can't say since I don't remember if it
17
was her or her grandmother. I can't remember.
18
Q. Do you remember talking with any of Qadira's family
19 members on that occasion?
A. No.
21
Q. After the visit on what might have been Saturday or
22
Sunday when you went over to the Stephens house and
23
visited, did you ever talk with any of Qadira's
24
family members about her burn?
!
A. Oh, yes, yes.
Ex A
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Q. Okay. Tell me about those conversations.
A. Through -- Karellen called us several times
especially over that weekend.
Q. And were those just to let you know how things were
going?
A. Right, and how she - yes, the different - because
they went to - they visited a doctor two more
times after the emergency room. So she would call
to tell me about those.
Q. What did she tell you about those visits?
A. A lot and some contradictory information.
Q. Okay. What was contradictory?
1
A. Well, she would go back and forth about whether how
bad it was. The second visit was to their clinic,
but their doctor wasn't there, and she thought they
were a bunch of idiots, and they couldn't figure
out what was going on, but they thought it was a
worse burn than what the emergency room people
thought.
And then - so they took her to a burn
specialist, I believe, at OHSU a couple days later,
and that person told her that what the emergency
room people told her, that they're second degree
burns, and they'd be healed in a couple of weeks.
You know, the scar wouldn't be gone, but they'd be
Ex A
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11
healed in a couple weeks, and Karellen complained
2 because she felt like the guy treated her like they
3 were wasting his time. She was always very
4 friendly, and she would tell you a lot at that
time.
6
Q. Sounds like she was seeing different doctors and
7
getting different opinions about how long the burn
8 would last and how bad it would be; is that
9
correct?
A. Right.
11
MR. LACHENMEIER: Off the record.
12 (Off the record)
13
Q. (BY MR. KOCHER) Did Karellen or Rene or anybody
14
ever tell you that the doctors had reached some
conclusion about how bad Qadira's burn would be?
16
A. Other than what I already said? So the specialist
17
was - the one that seemed to be, to Karellen, the
18
final word was the person at OHSU, and they said
19
they were second degree burns and some first degree
burns.
21
Q. Did Karellen ever tell you whether the doctors
22
thought the burn would be permanent or not?
23
A. You mean the scarring?
24
Q. The scarring, yes.
A. No.
Ex A
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'I Q. Is that to say
2 A. Not permanent, no.
3 Q. -- she never told you one way or the other, or she
4 did tell you?
A. I guess I can't remember.
6 Q. I ask bad questions. You don't recall Karellen
7 ever telling you whether the burn would be
8 permanent or not; is that correct?
9 A. The
MR. LACHENMEIER: You mean the scar?
11 THE WITNESS: The scar.
12 Q. (BY MR. KOCHER) The scar.
13 A. Yes. I don't recall.
14 Q.The night Qadira got burned, do you know whose idea
it was to take a bath?
16
A. It was the girls', Sophie's and Qadira's idea. In
17
fact, they had -- I was upstairs writing
18
originally, and the two girls had come up to ask me
19
to come downstairs to playa game. By the time I
got down there, they had changed their mind.
21
Q. It wasn't a household rule that -
22
A. No.
23
Q. -- kids take a bath every night?
24
A. No.
Q. I apologize if I asked you this already. Do you
Ex A
Page 194 of 542
j 1
2
3
A.
4
Q.
5
A.
6
7
Q.
8
A.
9
10
Q.
11
12
A.
13
14
15
16
17
18
19
Q.
20
21
A.
22
Q.
23
A.
24
Q.
25
A.
Page 50
recall whose idea it was to do the "Little House on
the Prairie" thing with hot water?
It was the girls.
You don't remember which girl?
They yelled at us from the bathroom that they
wanted us to do it.
"Us" meaning you and your wife?
Yes. We were in the living room together at that
time.
Do you remember what you were doing in the living
room at that point?
Probably reading.
MR. LACHENMEIER: So the question is do you
actually remember
THE WITNESS: No.
MR. LACHENMEIER: - one way or the other?
THE WITNESS: I
I do remember that.
(BY MR. KOCHER) Do
alcohol that day?
No.
That is to say -
I don't remember.
-- you don't recall,
I don't remember.
don't remember. Sitting down.
you remember if you had any
or you did not?
Ex A
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'I
Q. Do you remember if your wife had any alcohol that
2
evening?
3
A. No, I don't remember.
4
Q. Would it be usual or unusual for either of you to
have alcohol on a Thursday night?
6
A. Like a glass of wine?
7
Q. Yeah.
8
A. Not unusual.
9
Q. Would it be unusual for either of you to have more
than one glass on a Thursday night?
11
A. How big is a glass?
12
Q. I think of a glass that I would be poured in a
,
,
13 restaurant is a glass.
14
A. The usual would be a glass, I mean, when we had
one.
16
Q. There was a stack of photographs around here
17
earlier that I think came from you or your wife.
18
Were you involved in putting together this stack of
19
photographs?
A. No. I've seen them, though, but -
21
Q. Okay. -Do you know if any of those photographs were
22
taken of Qadira after her burn?
23
A. I would -- my recollection in looking at them, no,
24
they're all before. Yeah, they're all before.
!
Q. Did you take any photographs of Qadira after the
Ex A
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'I
burn?
2
A. No.
3
Q. Have you taken any video of Qadira after the burn?
4
A. No.
Q. Did you review any documents before your deposition
6 today?
7
A. No.
8
Q. Do you have anything -
9
A. Other than what you served - had served us.
Q. This is the court paperwork that you received
11
A. Right.
12
Q. - through your insurance company?
13
A. No, no. What was - well, I
14
it, I guess.
Q. Okay.
16
A. But, yeah, it's what you -
17
Q. Legal papers related to the
18
papers related to the case,
19
documents relating to Qadira
A.
No ..
don't know how we got
case. Apart from legal
do you have any
or the burn?
21
Q. Do you have any notes about the burn?
22
A. No.
23
Q. This is Exhibit 2, and I believe it's some notes of
24
your wife's about the burn. Have you seen this
document before?
Ex A
Page 197 of 542
Todd Burkholder Februmy 26, 2008
Page 53
j 1
A. I knew she wrote down notes, but I don't think I
2 ever read it.
3
Q. Okay. You didn't look at it before your deposition
4
today?
5
A. No.
6
Q. When you visited the Stephens' house -- I think you
7 said it was Saturday or Sunday -- no, I'm sorry.
8 When you visited the Stephens' house the night of
9 the burn, you got there before Karellen's mom; is
10 that right?
11
A. Yes.
12
Q. And Karellen's mom did come. At some point when
13
you were there, was she flipping through junk mail?
14
A. Yes.
15
Q. What was she doing with the junk mail?
16
A. While she was on the phone with Karellen, she
17
was -- she just -- there was a pile of junk mail.
18
She started just idly going through it while she
19
was they were talking about Qadira.
20
Q. Okay.
21
A. And then, I guess, throughout the conversation.
22
Q. Was that amazing to you?
23
A. Yeah, it -- yeah, yeah. I don't know if "amazing"
24
is the right word, but, yeah, I thought it was kind
)
25
of strange, because-this is a grandmother that
B ~ v i c h Walter & Friend
Ex A
Page 198 of 542
",
Page 54
)1
spends a lot of time with the kids, and just seemed
2 like - it was either that - I mean, you know -
3 yeah, I thought, yes - yeah, I thought that - it
4 was, like, she wasn't really paying attention, you
5 know. It's like somebody who starts doing e-mail
6 while you're talking on the phone with them, you
7
know it's time to get off.
8
Q. Okay. Aside from that and what we've talked about
9
earlier, is there anything that seems strange or
10
inappropriate about the family's response to the
11
burn?
12
A. Well, I have my - some impressions I have.
13
MR. LACHENMEIER: No.
14
THE WITNESS: Okay. Not that. All right. No,
15
I guess. I mean, nothing other than what I've
16
already said, nothing. I mean - well, let me
17
think for a second. I guess not.
18
Q. (BY MR. KOCHER) Okay. There's" a rule that I'm not
19
allowed to ask you anything that you learned from
20
your lawyer, and setting aside anything you learned
21
from your lawyer, you mentioned some" impressions a
22
bit ago, and I want to ask you what those
23
impressions were. I understand there may be an
24
objection here. Did you have some impressions that
)
~ 5
were not formed based on information from your
Ex A
Page 199 of 542
Page 55
1
lawyer?
2
A. Could you repeat that question?
3
Q. Yeah. There's a rule in these depositions that I'm
4 not allowed to invade
5
A. Okay. I understand that part.
6
Q. Yeah, because I think Mr. Lachenmeier is
7
representing your wife, and I don't want to -- I
8 don't want to get into that. We can debate whether
9 you're a client, but I just don't want to go there.
10 So I want to leave aside anything that you've
11
learned from Mr. Lachenmeier. But you mentioned
12
that you had some impressions, and I'm curious to
know what those impressions are, if you can tell
14
me.
15 MR. LACHENMEIER: And I will object to anything
16 that has occurred in terms of the development of .
17
your impressions because the lawsuit was filed or
18
since the lawsuit is filed.
19
MR. KOCHER: Yeah.
20
MR. LACHENMEIER: If you had some impressions
21
before that, you can tell him.
22
Q. (BY MR. KOCHER) Yeah, that's fair. So impressions
23
that you formed before the lawsuit was filed.
24
A. Yes, I thought they were more concerned about
I
L5
cashing in, getting some bucks rather than how
Ex A
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Page 56
i1
badly hurt their daughter was. And I actually
2 expressed that to my insurance -- Beth, not
3 Susan -- way, way almost probably that first
4
week.
Q. And you've described some of your interactions with
6 Karellen and Rene. Were there any other
7 interactions that caused you to have that
8 impression, that they were more interested in
9 cashing in some bucks rather than how their
daughter was doing?
11
A. The things I've already described.
12
Q. Anything else?
!
13
A. Concrete examples -- just how they talked to our
14
insurance people, that they never wanted to know
what happened even if they're mad at us, you know,
16
"I want you to explain yourself"; the way they kept
17
on going to different doctors and the way that
18
Karellen talked about those doctors, you know,
19
disparaging them, basically, you know well,
actually -- no matter what they said; you know, the
21
tone -- the you know, the phone call from Rene
22
and how he talked to my wife on that morning; you
23
know, the way he made sure she got off her leg when
24
we were visiting, which wasn't bothering her, and
I
)
so I figured he did that for my benefit. Like I
Ex A
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:
say, they're impressions.
It is just all these things taken together, and
probably other things I can't remember. And I -
you know, I don't believe in that; so I guess -
or, I mean, to me, I kept on saying to them, "You
know, all that matters is, you know, how" -- "you
know, all I want to hear is that she's okay." You
know, to me it's good news that it's only second
degree burns, and the feeling I got from them that
wasn't necessarily the news they wanted to hear.
MR. KOCHER: That's all I have. Thank you.
THE WITNESS: All right. Thanks.
'i
MR. LACHENMEIER: I'll walk you down.
(Deposition concluded at 3:14 p.m.)
(N.B.: As a matter of State regulation, the
stenographic notes of this transcript will be
destroyed five years from the date appearing on the
following certificate, unless notice is received
otherwise from any party or counsel thereto on or
before said date of the 21st day of July, 2013.)
Ex A
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Page 58
i 1
C E R T I FIe ATE
2
3
I, Bob A. Zaro, CSR No. 90-0119, do hereby
4 certify.. that, TODD BURKHOLDER personally appeared
before me at the time and place mentioned in the
6
caption herein; that the witness was by me first
7
duly sworn on oath, and examined upon oral
8
interrogatories propounded by counsel; that said
9
examination, together with the testimony of said
witness, was taken down by me in stenotype and
11
thereafter reduced to typewriting; and, that the
12
foregoing transcript, Pages 1 to 57, both
13
inclusive, constitutes a full, true and accurate
14
record of said examination of and testimony given
by said witness, and of all other proceedings had
16
during the taking of said deposition, and of the
17
whole thereof, to the best of my ability.
18
Witness my hand at Portland, Oregon, this 21st
19
day of July, 2008.
21
22
23
Bob A.
24
CSR No. 90-0119
Ex A
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1
2
3
4
FOR TIlE COUNTY OF WASHINGTON
6
RENEE STEPHENS,
7
Plaintiff,
8 v.
9 NIKE, INC., an Oregon corporation; and
EXETER BRANDS GROUP, LLC., a wholly
11 owned subsidiary ofNIKE, INC.,
12 Defendants.
13
14 Plaintiff alleges:
Case No. C083317CV
THIRD AMENDED COMPLAINT
Sexual Harassment (Hostile Work Envi
ronment) and Sex Discrimination and
Discrimination based on Retaliation
mRY TRIAL DEMANDED
CLAIM FOR RELIEF
16 [Sexual Harassment (Hostile Work Environment)]
17 1.
18 Plaintiff is a resident and citizen of the State of Oregon. Plaintiff has been married for ten
19 years and has four children.
2.
21 Defendant is an Oregon corporation and a wholly owned subsidiary of an Oregon corporation
22 who does business in the County of Washington. At all material times Defendants acted through
23 agents and employees who at all material times acted within the course and scope of their agency and
24 employment for Defendants.
I I I I
26 IIII
Page 1 - THIRD AMENDED COMPLAINT
Renee Stephens
7135 SW 54th Ave.
Portland, Or 97219
(503) 977-7935
Ex A
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5
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1 3.
2 Plaintiff worked for Defendant from February 12th, 2001 until September 29th, 2007 when
3 his position was eliminated. Plaintiff's position was changed on February 20th, 2005 from a Color
4 Designer I at Nike, Inc. to a Footwear Designer I at Exeter Brands Group, LLC, which was his last
position, held with the corporation.
6 4.
7 Plaintiff states subsequent claims of sexual harassment pursuant to ORS 659A.030 (1) (b).
8 5.
9 On February 2, 2007 Plaintiff entered a storage room of his office space to help Randy Wolfe,
Senior Designer and Mentor/Supervisor to Plaintiff, mount design boards for a presentation. Defen
11 dant Wolfe was speaking with Cory McCullagh, also Senior Designer and Mentor/Supervisor to
12 Plaintiff, when Plaintiff interrupted and asked, "Should I start mounting?" Defendant Wolfe said,
13 "Hold on," then proceeded to unbuckle his belt, pull down his pants (exposing his underwear,) bent
14 over a table presenting his buttocks to Plaintiff in an apparent solicitation of a sexual advance, and
said, "Yah, start mounting!" Plaintiff was shocked and said, "Sorry, I'll choose my words more
16 carefully next time." Then Plaintiff left the room.
17 6.
18 On or about February 6, 2007 Plaintiff was speaking with Defendant McCullagh in the
19 passage way out front of his cubicle. Defendant McCullagh was leaning over the island table in the
passage way when without warning Defendant Wolfe approached him from behind, grabbed Defen
21 dant McCullagh by his hips, and began aggressively and repeatedly thrusting his genital area into and
22 against Defendant McCullagh's buttocks, mimicking anal intercourse. Plaintiff was appalled and
23 disgusted. Later that week, Defendant McCullagh and Defendant Wolfe were leaving a meeting in a
24 room parallel to Plaintiff's cubicle. Defendant McCullagh momentarily stopped in front of the island
table to answer one of the Plaintiff's questions. Defendant Wolfe approached Defendant McCullagh
26 from behind to re-enter the meeting room. Defendant Wolfe cocked his arm backward and forcefully
Page2 - THIRD AMENDED COMPLAINT
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7135 SW 54thAve.
Portland, Or 97219
(503) 977-7935
Ex A
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1 swung his hand forward and upward into the space between Defendant McCullagh's buttocks
2 violently groping him. The Plaintiff was shocked and disturbed.
3 7.
4 On or about February 15,2007 Plaintiff was helping Defendant Wolfe organize the storage
room of their office space when Defendant McCullagh entered to begin a conversation with Defen
6 dant Wolfe. Defendant McCullagh turned away from Defendant Wolfe to comment to Plaintiff and
7 Defendant Wolfe grabbed Defendant McCullagh by his hips, and began aggressively and repeatedly
8 thrusting his genital area into and against Defendant McCullagh's buttocks, again mimicking anal
9 intercourse. As Defendant Wolfe continued his inappropriate act Defendant McCullagh said, "I can
feel your little Elvis." Plaintiff was intensely disturbed and became very anxious for his own
11 personal safety in the work place.
12 8.
13 February 28, 2007 Plaintiff entered the storage room where Defendant Wolfe and Defendant
14 McCullagh were speaking to ask them a technical question about a project the Plaintiff was working
on. Defendant Wolfe put on ajoggingjacket and pretended to warm up for a runby jumping up and
16 down and stretching his legs. Defendant Wolfe approached Plaintiff from behind and firmly grabbed
17 Plaintiffby his hips and attempted to thrust his genital area into and against Plaintiff's buttocks.
18 Plaintiff put his elbow in between Defendant Wolfe and himself, then stepped back to ward him off.
19 Plaintiff defiantly told Defendant Wolfe, "We are not going there!" Defendant Wolfe threatened the
Plaintiff as he turned to Defendant McCullagh and stated, "I'll just try it again when he turns thirty!"
21 Then, he turned to the Plaintiff and said, "You're too virile of a young man to not have tried sleeping
22 with another man!" The Plaintiff affirmed, "I would never do that,' and then left the room. Plaintiff
23 was extremely intimidated and disturbed.
24 9.
The Plaintiff avoided interaction with Defendant Wolfe until March 2, 2007. At the end of the
26 work day as the Plaintiff was walking down the hall talking on his cell phone to his wife and prepar
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7135 SW 54th Ave.
Portland, Or 97219
(503) 977-7935
Ex A
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ing to exit the building Defendant Wolfe approached him from behind. Defendant Wolfe cupped
2
Plaintiff's left buttock with his hand and slid his hand upward with a caressing motion to the small of
3
Plaintiff's back. The Plaintiff pushed Defendant Wolfe's hand away and said, "No!" Defendant
4
Wolfe raised his arms and stuck them out at his sides and said, "What?" Plaintiffwas very distressed
and intimidated, said nothing and left.
6
10.
7
On March 5th, 2007 Plaintiff decided to tell his manager Mac Mcdevitt what happened.
8
Plaintiff typed a written statement detailing what Defendant Wolfe did to Plaintiff and read it to
9
Defendant Mcdevitt in Defendant Mcdevitt's office. Defendant Mcdevitt immediately called HR
Director Mary Brunke into his office where Plaintiff recounted the story to her. Plaintiff was very
11
nervous and frightened. Defendant Brunke called Melissa Marks, an Employee Relations Director
12
for Nike Inc., and they set up a fact finding meeting with Plaintiff for March 7th, 2007. In that
13
meeting Plaintiff described to both Defendant Brunke and Defendant Marks about what Defendant
14
Wolfe did to Defendant McCullagh and himself.
(Sex Discrimination)
16
11.
17
Plaintiff states subsequent claims of sex discrimination pursuant to ORS 659A030 (l) (b).
18
12.
19
On March 9th, 2007 Plaintiff met with Defendant Brunke for a follow up meeting. She
presented Plaintiff with a closure letter written by Defendant Marks that was unsigned and misleading
21
of the allegations. Defendant Brunke told Plaintiff that they handled the matter and would not
22
disclose how to Plaintiff. Defendant Brunke told Plaintiff they determined from their investigation
j
23
that it was just "roughhousing" and that Defendant Wolfe did not realize he was offending Plaintiff.
24
She told Plaintiff after he inquired that they would not transfer him or Defendant Wolfe to another
department. Plaintiff informed Defendant Brunke that he no longer felt comfortable with the condi
26
tions in his work place environment and no longer wanted to work with Defendant Wolfe. Defen-
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7135 SW 54th Ave.
Portland, Or 97219
(503) 977-7935
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dants failed to inform Plaintiff that the validity of his allegations was in question effectively forfeiting
Plaintiff's ability to challenge the findings of the investigation.
13.
By defining Plaintiff allegations as "roughhousing" the Defendants conducting the fact find
ing investigation recklessly down-played Plaintiff's allegations. This action resulted in the Defen
dants' failure to involve the proper authorities and/or mental health professionals. Plaintiff asserts
that proper qualified personnel with experience in dealing with male victims of sexual harassment
could have conducted a thorough investigation, interviewed all potential witnesses inside the work
area, and determined the actual validity ofPlaintiff's allegations; and made appropriate corrective
recommendations to ensure a productive and positive work environment for all involved parties.
14.
Plaintiff asserts that he was subjected to repeated displays of sexually aggressive and preda
tory behavior. Plaintiff contends that if he were female, Defendants would not have categorized such
behaviors complained about as "roughhousing." Plaintiff's complaint would have been taken
seriously and a thorough investigation would have been conducted, with a different remedy applied.
Plaintiff felt he had to comply with Defendants' decision of returning Plaintiff to work with Defen
dant Wolfe or risk losing his job and the ability to support his family. Plaintiff drove to Seattle on
March 12th, 2007 and filed a charge of sex discrimination with the Equal Employment Opportunity
Commission against Defendants.
15:
When Plaintiff returned to work he avoided any interaction with Defendant Wolfe. Plaintiff
felt extremely intimidated by the entire circumstance and reiterated to Defendants that he no longer
j
felt safe or comfortable in his work environment. Plaintiff requested that all communication between
Defendant Wolfe and himself be handled by Management. On March 19th, 2007 Plaintiff emailed
Defendant Marks asking her to correct the closure letter to reflect the actual alleged events and to sign
the letter. Plaintiff's father passed away on March 20th, 2007. Plaintiff took two weeks off to attend
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7135 SW 54th Ave.
Portland, Or 97219
(503) 977-7935
Ex A
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the out of state funeral.
2
(Discrimination based on Retaliation)
3
16.
4
Plaintiff states subsequent claims of discrimination based on retaliation pursuant to ORS
659A.030 (1) (t).
6
17.
7
Plaintiff returned to work on April 2nd, 2007. Defendant Mcdevitt verbally reassigned Plain
8
tiff to new mentor/supervisor Shawn Wenzel because he complained about Defendant Wolfe. Plain
9
tiff continued to support the Starter Brand, the Tailwind Brand, the Elton Brand Basketball initiative
within the Starter Brand, and began supporting the new NASCAR initiative also within the Starter
11
Brand. On April 15th, 2007 Donna Morrow, General Manager for Tailwind, presented Plaintiff with
12
a Milestone Award for his help with the Tailwind Brand.
13
18.
14
Plaintiff worked with and in close proximity to alleged aggressor, witness, and management
who had direct knowledge of Plaintiff's protected activity and full details of allegations. Defendant
16
Mcdevitt, Defendant McCullagh, and other employees (including, but not limited to the President and
17
C. E. o. ofExeter Brands Group, Clare Hamill) continued to verbally harass Plaintiff by their persis
18
tent use ofthe name "Big Daddy" when referring to Plaintiff's alleged aggressor. Defendants
19
allowed Defendant Wolfe to retain offensive paraphernalia on his desk and allowed him to refer to
himself as "Big Daddy."
21
19.
22
On August 13th, 2007 Plaintiff was verbally informed by Defendant Hamill, Defendant
J
23
Mcdevitt, and Defendant Brunke that the NASCAR initiative was being divested, and that the
24
Plaintiff's position was being eliminated. Defendant Brunke later reiterated to Plaintiff in subsequent
emails that his position was being eliminated because "all NASCAR positions were being elimi
26 nated." Plaintiff's position was not a NASCAR position. Plaintiff's position was as an Exeter Foot
Renee Stephens
7135 SW 54th Ave.
Portland, Or 97219
(503) 977-7935
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wear Designer I, supporting all aspects ofthe Exeter Footwear business.
20.
Plaintiff met with Defendant Brunke on August 14th, 2007 and was told that he should begin
searching for employment outside ofthe corporation. Plaintiff was not offered a transfer. Plaintiff
was also encouraged by Defendant Mcdevitt, Defendant Wenzel, and Eric Happel (a Strategic Planner
for Exeter Brands) to seek work outside ofthe corporation. Plaintiff sent resumes to Ron Vasquez
(RR Director), Lisa Olivia (Nike Design Recruiter), Ginny Hopkirk (HR Director), and Peter Hudson
(Nike Design Director) informing them of his job loss and his desire to stay employed at Nike.
Plaintiff met with several Nike business leads including Ginny Hopkirk, Scott Leclair (Action Sports
General Manager), Ted Baldeere (Digital Design Studio Director), Skip Lei (Innovation Lead for
Nike Affiliates), E. Scott Morris (Cleated Design Director), and Karen Reuther (Global Color Design
Director) in an effort to secure employment. Plaintiff was told that there was no head-count for him
despite the fact that Nike was hiring and Plaintiff's exceptional work history with the corporation.
21.
Plaintiff applied for three entry level positions during August 2007 which he qualified for and
was denied. Defendant Marks sent Plaintiff a formal termination letter on August 26th, 2007. Plain
tiff requested a copy of his personnel file and on August 28th, 2007 received a copy which was
missing the last four years of his reviews and other documents. Plaintiff filed a charge ofretaliation
with the Equal Employment Opportunity Commission on August 29th, 2007.
22.
On September 25th, 2007 Defendant Olivia offered Plaintiff an invitation to apply for a design
position that he did not qualify for. Plaintiff declined the invitation to apply to that position.
J
23.
Plaintiff was unable to accept Defendants severance package because it was contingent on a
release of claims against Defendants. Plaintiff had two open EEOC charges under investigation when
his employment with the corporation ended.
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7135 SW 54th Ave.
Portland, Or 97219
(503) 977-7935
Ex A
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24.
1
Since Plaintiff's last day at Defendants' corporation, Plaintiff has applied for six additional
2
positions that he qualified for within Nike, Inc. Plaintiff has received no response (except for the
3
automated responses informing him that his applications were received) from Defendants in regards
4
to any of those positions.
25.
6
As a result of Defendants' discrimination, Plaintiff suffered intimidation, humiliation, and
7
degradation. Due to Plaintiff's loss of income and career, Plaintiff and his family have and will
8
continue to suffer emotional distress, mental anguish, and loss of quality of life. Plaintiff liquidated
9
his 401K in order to support his family after his loss of income. Plaintiff had to Cobra his health
insurance for several months when his youngest daughter was stricken with a life threatening illness
11
shortly after his employment with Defendants' corporation ended. Plaintiff has been unable to secure
12
employment. Plaintiff and his family are currently fully dependant on state assistance for food, cash,
13
and health insurance. Plaintiff does not want this to happen to anyone else.
14
WHEREFORE, Plaintiff prays for judgment pursuant to ORS 659A.885 as follows:
1. Against Defendants for reinstatement of Plaintiff to a comparable Footwear Design
16
position and back pay to be determined at time ofjudgment.
17
2. Against Defendants for compensatory damages in a monetary amount of $1,500,000.
18
3. Against Defendants for the Court to award punitive damages, legal costs and fees for
19
Plaintiff, and any other remedies the Court deems appropriate.
4. Against Defendants for the Court to immediately order Defendants to post a number
21
for employees to call in all employee common areas, so that employees can report harassment confi
22
J
dentially to qualified individuals separate from their business units. Also, those Defendants create a
23
safe unbiased procedure; conducted by a neutral third party to do a full and thorough investigation
24
with the use of qualified individuals. This third neutral party should have the capability to handle
highly confidential and sensitive material, and recommend appropriate remedies and solutions with
26
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7135 SW 54th Ave.
Portland, Or 97219
(503) 977-7935
Ex A
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regard to the well being of all involved parties ofharassment.
2
DATED this 2nd day of September, 2008.
3
I hereby declare that the above statement is true to the best of my knowledge and belief,
4
and that I understand it is made for use as evidence in court and is subject to penalty for
perjury.
6
7
RENEE STEPHENS, Plaintiff in Pro Per
8
Plaintiff demands trial by jury.
9
1111
/ II /
11
/ II /
12
1111
13
1111
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1111
1111
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1111
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/III
1111
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/III
Renee Stephens
7135 SW 54th Ave.
Portland, Or 97219
(503) 977-7935
Ex A
Page 212 of 542
RECORDED STATEMENT
(McQuiston) (#5463)
Of: Audrey Lloyd, Qadira's grandmother
Taken by: Betsy Fernley
On: 7/23/08
BF I am speaking with Audrey Lloyd who is Qadira Stephens'
grandmother, and the phone call is being recorded, and I have
your permission to record it?
AL Yeah.
BF Thank you. So, pretty much I just want to know what your
impressions were of her injury, and if you can just tell me about
her recovery and anything you have noticed about her that might
be different.
AL Urn. Impressions of...
BF Yeah. Just tell me your story, as Grandma, you know.
AL Well, the night it happened, my daughter called me up
completely distraught. I guess she went over there. She called
over there to find out how her daughter was doing, and urn, the
parents said something "Oh, she had a little accident," or
something, so she went over there not expecting to find what she
found, and then she called me up. She was sobbing and crying
that it was a terrible burn and please come over immediately to
babysit her kids. And uh, while she and her husband rushed to
the hospital.
BF Now, can you tell me.. .I'm sorry to interject, you say "the kids",
are the other children younger or older than Qadira?
AL Younger.
BF They are all younger, so Qadira is the oldest.
AL Yes. There are three that are younger than her.
BF OK. Go ahead.
AL So, anyway, so I rushed over there, back to the house and in the
meantime, I guess when she had snatched up Qadira and
brought her home, the father of the other girl followed, and he
was there when I came in, because she said he would be there
for a few minutes, but she didn't-she said come over right away-
she said the only person who will be here with the kids, but...so I
just ran over there, and uh, I told him it wasn't necessary to
stay, but he hung around and uh, anyway, I didn't see the injury
that night. She came back completely bandaged up when they
Recorded Statement
Page 1 of 5
Ex A
Page 213 of 542
finally came back, so there was nothing to see, but subsequently,
I was there probably about a week later when they were changing
the wound, and God, I almost fainted.
Well, my son---I have seen bums before. When I was a young
mother, one of my sons climbed up on the stove and the front of
his shirt started to burn.
BF Ohmy.
AL And um, his epidermis, you know, started to falloff and I had to
pull him down and wrap him in a towel real quick because the
flames just shot up off the -it was like a pajama top or
something-because there was a phone call, and I went to
answer the phone and turned my back and --there was a small
room behind the kitchen-and he came downstairs and
decided-he was just really little-and he just decided he was
going to pull up a step stool to the stove and see what was for
breakfast and he immediately caught fire with the gas stove. So,
that is what I flashed back to because since I watched him, his
skin kind of rolled off, and what had happened with Qadira was
that the upper epidermis just peeled away so it was just raw red,
and just raw and red, and it was big too, and I just, you know, I
uh, it just uh, really scared me. So, ah, it was really painful for
her. I felt sorry because all those bandage change-they have a
new technology now. They put these kind of ah, I don't know,
these kind of, oh, this membrane on, and everything has to be
put on in a certain order. It is more advanced than when my son
was being treated, and uh, I think it-with these new kinds of
bandages that form a protective -protective surface-uh, it seems
to accelerate the healing, 'cuz it healed much more nicer than my
son's bum, which he has terrible scars from that today-huge
scars. But this-these membranes that they put on-these
special kind of membranes and you know, they change them
frequently-they just really kind of-really help form a smoother
formation of the skin layer on top, so I think that's great that
they have this, but it was still really painful for her.
BF Mmhmm.
AL She was-and of course she couldn't go to school and she
couldn't be around other kids, you know, playing, because it just
uh, you know, it was just a risk that they would damage it again
before it got fully healed. Everybody wanted it to heal up as
nicely as it could.
BF Sure. About how long was she segregated from the other
children?
AL Oh, quite a while. It just ruined the end of her year, really. She
was-because there were a lot of things going on at the time at
Recorded Statement
Page 2 of 5
Ex A
Page 214 of 542
school, and she is one of the more-well, she and her friend were
in this kind of like advanced program, and uh, Qadira has a
she's a little bit of a leader in a lot of areas-and uh, she had a
lot of things going on and it just was hard for her to miss things
and to not be a part of stuff, and basically the end of the year
was pretty much ruined for several months.
So uh, but anyway, it proceeded to heal and uh, the area is
about the size of a kind of a saucer. Since she is dark skinned, it
appears that at this point-I'm waiting for the keloids to come
because that is what came later with my son, the keloidal tissue
started growing later in life-the thick skin-I'm hoping that
doesn't happen, 'cuz she would have to have plastic surgery or
something like that, 'cuz my son, he healed up eventually, but
then, as he got older and into his teens, the thick tissue started
growing-it is called keloidal tissue-and ah, he is not too upset
about it because as a young man he can tell war stories and
make stuff up, you know, but I think for a young woman, on her
leg-you know-yeah. He tells, you know, fish stories on that,
you know, he rips off his shirt at the beach and the girls want to
know "where did you get those scars?", you know..
That's funny. BF
So, for him it is not a big deal, but for her, on her leg, you know,
it is a big, you know her skin is nice and smooth and tan, and
then there is this big whitish blotch. So she doesn't wear-really
doesn't wear much of shorts anymore. She wears down to the
knees, because this is up on her thigh, and urn. I don't know, it's
just kind of caused her to be just really sad and quiet for a long
time, and uh, I think she's.... she's improved, but uh, I don't
know. It has had an impact on her in some way. She is more
introspective or something. That's what everyone kind of notices,
she seems more introspective, you know.
AL
So you have noticed a change in her personality or her outward... BF
Yeah. She-that's what we all-we pick up something, and she's
just more introspective. She is more quiet, more, you know, sort
of, I don't know. Have you ever had a serious injury when you
were a young person, or something like that, and the first time
you've ever really dealt with a lot of pain or something. I think it
makes an impression and it changed her in some subtle way. I
can't quite put my finger on it, but we all sense it. You know...
AL
Ok
AL So, ah, and uh, she is kind of ah, because she had to spend a lot
of time alone I guess she is reading a lot more now. Fantasy
books and Harry Potter type books and stuff like that, but uh,
Recorded Statement
Page 3 of 5
Ex A
Page 215 of 542
she is just a little more withdrawn, 1 guess, is all 1 can say.
BF Ok. Alright. Well, is there anything else you would like to add
before 1 turn off the tape recorder? Any other impressions or
thoughts on the whole matter:
AL Well, 1 was really distressed that.. .! looked at it from a point of
view "what if this had happened to me in my home?" 1 had
scalded a child, you know. 1 would have just thrown myself at
the mercy of the parents. 1 mean 1 would have.. 1 don't know.. .it
just seems to me like if 1 had been responsible for such an injury,
1 would have been right at their doorstep. 1 would have been
calling 911. These people. It just-you know-Todd, the father,
spent some time with me and he just seemed, you know, while
he was hanging around to see how it came out, whatever, 1just
sat there, put the kids to bed, and 1 said practically nothing. He
kept talking and talking, and 1 thought he had a very flip
attitude. You know "well, you know, 1 don't think this was too
serious, and I've seen worse, and it will all come out ok." And he
just jabbered and jabbered and jabbered away and it uh, you
know, really made me angry, but 1 didn't say anything to him
because 1 thought you know, for heaven's sake, you know, shut
up until you know what is going on here. You know, what's
wrong with you? You know, you just, you know, 1 think he
should have called the parents immediately-he said he tried
to-but they only live a few blocks away. He could have grabbed
her up, Karellen told me when she picked her up that uh, they
had just thrown a blanket over her and put her in front of the tv
to distract her. They didn't bother to get up and come and get
my daughter or her husband, they just kept doing whatever they
were doing-heaven knows what that was-and she was naked
on their blanket crying in front of the tv, and crying really hard.
And 1 thought "how pathetic" and she'd been that way for about
40 minutes, and 1just, it just, 1 don't know. These people-it
just escapes me why, you know...
BF So, you think it took about 40 minutes from the time she...
AL Ohyeah.
BF ... got burned until. ..
AL Yeah, that's what we figured out. It was about 40 minutes from
the time, 1 mean, 1 would have been running around, and just
you know, if 1 had done that to a child, 1 don't know what you
would do, but 1 know 1 would have been running around, getting
help, and calling 911, whatever! You know? 1just thought he
was very flippant about the whole thing, you know, and 1just -I
don't have much contact with that guy, and 1 really don't ever
want to have much contact with him. Again, 1just got a very
Recorded Stater.nent
Page 4 of 5
Ex A
Page 216 of 542
negative impression of him, so...whatever happened, happened.
But, you know, I'm just more concerned with Qadira and you
know, I just hope that you know, as time goes on she isn't going
to have to need plastic surgery or any other stuff like that. She's
a very sweet, very responsible girl, very, very smart, and uh, very
thoughtful, and she gets a lot of -actually-maybe in some ways,
you know, the teacher noticed some differences in her too, and
made some remarks to her parents and said you know, she
seems to have a lot of empathy for people now, you know, it they
feel hurt or uh, I don't know, if they are hurt or withdrawn or
something, she tends to go over and comfort people like that
because she feels, she feels something for them, maybe a bond,
like "Oh, here's somebody who's hurt." You know, "here's
somebody crying," you know.
BF Oh, that's really sweet.
AL And you know, they, and the teacher says that is really touching,
you know, how she tries to be really extra nice to the people who
are having a hard time. So urn, you know, I don't know if that's
just her, or if that is just more emerging because, you know, she
has had to deal with a little pain in her life, but anyway. I just
wish the best for everybody, that this all comes out and we all
learn our lessons and...you know. And that's all I have to say,
really.
BF OK, well I am going to turn off the tape recorder now.
AL Ok
BF And I appreciate your time with me.
/bf
Recorded Statement
Page 5 of 5
Ex A
Page 217 of 542
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KARAELLEN STEPHENS, Guardian
Ad Litem for QADIRA STEPHENS,
Plaintiff,
v. Nos. 0711-13836
A140487
AIMEE McQUISTON,
Defendant.
TRANSCRIPT OF PROCEEDINGS
Volume I of III
1 - 216
BE IT REMEMBERED that the above-entitled
matter came on regularly for Jury Trial before the
Honorable MICHAEL J. MCSHANE, Judge of the Circuit
Court of the State of Oregon for the County of
Multnomah, on the 11th day of August, 2008.
APPEARANCES
SCOTT F. KOCHER,
Attorney at Law,
Appearing on behalf of the Plaintiff;
RUDY R. LACHENMEIER,
Attorney at Law,
Appearing on behalf of the Defendant.
MaryAnn Gianni
503-307-3749
- .....~ ~ ~ - - -
Ex A
Page 218 of 542
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2
GENERAL INDEX
Pa e
VOLUME I - Au ust 11 2008
Preliminary Matters .. .. . .. .. . 4
Preliminary Instructions ........................ . 21
Opening Statements
By the Plaintiff ............. . . 30
By the Defense ............. .. 34
Plaintiff's Case-in-Chief ........................ 46
Witnesses for the Plaintiff
Aimee McQuiston
Direct .......... . ..... 4 6
Cross ............ . ............ . 61
Redirect ......... . .......... 80
Karellen Stephens
Di rect ............. . . 84
Cros s .......... . ... 102
Redirect ....... . .. ... 112
Todd Burkholder
Direct ..... . ... 113
Cross ............ . .... 125
Redirect ......... . .. .. 145
Renee Stephens
Direct .............................. 151
Cross ............................... 159
Redirect ............................ 161
Witnesses for the Defense
Sophie Burkholder
Di rect ............ . .. .168
Cross .......... . ... 178
Redirect .... .. .180
Qadira Stephens
Deposition Testimony .. . . . . . . . . 183
Defense Rests ................... . . . . . . . .. . 214
~ . - - ~ ~ - - ~ - ~ . --------------
Ex A
Page 219 of 542
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GENERAL INDEX Cont'd
Page
VOLUME II - August 12, 2008
Jury Instruction Discussion .................. .. 218
Closing Arguments
By the Plaintiff ........................ 232
By the Defense .......................... 244
Rebuttal ................................ 251
Jury Instructions .............................. 254
Exceptions ..................................... 266
Verdict ........................................ 267
Motion for New Trial ........................... 271
Ex A
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4
Preliminary Matters
August 11, 2008
PRO C E E DIN G S
(Open court:)
(start of audio:)
THE COURT: All right. We're on the record in
Stephens versus McQuiston. This is case 0711-13836.
This the time and place set for a jury trial;
Mr. Kocher representing the plaintiff, Mr. Lachenmeier
representing the defense. Do we have any preliminary
matters we need to discuss?
First for the plaintiff.
MR. KOCHER: Just a few, Your Honor. We had
submitted a very short trial memo on behalf of
plaintiff
THE COURT: It was a short trial memo, yes.
MR. KOCHER: - and -
THE COURT: I --
I appreciate that, by the way,
so thank you.
MR. KOCHER: I -- I've just received
Mr. Lachenmeier's, and I have not had a chance to
review it, but I
THE COURT: Oh, I'm sorry. I don't know if I
received one from the defense, or maybe -
MR. LACHENMEIER: I have one for you here, Your
Honor. It also is relatively short.
Ex A
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Preliminary Matters
THE COURT: Okay.
MR. KOCHER: To the extent that the Court may
wish to have a neutral statement of the case, I believe
Mr. Lachenmeier and I have agreed that the first page
of plaintiff's trial memo, which is the bulk of it,
could be used as a neutral statement.
THE COURT: Okay. That would be wonderful.
was going to ask how you wanted me to present that.
That makes it easy. I appreciate it. Okay. Great.
MR. KOCHER: Your Honor, we have on behalf of
plaintiff, I think, an exhibit list. It's not
- ~ extensive, but there are some exhibits that we've
agreed on, and there are a couple that we have some
disagreement.
THE COURT: Okay.
MR. KOCHER: And I'd be happy to forward to the
Court.
THE COURT: The ones you've agreed on, if you
want to just forward to Mr. Shoen, he'll enter them
into evidence and you can use them as admitted
evidence. The ones you disagree on, it's up to you
whether you want me to rule on them now or whether I
you want to simply wait until you can lay the necessary
foundation.
MR. LACHENMEIER: I -- I think there are a
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Ex A
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Preliminary Matters
couple, Your Honor, that it could be helpful to discuss.
at this point.
THE COURT: Okay.
MR. LACHENMEIER: This is a case involving a burn
injury that has evolved over the last year and a half
to its current state of injury. We have proposed
several exhibits that walk through -- I think there are
five or six points in time over the last year and a
half with something like four or five or six photos
from those points in time, actually fewer on the recent
points in time, so the jury can see how the injury -
THE COURT: Sure.
MR. LACHENMEIER: healed over time. I
understand that there's an objection that -- well, when
discussed it with Mr. Lachenmeier last week, his
concern was that the -- the gory photos were too many
in number and that they were prejudicial.
With that in mind, I took nine or ten of the
more duplicative ones out to try to accommodate that
concern, and I understand that accommodation was not
sufficient from Mr. Lachenmeier's perspective, so -
THE COURT: All right.
MR. KOCHER: so we have a disagreement
about
THE COURT: Do you have them here for me to take
.t
Ex A
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a look at or -
MR. KOCHER: Yes, Your Honor. My paralegal's
trying to update Mr. Lachenmeier's binder right now,
but I have -
THE COURT: Okay.
MR. KOCHER: I have the proposed exhibits
here, if I could
THE COURT: And these are
--
are these ones at
issue? Are there
MR. KOCHER: I believe the first exhibits, 1 and
8
-
MR. KOCHER: there's no objection.
THE COURT: Okay. So 1 and 8 .
MR. LACHENMEIER: Your Honor, if I may.
THE COURT: Yeah.
MR. LACHENMEIER: I think that if the Court were
to focus on 8 first, because that's one I have no
objection to, because it shows, as I understand it
and I don't have my aide with me at the moment. But as
I understand it, it's a progression of how the injury
looked over time.
THE COURT: Mm-hmm.
MR. LACHENMEIER: And I think he's certainly
entitled to show how bad it looked to start with and
Ex A
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how it gets better over time. But my position is that
one or two gory pictures of what it looked like to
start with are sufficient. W e ~ r e only talking about
one area of the anatomy, right above the -- the left
knee, and the skin peeled, and you can show the skin
peel once or maybe twice, but I don't see any reason to
show it multiple times, and I have no objection to that
exhibit, which I think covers the water.
THE COURT: All right. But you're objecting to
all the other photographs?
MR. LACHENMEIER: Yeah, I think that they're -
they're probative. Weight is - is outweighed by the
prejudicial effect, and I don't really see any good
reason for multiple gory photos.
THE COURT: All right. Well, I'm not finding
them all that gory. I don't think they're going to
unduly prejudice the jury. I'm going to allow them all
in. It's -- it's not so many that I find it
unburdensome or cumulative to the jury.
MR. KOCHER: Your Honor, the -- the next issue
and we have, I think, very few issues. But the -- the
one one other that I think would be helpful to
discuss here, the defense in this case sent our girl,
who at the time was nine years old at the time of
injury she was eight years old.
Ex A
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She and her dad went to an ORCP 44 medical
examination at the defendant's request. The doctor
that performed that examination subsequently,
apparently, would not cooperate with the defense and is
not going to be called in this case. In fact, there
are going to be no doctors called as witnesses in this
case.
We have proposed the one page -- in the
exhibits we have proposed the one-page report of that
doctor and the prescription that that doctor gave to my
client for a treatment cream for her injury, and those
exhibits are objected to.
It's the plaintiff's position that the report
is an admission of the defendant's representative and
that the prescription itself -- I'm not sure what the
infection is on that, but I would let Mr. Lachenmeier
speak to it.
THE COURT: Okay. So just to clarify, this is
your doctor who did the
MR. LACHENMEIER: Well, it's the doctor we tried
to hire, yes.
MR. LACHENMEIER: We tried to get Dr. Cook from
OHSU who wasn't available who referred us to someone
else who referred us to someone else, and we were able
Ex A
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to find a doctor who was able to do the IME, we
thought. And then, first of all, instead of doing a
defense IME, he actually prescribed some medicine for
her.
THE COURT: Right.
MR. LACHENMEIER: And then he's unavailable -
met with - I talked to him on the phone, and he won't
meet with me, he won't perpetuate and he won't come to
trial.
THE COURT: Sure, it's (indiscernible)
MR. LACHENMEIER: And I said so, you know, what
are we paying for. And so he says, well, if I had
known I'd had to do that, I wouldn't come at all I
mean, I wouldn't have done it at all. And I said,
well, every IME you're required. So anyway, he sends
State Farm a letter, then sends me a letter, and I
showed it to counsel which says that:
"Please be advised that we've directly
notified State Farm Insurance we do not wish to be paid
for the exam of June 9th. Dr. Nguyen has an extremely
busy surgery surgery schedule and cannot be
available for deposition or trial in this case."
So to start with, the document they want to
offer is hearsay. There is no exception. It's not an
admission of my client, and it's hardly a -- an
I
Ex A
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Preliminary Matters
admission of a party opponent. It's like down the
1 i ne . It is hearsay.
I can represent to you that the one time I
talked to him he said that he would tell this girl
don't do anything and he wants to use this against me,
so what I did is I sent a letter to him -
THE COURT: You know, I'm agreeing with you,
Mr. Lachenmeier, that it sounds like hearsay to me.
MR. LACHENMEIER: Yes.
THE COURT: The only difference here I see is
that if she were to testify why she took a certain
r- prescription, I think she gets to testify that, you
know, because this doctor -- without getting into any
of the details, this other doctor prescribed it.
MR. LACHENMEIER: Thank you, Your Honor.
MR. KOCHER: Your Honor -- Your Honor, the
questions that I would propose to ask my witness, and
we've had some discussions, I want to sort of get
clearance or some discussion about this testimony. It
was the girl's father, Todd Stephens, that -- excuse
me -- Renee Stephens that went with her to the IME
examination.
THE COURT: Okay.
MR. KOCHER: And I intend when I call the -- the
girl's father, Mr. Stephens, to ask him if he, in fact,
Ex A
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took his daughter to this examination, what was the
purpose of that examination and -- and did the doctor
give you a prescription? Yes. What was it?
THE COURT: So what's he going to say is the
purpose of that examination?
MR. KOCHER: Well, the purpose of the examination
was that he was taking his daughter to see the doctor
who was hired by the defense in this case, and it was
not a treatment examination but it was an evaluation
for the purposes of aiding the defense.
THE COURT: I'm not going to allow, only because
then, of course, we're in this it it just seems
''''.
seem it's going to bog the jury down in a -- a a
collateral issue as to who this person is, why he was
hired, why the whole, I - I guess, contracting with
him fell through. You know, all ~ h a t stuff really has
nothing to do with the case.
I'm going to limit it to the father
testifying, you know, he had seen this other doctor,
and this prescrip- this particular medication was
prescribed.
MR. KOCHER: Your Honor, if I could add
one -- just 'one additional piece of
THE COURT: Mm-hmm.
MR. KOCHER: -- that proposed testimony to -- to
Ex A
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Preliminary Matters
perhaps give you a little bit more information. It is
part of plaintiff's case that going to these doctor
visits is part of the girl's damages, that it's not fun
for a little girl to have to go to these different
doctors that are asking her about her injury and
looking at her injury.
THE COURT: Right. So you got that in, that
she's
MR. KOCHER: Yeah.
THE COURT: -- there.
MR. KOCHER: The -- the particular doctor that
the defense sent this nine-year-old girl to see was a
breast implant Doctor. He was a reconstructive
surgeon. He had samples of synthetic breasts around
the examination room where the examination occurred,
and there was an uncomfortable discussion between the
daughter and the father about what this was about. And
I think it's an appropriate as an element of damages to
elicit that testimony from the from the father.
MR. LACHENMEIER: He's a general plastic surgeon,
Your Honor. This is the first I heard of this.
There -- she's not -- he's not even going to call the
daughter to talk about -
THE COURT: Yeah.
MR. LACHENMEIER: -- and -
Ex A
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THE COURT: And I just think it injects too much
collateral information into the case for an individual
that, unfortunately, has made himself unavailable.
I -- I will allow the father to testify that the
reason -- they went to this doctor at the request of
the defense, but not going into, you know, all issues
of, you know, we were exposed to breast implants, and
it just seems a little far afield of where we're going.
And really, without going into any more detail about
the doctor and his role, other than we were asked to go
see this doctor by the defense, we went and one more
thing we have to do in terms of seeing people, and that
this was prescription we got.
MR. KOCHER: Okay, and
MR. LACHENMEIER: Even though she didn't use the
prescription?
THE COURT: Well, I'm assuming she used it.
Maybe I -
MR. KOCHER: No, Your Honor. This - and this is
an interesting point in terms of damages and treatment
options, and I - you know, I'm sorry to
(indiscernible) discussion's lengthy, but it's
a -- it's sort of a nest of facts.
After that visit, I got the phone call from
----,
Mr. Lachenmeier saying, whoa, I just want to let you
Ex A
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know that this doc didn't do it right and he prescribed
something for your daughter. And of course, I got on
the phone to my client and said, careful, this is not
your daughter's treating doctor, this is a defense
medical examiner, he wasn't supposed to give a
prescription. If you want to
THE COURT: Well, he did.
MR. KOCHER: - give her this prescription, you
should talk with her treating doctor about whether
that's a good idea, sort of trying to cover for
Mr. Lachenmeier's bases and my own there. So for a
couple reasons, that reason and the father's concerns
about that as a treatment option, she did not take the
prescription. This is a cream that causes the skin to
peel off the leg, and after the skin peels, it's
temporarily lightened and that would reduce the
visibility of her scar, is the -- is the idea for that.
And the father was -- was concerned that it's
irritating, and they promised the skin would peel, and
that it wasn't a good treatment option for his
daughtE?r.
And so the point there is an element of
damages, is that there is no good treatment option
available for her and that she's stuck with this scar
in its current form.
Ex A
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THE COURT: Okay. I mean, it seems like such a
small point in the whole scheme of the case, that she
went to a defense doctor and nothing worked out, is
what I'm hearing, other than there was some
inconvenience of having to go through the process.
MR. LACHENMEIER: I think that's all that's
involved, Your Honor. And this is a weird case because
they're not calling anyone of their three doctors
four doctors that saw this girl at all, so there's
going to be no medical testimony about what can or
can't be done that I know of. It's they stipulate
to the medical records as they are, and they are what
they are, and that's all there is.
THE COURT: I mean, it just seems so collateral
to the overall case. I mean, I -- here we kind of
parse it all out. It's going to be a big nothing to
the jury, I think.
What you're going to be able to tell the jury
is that she went to a doctor at the request of the
defense and the doctor prescribed some medication that
wasn't used. That's it.
MR. KOCHER: The -- the concern that I have
there, Your Honor, is that the jury's going to think
that somehow there was a treatment option that was
viable that was available -
Ex A
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THE COURT: Right.
MR. KOCHER: to her that she -- that the
parents, for whatever reason, are withholding from her,
and that it's simply a matter of putting this cream on
her leg and that this dark scar will disappear, and
that's not accurate, so
THE COURT: Well, but we're not going to go into
and then the lawyers told her not to use it
MR. KOCHER: I am just
THE COURT: because then they're going to be
wondering why lawyers are all of a sudden playing
doctor.
MR. KOCHER: Understood.
THE COURT: So I mean, if -- if -- if the only
thing you want in is that she had to go through the
hassle of getting a prescription that didn't ultimately
get used, and that's up -- that's your call. I'll
allow you to bring it in that far, but we're not going
to go into a lot of details about, you know, why,
because that 0 ns up this whole door to this -- just
this weird scenario in this case with somebody who
probably should never have been hired because of
probably just miscommunications between somebody who
hasn't done this kind of work before and an attorney,
and that just seems so irrelevant to the case. So -
Ex A
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MR. KOCHER: I think -- I think (indiscernible).
THE COURT: You know, it may open up a weird
question for a couple of the jurors wondering, well,
why isn't this doctor being called or why didn't they
follow through with that treatment, but it's up to you
then how much you want to kind of leave that suggestion
open. Maybe he can say, you know, after talking to
other doctors, we were told not to use the cream
don't know -- to explain maybe why it wasn't used but
not, you know, going into any great -- any detail
really about this doctor and his the larger role
between him and the attorneys.
MR. KOCHER: Okay. Your Honor, I just I
don't mean to take any more of the Court's time, but
THE COURT: So two issues you can bring in: That
she went to a doctor at the request of the defense. If
you want to, you can say, and did you, you know, get a
prescription following that visit? Yes, I did. Did
you use it? No.
MR. KOCHER: And could I ask -- could I ask
whether he had concerns about using the cream on his
daughter's leg?
THE COURT: Well, are the concerns because he got
concerns from attorneys or from a doctor?
STPHAO: Well, the concerns are that the cream
I
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causes irritation and it causes the skin to peel and
it's a temporary solution anyway.
THE COURT: Is that what another doctor told him?
MR. KOCHER: That's what Dr. Nguyen told him.
THE COURT: So Dr. Nguyen gave him the medication
and then told him not to use it?
MR. KOCHER: He said you -- you can use this but
you should know that if you do, it -- it can -- it
makes the skin peel, it's not a permanent solution,
it's temporary, and it causes irritation. And based on
that, the dad said -
THE COURT: Yeah. You know, the more -- more
we're talking about it, I'm going to -- we're not going
into the prescription at all. The only thing you're
going to go into here is that she visited a doctor at
the defense request.
MR. KOCHER: That's all the exhibit issues that I
believe we have for plaintiff.
THE COURT: Okay.
MR. LACHENMEIER: Counsel, you don't have any
objections to the pictures that I -- that I showed you
this morning, right?
MR. KOCHER: That's correct so far as -- do
I -- I'm sorry, Mr. Lachenmeier. Do I have your
exhibits
Ex A
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MR. LACHENMEIER: Yeah, I'm going to give them
we had a little exhibit problem making copies this
morning, Your Honor.
THE COURT: Okay.
MR. LACHENMEIER: So I have not - I've shown him
all the exhibits, but I haven't separated them. My
legal assistants here, we need another five minutes, if
we could.
THE COURT: Okay. All right. And then any
other - are there any preliminary matters for the
defense?
MR. LACHENMEIER: I guess the -- the only thing
that we jointly wanted to know is if it's all right to
use the photographs during opening.
THE COURT: Oh, yeah, that's fine. I just -
I've wrote on them that they're admissible, so at this
point they're in evidence, so you can use them.
THE COURT: All right. So Paul, if I -- as soon
as they're ready, we'll call up I think we need -
12, 18 -- maybe - is this -- how many witnesses does
the plaintiff have?
MR. KOCHER: Your Honor, we have -
(Audio off.)
(Voir dire, not transcribed.)
Ex A
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(In the presence of the jury:)
THE COURT: I'm going to begin by reading you an
instruction that tells you a little bit about your role
as jurors. And I'm going to get my glasses off my desk
in here to do that. I'll be right with you.
After I read you this instruction, the
attorneys will then give the opening statements of the
case. The opening statement is not evidence, but it is
intended to -- each -- each side will give an opening
statement, and it's intended to outline the evidence as
the attorneys expect it to be.
Then I imagine we'll break for lunch at that
point. I do have a meeting scheduled in my jury room
at noon, so I don't know, (indiscernible).
Unfortunately, it's a judge's meeting and we have to
sit somewhere.
We don't have conference rooms in this
building, so I have one of the bigger jury rooms, so
we're going to have that from -- from about noon to
about 1:15. The trial will then recommence at 1:30.
At that time we'll start hearing from the witnesses.
And it will be your duty to decide
the from the evidence what the facts are. You and
you alone are the judges of the facts. You will hear
the evidence, decide what the facts are and then apply
Ex A
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Preliminary Instructions
those facts to the law that I will give you. That is
how you will reach your verdict. In doing so, you must
follow the law whether you agree with it or not. You
must decide this case - you must not decide this case
based on personal feelings, sympathy or prejudice.
The evidence that you are to consider in this
case consists of the testimony of witnesses and those
exhibits that are received into evidence. Exhibits are
physical things, such as photographs, charts, records.
You will be able to examine the exhibits while you
deliberate. You may draw any reasonable inferences
from the evidence, but you must not engage in guesswork
or speculation.
From time to time an attorney may make an
objection to evidence. I will decide whether or not it
is proper under the law for you to consider such
evidence. Do not speculate about why the objection was
made or about why I ruled as I did.
If I overrule an objection, an answer -- the
question can be answered or the exhibit can be
received. If I sustain an objection, then the answer
cannot be given to the question or the exhibit cannot
be received into evidence.
Whenever I sustain an objection to a
question, ignore the question and do not guess what the
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answer would have been. There is a reality in the
courtroom, it doesn't quite go off as smoothly as we
see (indiscernible) TV. An attorney will ask a
question and a witness gives an answer quicker than the
other side can say objection. There may be times where
you will hear an answer, there will be an objection,
and I'll sustain the objection and ask you to disregard
the answer.
Obviously, this doesn't (indiscernible)
maybe because I've asked to you disregard it. But when
it comes time to deliberating, when it comes time for
you folks to determine what are the facts of the case,
do not use anything I've asked you to disregard in
determining what the facts are.
You must not interpret any statement, ruling
or remark I make during this trial as an indication
that the Court has formed an opinion about the facts or
the outcome of the case. You and you alone must decide
the facts. You must decide how believable the evidence
is and what weight or what value you will give that
evidence.
You may take notes if you wish during the
trial. However, please keep in mind that each party is
entitled to the considered decision of each juror.
Therefore, during deliberation, you should not give
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undue weight to another juror's notes if those notes
conflict with your recollection of the evidence.
You should each now have a pen and a note
pad. If at any time you run out of paper or your pen
runs dry, just -- don't be shy. It's you you folks
are the judges here of the facts. You need to be able
to take notes. Paul will help you out. Just shout
orders at him and he'll get you whatever you need.
Do not allow your note-taking to interfere
with your ability to observe and evaluate testimony.
And any time you leave the courtroom you should leave
your notes either on your chair here in the jury box or
in the jury room. Do not take them with you.
Do not discuss this case during the trial
with anyone, including any of the attorneys, parties,
witnesses, your friends or members of your family. Do
not discuss this case with other jurors until you begin
your deliberations at the end of the case. Do not
attempt to decide this case until you begin your
deliberations.
So just a couple of things about that.
First, the 12 of you have one thing in common. It's
this case. It's the one thing we don't want you
talking about yet. Talk about your hobbies, talk about
those things, but the reason for that is we want you to
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hear all the evidence before you start that
deliberation process. We don't want you to start
taking sides or setting - just forming opinions about
the evidence until you've heard it all.
So in the real world, you hear somebody speak
to you from the witness chair, you go in that room and
you ask somebody, hey, what did you think of that, you
don't get to start that process yet. Hold off on that
until you've heard all of the evidence and the closing
statements and the legal instructions before you start
that process.
The other thing to keep in mind is, you can
see the federal courthouse over across the street
there. We call it the palace from here, and they have
all sorts of conference rooms, places where attorneys
get to talk to each other, where attorneys meet with
their clients or witnesses get to wait and meet with
the attorneys.
We have that in the state court. It's called
the hallway. Everything happens in the hallway in this
building, so it's the one thing I'm going to caution
you about. That's the one area w h ~ r e we don't want
you, is the hallway in front of this courtroom, because
we don't want you to overhear, you know, somebody
associated with the case giving their opinion about the
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case or talking about the case.
We want you to make your decision about the
case based on the facts you hear in the courtroom.
More cases are overturned on mistrials where we have to
start allover simply because a juror overheard
sometimes an attorney or even judges. That's why you
have those jury badges. It tells us to be quiet about
talking about our cases. If we see that you're in the
elevator with us, we don't start talking about some
case we heard about down the hallway. So I would
caution you that we do need you in the jury room.
Now, it's going to be a little awkward over
the lunch hour because I'll be in your jury room having
a meeting, but just be aware that there are people in
the hallway. I'll caution the attorneys to keep their
witnesses kind of lumped to one -- it would be the far
side of the hallway so the attorney -- the jurors can
assemble here in the courtroom.
Also, you've spoken briefly to the attorneys.
You clearly won't get another chance to have
conversations with them at this point. If you happen
to run into the attorneys or the parties in the case,
what I don't want you to think is they're being rude to
you because they're ignoring you. They're under very
strict rules to, in fact, do exactly that, to ignore
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you.
You might be on the elevator with them, you
might pass them in the hallway, you might see one of
them out and about at lunchtime, and it may not -- they
won't be acknowledging you, and that may seem that's a
little bit overkill, but even, you know, chitchatting
with you about the Olympics or about the weather, it
could appear that they're trying to curry some sort of
favor with the jury. So if they're going to be
ignoring you, that's their rules. If anybody does have
any communication with you about the case, you need to
let me know about that.
Also, I'm going to ask you not to make any
personal independent investigations into any of the
facts or people associated with the case. I don't
imagine that would be the case in this kind of case,
but of course, more and more of the problem we're
having in jury trials is that often, especially in
civil cases where people are testifying about very
specific knowledge, we often have experts come in and
testify, and medical testimony, you know, people get
sick in the real world, you (indiscernible) look things
up on the Internet, you know, (indiscernible) take my
son to the doctor and let me see if I can diagnose
whether it's an ear infection or whether he perforated
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his eardrum. That's my trauma over the last week.
But my point is there's so much we can look
up in the information. I mean, you can look up the
attorneys' names, you know, on the Internet and find
out something about those folks. But I don't want you
to do it, and we want you to make your decision about
the facts of the case based on what you hear in the
courtroom, not what you can look up. Okay? It is
important that you folks hear and understand the
evidence. You have to determine what the facts are, so
you're not just potted plants sitting there.
We have a number of witnesses testifying and
we might even have some witnesses who are fairly young,
so it's important you hear them and hear either the
question of the attorneys or if you can't hear the
answer that's being given by the witness, I expect you
just to interrupt and say, "Can you repeat that, or you
need to raise your voice, I can't hear you."
And sometimes I can I'm right above them.
I can usually hear pretty well, but I don't always know
if you're hearing. So it's your job to hear them, so
interrupt if you can't hear either the question or the
answer. Sometime witnesses will give an answer and you
can hear them. And we all do this at one point. Words
come out of our mouth, everybody can hear words, but
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whatever structure or order those words came out just
didn't make a lot of sense to us.
There is nothing wrong with you saying,
"Could you please restate your answer. I did not
understand what you said." Sometimes it's as simple as
a witness' referring to "she" as a pronoun, and "she"
could be one of two people, and you need to know which
person they're talking about. Was it Ms. Green or
Ms. White? Interrupt and say, "Who do you mean by
'she'"? That's your job, is to figure out what the
facts are.
Now, you're not a separate inquisitional
body. The attorneys are generally going to ask the
questions. If there is a witness on the stand and you
have a burning question that is not being asked or it
has not been asked, if you put it in writing and hold
it up, Paul will take it from you and he'll show it to
me, I'll take a look at it.
If it is a question that can be asked, I will
pass it on to the attorneys, and they will choose
without commenting on it being a juror's question or
not a juror's question or they're the one asking it,
they're simply going to ask it if they want to. There
may be another witness coming up who's going to better
address that issue, or it simply may not be a question
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that they feel is - is one that needs to be asked.
But don't be offended if y ~ u r question is not asked.
Often jurors will send up a question about
a -- car accident cases, they'll want to know if one of
the drivers was insured. We don't -- we don't answer
that question for jurors in Oregon. A car accident
case, you never know if somebody has insurance or not.
So -- and that's just one of the common questions that
comes up. I just hold it up, set it aside, and it's
not -- it's not asked. But if you do have a question
for a witness, keep in mind they're often gone after
they're done testifying, so you should write the
question down while that witness is here.
At the end of the trial, you will have to
make your decision based upon what you recall of the
evidence. You will not have a written transcript from
which you can consult, so please pay close attention to
the testimony as it is given.
I'm now going to turn it over to the
attorneys, and they're going to give their opening
statements, starting with the plaintiff who has brought
the claim but who has the burden of proof, Mr. Kocher.
MR. KOCHER: The rule is you don't play games
with scalding hot water. If you do play games with
scalding hot water and a child gets hurt, you're
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Opening Statement by the Plaintiff
responsible for the harm.
It's April 12th, 2007. Sophie has read the
book "Little House on the Prairie" with her mother. In
that book set in pioneer days, they don't have a way to
heat hot water for the bath except for the kettle on
the stove.
Qadira comes over to spend the night at
Sophie's house. One way or another the girls end up
bathing together. The girls ask their mom if they can
reheat the bath water like they do in Little House on
the Prairie. Mom says okay. Sophie's parents heat a
kettle of water on the stove.
Ms. McQuiston takes the kettle of water into
the bathtub. The girl are nearby. Just as she's
pouring the water, the bathroom door is open, and her
husband, he comes down the hallway. The kitchen's
where the bathroom is (sic). He looks in, sees his
daughter naked, his wife pouring.
In that moment, Qadira is scared. She has
all her clothes off. The only place for her to be so
her friend's dad doesn't see her naked is in the
bathtub.
Why are we here? We're here for two reasons.
Number one, the defense in this case is taking zero
responsibility for what happened. Reason number two,
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we're here because when someone won't take
responsibility, and there's harm -
MR. LACHENMEIER: Objection, Your Honor. This is
in the nature of argument.
THE COURT: Sustained.
MR. KOCHER: We're here to make up for the harm.
We're going to present evidence about responsibility.
We're going to present evidence about the Little House
on the Prairie game. We're going to present evidence
about how the defendant handled the hot water around
the children after they decided that it was okay to
play the game with hot water, how did Ms. McQuiston
handle that water.
She goes into the bathroom. You'll hear some
slightly differing testimony about where exactly these
girls were. Were they far away? Was water being
poured or was the water simply being put into the tub
(indiscernible). We're going to hear evidence about
a little bit of evidence about privacy, about the
bathroom door being closed.
In this case you're going to see seven
exhibits of pictures. You're going to see them
eventually. Defense counsel has an opportunity to show
them to you. We'll do that a little bit later on, all
seven of them.
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Right now, we're going to take just a minute,
and as I'm talking, I'm going to pass two exhibits,
Exhibit 1 and Exhibit 8. You could take as little or
as much time as you want, and you'll have an
opportunity in the jury room to deliberate to see all
the exhibits, and we ask that you take as much time as
you need to review them.
In this case, we'll be asking for a verdict
that is sufficient to make up for the harm. You, as
the jurors, you have the power to decide what that
amount is
MR. LACHENMEIER: Objection Your Honor.
THE COURT: Overruled.
MR. KOCHER: And we'll be asking for an amount
that we believe is fair. That's all I have.
THE COURT: All right. I don't recall -- all
right. I don't -- Paul.
All right. I -- I want you to do your
opening without photographs being passed around. Do
you want us to wait for a moment?
MR. LACHENMEIER: Yeah. My opening is going to
be fairly short.
MR. LACHENMEIER: So I can wait for the photos.
THE COURT: All right. Thank you,
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Opening Statement by the Defense
Mr. Lachenmeier. I -- I think my preference would have
been we not do it, this kind of jury view, in opening.
(Pause in proceedings.)
MR. LACHENMEIER: I'll just set up while we're
doing that, all right?
THE COURT: Why don't why don't you do that.
Folks, you'll - you will have an opportunity
to view these photographs later. I - I I do want
Mr. Lachenmeier to be able to start his opening here.
So I -- I think the purpose here is just for a brief
review of the photos so you know what the facts look
like.
All right, Mr. Lachenmeier.
MR. LACHENMEIER: Ladies and gentlemen, Your
Honor, counsel.
This case is about two really cute kids that
play together, and this is the claimant, a darling
little kid. Apparently, they're not going to bring
her, but we are going to give her testimony. The
defense itself is going to give her testimony during
the course of this trial by reading her deposition and,
primarily, to demonstrate how this has really not
affected this little girl. But we're going to read the
entire deposition so you can see everything that this
little girl has to say.
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What we expect the evidence to be is that
that cute little girl and this cute little girl who is
my client's daughter knew each other since
kindergarten. They met at Maplewood because they both
live in the Maplewood District and they both decided to
go to the Odyssey School in Hayhurst, so they were
together there as well.
The testimony's going to be that over the
years they played together a lot and that the plaintiff
was at my client's house overnight five or six times.
And there's a little bit dispute about this, but at
least two of the witnesses, including my little
daughter, thinks that there had been a bath at least on
one occasion before.
The date in question, she came over fairly
early, and there's even a little bit of memory issues,
because when things happen a while, you'll find out you
have different testimony. But there's a little
difference about when she arrived and exactly what they
were doing. But mostly, they were just playing, and
think they played Karaoke and they played with some
Barbies and they played computers and they did all
kinds of fun things.
And at one point they were also playing with
my client's new cat. And there is at least some
I
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evidence that it was because they had played with this
cat and because the plaintiff may have been
semi-allergic to cats that they decided to take a bath.
But in any event, it's the girls who decide to take the
bath.
My client then -- well, they're old enough;
they were eight. They went in there, they turned on
the water, they filled up the bathtub and they played.
And after playing for a while, they decide that we want
some more hot water.
Well, the testimony's going to be that this
hot water heater doesn't rejuvenate fast enough so that
you can put hot water in again after you fill the tub.
So what my client's husband has done since he was a
child is he takes a teapot and heats up the pot and
and you'll find out that actually in this household,
Todd Burkholder, her husband, is the main one who likes
to do this and has forever.
But in any event, there was a discussion
between my client, Aimee, and her daughter about
pioneer days, but Sophie doesn't even remember it, and
you'll hear that from her in the stain -- from the
stand. So they weren't playing a game. They were out
of hot water. So my client goes and gets -- well,
there's even a little dispute who put the hot wat
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pot on, not that it matters, either Todd did or Aimee
did, and they do that in the stove.
This is over in Maplewood, and the front door
is basically over here somewhere, and this is the
living room, and there are bedrooms down the side here.
This is the bathroom, and over here is this tub. And
there will be some pictures and much better diagrams
than this.
But in any event, what happens is they're
trying to decide where they're going to sleep earlier.
And so finally, Todd comes down, and he'd been up, I
think, watching the Sopranos, and so he come down and
he's -- when he's down here, he notices that the -- the
pot's been on for a while. He actually takes the lid
off to see whether it's hot enough to -- to use yet,
sticks his finger in and realizes it's hot enough but
it didn't burn his finger, but they didn't wait for
this even to whistle, and at that point, he tells Aimee
the pot's hot.
So Aimee takes the pot in, and she goes in,
and when she's there, there's two kids in the tub. And
right here there's a toilet and what's better put it
in the bathroom. There's the toilet, and there's two
bedrooms here. One of these is Sophie's and one of
them's her sister's, and to tell the truth, I can't
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remember which is which, but I don't think that matters
either.
But what happens then is Aimee come in here
and she goes in and the door's open, and she tells the
little girls, you can't be in the tub while I'm pouring
in, get out, this is hot water. So she's standing here
right in the middle, Sophie, her daughter, goes right
over here and Qadira, the -- the plaintiff here, is
standing outside - whoops, I got the tub wrong again.
We're here and here. Anyway, outside the bathtub. You
get what I'm trying to say. On the right is Sophie and
on the left is Qadira, and they're on the ground.
It's interesting because Qadira doesn't
remember a whole lot, but in her deposition she wants
to say she was actually standing on the edge of the tub
as opposed to standing on the ground, so there's a
little conflict there. But she's -- according to Aimee
and according to her daughter, she's on the ground.
Then what happens is Todd is trying to figure
out where these girls are going to sleep. So he comes
walking in and down the hall, because he's got to
either get a bed from here or a bed from here,
depending on whether they're going to sleep in the -
in the living room or double up in one of the -- the
bedrooms, so he's trying to figure out where to put the
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mattresses.
So as he's walking down the hall, he's
talking loud, "Where do you guys want to -- do you want
to sleep tonight?" And Sophie calls back to her (sic),
and he just glances as he goes by the door and -- and
his daughter's responding to him, and I think they said
the living room.
But Aimee, who's - who's pouring water at
the time, goes shoosh, get out of here. And of course,
he, Todd, instantly realizes I shouldn't be here, so he
goes down the hall and sits down.
And the interesting thing is he gets all the
way down there before there's any calling saying come
back. And what happened is at some point Qadira jumped
into the bathtub, and she either jumped up onto the
edge and then slipped in, which I think is probably
what happened, or she jumped all the way in.
But in any event, Aimee's not changed the
the pot. She's pouring it like this right in the
middle of the bathtub, and all of a sudden, there's a
kid right in front of her, aaahhh, and you know, are
you burned? And it's kind of scared there.
And when she -- the girl says yes, she
immediately turns the cold water on the bathtub and
starts washing the -- the - the area with cold water.
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Then she's really upset because, you know, whether
there's legal responsibility or not, this concern -
this is somebody else's child. And of course, it's up
to you to decide whether there's legal responsibility
for this.
But then the -- the -- she's calling to her
husband, and her husband Todd then immediately comes
down there, sees what happened, takes over, goes and
gets either ice or frozen peas or both and immediately
puts it on the little girl's leg.
Meanwhile, they grab the robe, they grab the
towel, and he takes her first, I think, into living
room and then around and into the basement. The reason
she goes to the basement is because Mom calls at least
three times trying to Aimee calls trying to get
Karellen on the phone because your kid's hurt. And
when no one answers the third time, they take her
downstairs and Todd's trying to comfort her and get the
TV going and distract her.
And he's had a little experience with burns.
He he's done mountain climbing and other things, and
he knows if you put cold on as quickly as possible, and
he's doing that. Eventually, when they still can't get
the parents to come, he calls the Advice Nurse, or
maybe Aimee calls the Advice Nurse, but at some point
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Todd then talks to the Advice Nurse at Kaiser. And she
says, from what you said, you probably ought to bring
her in.
So they're about ready to go take her to the
hospital themselves, and finally, there's a call from
the -- the plaintiff's house. They hadn't gotten the
messages, but Karellen will confirm that they did get
them, that she just didn't realize it.
But they had called just because one of the
other kids wanted to talk to Qadira. Great timing. It
helped because then they were able to say, yeah, you
need to come, you need to come now. They come. They
take her home. They then decide to take her to the
hospital. They call her mother and she comes, but
meanwhile, they ask my clients to send someone, and
Todd goes and he stays at the house so there's somebody
there so that the mom and dad can both go to the
hospital.
And when they go to the hospital, the -- the
leg looks a little bit gory. It's lost the outer layer
of skin. I think that the only evidence you're going
to hear is going to be from the medical records. I
don't think there's going to be any doctors testifying
live.
But the -- the evidence is going to be
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that -- that they put some cream on it and they sent
her home and then they told her you need to change
these bandages two or three time a day for the first
few days and then a couple times a day for another week
or so. So she misses two ys of school -- I mean, two
weeks of school. Excuse me. And then eventually,
she's back in school again.
Meanwhile, of course, the Odyssey School,
being like other schools, they get get-well cards, and
she gets all of those from all the other little kids.
My client or Todd, my client's husband, and -- and
Sophie go and visit Qadira like on day two or day three
after this occurs. They give her a little doll. They
give her a computer game. She's playing. She's having
fun, well, to the extent you can have fun with a
with - I mean, not -- no one's saying that it didn't
hurt. It clearly did hurt.
What the testimony is going to be, though,
from the deposition of this cute little girl, this
picture you've seen, she's going to talk first about
going to school.
"And so you went back to school, and after
you went back to school, what problems did you have
with any -- if any, with your leg?
"Well, I showed my friends, and they said,
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ew, it's gross."
But then she goes on to say:
"And I'm like it's not that gross. I wasn't
really like embarrassed at all.
"You're not embarrassed?"
These are my questions.
"I was wasn't very embarrassed.
"After you went to school, did you have any
trouble walking?
"No.
"
Well, the deposition's in February. This
incident occurs in April of '07. By February of '08, I
ask her these questions:
"Are you having any pain now at all?
"No, not at all.
"Does it keep you from doing anything at all?
"No.
"Does it bother you at all?
"No."
So that's going to be the testimony of the
little girl vis-a-vis the deposition. You're also
going to hear from Sophie, who was our little girl.
She's going to tell you what she remembers, and you're
going to hear from Aimee and from Todd, and you will
have lots of pictures. And I think the - I think all
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of these here were taken either in in about February
of '08, so we're talking about nine months after the
incident, and we're talking about the inside of her
left leg. That's the area that's left. And you're
going to see pictures of both legs and little scars
here and little scars there that -- from sports or
something, have nothing to do with this incident.
And in fact, you'll have all of these
pictures. I think this one was definitely taken in
February. I'm not sure when this one is. It's kind of
even hard to see it, but what we're talking about is
this area in here.
So anyway, that's what this case is all
about, and we will ask that you reserve judgment 'til
you hear everything and then you make your own decision
about whether this was negligence or not, and if so,
what reasonable damages. Thank you.
THE COURT: Okay. Thank you, Mr. Lachenmeier.
Folks, we are going to go ahead and break for
lunch. I'll have you return to our jury room at 1:30.
If you'll give yourself a little extra time to get
through Security to be in the jury room at 1:30, we'll
start then. If you have anything you need to get out
of the jury room, you can grab that now. Otherwise you
can leave directly from the -
Ex A
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(Audio off.)
(Out of the presence of the jury:)
THE COURT: Ready for the jury? All right. By
silence, we'll take as a yes.
MR. KOCHER: Yes - yes, Your Honor.
THE COURT: All right. We'll bring the jury in.
We do rise for the jury.
THE CLERK: All rise for the jury.
(In the presence of the jury: )
THE COURT: Please be seated. Got everybody?
Great. Welcome back, folks. I hope you enjoyed your
lunch break. We're going to jump right into testimony
now. The plaintiff presents their case first.
First witness for the plaintiff.
MR. KOCHER: Thank you, Your Honor. Plaintiff
calls Aimee -- Aimee McQuiston.
THE COURT: All right. Ms. McQuiston, if you'd
like to step up to the witness stand, and I'll have you
remain standing for just a moment and you will be sworn
in.
AIMEE McQUISTON,
a witness herein and, having been first duly sworn
under oath, was examined and testified as follows:
THE CLERK: Please have a seat. For the record,
will you please state and spell your first and last
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McQuiston - D
name.
THE WITNESS: Aimee, A-i-m-e-e, McQuiston
M-c-Q-u-i-s-t-o-n.
THE CLERK: Thank you.
DIRECT EXAMINATION
BY MR. KOCHER:
Q Good afternoon, Ms. McQuiston.
A Hi.
Q You're Sophie's mother?
A Mm-hmm. Yes.
Q You had Qadira over to your house on
April 12th 2007, is that correct?
A Correct.
Q As of that time, you had read Little House on
the Prairie to your daughter, is that correct?
A In kindergarten.
Q In -- in kindergarten you had done that?
A Right.
Q Okay. And in that book, they don't have hot
water heaters?
A Right.
Q They heat the water with a -- a kettle on the
stove when they need to take a bath?
A I think so.
Q Your house, you have a hot water heater in
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McQuiston - D
the basement?
A Mm-hmm.
Q It's a 72-gallon full-sized hot water heater?
A I'm not sure of the gallon.
Q It's a -
A It's full sized - or I mean, it's full
sized.
Q It's a modern hot water heater?
A Right.
Q As of April 12th, 2007, it was working okay?
A Yes.
Q That night Sophie wanted to show Qadira how
you heat the bath water with water from a teakettle,
correct?
A Mm-hmm. Well -
Q Is that a -- is that a yes?
A Well, they both called from the bathtub, so
I'm not sure whose idea it was. I mean, I don't know
when but yes, that's
Q Sophie wanted to show Qadira how you heat the
water with a teakettle?
A I -- I think so. I was actually in the
living room. I just know that they called from the
bathroom. I mean, I was -
Q Do you remember my taking your deposition in
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McQuiston - 0
this case a few months ago?
A I don't -- well, yeah, I remember
Q
Do you remember me asking you -
MR. LACHENMEIER: Line and page, please.
MR. KOCHER: Page 10.
MR. LACHENMEIER: Okay.
BY MR. KOCHER:
Q
I just want to -- Ms. McQuiston, I just want
to make sure we stay on the same page with
Mr. Lachenmeier, and I -- I need to get another line
here.
MR. KOCHER: Page 10, line 7, Mr. Lachenmeier.
MR. LACHENMEIER: Sorry?
MR. KOCHER: Page 10, line 7.
MR. LACHENMEIER: Thank you.
BY MR. KOCHER:
Q
Ms. McQuiston, do you remember in your
deposition telling me that Sophie wanted to show Qadira
how we heat the bath?
A Yeah. That's (indiscernible) .
Q And you said okay to the idea of heating the
bath with water from a teakettle?
A Right.
- ~ ,
Q Your husband had heated water for Sophie that
way before?
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McQuiston - 0
A We both have.
Q
Generally, was it your husband that did it?
A No. No, actually.
Q
Your husband helped to heat the teakettle?
A Correct.
Q And it was on a gas stove?
A Correct.
Q
At that point, the girls were naked in the
bathroom?
A They were
--
they were in the bathtub.
Q Were they naked?
A Yes.
Q The bathroom door was open?
A Are we talking about when I brought it in?
Q When you
-- when you took it in, you -- was
the bathroom door open when you took it in there?
A I don't recall, actually.
Q You left it open behind you when you went in?
A It was about halfway open, I'd say.
Q Far enough open that somebody passing in the
hallway could see in?
A Correct.
Q
When you were doing that, your husband was
around on the same floor of your house?
A Right.
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- -------- - - -
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McQuiston - 0
Q
He was in the kitchen?
A He was
Q
I'm sorry, was that a yes?
A Well, I'm not sure. He was in the kitchen
when I left with the teapot, so
MR. KOCHER: Can we have 18, Mr. Shoen?
BY MR. KOCHER:
Q Ms. McQuiston, can you identify this as a
rough diagram of the first floor of your home?
A Yeah.
Q That's the bathroom and the tub in the
middle?
A Yes.
Q
And along the top wall, there's a little
circle there that's the toilet?
A Right.
Q To the left of that's the bathtub?
A Right.
Q And then it's the kitchen is the large open
space on the left side of that diagram, correct?
A Right, but, you know, there's a little
hallway.
Q
There's a hallway between the kitchen -
A Yeah.
Q -- and the bathroom?
- ~ - - ~ - - - - - ~ ~ - - - ~ - - - - ~ - ~ ~ - - - - ~ - - ~ - - ~
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McQuiston - D
A Right.
Q Okay. When the girls were bathing, your
husband knew they were bathing, correct?
A Yes.
Q
And he knew that they were naked in the
bathroom together?
A Yes.
Q
When you took the kettle into the bathroom,
you knew that it was hot enough to scald?
A Yes.
Q You didn't think -- at that point, you
didn't on the stove?
A Yes.
Q When you took the kettle into the bathroom,
you made the girls get out of the tub, correct?
A Correct.
Q The tub is about five feet long?
A Yeah. I mean, I have a -- I'm not very good
at heights, but - so I don't know.
Q We have a larger diagram. Can you say that
this is a diagram that it's a little bit better to
scale than the small one we have up there in terms of
the layout of your bathroom?
A Yeah. I mean, this one might be a little
larger than the other one is, yeah.
That's -
- ~ - - ~ - ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ - ~ - - ~ - - - -
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McQuiston -0
Q Pretty close?
A Yeah.
Q When you took the kettle in and started
pouring the water, you were standing right about here,
correct?
A Correct.
Q Is that M I put on there just about right -
A Yeah.
Q in terms of where you were standing?
A In the middle.
Q And your daughter Sophie was in this area
here?
A Right.
Q Is that a pretty good identification of where
Sophie was?
A Yeah, she was more against the wall
(indiscernible).
Q A little bit closer that way?
A Mm-hmm.
Q And Qadira was to your left?
A She was (indiscernible) .
Q If I put a Q there, would that be the right
spot for Qadira?
------......
A I think close enough, yeah.
Q This is about five feet from here to here, a
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McQuiston - 0
regular tub length?
A Yeah, full tub.
Q And as you poured the water, you had the
teakettle in your right hand, correct?
A Mm-hmm.
Q That would be the hand a little more out this
way?
A Yeah.
Q So your left hand 1S down here?
A Yeah.
Q And at some point, you heard your husband
approaching, correct?
A I heard his voice.
Q
And at some point, he appeared in the
doorway?
A Yes.
Q That was as you were pouring water?
A I was pouring the water.
Q And you could see that Qadira was getting
nervous about your husband approaching, correct?
A Yeah. Well, I -- that's what I assumed at
the time.
Q She became agitated?
A A little.
Q And as your husband approached, you gestured
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to shoo him away, correct?
A Well, correct. It happened very fast, I
mean. I heard his voice.
Q Well, I'll do it step by step if we can.
A Okay.
Q I understand. When you saw your husband ln
the doorway, you gestured at him to shoo him away,
correct?
A I actually think I said that before as I
turned.
Q You gestured at him before you saw him?
A I said, Todd, go away, because I saw that
Qadira was kind of moving a little bit -- or not
moving, but, you know, just doing this.
Q You saw your husband appear in the doorway?
A I don't know if I even -- I don't know if I
saw him, actually. I just was going, Todd, go away,
maybe for a second before I -- I mean, he -- he only
glanced in, as far as I know.
Q Do you remember Todd yelling about the beds?
A Yes.
Q Do you remember telling me in your deposition
at 11, line 17, you remember looking over at Todd or
towards the doorway, you mentioned he shouldn't corne in
here?
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McQuiston - D
A Right. I was looking -- yeah
(indiscernible) .
Q So as you were pouring the water, you were
looking towards the doorway, correct?
A Yeah, but not the whole time, just, you know,
(indiscernible) second.
Q Okay. And that happened to be the brief
second that Qadira somehow got into contact with the
water?
A Correct.
Q The water that you were pouring from the
kettle?
A Right.
Q You were pouring that water from a -- from
the kettle in a standing position, correct?
A Correct.
Q Would that be fair to say that you were
holding the kettle about a comfortable height out from
your
A Right.
Q -- torso?
A Mm-hmm.
Q
As you were doing these things, you also
pointed out a towel to Qadira, correct?
A Mm-hmm.
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Q
So that she could maybe cover up so that Todd
wouldn't see her?
A Right.
Q Did - did Qadira have a towel there or was
it somebody else's towel?
A I don't I don't remember because the girls
kind of walked in on their own, so - as far as
(indiscernible) .
Q I'm sorry, I don't
A I'm not sure whose it was. There was just a
towel hanging.
Q How did you know your husband had poured hot
water from a kettle around Qadira before, correct
(sic)?
A Do I know that?
Q Had you ever poured hot water around Qadira
before?
A Oh, not that I can (indiscernible).
Q
Are you aware of your husband ever pouring
hot water around Qadira before?
A I couldn't remember that, no.
Q Your testimony is that when Qadira contacted
the water it happened so fast you didn't see it?
A Correct.
Q What did Qadira do when the water hit her
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McQuiston - D
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leg?
A She -- she was silent and then I think
started crying and, you know, holding her leg or
(indiscernible).
Q You got cold water from the tap onto her leg,
correct?
A Right.
Q
So at that point, you called your husband to
come back in?
A Yeah.
Q And you and he helped her with her burn?
A He took over. He has a lot of knowledge
and something (indiscernible) so I mean, that's why
called him.
Q
I want to start with exactly where I started
with my question.
MR. KOCHER: Just before that,
IBMs. ( indis c ern i b 1 e), i f wee0 u 1 d h a v e '1 9 . I want to
19 give the jury a little better picture of that.
20 BY MR. KOCHER:
21 Q
Ms. McQuiston, is this a picture of your
22 bathroom looking in from the doorway?
23 A Yes.
24 Q
So if you could, could you step down from the
25 box and point for the jury, show them where Sophie was
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standing.
A She was (indiscernible).
Q So it was that corner responds
to -- corresponds to this spot on the diagram here and
you were standing in the middle of the tub area where
it's
A Right.
Q it's sort of a (indiscernible) spot on the
floor there?
A Right.
Q Okay. And the girls had just stepped out of
the bath so they were making puddles of water on the
floor?
A Yeah.
Q
And Qadira was -- was just to your left so
she would have been right next to that bright yellow
wall next to the nk?
A No, no. She was actually right here
(indiscernible).
Q
I am -- I'm sorry. I'm looking at the Q
here.
A She wasn't right here.
Q
Okay. So she was a little farther out from
the wall?
A Right. She was (indiscernible). She was
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kind of to my left (indiscernible)
Q Can you say that you could have - you may
take a seat.
A Oh. Thank you.
Q (Indiscernible. ) . Can you say that you could
have made it safer for Qadira on April 12th?
A No. I think Qadira (indiscernible).
Q You could have said no to bathing -- bathing
with water heated on the stove?
A I guess I could have.
Q And you could have closed the bathroom door
for a little more privacy for the girls?
A I -- I could have, yes.
Q You could have had the girls put on towels or
robes before you poured the hot water?
A They seemed okay with it. They were both
giggling and having a good time (indiscernible).
Q And even in that small bathroom, you could
have gotten Qadira farther away from where you were
pouring?
A I think next to the wall, the opposite wall
1S (indiscernible) .
Q She was within your arm's length as you were
pouring water, correct?
A She was next to me.
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" . - ~ ,
Q She was next to you?
A Well, a little behind.
Q She was within an arm's length, one of your
arm's length of where you were pouring?
A Right.
Q
You could have held the kettle down by water
level instead of making a stream through the air,
correct?
A (Indiscernible. )
Q Thinking about how it happened, can you say
that you were being at all careless?
A No. I got - grabbed - I got them both out
of the bathtub, I mean.
Q
Do you take any responsibility for what
happened to Qadira that night?
A I feel real terrible. I mean, I feel awful
that she was hurt and it was very upsetting at the
time, you know, and I I couldn't have imagined that
she would jump in, so I felt like I did everything I
could have, and safely. You know, I never even thought
of to get down on my knees and pour the water
(indiscernible).
Q And based on those thoughts, is it your
testimony here that you do not take responsibility for
what happened to her?
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McQuiston X
A (Indiscernible.)
MR. KOCHER: Thank you.
MR. LACHENMEIER: You know, I'm going to ask -
THE COURT: All right. Cross.
MR. LACHENMEIER: - some questions.
THE WITNESS: Oh.
CROSS EXAMINATION
BY MR. LACHENMEIER:
Q Ms. McQuiston, so the record is clear, you
didn't pour this water on this child on purpose, did
you?
A No.
Q
And you had no idea she was going to jump in
front of you, did you?
A No, I didn't.
Q You feel terrible that it happened?
A Mm-hmm. I was very upset, very upset.
Q But you don't think you're negligent, do you?
A No.
Q Tell us a little bit about your background
I'm not supposed to ask a lady how old you are, but
you're young enough I'm going to do it anyway. How old
are you?
A 37.
Q And how many kids do you have?
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A Two.
Q And what are their names?
A Glenn and Sophie.
Q And the older one is how old?
A 16. 16.
Q Where did you grow up?
A Pretty much here. When I was eight, we moved
here from California.
Q And where did you go to school in in this
area?
A I went to Capitol Hill, Markham and Wilson
High School, Southwest Portland.
Q
All in Southwest Portland?
A Mm-hmm.
Q And you live in Maplewood, right?
A Correct.
Q And can you tell folks where that is?
A It's near Multnomah Village area, just past
it.
Q When you take the freeway exit off of 1-5 and
you go out Multnomah Boulevard, you get to 45th?
A Mm-hmm.
Q Is it that 45-degree angle area?
A Right. It's between it's between Garden
Home and -- and Maplewood.
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Q
Is this the teapot?
A Mm-hmm.
Q
And do you make tea in it regularly?
A Yes.
Q
You did before and you do now, right?
A (No audible response.)
Q
It's got a little whistle
A Right.
Q
-- for when it gets hot?
A Right.
Q
This time it didn't actually get to the
whistling, right, because Todd checked it and decided
it was hot enough?
A Right.
Q
Tell us a little bit about Sophie's and
Qadira's school. What kind of school is it?
A It's a -- it's a Focus Option in Portland
Public Schools.
Q Do they teach history?
A They -- they -- well, they take on historical
identities to -- to learn all the subjects.
Q Did they teach about the Old West and the
Indians?
A With the Indians, yeah.
Q
The Indian cultures?
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A Mm-hmm.
Q And the year of this incident, which would
have been last year - I mean, we're now clear through
the next school year, but it was in '07, right?
A Right.
Q In the end was there some performances in
school?
A Yes, there's always a year -- there's a
year-end performance that they practice for.
Q And did Sophie perform?
A Yes.
Q And did Qadira perform?
A Yes.
Q Now, do you volunteer at the school?
A Yes, every -- every week that we
Q So after Qadira was back, did you see her on
a regular basis?
A Mm-hmm, every Monday (indiscernible) .
Q And was she nice to you?
A Very nice.
Q And were you nice to her?
A Yeah.
Q And did you see any changes in her behavior
at all?
A No. She participated and danced and -
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Q Just as cute as ever?
A Mm-hmm. Very nice.
MR. LACHENMEIER: This is in evidence, is it?
Fine. Yeah. Okay.
BY MR. LACHENMEIER:
Q Who's in this picture?
A That is Sophie and Qadira and a little girl
named Jessica, and that was actually (indiscernible).
Q Okay. The -- the two little girls were good
buddies for quite a long time?
A Since kindergarten.
Q How many times did Qadira stay at your house
roughly before this incident?
A That's hard to say. Roughly? Do you mean
sleep-overs or -
Q What's that?
A Sleep-overs or
Q Well, sleep-overs, overnighters. Let's say
Karellen said five or six. Does that seem accurate?
A No. No.
Q More?
A More, mm-hmm
Q How many?
A I'd definitely say double that, at least
(indiscernible) .
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UNIDENTIFIED SPEAKER: What did she say? How
many times did she say?
THE WITNESS: Double, five (indiscernible).
THE COURT: I'm going to ask you to try to keep
your voice up a little higher. I know it's hard, but
if you speak directly into the microphone, it will -
it will amplify your voice to a degree.
THE WITNESS: Oh, okay.
BY MR. LACHENMEIER:
Q And I'll make it easier. I'll try to move
over here, so when you're looking at me, you're at
least projecting in the right direction.
How did this come about that she was sleeping
that night? Do you have -- do you have any
recollection of that now?
A Yes. Well, I don't remember when we planned
it. I know Qadira wanted to see our new kitten, and so
the not that she needed a reason, but that was
the that's what the girls planned (indiscernible)
Q So about what time did she come over?
A It was about four.
Q And how did she get there?
A Karellen dropped her off, as far as I know.
Karellen called me and told me that they were running
late, so I assumed that Karellen dropped her off.
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Q Not an important enough detail to remember at
this point one way or another?
A Right, and I was upstairs working, actually.
Q Are you a little nervous?
A Ye s, very.
Q It helps things so much. Now, tell us
about well, why don't we just demonstrate it. Why
don't you get down and just show us once and for all
how this incident occurred. Take the let's pretend
that the bathtub is right up -- right here. We'll just
put it right in front of this -- it you'll take the -
the teapot. Now, the girls have called for more water,
right?
A They just called for water.
Q Is that about the right size, more or less?
A Of the bathtub?
Q Yeah. We're getting close?
A No, it's probably bigger (indiscernible).
Q
Okay. A little bigger? Like that?
A Yeah.
Q All right. Now, they call for it and you
come in with teakettle.
A Mm-hmm.
Q
And you're oriented because the bathroom's
going -- the toilet's going to be over here now, right?
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A Right, mm-hmm.
Q
Okay. So you tell the girls to get out of
the tub.
A Mm-hmm.
Q
Stand in front of the tub and show us where
they were.
A Sophie was over here and Qadira was right
here.
Q
And where's the towel rack?
A The towel rack's right next to Qadira.
Q
Okay. So at some point you said she got
agitated.
A Yes.
Q
And you told her here's a towel.
A I said -- yeah. I said there's a towel right
here (indiscernible).
Q
And meanwhile, Todd's coming down the hallway
from the kitchen, right?
A Right. Yeah.
Q Are you oriented correctly?
A But he's
Q Oh, he would be over there where the Judge
is, wouldn't he?
A Yeah. Right.
Q
He'd be come -- coming by this way. And are
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there two doors here, one for each of your daughter's
bedrooms?
A Right.
Q
Okay. And what was he saying? Was he saying
anything about where do you want to sleep?
A He was asking where the girls wanted to
make where the -
Q
You have to tell them. I know the story.
A He was asking where the girls wanted to
sleep, where where we should put the bed.
Q Okay.
A Yeah.
Q
And was he using a loud voice?
A Well, yeah, because he didn't know
Q
Just loud enough so they could kind of yell
back and forth down the hall?
A He's yelling through the door, yeah.
Q
Okay. So the two doors he's going to, he's
going to get a bed from one room or a bed from the
other, right?
A Right.
Q Or right next to the bathroom?
A Well, yeah. In fact, Sophie's -- Sophie's
room is straight. If you walked down the hall, you
would walk right into the room.
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Q From the kitchen?
A From the kitchen.
Q Yeah. Let's see. Is that one on one of
these things?
A So Sophie's room is right here and he's
coming (indiscernible).
Q And your other daughter's door is right next
to it, isn't it?
A Right.
Q And then this (indiscernbile) takes you over
to the living room?
A Correct.
Q So he's going to get a bed and go to the
living room, right?
A Right.
Q Okay. So he's calling out and you're doing
what?
A I'm pouring (indiscernible).
Q All right. How long does it take to empty
that thing, any idea?
A (Indiscernible. )
Q It was pretty full?
A Very full.
Q Okay. So tell us in your own words how it
happens start to finish. You start pouring.
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A I start pouring. I can't -- Todd was talking
or yelling -
Q Mm-hmm.
A (indiscernible) about that, and Qadira was
kind of -- I don't know. (Indiscernible) . And I -- I
shooed Todd away and I told Qadira to grab a towel, and
then at some point -- I think I was looking this way.
I just turned around and Qadira was in the bathtub.
Q Okay.
A And
Q And then you immediately stopped pouring
A Yes.
Q
--
and you turned the faucet on over here and
put cold water on her, right?
A Right.
Q Okay. Take the stand again, please.
Qadira didn't immediately cry out, did she?
A No.
Q And meanwhile, your husband goes down the
hall
A Mm-hmm.
Q
--
into the living room, right?
A Right.
Q Being shoed away?
A Right.
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Q So then you're running water and you're
splashing it on her?
A Uh-huh.
Q Cold water as fast as you could?
A Right.
Q And then you called for him?
A I called for him.
Q Okay. Then what happens?
A Todd came in, and he
--
he put a robe on her,
and I think he just started oh, he told me to get
some ice, and he took her into the living room.
Q Okay. And you got some ice?
A Yes, at that point.
Q And the area that we're talking about is the
left
A Leg.
Q -- knee.
A Knee.
A Right above the left knee, correct?
A Right. Correct.
Q All right. Then what do you do?
A I got the ice. I was just helping Todd. At
that point he was -
Q
Specifically, did you call her mom and dad?
A Yes, I called. I called.
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Q Right away?
A Right away.
Q Did you leave a message?
A Yes, I left a message.
Q They didn't answer the phone?
A They didn't answer their phone.
Q Did you call again?
A Yes.
Q No answer?
A No. I mean, that was
-
Q Did you call
A that was my job at the time, was trying to
get ahold of her. I mean, I meaning I called over
and over.
Q
So how many times do you think you called?
A It's hard to say. At least, I don't know,
three, four, five.
Q
It's all kind of a blur?
A Ye s. Yeah.
Q
In fact, the whole incident, did it all
happen really fast?
A Very fast, within seconds is all.
Q
And that's kind of a blur, too?
A Yeah.
Q Okay. So when you can't get the parents,
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Todd's got Qadira?
A Yes.
Q Okay. Does he at some point take her
downstairs -
A Yes, he carried her -
Q -- with Sophie?
A Yeah.
Q He carried her down?
A He carried her down, and
--
and he elevated
her feet for shock and -- just in case, put on a movie.
Q And the reason they went down there is
because that's where t TV is, right?
A That's where our family room is,
Q And he's trying to calm her down?
A Right.
Q Okay. So then what happens? They still
don't come -
A Right.
Q -- right?
A Oh, we called Kaiser.
Q Kaiser Advice Nurse?
A Advice Nurse.
Q Now, did you call or did he call, or do you
remember?
A I think I called. I remember calling, but I
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McQuiston - X
probably put him on the phone to talk to them.
Q And the reason for calling the Advice Nurse?
A Was to make sure we were doing everything
right and see what we should do.
Q
Did they tell you about ice and -
A Ice, yeah, and I think we were doing
everything that they told us to do.
Q And that was the right thing to do?
A Mm-hmm.
Q Okay. Then what happens?
A We were kind of getting ready to take her
or the Advice Nurse told us to just bring her in
without seeing her, they should - that we should come
in just in case.
Q You get ready to do that?
A Yeah, so we kind of start the process and
Q Were you concerned about whether you'd be
able to do that since you weren't her parents?
A No, actually, I didn't even think of that.
Q Okay. You were just going to do it?
A Just taking - yeah, just -
Q Okay. So then what happens?
A Karellen calls, and one
- one of her - I
think one of her children wanted to talk to Qadira and
say good night, so she called.
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Q
So it was lucky.
A Yeah, it was very lucky.
Q
Did you ask her, "Didn't you get my
messages?"
A Yeah, I did.
Q
And what did she say?
A No, she didn't.
Q
So she then comes over.
A Mm-hmm.
Q
Meanwhile, was there frozen peas being used?
A Yeah, we switched it to frozen peas.
Q
Why frozen peas?
A I don't remember if the Advice Nurse told us
or if Todd thought that was better, I don't know.
Q
Gets closer the more -
A I think it's the -- because they move around
more than the ice
Q Okay.
A that's it's better (indiscernible) .
Q So when Karellen gets there, did you
-
well,
what did you say and what did she say?
A I
-
let's see. I was
-
I was just very
upset.
Q
Was she?
A No. No, she wasn't.
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A We took her downstairs and she asked what
happened. She asked Qadira what happened, and Qadira
told her. And I said -- added something about how
thought it happened, and no, she didn't seem upset at
all. I think, in fact -
Q
Did she use tne phrase "accident happens"
(sic)?
A Mm-hmm. Right.
Q So then she leaves?
A Yes.
Q With Qadira, of course?
A Yes.
Q And do you know whether she went straight to
the hospital or she went home?
A She went home.
Q And you know that because why?
A Because they called us a little while later
and asked if one of us would come over and take care of
the other children so that we could -- so that they
could, the parents, could take Qadira to the hospital.
Q
So who went?
A Todd.
Q And were you kind of upset at that point?
A I was very upset, yeah.
Q And he was sort of in control?
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A He was yes, he's very (indiscernible)
Q Okay. So then he's gone for a while.
Eventually -
A He comes back.
Q he comes home.
A Mm-hmm.
Q And then in a day or two or three days later
he and Sophie go to visit?
A Yes.
Q Okay. And were you as a family being kept up
as to the condition of Qadira?
A Yes.
Q And after about two weeks, did Qadira come
back to school?
A Yes, about two weeks.
Q And have you seen her many times since then
at school?
A Oh, many times, yeah.
Q Have you seen the -- her wear shorts or short
skirts?
A I've seen her wear a short skirt at a parade.
Q Did she participate on that powwow trip this
year?
A Oh, the -- the field study thing. Yeah.
It's in Yakima.
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McQuiston - X
Q She actually went with her dad, didn't she?
A Mm-hmm.
Q And Sophie went with her dad, didn't he -
A Mm-hmm.
Q -- didn't she?
A Yeah.
Q Okay. But there were moms there, too, right?
A Oh, yeah, yeah.
Q And that was how many days?
A I think it was three, three - three days or
three nights, three nights, I think.
Q After she got back to school, were you aware
of anything she couldn't do because of this burn?
A Not that I noticed, no. No, I no.
Q I think you already indicated, you didn't
notice any changes in her at all?
A No, not towards me, no, no.
Q Now, she doesn't come to your house anymore,
is that right?
A Correct.
Q Is that because you won't let her?
A No.
Q Okay. Have you seen Qadira at somebody
else's birthday party?
A I haven't, but I know Todd took her to a
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birthday party at Qadira was at.
Q Took Sophie to one - one that she was also
at?
A Right.
Q Okay. From your perceptions as a mom and,
obviously, not the mother of Qadira, but from your
perceptions at school, Qadira seem like a happy child?
A Yeah. Yeah, she does. Yeah.
MR. LACHENMEIER: You might have to wait to see
if there's any cross.
THE WITNESS: Oh. I didn't know that.
THE COURT: All right. Any redirect?
REDIRECT EXAMINATION
BY MR. KOCHER:
Q Ms. McQuiston, you live maybe six blocks -
they're not real blocks, but about the equivalent of
about six blocks from the Stephens family?
A Yeah, because there's one long
(indiscernible) .
Q Their house could be on the way to the
Providence-St. Vincent Hospital if you wanted to take
somebody there?
A I wouldn't have gone there, no.
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McQuiston - ReD
Q
I'm sorry?
A I wouldn't have gone there.
Q
You wouldn't have gone to Providence?
A No, I'm - I'm sure we would have gone to
Kaiser.
Q
The Stephens' house is is on the way to
Providence-St. Vincent Hospital?
A I don't know.
Q
It's to the north and west of your house?
A Well, it depends on which way you go. That
would be going through the neighborhood, actually.
Q The Stephens' house is to the north and west
of your house?
A I don't know. I don't know (indiscernible) .
Q You're not a directions person?
A No, not at all.
Q Okay. It's close by?
A It's -- well, no, it's not down the street.
It's
Q Maybe six or eight blocks?
A Yeah.
Q A couple minutes' driving?
A Oh, yeah.
Q Do you feel that somehow it took too long for
Qadira to get to the hospital on April 12th?
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A Took too long?
Q That it somehow it took too long for her to
get there, that that's something that happened that
night, that it just took too long?
A Oh, you mean later? What do you mean?
Q Well, there's been some suggestion that you
called and called and called and somehow the family was
nonresponsive, and I want to address that issue by
asking you this question.
There was nothing preventing you from taking
Qadira straight to the hospital or to the - to get
medical attention yourselves if you felt like you
weren't getting an answer on on your voice mail, is
that correct?
A Right, which is what we decided.
Q Ultimately, at some point you thought, well,
since they're not calling back, they're not getting our
message, whatever it is, maybe it's about time we take
Qadira ourselves?
A Yeah. Well, that was after we talked to the
nurse, Kaiser nurse.
Q The Advice Nurse, based on what your husband
told you, was sort of a bring her in just in case sort
of message from the Advice Nurse?
A Yeah, and I -- yeah. I think they're not
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McQuiston - ReD
allowed to even say (indiscernible), I don't know, but
yeah.
Q If somebody doesn't need to come in at all,
they don't -- they don't -- they can't even say that?
A I think they can't -- I'm not sure. I know
one of them told me something similar when I had
something else, but - but yeah.
Q The message from the -
A She said -
Q -- Advice Nurse was - I'm sorry, go ahead.
A Yeah, she said just just bring her in
because we -- I don't know what it looks and just it's
the best, yeah.
Q The message from the Advice Nurse was not
particularly alarming; it was just precautionary?
A Precautionary (indiscernible).
Q That's how you understood the situation -at
that time?
A Yeah.
Q You had seen the burn at that point in time?
A Yeah. Yeah.
MR. KOCHER: That's all I have.
THE COURT: Okay. Thank you. You can step down.
All right. Next witness for the plaintiff.
MR. KOCHER: Plaintiff calls Karellen Stephens.
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K. Stephens - D
THE COURT: Ms. Stephens, if you'd like to step
up to the witness and remain standing for just a
moment.
KARELLEN STEPHENS,
THE CLERK: Thank you. Please take a seat. For
the record, please state and spell your first and last
name.
THE WITNESS: Karellen Stephens, and that's
K-a-r-e-l-l-e-n S-t-e-p-h-e-n-s.
DIRECT EXAMINATION
BY MR. KOCHER:
Q Ms. Stephens, I'm going to ask you to try to
speak up a little more.
A Is this thing on? No.
Q The mic's not on, so if you just speak in a
loud
A No. Oh, okay. I don't know what you're
talking about.
Q So if you just speak in a loud voice, pretend
you're talking to me even though the jury's really
THE COURT: Let's try to get the
Q -- the ones who are listening -
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K. Stephens - D
A Okay.
Q -- we should be fine.
THE COURT: Can you test that, Paul?
THE CLERK: The mic's (inidiscernible).
BY MR. KOCHER:
Q The microphone's on, it just won't make you
any louder.
A Okay.
Q How long have you lived in Portland?
A My entire life.
Q In fact, you lived in that neighborhood for
quite a large part of your life, correct?
A I -- yes.
Q You understand that you are the guardian ad
litem for your daughter in this case?
A Yes.
Q That means that you're responsible for making
sure that the claim is handled properly?
A Yes.
Q And do you understand that if there is a
verdict in this case, that verdict funds are put in a
protected account for your daughter?
A Yes.
Q That you have no interest in those funds?
A Yes.
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K. Stephens - 0
Q
Qadira is not coming to court for this case,
correct?
A No, she is not.
Q Did you participate in that decision not to
have her come?
A Yes, I did.
Q Are you supportive of that decision?
A Yes, I am.
Q Does she know that she has a case in court?
A Yes, she does.
Q Does she understand what it's really about,
or is she old enough?
A She is not old enough. She -- she
understands it's about her burn, but I think that
specifics can be saved for later (indiscernible).
Q Qadira is a good kid?
A Yes.
Q She does well in school?
A Yes, she does.
Q And you know Sophie, correct?
A Yes, I do.
Q Sophie's also a good kid?
A Yes, she is.
, ~ ,
Q Do you recall on April 12th, 2007, when your
daughter went over to the Stephen's (sic) house,
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K. Stephens - D
whether she had already taken a bath or a shower or
something like that that day?
A She had a shower before she went there.
Q When you first found out that your daughter
had been burned, did you go straight over to their
house?
A Yes, I did.
Q There's been some testimony about some voice
messages that were left on your machine. Do you recall
what you were doing that evening when those messages
might have come in?
A Actually, we were having a presentation from
a Sears window representative. That's it.
Q Do you recall hearing more than one or two
calls coming in or do you recall hearing any calls come
in at all?
A When I checked
--
I didn't hear any calls
come in, but when I checked my voice mail later, there
was one hangup and one message.
Q When you got to the McQuiston house, did you
see your daughter?
A Ye s, I did.
Q What did you see?
A Her face was swollen from crying. She was in
a
- in their basement in a robe. She was naked - I
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mean, under her robe, just -- just a robe, and she was
in the basement and she was very, very, very upset.
Q And as this in this case you've learned
some facts about what happened. At that time when you
were at the McQuiston house, did you learn exactly how
the burn happened?
Q At that time when you were there.
A I don't remember. I don't think so.
Q What did you do when you saw your daughter in
the basement?
A I I went to her immediately. She reached
out to me. She said, Mommy, I got a burn. And she
started crying really, really hard. And I went to her
and I looked, and I was -- I said, oh, my God, because
the skin was off of her leg. And I remember Todd
coming in and saying I was just going to put some aloe
vera on it and kind of -- and I just kind of remember
brushing his hand away and I just picked her up, and
just left pretty much. I just said, I'm going to take
her out of here.
Q Did she walk up the basement stairs to get
out of the house?
A No, she did not.
Q How did she get up the stairs?
I
Ex A
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A I carried her (indiscernible).
Q You carried her to your car?
A Yes, I did.
Q And when you had her in your car, where did
you go?
A I went straight home.
Q And at some point, you made a decision that
she needed to be at the hospital, correct?
A Yes.
Q When did you appreciate that her injury
required medical attention?
A Within minutes. I -- I brought her into the
house. I called my mom and I said, the skin is off of
her leg. And my mom said, I'm coming,
and - and and I said, okay, we're going to the
hospital.
And - and that -- that was when I called the
Mcquistons back, and I asked him something kind of -
we have three other children and Qadira was starting to
shake and - and she was crying uncontrollably and I
wanted somebody to stay with her in the back as we
drove to the hospital.
Q So both you and your husband wanted to go and
take her to the emergency room?
A Yes.
Ex A
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Q Was it -- do I understand correctly that
your that the McQuistons were closer, they could get
there faster than your mother could come and watch -
A Yeah, my mom -- my mom lived my mom lives
in Tigard and it was going to take her at least ten to
fifteen minutes to get over and they lived just a
minute away, so
Q When you took her to the emergency room, what
happened?
A We brought her in. They didn't -- they
didn't even check her in. They took her right back
because of the severity of the burn on her leg, which
she was was kind of going into shock, she was starting
to shake, and they took her right back and they treated
her immediately, gave her a pain medication and wrapped
her leg properly, all that.
Q
When she left the emergency room, she had a
bandage on her leg?
A Yes, she did.
Q The bandage was from above the knee from
below, above the calf?
A Yes.
Q Did the emergency room give you instructions
for what you need -- needed to to do about her burn to
take care of it?
Ex A
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A I needed to well, we - we went - very -
the instructions were to see her doctor the very next
day.
Q
Did you do that?
A They -
Q
I 'm sorry, go ahead.
A Yes.
Q You did see her doctor the next day?
A Yes.
Q
And either at the emergency room or the next
day when you saw her doctor, did you get instructions
for caring for the wound?
A Yes.
Q What were those instructions, generally?
A It had to be cleaned and re-bandaged at least
twice a day, but it turned out being more than that.
The bandage would come down, you know, the
band- -- it's hard to keep it wrapped because it's on a
joint, and it couldn't sustain any infection, and that
was the reason why it had -- it -- you have to take a
lot of care changing the bandages. It took at
least -- at least 40 minutes to do a bandage change
because, you know, you had to do gloves and you had to
make sure the area was very sterile. And because
they -- because it was so open, it couldn't -- she
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couldn't sustain an infection.
MR. KOCHER: Your Honor, may I approach?
THE COURT: Yes. You don't need to ask.
MR. KOCHER: Thank you. Counsel, are you going
to use that thing? Because if -- if not, I'd like it
out of the way so I can see your witness from those -
the the
MR. LACHENMEIER: We're done with these.
THE COURT: Okay.
MR. KOCHER: Mr. Shoen.
MR. KOCHER: You're welcome.
THE COURT: These are already in evidence, I
assume.
MR. KOCHER: Yes.
THE COURT: Okay. So you don't need to lay a
foundation.
BY MR. KOCHER:
Q Ms. Stephens, I've placed on the wi tness
stand there I just want you to help us understand
what these are these are Exhibits 2 through 6, and
if you could look at them briefly. Do you see that
there's a date or a month and a year, like 4/07
written
Ex A
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A Yes.
Q -- next to the exhibit label?
A This is 4/07.
Q Did you help mark those earlier?
A Yes.
Q And do those show the month and the year that
the photos were taken that were in the folder?
A Yes.
Q And are the photos that. are in those
folders - well, starting with the first exhibits, 2
and 2-A and 3 -- you don't need to look at them -
A Okay.
Q -- but can you say those are fair and
accurate representations of -
THE COURT: If -- they're already in evidence.
You -- you don't need to lay that foundation.
MR. KOCHER: Okay.
BY MR. KOCHER:
Q But those are pictures of your daughter's
leg?
A Yes.
Q And that's how it looked?
A Yes.
Q Okay. And the jury will have a chance to
look at them later. It's fair to say that your
Ex A
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daughter's injury did get much better. It started out
looking pretty bad
A Yeah.
Q -- and it got better over a number of weeks?
A Yes.
Q How many weeks did you have to do the bandage
changes on your daughter's leg?
A Two, two weeks. Two to two and a half weeks.
Q And how many times a day during that time
period?
A Three to four, at least.
Q
And it was more sometimes because it's -- it
was a -- a joint and the bandage would shift, is that
what you
A If she got up to use the restroom or when she
moved around, the bandage fell down. Because of the
concern of infection, we have to remove the wrap, yes.
Q
Was she on crutches for some of that period
of time?
A Yes.
Q How much?
A The first week.
Q During that time, did she need help getting
to the bathroom?
A Yes.
Ex A
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Q Did you help her do that?
A Yes.
Q Who did the bandage changes, you or your
husband?
A We both did.
Q When you did bandage changes, how did Qadira
do during the bandage changes?
A They were very -- they were very, very
painful.
Q Why were they painful?
A Just having to clean the wound, having to -
just touching it at all, moving the -- moving the leg
around was very painful. And rolling the bandages off,
sometimes they would get stuck because there was no
skin on her leg. And she would cry sometimes
(indiscernible). It was horrible. You know, it was
horrible.
Q There were painkillers prescribed at the
emergency room, correct?
A Yes.
Q Did they prescribe a painkiller that was
uncomfortable for her to take?
A Yes.
Q What was that?
A Tylenol with codeine.
Ex A
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Q How did it make her feel?
A It just made her really, really out of it.
She didn't -- she just - she -- she didn't like that
particular painkiller.
Q You mentioned a doctor visit on April 13th.
Were there other doctor visits that Qadira had to go to
because of her burn?
A Yes.
Q Do you recall -- do you recall exactly how
many?
A No, I don't.
Q Can you estimate?
A (Indiscernible.)
MR. LACHENMEIER: I'm sorry, I can't hear you,
ma'am.
THE WITNESS: Several. I can't remember, two or
three or four.
BY MR. KOCHER:
Q During the time that you were helping your
daughter in the weeks after her burn, did you have
another child who was sick?
A Yes, I did.
Q And your husband was working full time?
A Yes, he was.
Q And you were working weekends?
Ex A
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K. Stephens - D
A Yes, I was.
Q Were you able to make sure that her burn, at
least when you were caring for your daughter, that all
of the medical providers, all of the doctor's
instructions were followed to take care of her burn?
A Yes.
Q Once your daughter was well enough to be up
and about, did she have to take certain precautions
with her leg?
A Yes.
Q What were those?
A She had to make sure that it was lotioned,
just to keep it lubricated and then also the sun block,
(indiscernible) sun block, the doctor really stressed
that a burn cannot be re-burned because that would
cause more injury and more discoloration and all kinds
of other problems. It -- it -- needless to say, it
didn't happen because we were constantly sun blocking
the burn and keeping it covered.
Q At first, were you putting lotion on her leg?
A Yes.
Q
And were you putting sun block when she
needed it, when she was out -- able to get out in the
sun?
A Yes.
- - - - - - - - - - ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ~ - - -
Ex A
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Q At some point, did she become able to do
those things
A Yes.
Q
-- mostly on her own?
A Yes.
A I mean, with a lot of -- she needed -- she
needs to be reminded. I mean -
Q Do you remind your daught-
A she still needs to be reminded, yes.
Q
That was my -- does she still use sun block
and lotion to take care of her scar?
A Yes.
Q Do you ever talk to your daughter about her
burn?
A I do try to, yes.
Q Sometimes does she not want to talk about it?
A Yes. She doesn't like to talk about it.
Q Based on your observations as a mother, can
you tell the jury anything about what the burn means to
her, how she feels about it?
A I think that -- that it's really difficult
because I think that she has this belief that sometime
it might it's going to go away some day, and it's
definitely -- it's there. The scar is there.
It's - from what I understand, it will be permanent.
------ ------- --- -_................_-----
Ex A
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K. Stephens D
And she is very private about it, and she says, I don't
like to talk about it, it's my -- it's my private
thing, it's my burn. But I think the entire experience
was very difficult for her, and it's definitely changed
the way she is.
Q You sat with your daughter through her
deposition in this case in February?
A Yes, I did.
Q Was she strong throughout that deposition?
A Yes, she was.
Q Are you proud of your daughter for how she
made it through that?
A Yes.
Q Are there other times when she's not as
strong?
A Yes.
Q Did you and your daughter recently visit an
old folks home?
A Yes.
Q Can you tell the jury what you recall about
that visit?
A We -- there's a woman that we visit. My -
my mother owns an adult foster care home, and there was
a woman that my little daughter likes to visit and
Qadira has taken visiting her as well.
Ex A
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And she was sitting on the bed recently and
she had her leg just kind of propped up and her pant
leg kind of rolled back because she had a pair of
capris on, and Rosala (ph)) said, oh, my God, is that a
bruise on your leg? And Qadira kind of -- you know,
she just kind of of hung her head and she covered her
leg.
And I said - I - I just said no, actually,
(indiscernible) was burned. We didn't - we said okay,
you know, but I think it's hard to be - hard for her
to be reminded, so she does - a little sneaky but just
cover what she can.
Q You heard testimony earlier about your
daughter -- your daughter did dance in a powwow, is
that correct?
A She did.
Q And she participates in her c ssroom
activities and her school activities?
A She does.
Q Are there some -- well, back up. Before she
was burned, would you describe her as a bookworm or a
real enthusiastic kid? What can you tell us about
her - her before the burn?
A I would say she was -- she was very outgoing
before her burn. She was very outgoing, back and forth
Ex A
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K. Stephens - D
to friends's houses, and I mean, she did visit Sophie.
She visited other friends as well. And after this
happened, she's very -- she really stays home.
She doesn't really go -- go on overnights
like she used to. She doesn't visit friends like she
used to. She she has a really close relationship
with her brother who's seven, and she really prefers to
stay within that circle.
And I think that she's -- I just think
there's things she's still working out. We work with
her and we're supporting her, but there's just things
we're still working on.
Q Have you and your husband thought about
getting some counselling for your daughter?
A We did consider that, and she did see the
school counselor a few times when they reintegrated her
back into school, and -- and at this time we chose not
to because she does have a very supportive family.
She's -- her grandmother is very involved,
her aunt's and uncles are involved, we're involved, and
we feel like she's we're able to give her the
support she needs. And I -- I don't want to put too
much -- you know, we didn't want to put too much
attention on it because it's also something she's very
private about, so ...
Ex A
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K. Stephens - X
Q You mentioned that your daughter was strong
during your deposition in this case. Is it your hope
that your daughter will become stronger and mature and
that her burn will be less of an issue for her in the
future?
A Yes.
Q Mr. Lachenmeier may have some questions.
THE COURT: All right. Cross-examination.
CROSS-EXAMINATION
BY MR. LACHENMEIER:
Q Good afternoon.
A Good afternoon.
Q Now, currently you're not employed, right?
A No.
Q Okay. So you have a lot of time to devote to
your kids?
A Yes, I do.
Q
Prior to this incident, how often had Qadira
been over at my client's house?
A Over at their house? I -- many times.
Q Many times?
A Overnight though (indiscernible).
Q Okay. And overnight how many times?
A I would say five or six times.
Q And you've been out to dinner with Aimee a
Ex A
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K. Stephens - X
couple of times?
A Yes, that's correct.
Q A few minutes ago you indicated there, was one
phone message and one hangup the night of this
incident.
A Mm-hmm.
Q Do you remember telling me at deposition that
there were two hangups plus a message?
A No, but if that's what I said, maybe that was
correct.
Q Well, in fairness let me read it. Page 10,
Line 18: "After this incident, my clients called
several times before they got you, is that right?"
"Answer: I guess that's what they say.
There were two hangups from their number and the
message."
A Okay. I'll agree with that.
Q Okay. You would agree that your daughter's
core personality has not changed, right?
A No -- her core personality? A little bit,
yes yes, I do think it's changed a little bit.
She's definitely more withdrawn.
Q She's definitely what?
A She's definitely more withdrawn from having
had this occur.
Ex A
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Q Do you remember this question and this answer
in your deposition which, by the way, was taken
February 26th of this year, right?
A Mm-hmm.
Q Okay. Page 14, line 7: "Do you think her
core personality has changed?
"Answer: Not her core personality."
A How do you define "core personality"?
Q
Well, we didn't have that discussion then.
A Oh, okay.
Q I just asked you if that was your answer.
A Okay.
Q Now, there haven't been any teachers and no
counselors and no neighbors who have said, gee, your
daughter's different, is -- have there?
A One of my neighbors across the street
actually did -- did (indiscernible) that she's a little
different.
Q Did that happen after February?
A It was just something she expressed to me
just a couple weeks ago, actually.
Q Okay. Do you recall, page 14, line 22, "Has
anyone else mentioned to you that they thought she had
changed in some way, that is, a teacher, any counselor,
any neighbor, your mother, anyone?" And then you did
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go on to say your morn did. But no teachers, no
counselors, right?
A No.
Q And no neighbors as of February of '08?
A I guess not. Can I clarify, though? I don't
talk to a lot of people about this. I don't -- I don't
like walk around discussing my daughter's injury and
discussing how I -- asking people how they feel about
what's going on with my daughter. It -- it was a -
it -- it's personal, so
Q My guess is you did teach -- talk to the
teachers, though, right? You go to teacher-counseling
things? That means teachers conferences, right?
A Yes.
Q And you saw the teachers right after she went
back to school, right?
A Yes.
A And I -- at parent-teacher conferences we
mainly discussed her grades, not really her social
like what she's doing socially.
Q Okay. But none of the teachers said, I see
some differences here, did they?
A No.
Q
Okay. And in terms of the grades, she had
good grades before and she has good grades again,
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K. Stephens - X
right?
A Mm-hmm.
Q Yes?
A Yeah. Her math grade, her math grade slipped
a little bit, but other than that, she's doing good.
Q When you left the -- when you left Aimee
McQuiston's house, did they try to get you to take the
frozen peas?
A Yes, they did.
Q But you didn't, declined?
A They were warm, and I live a minute away.
And they also I -- I -- I didn't realize at the time
that I needed to take them with me and nobody gave me
a -- they're not doctors. They were -
Q You talked about your daughter being strong.
I can't remember exactly, and I don't have your
husband's deposition, but doesn't her name actually
have a meaning like that?
A It means powerful. I picked it when she was
a baby.
Q
When you went up to the hospital -- well,
first of all, you went to St. V first?
A Yes.
Q Okay. I either misunderstood what counsel
said or missed or I -- or I think you -- let me just
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ask you this. St. Vincents is not just a few blocks
from your house, is it?
A No.
Q
You're -- you're maybe a few blocks from
Alpenrose and then Beaverton-Hillsdale and then you've
got to go 217 all the way to Barnes to get to
Vincent -- St. Vincents, right?
A Yeah. Well -- yeah.
Q Yeah. Okay.
A There was St. V's or Emanuel.
Q Your - your home is like halfway between
Vermont and Multnomah Boulevard, 45th and Olson, right?
A Yes.
Q In that little quadrant?
A Mm-hmm.
Q Now, your your daughter was hurt
April 12th of '07. By the end of April, she had all of
the medical treatment she was going to get, right? It
was allover in the month of April?
A I don't know if it's an -- it's accurate to
say it was allover, but we were done wrapping the leg,
yes.
Q Well, she didn't -- you had already seen two
different specialists at OHSU, right?
A Well, I mean, I just mean in regards to she
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still needed still needed to be lotioned, still
needed to be we still needed to keep the sun block,
and that was definitely part of her treatment and that
lasted that continues to this day.
Q Let's talk about sun block.
A Okay.
Q When your daughter puts sun block, she just
doesn't put it on her knee; she put it on her whole
body, right?
A Yeah, she -- yes. But this -- this
particular injury, when you sustain a burn of that
nature, you do have to keep it sun blocked all the time _._--,
because there is a chance that it can be re-burned, and
there's no room for just you can't you can't
slide. You can't ever say, oh, I'm
--
you know, I have
to -- I constantly was making sure -- I've I've
always had to constantly make sure, okay, did you
reapply, did you reapply, because she couldn't sustain
another burn onto her leg.
Q. After the burn, you had an incident where one
of your kids got very sick, right?
A Yes.
Q The
--
pneumonia or something like that?
,---------........
A Yes, my four-year-old daughter
(indiscernible) .
Ex A
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Q And that upset Qadira quite a bit, didn't it?
A Well, she was back at school and I was taking
care of her, so
Q Was there any other emotional traumas around
this time in her life?
A No, and I I wouldn't consider her sister
having pneumonia as an emotional trauma. She wasn't in
the hospital or anything like that. She was just home
and
Q How about the neighbor boy that drew naked
pictures of her? Was that a trauma in her life?
A That was not a trauma in her life and not
something that I think is just in a way relevant.
Q Well, let me ask you this.
A It's not something I discussed with her.
It's something I took care of. And the kid was six.
Q Well, it was fixed by telling her she
couldn't play with the next-door neighbor for a couple
years, right?
A He - she she does play with that - that
next-door neighbor, as a matter of fact.
Q
At the time of your deposition, though, she
wasn't yet allowed to do so, correct?
A Not unattended
Q Okay.
Ex A
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A -- because he had some issues, but
Q
Does that affect her -- I'm sorry, I didn't
mean to cut you off.
A Oh, I just -- I just don't why -- I don't
know how that's relevant to her injury.
Q Well, one of the things you said is she
doesn't playas much with the neighbor kids, and one of
the reasons is you told her not to play with this
family at all, right?
A No, what I mean is she doesn't play with her
girlfriends, like she used to go - she used to call up
Sophie and ~ o over and she'd call up Jessica and go for
an overnight. She had a circle of girlfriends.
I'm not referring to neighbors, I mean, when
she steps outside the door. And there are neighbor
kids around. And then we have two boys that live
across the street, too, that live to the left and
another one. I mean, that's in our immediate vicinity.
I'm talking about relationships she has
outside the neighborhood with girls her own age and
having overnights and being outgoing and going to
birthday parties and having friends over, and those are
things she doesn't do anymore, actually.
Q Didn't she go to one birthday party that
Sophie was also at?
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A She did. She did one birthday party last
year (indiscernible).
Q
And her best friend lives in Tigard now,
right?
A She doesn't have a best friend.
Q
She doesn't have a best friend?
A I don't know what best friend you're
referring to.
Q Well, I have to get your husband's depo.
I'll ask him about it when he's here, but he said she
had a best friend that lives in Tigard. Is that wrong?
A I don't know who you're referring to. I
don't know who that would be. Her best friend is her
brother. I -- I can't even -
Q
I'm asking is, she -- she has a fair amount
of overnighters with him, right?
A Well, her -- her grandmother lives in
well, she -- yeah. They're together all the time. I
mean, her grandmother lives in Tigard but she
(indiscernible) friends (indiscernible).
Q
Have you forbid her to - to stay overnight
at my client's house?
A Absolutely.
MR. LACHENMEIER: Thank you. I have no further
questions.
-_._------
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THE WITNESS: May I be
THE COURT: Just wait.
BY MR. KOCHER:
Q Ms. Stephens, when you got Qadira to your
house, did you or your husband put something cold on
her leg?
A Yes, we did.
Q Did you see the naked pictures that defense
counsel referred to a moment ago?
A No, I did not.
Q Is it your understanding that they were stick
figures?
A Yes.
Q Have you encouraged your daughter to
socialize?
A Yes, I have.
Q Does going to the birthday party that you
just referred to and counsel referred to set an example
of one of the occasions on which you encouraged - you
have encouraged your daughter to reach out a bit and
socialize?
A Yes.
MR. KOCHER: That's all.
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THE COURT: You can step down.
Next witness.
MR. KOCHER: Plaintiff calls Todd Burkholder.
MR. LACHENMEIER: Let me go see if he's there.
Actually, my legal assistant will go see if he's there.
THE COURT: Okay. Thank you.
Mr. Burkholder, if you'd like to step up to
the witness stand here to my left, and I'll ask that
you remain standing for just a moment. You'll be sworn
in.
TODD BURKHOLDER,
THE CLERK: For the record, would you please
state and spell your first and last name.
THE WITNESS: Todd Burkholder, T-o-d-d
B-u-r-k-h-o-l-d-e r.
THE CLERK: Be seated.
DIRECT EXAMINATION
BY MR. KOCHER:
Q Good afternoon, Mr. Burkholder.
A Okay.
Q You live at - is it 7508?
A Southwest 51st.
Q With your wife and children, is that correct?
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A Right.
Q And you were home the evening of April 12th,
2007?
A Right.
Q
At that point, your wife had read "Little
House on the Prairie" to Sophie, correct?
A That night you mean?
Q At some previous (indiscernible)
A I'm not sure if Sophie read it herself or her
mom read it to her.
Q In that book, it's pioneer days and they
don't have hot water heaters, correct?
A That's true.
Q And on
A I mean, I haven't read the book.
Q Okay.
A So I assume that's true.
Q On April 12th, the girls said that they
wanted to play like it was "Little House on the
Prairie," correct?
A That was my impression, yes, or they wanted
to have -- actually, they wanted to have the hot water
because the bath was cold and they also -- it had been
an idea that Sophie had before that it's -- it was like
in the book.
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Q
And that's why Sophie and Qadira wanted to do
it, correct?
A I'm I'm actually not sure.
Q
Do you recall me asking you in your
deposition in February about this incident and do you
remember telling me that it had something to do with
"Little House on the Prairie" and that was why Sophie
and Qadira wanted to do it?
MR. KOCHER: Page 7.
MR. LACHENMEIER: Page 7?
THE WITNESS: Right.
BY MR. KOCHER:
Q Do you recall that?
A Yeah, I recall that, but also didn't I say
that it was because the water gets cold?
Q It was like something they do in the book, is
that correct?
A Yeah, that's correct, yeah.
MR. LACHENMEIER: What page and line are you on?
MR. KOCHER: Page 8, line 2.
BY MR. KOCHER:
Q
And it's something that they thought it would
be fun to do?
A Yeah.
Q
And you and your wife said okay to that idea
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of heating water on the stove?
A Correct.
Q
You helped heat the stove -- heat the kettle
yourself?
A Correct.
Q Other times in the past, you had done that
with Sophie, correct?
A Correct.
Q And on that occasion, it was your wife that
took the kettle in to the girls, correct?
A Correct.
Q In the past, it was always you that had done
it?
A No.
MR. KOCHER: Sorry. I'm losing my organization,
and I have too many pages shuffling.
BY MR. KOCHER:
Q The-
MR. KOCHER: Sorry, I don't have my line number.
BY MR. KOCHER:
Q When the kettle was hot, you stuck your
finger in it, correct?
A Correct.
Q It didn't burn your finger, correct?
A No.
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Q You were sticking your finger in because you
wanted to make sure that it was hot enough
A Right.
Q
--
to heat up .the bath, correct?
A Right.
Q At that point, you knew the girls were
bathing together, correct?
A Correct.
Q Did someone have to give permission for them
to do that?
A You mean -
Q To bath together.
A I was - I don't know.
MR. KOCHER: Sorry, I guess I do have have the
line number.
BY MR. KOCHER:
Q Let's kind of go back. Going back to your -
your wife taking the kettle in, do you recall telling
me in your deposition, on page 8, line 8, that in the
past you had always always done it yourself?
A Meaning I was (indiscernible) taking a bath.
Q Meaning -- meaning?
A When I -- I've done it all my life in my own
bath.
Q I understand. I think we had a
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miscommunication in your deposition. So you say that
you have some history of doing it this way yourself.
You didn't mean that it was you rather than your wife
doing it
A Correct.
Q in the past.
A Correct.
Q It's a small point but thanks for clarifying
it.
A Okay.
Q
At the point you heated the kettle, you knew
that the girls were naked together in the bathroom,
correct?
A I assumed they're naked because they're in
the bath.
Q About that time, you wanted to help get the
girls' mattresses set up for bed?
A Right.
Q You walked from the kitchen toward the
bathroom and the bedrooms?
A Right.
Q As you walked, you asked in a loud voice
where the girls wanted to sleep?
A Correct.
Q And at that point, you knew that the girls
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were naked, correct?
A I had -- like I said, I assumed they were.
MR. LACHENMEIER: Knew -- knew that the girls
were what?
MR. KOCHER: That the girls were naked. This is
page 21, line 21.
BY MR. LACHENMEIER:
Q Do you recall saying ln your deposition that
you knew the girls -- you knew that the you knew
that the children were bathing?
A Yeah, the girls were taking a bath together,
and I'm just saying I assumed they were naked.
Q I understand. You had no reason to believe
they had clothes on?
A Right. (Indiscernible.)
Q Understood. Thank you.
A It's okay.
Q At the point you walked past - you did walk
past the bathroom door, correct?
A I never quite got past it. I was walking
past it.
Q The bathroom door was open?
A Yes.
Q And you were able to see in?
A Yes.
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Q This was before the burn occurred, correct?
A Actually, it was probably about when it was
happening.
Q Before you knew anything about anything going
wrong in the bathroom?
A Right. Well, I don't mean to say what was
happening or -
Q We'll do it one step at a time.
A Okay.
Q I appreciate your willingness.
A Okay. All right.
Q From where were you standing
--
and I want to
be clear that this is before the burn occurred. Before
you were aware of anything amiss in the bed -- in the
bathroom, you could see your daughter and your wife and
Qadira in the bathroom, correct?
A No.
Q Do you recall saying that you saw your
daughter?
A Yeah.
Q This is page 19 at line 11.
A That something was already happening when
I
--
when I looked in. It's the difference.
Q So you -- as you happened to walk past the
bathroom, you looked in and you saw a glimpse of Qadira
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falling into the bathtub, is that correct?
A I saw her going down into the bathtub.
Q And you saw your daughter?
A Yes.
Q You saw all of them at once?
A Yes.
Q You saw your wife gesturing at you?
A Right. That's why I looked looked over
into the bathroom.
Q You looked over at her because she was
gesturing at you?
A And telling me to to get out of there.
Q She was gesturing at you with the hand that
was closer to you rather than the hand that was farther
away, correct?
A I -- yes, yes, that's how I remember it.
Q And you felt shooshed away, so you went to
the living room?
A Correct.
Q
And as you went to the living room, you
didn't have any idea that anything had gone wrong in
the bathroom, correct?
A Right. Correct.
Q
In fact, you didn't hear any -- you didn't
hear Qadira scream?
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A No.
Q In fact, you never heard Qadira scream,
correct?
A Right. Right.
Q No screaming?
A No screaming that I heard.
Q You heard your wife say come in here or
something to that effect?
A After I went into the living room, yes, she
called me back in.
Q And that was maybe 30 seconds before your
wife called -
A Probably something like that, yeah.
Q 30 seconds before your wife called you back
to the bathroom?
A Something like that, yeah.
Q That's when you found out Qadira was burned?
A Right.
Q And you saw the burn?
A Right.
Q Does the burn remind you of sunburns you had
gotten mountain climbing?
A Right.
Q At some point after that, you called the
Advice Nurse to get some guidance about how to take
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care of her?
A Right.
Q And you gave the Advice Nurse some
information about what had happened?
A Correct.
Q And you reported to the Advice Nurse what you
could see about the burn?
A Right.
Q And based on what you reported, the nurse
said bring her in just to be sure, correct?
A Right.
Q And then afterwards you and your wife talked
to each other about what happened, correct?
A You mean right immediately at the tub or -
Q No. At some point later that evening, you
and your wife
A Of course.
Q talked about what happened?
A Of course.
Q And your wife told you what happened?
A Yes. Yeah.
Q Your wife told you that she was noticing
Q ira becoming agitated when you crossed to the
hallway?
A When she heard my voice coming closer is the
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way I remember it.
Q
And that was where the bathroom door was left
open?
A Right.
Q
And your wife on that evening told you that
Qadira had stepped up onto the edge of the bathtub,
correct?
A Yeah. I guess so.
MR. KOCHER: Can I get Exhibit 19?
BY MR. KOCHER:
Q
I want to talk about the edge of the bathtub.
I'm talking about this edge here. Is that your
understanding as well?
A Yes. Yeah, yeah. Yes.
Q
And your wife told you that's what she saw,
correct?
MR. LACHENMEIER: What page and line, counsel?
THE WITNESS: Yeah, I -- I guess, or that's what
she thought happened or -
BY MR. KOCHER:
Q
And your wife told you that when you
approached, Qadira slipped or jumped in, correct?
A That Qadira jumped in (indiscernible). It
would be what my wife said.
MR. KOCHER: 17, 18 to 20.
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MR. LACHENMEIER: I'm sorry, counsel?
MR. KOCHER: 17, 18 to 20.
MR. LACHENMEIER: These pages or lines?
MR. KOCHER: Page 17, lines 18 to 20.
THE WITNESS: My understanding lS that she
jumped -- she either jumped up onto the edge and
slipped in or jumped off. I am not sure which.
BY MR. KOCHER:
Q Do you recall in your deposition telling me
what Aimee had told you, telling me that Aimee had said
that Qadira was on the floor and then she had stepped
up onto it, the tub edge, and must have slipped or
jumped in. Do you recall saying that?
A Yeah, that makes sense. That makes sense.
Q There's been some testimony about efforts to
call the Stephens family. Is it your recollection that
once Mrs. Stephens Ms. Stephens knew about the burn,
she got over to your house in a reasonable time?
A Yeah.
MR. KOCHER: Thank you. That's all I have.
THE COURT: All right. Cross.
CROSS-EXAMINATION
BY MR. LACHENMEIER:
Q
Mr. Burkholder, all this happened pretty
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quick?
A Yes, very quickly.
Q Could you come -
MR. LACHENMEIER: May he come down from the stand
and (indiscernible)?
THE COURT: Go ahead. You don't need to ask. Go
ahead. Yeah.
BY MR. LACHENMEIER:
Q Let's pretend for a minute that this is the.
opening to the bathroom, all right?
A All right.
Q And so this is the hall coming this way,
right?
A Okay, so this is the hallway, not the
kitchen.
Q No. This is the hallway here and then the
kitchen's back here.
A Okay.
Q And -- and the hall to your living room is
right this way -
Q Oh, okay.
Q
-- okay?
A Right. Right. Right.
Q Okay. So stand over next to the clerk here.
And so as you're coming down the hall approaching the
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doorway to the bathroom, what are you concerned about?
A Well, first can I clarify something?
Q Sure.
A There's not a hallway over here.
Q Just a doorway?
A It's just - the kitchen, and you know, in
fact, the refrigerator would be like here and a little
pantry and then there's a opening, yeah, a door
opening. The bathrooms are right there and the
bedrooms here and here.
Q So right here and here?
A Right.
Q So were you trying to figure out where they
were going to sleep?
A Correct.
Q So you were calling to them?
A Yeah. Yeah.
Q What were you saying?
A "Girls, where do you want sleep?" because
they you know, they had said they either wanted to
sleep in the living room or the bedroom.
Q But they're In the bathroom?
A We don't to be carting, moving beds around.
Q
But they're in the bed - in the bathroom -
A Right.
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Q
-- so you're using a louder voice than you're
using right now, right?
A Okay. Yeah. Yeah. Yes.
Q So what did you say?
A "Girls, where do you want to sleep?"
Q All right.
A "You want to sleep in the living room or the
bedroom?"
Q So you're coming -- and you're coming down
towards these bedrooms.
A Yeah
t
talking.
Q And if -- if they said I want to sleep in
Qadira's room, what were you going to do -- have an
excuse in Sophie's room, what were you going to do?
A I would have taken the mattress from her
older sister's room and put it in with Sophie -
Sophie's bedroom
Q And if they said we
-
A (indiscernible) two mattresses.
Q and if we want to sleep in the living
room that was their other choice, right
-
A Right.
Q
--
what were you going to do?
A Move both mattresses into the living room,
one from each bedroom.
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Q So either way you're going to have to come by
the bathroom door?
A Right.
Q Okay. Take the stand again. In terms of
the well, there's a -- sort of a -- the wall
enclosure, right?
A Yeah.
MR. LACHENMEIER: Can we have our tub back,
please?
THE WITNESS: The yellow wall there on the left.
BY MR. LACHENMEIER:
Q So is it possible to stand on the edge that's
on the other side of this wall?
A No.
Q
Okay. And if you tried, you'd probably slip
and fall in?
A Yeah, there's not a ledge on the
other -- on -- on that wall.
Q Well, it's an edge of the tub just like there
is on the side, right, just like the one you could see?
A Well, that's where the faucet is and
everything -
Q Yeah.
A -- so it's
-- you know, if you call it an
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edge, it's probably about that thick and -
Q
If she was jumping to get out of your vision,
it would be in that direction?
A It would have been on -- yeah, right,
correct.
Q
Let's talk a little bit about your
background. How old are you?
A 47 or 48. 48.
Q Where did you go to school?
A I went to Portland State. I got my
Bachelor's. I have a Master's from University of
Arizona.
Q
What's the Master's in?
A Geography.
Q
Which kind of fits in with the school that
Sophie's going to and Qadira's been going to?
A Yeah. They -- they're more history. But
geography is like history. You know, you can study
anything.
Q And what do for a living?
A I'm a writer. I senior writer at Mentor
Graphics. It's a software it's software that's used
to design circuit boards and chips and stuff like that.
Q
What kind of writing do you do?
A Articles and kind of write papers, research
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X
papers, conference papers.
2
1
Q Is it a form of marketing then?
3 A Yeah. Yeah.
4 Q Now, that day -- I had mentioned in opening
5 statement that I thought you had something to do with
6 the Sopranos. Were you listening to or going to watch
7 or how how does that fit in?
8 A Yeah, unfortunately, I was going to watch the
9 Sopranos instead of listening to them. But yeah,
10 that's that's what I wanted to go do. That's why I
11 wanted to take care of the beds so I could go do that,
------ 1 2 0 reve n t u all y .
13 Q
Now, this, of course, occurred quite a while
14 ago, but do you remember who put the teakettle on?
15 A I think I'm pretty sure I did. Aimee was
16 reading and so I said I'd put it on.
17 Q
Now, are you a pretty active father, that is,
18 you participate in your daughter's stuff?
19 A Oh, yeah, very much.
20 Q And you went to the field trip this year?
21 A Right, helped organize it.
22 Q And Qadira's father went, too, right?
23 A Right. Correct.
24 Q Where did you go?
25 A We went to two Indian reservations, the Warm
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Springs and the Yakima, and a three-day trip and -
Q And did Qadira go also?
A Yes, she did.
Q Let's talk about after this incident occurs
and then Qadira's mom takes her home. Then what
happens?
A They called to ask if one of us would come
over and watch their other kids.
Q I actually got ahead of myself. I'm sorry.
How did you participate -- or were you part of the
conversation with the Advice Nurse?
A Yes. Yes.
Q
Tell us about that. What happened?
A Well, you know, so we called just like we
normally do. We have Kaiser, so we called to just
ask -- ask them, you know, if we're doing the right
thing and whether we should bring her in because I
wasn't sure. Like -- like Mr. Kocher mentioned, I've
been -- it looked like burns I'd had before, which I
didn't do anything about, so, you know, just big
blisters. But you know, at the same time I was very
concerned, so I wanted to see what we should do. And
the nurse said, yes, you know, from what you described
we don't know, but you should come in anyway to play it
safe, so that's what we were going to do.
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Q So she told you that the ice was the right
thing to do?
A Yeah. Yeah.
Q And you knew that?
A Yeah.
Q And what about aloe vera? Did you use it?
A I put some aloe vera on just to
Q And in case someone on the jury doesn't know
what that is, can you tell them what that is?
A Oh, it's a -- it's a herb, or I mean, a
succulent plant that you can cut and get the juice out
of, and it's good for burns.
Q Did you try to calm Qadira?
A Yes.
Q Tell us what you did.
A Well, I took her down -- we 11, I actually
tried calling the parents and couldn't get ahold of
them. I took her down to the basement where we have a
TV, and the girls went down there. And we put on a
movie so, again, just so she calmed down. I actually
had her lay down like for shock. Just in case, I
always do that. So put her feet up and just make sure
she was comfortable, and she was she was okay while
she waited 'til we could get ahold of her parents.
Q
Was Sophie down there, too?
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A Yeah.
Q
I think maybe I better take this straight on.
Counsel has talked about naked girls several times.
A Okay.
Q You have two daughters, right?
A Right.
Q You've been around lots of kids.
A Right.
Q Okay. How do you deal with girls in terms of
their modesty and and stuff at your house?
A Well, I respect their privacy, you know, but
they're still kids at that age. You know, our older
daughter, of course, you know, it's a different
situation, you know, and but yeah, I'd never just
walk in on them or anything like that, you know,
knowingly, you know.
But we have -- our daughter has parties all
the time and she likes to have real nice parties, and
so we always all have the girls over. And I was active
in helping out with those, you know, setting up where
they sleep, you know, putting the sleeping bags out and
stuff like that. But yeah, so I respect people's
privacy, you know, at any age.
THE COURT: I just -- excuse me, Mr.
Q So when she was -
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THE COURT: Just a second. I do want to clarify
just exactly what the claims are so the jury
understands that the claims are against Aimee McQuiston
in negligence for -- that she knew or should have known
that pouring water onto Qadira could cause her severe
injury and that she was negligent in failing to take
reasonable care to avoid pouring heated water onto
Qadira.
Those are the issues with regard to
negligence, just to clarify. It's not an issue as to,
you know, whether or not should or should have not seen
somebody naked. That may be some of the circumstances
of what happened, but I want to clarify what the claims
actually are.
All right. Go ahead.
MR. LACHENMEIER: Thank you, Your Honor. We will
move on.
BY MR. LACHENMEIER:
Q Tell us about the -- the after the
incident and -- did you get a call to go over to -- or
did somebody get a call to go over to Qadira's folks's
house?
A Yes.
Q Okay. Did you take that call or did Aimee?
A I can't -- not -- no, I can't remember right
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now.
Q
In any event -
A I think I did. I think I took it.
Q But you went.
A Yes, I went. Yeah.
Q Okay. When you got there, was the
grandmother there yet?
A No.
Q
So you stayed 'til she got there?
A Right.
Q
And then you stayed further?
A Right.
Q
Why did you stay longer than that?
A Oh, to hear about what happened, to see
how hear what's -- to wait for a phone call from
Karellen or Renee and see how the (indiscernible).
Q And did you hear eventually?
A Yeah.
Q
Essentially, what did you hear?
A That she had first- and second-degree burns.
Q So that the jury knows, the -- the larger the
number the worst the burn, right?
A Right. Right.
Q
Third degree is worse than second?
A Correct.
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Q And second is worse than first?
A Right. Right.
Q Okay. A few days later did you go over and
visit with your daughter?
A Yes.
Q That is, you visited Qadira.
A Right.
Q Okay. Tell us about that.
A Oh, my daughter and I went to the store.
What Qadira liked to do, like I -- its either X Box or
one of those play stations or one of those things, and
so we went and bought her a -- a game and a card and a
stuffed animal. And I figured she might be, you know,
sitting around a lot, give her something to do. And so
we went over -- called, and they said it was okay to
come over and brought the gifts over and the card.
Q Did you stay for a while?
A Yeah. Yeah.
Q Was she in pretty good spirits?
A Yeah, she was already playing a game, and she
was real excited about the game, and she was -- yeah,
she
Q Well, tell us
A laying on the couch. You know, she was
convalescing, but she was smiling and stuff.
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Q And playing video games?
A Yeah.
Q And did she play with the one you gave her,
or do you know?
A I can't remember.
Q Okay. When's the next time you saw her?
A After -- after -- shortly after she returned
to school, which would have been -- I think she was out
of school for two weeks so, you know, three or four
weeks later.
Q And after that, was she nice to you?
A Yeah.
Q And you were nice to her?
A Yeah, of course.
Q Okay. And your kids still got along?
A Yes.
Q So do they play together now?
A No, except at school.
Q Okay. Did Karellen call you
--
I'm sorry.
Did Ms. Stephens
THE COURT: I'm sorry, Your Honor. I get -
BY MR. LACHENMEIER:
Q Did Mrs. Stephens call you to -- or your wife
to talk about the other doctor's visits that they had?
A Yes.
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Q And talking about the other specialists?
A Yes.
Q And what did they tell you about those calls?
A Well, first she went -- I guess went to their
doctor, and I think their doctor wasn't there. And my
impression was that people there didn't really know
burns very well or something and kind of confused about
it, and then she -
MR. KOCHER: Your Honor, we have a hearsay
objection.
THE COURT: Overruled. It's a statement of a
party opponent.
MR. KOCHER: As to the doctor's statements to
Ms. Stephens, there are medical records. The witness
is describing the doctor's statements to Mrs. Stephens.
That's my hearsay objection, Your Honor.
MR. LACHENMEIER: Then she's just just -- is
just describing what Stephens told him.
THE COURT: Correct. So overruled.
THE WITNESS: And so continue?
BY MR. LACHENMEIER:
Q Yeah. You can go ahead.
A You know, that so -- so then --
so she
wasn't really happy with, you know -- you know, she
wanted to have her looked at again, so she went in to
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OHSU, I believe. So that was like, let's see, I think
Monday night. And he said they were confirmed from -
you know, what she told me confirmed what the emergency
room doctor said, she had first and second-degree
burns and - but they didn't need to be worried about.
Q
Did she - I'm sorry?
A Oh, that she didn't - you know, she kind of
felt like he was telling her she didn't need to worry
about it, or I don't know if that's the right words,
but
Q Now, you have been active in school. You
have seen Qadira there since?
A Yes. Yes, I volunteer.
Q Have you seen any indications that Qadira has
changed in any way that you're aware of?
A No. No.
Q And you took a video at the powwow that these
girls were at?
A Right.
Q And when was that?
A That would have been this -- end of May,
May 23rd.
Q So your daughter was there and Qadira was
there and her dad was there?
A Correct.
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Q Where all did you go?
A Well, first we went to the Warm Springs
Reservation and then the Yakima, and this was on the
Yakima and the -- there was a big powwow that all
the -- at their school they learn how to do all these
Native American dances, and so they're actually invited
to go up and dance with the dancers. So it was pretty
neat and
Q And you - you made a video of them dancing?
A Yes, there was - yeah.
Q It's pretty short, right?
A Yeah. Yeah.
MR. LACHENMEIER: We would like to show that at
this time, Your Honor, just on a little laptop.
THE COURT: Okay.
MR. LACHENMEIER: Okay. Can we do that?
UNIDENTIFIED SPEAKER: (Indiscernible.)
MR. LACHENMEIER: What's that?
UNIDENTIFIED SPEAKER: (Indiscernible.)
THE COURT: Well, if you're going to have the one
table, so unless we can use the other project- -- well,
we can always -- we can rest it on the bar of the jury
box.
MR. LACHENMEIER: Maybe it will rest on this.
THE COURT: Paul, can you see what you can kind
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of set up for us?
MR. LACHENMEIER: Can we put it up here?
THE COURT: Oh, you're going to put it on the
screen.
MR. LACHENMEIER: Oh, does it show on the screen?
UNIDENTIFIED SPEAKER: Yeah, there's a
(indiscernible).
MR. LACHENMEIER: Oh, cool. Sorry. A little
technologically challenged, Your Honor, sorry.
Thank you very much. I appreciate your
assistance.
THE COURT: So why don't we take a quick
actually, we haven't really had an afternoon break,
have we? Let's take one for ten minutes, folks. You
can return to the jury room. We'll get this set up
by -
(Audio off.)
THE COURT: Are you folks set or -
we're -- we're all set. You may sit down. Okay.
Please be seated, everyone.
All right. Mr. Lachenmeier, go ahead,
please.
BY MR. LACHENMEIER:
Q So the jury understands, tell them what
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they're about to see.
A This is just a you know, an honest -- this
is a dance. They have traditional dancers, and they
invited the kids to come up and dance, so at a
dinner that we had, a salmon feast, so
Q Where was it?
A This is in -- on the -
Q Yakima?
A Yakima, yeah, Reservation.
Q Reservation?
A Yakima Nation.
Q Okay. The only thing I want you to do, as
soon as it starts to play, would you indicate which
one's your daughter and which one's Qadira?
A Sure.
Q Okay.
A Dancing around, so that's Qadira, right.
There's Qadira and that's Sophie. I'm not a very good
at camera work. And there is salmon, by the way. You
saw the Jingle Dress Dance. So like at the school,
they're all wearing the dresses like that, the dancers.
Q This is the kind of activities that went on
on this field trip?
A It was -- this was a special night. You
know, we went mostly to museums, and we, you know, went
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and visited, you know, sites outside, too. We slept in
teepees, did school projects and art projects, stuff
like that. That's it.
Q Okay. Now, just a couple things to make sure
that that I didn't leave anything out. Explain to
the jury, when you were a kid, did you use a teapot to
heat up the bath?
A I can't remember.
Q When did you start doing it?
A I definitely did it when I lived in Eugene,
Oregon, where I lived for a while and, you know, heated
the house with a wood stove, so
Q Okay.
A And you know, just -- I like to take baths
and read in the bath, and it was cold, so
Q Now, the house that you moved -- that you
live in now, you moved in when?
A Five years ago.
Q And it has a hot water heater, as counsel
referred to it, as a modern hot water heater, right?
A Yeah. Yep.
Q But
-
A (Indiscernible.)
Q
--
as a practical matter, when you fill the
bathtub, does it stay hot the whole time?
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A No, it doesn't. It -- you know, it -
actually, you have to -- I only put it only on hot
water on only and I did it like half -- half a volume
or half of the flow that it can go because otherwise
it's cold by the time to get to the -- to a full -
full tub.
Q And did you set the hot water heater so that
it wouldn't be burning hot corning out?
A Yeah, I keep it kind of low for that reason,
because like if you're taking a shower, so you don't
get scalded and also to save energy.
Q It's a gas hot water heater, though, right?
A Right.
Q It's supposed to be faster rejuvenating, but
does it? Does it get - how long does -
A Yeah, it does - not fast enough.
Q And that's why you -
A I never timed it, you know, but yeah, you're
in the tub and it definitely gets cool and there's no
hot water to heat it up again.
Q So you use the teapot?
A Yeah, yeah. Yes.
Q And no one's
A Or you get out, yeah.
Q No one ever got burnt before, did they?
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A Right.
Q Okay. Now, in terms of the timing of
everything, from the time of the incident, do you have
any idea how long it was before Qadira's mom showed up?
A It's so long ago. I think I said a half an
hour or so in the deposition. That's
Q That's your best estimate?
A That would be my best guess, yeah.
Q Okay. And then how long before you get
called to go to to their house?
A Probably 15 minutes.
Q And then how long from the time you got there
until they left?
A Probably another 15 minutes or so, because
they were saying good-bye to the other kids and stuff
like that.
Q
NOw, you're pretty good with geography,
right?
A Just don't ask me the state capitols.
Q I'm going to ask you if you have any idea
what route you would take from their house to get to
st. Vincents.
A That's the one on 26, right?
Q Yes.
A Yeah, I have an idea.
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Q That's on Barnes Road -
A Yeah.
Q -- right off of 217 and 26.
A Yeah. Right. Sorry. Yes. I wanted to make
sure. Yeah, I do know how I'd go to get there.
Q What well, just from where their house is,
what what are the main roads?
A You'd probably go up like Multnomah, Garden
Home to -- to Allen Boulevard. Everyone knows that.
And from there you get onto 217 and that takes you to
Barnes Road and 26.
Q And how far is that, roughly?
A It -- it takes like 20 minutes to a half an
hour to get there from our house and their house is
real real near ours.
MR. LACHENMEIER: That's all I have. Thank you.
THE COURT: All right. Redirect.
BY MR. KOCHER:
Q Mr. Burkholder, you're talking about sort of
a time sequence of events, and I wanted to see if I
understood correctly. You mentioned a half hour, takes
someone about -- took Ms. Stephens about a half an hour
to get to your house?
A No, what I -- if I understood his question,
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from the time Qadira got burned 'til she got to our
house -- came to our house.
Q
Okay. But when she found out about the burn,
she got right over there?
A Yeah.
Q Quickly, is that
-
A Yeah.
Q You have no
--
you have no impression that
somehow she was slow getting over to your house?
A No, I mean
Q You have no information to suggest to you
that they were slow in getting their daughter to the
hospital, do you?
A Well, I you're asking my opinion?
Q I'm asking you about what you know about the
sequence of events and the options that are available.
Do you know that they - do you -- were they slow in
getting your daughter to their house - to the
hospital?
A Well, I probably would have gone straight
from our house to the hospital.
Q Well, when Qadira was at your house, how long
was she there before Karellen got there? That was the
half hour you mentioned?
A That's -- yeah, and I'm just guessing,
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actually, yeah.
Q And during that half hour, at any point
during that half hour, you could have put Qadira in
your car and got medical attention for her right then?
A Yeah. Well, we were
--
that's what we were
about to do -
Q You let go -
A -- when she called us.
Q You felt that it was reasonable to go for a
half an hour?
THE COURT: I want to cut -- I want to just
remind people that this is not -- now stop. We're
going -- this is not one of the allegations of
negligence. I just want to clarify for -- that for the
jury. There may be questions that are being allowed,
but again, the allegations of negligence are not
failure to get quick medical care. That is not
something before the jury, and I don't want the
attorneys to confuse the jury with that.
Go ahead.
BY MR. KOCHER:
Q The video that we watched to your --
Mr. Burkholder, you mentioned that it was on May 23rd?
A Yeah, 22nd, 23rd.
Q That was May 23rd of this year, correct?
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A Correct.
Q
Are you aware that Qadira was on crutches
after she had her burn?
A No.
THE COURT: All right. Thank you, sir. You can
step down. Next witness.
MR. LACHENMEIER: May this witness stay?
THE COURT: Yes, that's fine.
MR. LACHENMEIER: Well, actually, you got a
daughter in the hall, don't you?
THE WITNESS: Yeah (indiscernible)
MR. LACHENMEIER: Okay. I'm sorry.
MR. KOCHER: Your Honor, plaintiff calls Renee
Stephens.
All right, sir. If you you'd like to step up
here to the witness stand and remain standing for just
a moment, you'll be sworn in.
RENEE STEPHENS,
THE CLERK: Please take a seat. For the record,
please state and spell your first and last name.
THE WITNESS: Renee Stephens, R e n-e-e
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R. Stephens - D
S-t-e-p-h e-n-s.
DIRECT EXAMINATION
BY MR. KOCHER:
Q
Good afternoon, Mr. Stephens. You are
Qadira's father?
A Yes, I am.
Q And you understand that it's your role in
this case to be her father but really primarily as a
witness?
A Yes.
Q You understand that in November of 2007 the
Court appointed your wife to be the guardian for your
daughter's claim?
A Yes.
Q You were supportive of that appointment of
your wife by the Court?
A Yes, I was.
Q You understand that if there's a verdict in
this case, that verdict funds
MR. LACHENMEIER: Objection.
THE COURT: Sustained on relevance.
BY MR. KOCHER:
Q Mr. Stephens, you have no interest in this
case except as a witness, correct?
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A Correct.
Q When did you first hear that Qadira had been
burned?
A Late night the day of the burn.
Q Your wife went and brought her back from the
McQuiston home?
A Yes.
Q Did you see her when she came back?
A Yes, I did.
Q What did you see?
A She was naked wrapped in a towel. And she
was crying. Her face was puffed up. She was in pain,
a lot of pain. She was obviously upset.
Q Did you at that point see her leg?
A Yes.
Q What did her leg look like?
A It was burned on the -- on the inner side, on
the inner left side -- on the left side of the leg on
the inner part of the knee. There was a - some
blisters and -- and there was some part- portions
without skin.
Q The jury's going to have Exhibit 2 in the
jury room. Do you recall seeing photographs taken in
the days after the burn that showed red spots on your
daughter's leg?
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A Yes, I do.
Q Were those red spots your daughter's flesh or
were they some kind of cream or something red that had
been applied to her leg?
A It was her flesh. There was some like pus or
it was kind of like a gel-type substance, is what it
looked like, but it was coming from her leg.
Q Was there some kind of cream that was applied
to her leg as part of the wound care?
A Yes.
Q What color was it?
A It was white.
MR. KOCHER: Mr. Shoen, could the witness please
have Exhibit 3?
BY MR. KOCHER:
Q Mr. Stephens, these are going to be a little
bit small and the jury will have them in the jury room.
But I wonder if you could show the jury as best you can
from where you are the sequence of pictures, if I've
got the right ones, showing her wound here. Do we have
the right exhibit for you?
MR. KOCHER: I think we need -- I'm sorry -
Exhibit 2A, if we could have that.
BY MR. KOCHER:
Q
You're looking at the wrong one.
Ex A
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R. Stephens D
A Thank you.
Q Do you have the first page of Exhibit A there
showing you in your living room?
A Yes.
Q
Could you show that to the jury. It's a
little hard to see, but that's a picture of you with
a -- a set of bandages and other medical supplies on
your couch, is that correct?
A Yes.
Q And there's a pair of crutches on her couch?
A Yes, there are.
Q Did Qadira use those crutches for a period of
time after she was burned?
A Yes, she did.
Q Can you estimate how long?
A Probably two weeks.
Q The next photograph below shows somebody's
arms. Are those your arms?
A Yes, they are.
Q And is that you starting the process of
caring for her wound?
A Yes.
Q And is that the bandage-change process that
she had to go through?
A Yes, she did.
Ex A
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R. Stephens - D
Q Did she have to go through that multiple
times a day?
A At least twice.
Q And how often did she, in fact, have to go
through that?
A Sometimes two, three, three, four times. At
least two, sometimes four.
Q Why at least two?
A That was what was recommended by the doctor.
But four times, sometimes the bandage would got dirty,
we'd have to change it. Sometimes or a lot of the time
the -- the bandage would just slip off because of the
location on her leg.
Q The next picture shows some darkness around
the outside of her knee, and the jury will see this in
the deliberation room better than here. Can you
gesture on that photo or actually, you know what
I'll do, I'll give you a a pen. Could you put a
couple of arrows or marks on that top picture to show
the outer boundary of the burn area?
A You want want me to actually draw on the
exhibit?
Q
You may, yes. And I don't want you to cover
up too much of it, but if you could just put a -- a
marking or two so that when the jury's in the jury room
-------- ........ _.. _- ---
Ex A
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R. Stephens - D
they can see what portion of that photograph is showing
affected tissue. The picture below, is that white
substance Silvadene?
A Yes, it is.
Q
That's the cream that was the first layer of
treatment in her wound care?
A Yes.
Q And the next page shows -- 1S that a bandage
on her knee?
A Yes, it's a -- like an antiseptic layer.
Q Is the antisepteic layer the next layer that
went on after the Silvadene?
A Yes.
Q Was there a layer after that?
A Yes.
Q And is that the layer that's in the hands of
the person wearing gloves there?
A Yes, it is.
Q Is that your wife wearing gloves?
A Yes.
Q Why was your wife wearing gloves?
A Just to keep them clean or -- yeah, so there
wasn't any chance of infection, we used the gloves.
Q Does that last picture show her with a
completed bandage?
Ex A
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R. Stephens - D
A Yes, it does. This last layer was like to
soak up any discharge from the wound.
Q Did her wound discharge for some period of
time?
A Yes, it did.
Q Can you estimate how long?
A About two, two weeks.
Q
Thank you. You can put that down. Did
you by what we see in this picture, you're changing
a dressing. Did you participate in that wound care on
a regular basis?
A Yes, I did.
Q
At that point in time, were you working full
time?
A Yes, I was.
Q What did you do?
A I was a (indiscernible) designer.
Q
Courtroom?
A Nike.
Q And was that a regular nine to six
A Yeah.
Q
-- type of schedule?
A (Indiscernible) at least 40 hours a week.
Q At that time, was your wife working as well?
A Yes, she was.
Ex A
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R. Stephens - 0
Q What was her work schedule?
A She worked weekends at an adult foster care
horne.
Q Between your work schedule and hers, were you
able to follow the doctor's instructions for her wound
care?
A Yes.
Q Was there ever a time that you're aware of
that her wound was not cared for according to doctor's
instructions or better?
A No, we were -- we were highly attentive and
we tried to keep her as comfortable as possible
throughout the whole healing process.
Q Have you ever talked to your daughter about
her burn?
A Yeah.
Q What is her attitude towards this.
A She is -- she's a very strong girl.
She's she's a trooper. She doesn't like to talk
about it. When it first happened, the -- we talked
about it, and it was a very frightening experience for
her, very traumatic. And now, as time has gone on,
she -- I -- I think that she really just wants to
forget it ever happened and just kind of move on. But
it -- I -- I think it still affects her.
Ex A
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~ ,
"
R. Stephens - X
Q As her father -- I'm sorry, are you done?
A Yes.
Q As her father, have you had a chance to see
her burn regularly since it happened?
A Yes.
Q She usually keeps it covered. She doesn't
like people to look at it.
Q In the exhibits, the -- the jury will see
that few first exhibits, that there are dramatic change
in the appearance of the - the injury, would you agree
with that?
A Yes.
Q At some point, did the aappearance of her
scar stop changing?
A Yes.
Q About when was that? How long has it been
the way it looks now?
A I would say at least six months maybe.
CROSS-EXAMINATION
BY MR. LACHENMEIER:
Q She's healed remarkably, hasn't she? It
looks quite good now compared to what it did, doesn't
it?
A Yes, it looks good.
Ex A
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R. Stephens - X
Q
A
Q
long ago,
A
Q
A
Q
right?
A
Q
A
Q
A
Q
daughter
client's
A
Q
What do you do now?
I'm currently in between jobs.
You were a welder when I deposed you not very
right?
Yes, I was.
You have four children, right?
Yes, I do.
And they all have names that mean something,
Yes.
And Qadira's name means what?
Powerful.
She lives up to that name, too, right?
Yes, she does, very much so.
Now, you've been active
-
you went with your
on the same field trip that - that - that my
husband went on, right?
Yes.
All right. She seemed to have a good time
there, didn't she?
A
Q
to cats?
A
Q
Yes, she did. (Indiscernible. )
Now, at some point was your daughter allergic
No.
No?
Ex A
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R. Stephens - X
A No.
Q You got rid of a cat for some reason that
related to allergies, didn't you?
A Yes.
Q What -- what was the reason?
A My - my son's allergic to cats.
Q Okay .. Your daughter's teachers, that was
Julie Putney?
A Yes.
Q And Jeff Rude?
A Yes.
Q They never said anything about your daughter
having any apparent changes, did they?
A No.
Q
And she does really well in literature,
right?
A Yes, she loves to read.
Q She did before and she still does, doesn't
she?
A Yes. It's kind of a -- an escape for her.
Q What's that?
A It's kind of an escape for her, an escape.
Q
Now, that that little boy, Alex, that drew
the picture of her -
A Yes.
Ex A
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R. Stephens - X
Q
is that the same little boy that pulled
her pants down a couple of times at school?
A Yes.
Q That's pretty upsetting, right?
A It was upsetting for us, yes.
Q Okay. And as a result of that, they got
declared off the -- let's strike that. Your daughter
was not allowed to play with him for a long time,
right?
A We didn't encourage it, no.
Q Well, you wouldn't let her, would you?
Didn't you say you can't play there?
A No.
Q Well, he can play with them now, right?
A Yes.
Q And the timing of this, particularly the
drawing of the naked picture, was just about a month or
two before this burn incident, right?
A Yes, I suppose so. It was a stick figure,
though. I don't I don't know how a stick figure can
be a naked picture, but
Q And did that incident affect your daughter
and make her a little more shy and a little more
reserved?
A I don't think so. She wasn't aware of it.
Ex A
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163
R. Stephens - X
Q Well, she was aware that you told her -
your your wife told her that she couldn't play with
with him and why, didn't she?
A Oh, what was the question?
Q I think you just said she wasn't aware of it.
A She wasn't aware of the drawing. We never
talked with her about the drawing. It was her brother
that brought up the drawing to us.
Q
Well, her brother told her presumably, right?
A I don't see why he would have.
Q Well, didn't you -- didn't one of you -
don't want to belabor this much longer, but didn't one
of you tell your daughter specifically she couldn't
play with this kid and why?
A No.
Q You did not?
A Not that I - I mean, we - like I said,
we - we didn't encourage it.
Q Wasn't there a feud g.oing on between their -
her - his parents and you folks?
A Not a feud. It was a -- we had a
disagreement.
Q All of the medical treatment was over in
April of 2007, right?
A I believe so, yes.
I
Ex A
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R. Stephens - X
Q So everything is condensed from April 12th;
by April 30th it was allover, or pretty close to?
A All the medical treatment, yes.
Q And she was only out of school a couple of
days a couple of weeks, right?
A Yes, three -- three, I believe.
Q I'm sorry?
A Three weeks, I believe.
Q
Do you remember - let's see. I took your
deposition June 30th of this year. Page 62, line 1
one: "Wasn't she only out of school for a couple of
weeks? Answer: Yes." Isn't that what you said?
A Yes.
Q And she only used the crutches for a couple
of days, right?
A I'm not exactly sure how long she was on
crutches.
Q Right now she will wear a swimsuit, won't
she?
A Yes, she will.
Q
And she goes and she's played on a Slip 'N
Slide -
A Yes, she has.
Q -- with the neighbors and no -- no teasing
there, right?
Ex A
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R. Stephens - X
A No teasing.
Q And she literally hasn't talked about this at
all for about six months, right?
A Yes, she does not like to talk about it.
Q Well, as a matter of fact, she just doesn't
talk about it, right? You don't bring it up and she
doesn't talk about it
A Yes.
Q
-- right?
A Yes.
A I mean, I have asked her about it. She
doesn't like to talk about it.
Q Now, recently she went to Ellie's birthday
party, right?
A Yes.
Q And that was a sleep-over for her?
A Yes, it was.
Q Okay. And you didn't have any discussions
with those parents about whether or not Qadira could
take a bath or anything else, right?
A No, we didn't. There was no plans to -- to
bathe the children.
Q Your child is quite an upbeat friendly child,
isn't she?
A Very much so.
Ex A
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166
R. Stephens - ReD
MR. LACHENMEIER: Thank you very much.
THE WITNESS: Thank you.
BY MR. KOCHER:
Q Mr. Stephens, I don't think I have much to
add except to clarify. At some point after Qadira's
immediate recovery, you worked yourself out, you had a
job change, is that correct?
A Yes.
Q And you're currently working to get back into
your profession?
A Yes, I am.
MR. KOCHER: That's all.
THE WITNESS: Thanks.
THE COURT: So?
MR. KOCHER: That's it.
THE COURT: Okay. Thank you, sir. You can step
down.
All right. Next witness.
MR. KOCHER: Your Honor, I need to confirm that
all your of our exhibits are in. Apart from that, the
plaintiff rests.
THE COURT: All right. Allowing you to confirm
exhibits then.
Ex A
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167
R. Stephens - ReD
Mr. Lachenmeier, how would you like to
proceed?
MR. LACHENMEIER: I would like to just call a
couple witnesses and
THE COURT: Okay.
MR. LACHENMEIER: just keep going if we could.
THE COURT: Let's do that. Great. Thank you.
MR. LACHENMEIER: The defense would call Sophie.
THE COURT: All right, ma'am. I'm going to have
you step up here to the witness stand. It's just here
to my left, so just right over here. If you'd just
walk right on, there's a chair there. If you want to
just stand next to that chair and Paul here is going to
ask you to take an oath to tell the truth.
SOPHIE BURKHOLDER
THE CLERK: Thank you. Please take a seat.
For the record, would you please tell me how
to spell your first and last name.
THE WITNESS: Sophie, S-o-p-h-i-e.
THE CLERK: Mm-hmm.
THE WITNESS: And Burkholder,
B-u-r-k-h-o-I-d-e-r.
THE CLERK: Thanks so much.
Ex A
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S. Burkholder - D
DIRECT EXAMINATION
BY MR. LACHENMEIER:
Q How you do in' , Sophie?
A Good.
Q Aimee is your mom, right?
A Yeah.
Q Okay. A little bit nervous?
A Yeah.
Q I'm gOlng to stand over here so that you talk
loud enough. I'm the one that's a little bit deaf, so
if you keep your voice up, hopefully, all these folks
will be able to hear.
A Okay.
Q Okay. Can you pull that mic a little bit
closer, too?
Q Okay. How old are you?
A Nine.
Q Where do you go to school?
A Hayhurst.
Q And are there is there more than one
school at Hayhurst?
A There's two.
Q
And which one do you go to?
A Odyssey.
Q
How long have you been friends with Qadira?
Ex A
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S. Burkholder - D
A Since kindergarten, so kindergarten, first,
second, third. This is going to be our fifth, knowing
each other in fourth grade.
Q Okay. You start fourth grade in September,
right?
A Yes.
Q Okay. Now you live in the Maplewood
District?
A Yes.
Q And did you go to kindergarten in Maplewood?
A Yeah.
Q Is that where you met Qadira?
A Yes.
Q Okay. Now, before the incident in which
Qadira got burnt, had you gone over to her house?
A Yes.
Q Had she come over to your house?
A Yes.
Q A few times? A lot of times?
A A lot.
Q Okay. Had she stayed overnight at your house
before?
A Yes.
Q
Had you ever taken a bath together before?
A Yes.
Ex A
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S . Burkholder
-
D
Q One time? Two times?
A Once.
Q Okay. And nothing happened that time, right?
A No.
Q Now, the day of this incident, that is, the
day that she got burnt, okay? How was it you guys
decided to have a -- a sleep-over?
A I don't remember. I just remember that we
had school off for a couple days, so
Q So there was no school the next day,
whatever?
A Yeah.
Q
Okay. Do you remember what time you guys got
together at your house?
A No.
Q Do you remember what you were doing at your
house, what kind of things you played at?
A No.
Q No idea?
A Probably just regular, like computer, biking.
Q So you guys usually played with the computer?
A Yes.
Q Sometimes do Karaoke?
A Not really.
Q
Okay. Did you have a new cat?
Ex A
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S. Burkholder - D
A Yes.
Q
Was one of the things that you were going to
do was to see that cat?
A Yes.
Q Eventually you guys took a bath, right?
A Yes.
Q Whose idea was that?
A I don't remember.
Q
Did it have anything to do with the cat?
A Yes.
Q How so?
A She was allergic to cats, so she wanted to
wash off.
Q
Is that what she said?
A Yes.
Q
Okay. So tell us about the bath. What
what you -- what was the idea? You were going to play
or
A We were just going to wash off, and it was
getting cold, so we decided to have some hot water.
Q Now, who filled up the bathtub?
A Us.
Q
Who turned it on?
A I don't remember.
Q
Your bathtub. Did you turn it on?
Ex A
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S. Burkholder - D
A Probably.
Q Okay. And at some point, the -- you're
playing there for a while together, right?
A Yes.
Q
And the water starts to get cold?
A Yeah.
Q Now, is this something that's happened to you
before?
A Yes.
Q So what did you do when that happened?
A We called to my mom to ask to bring in some
hot water.
Q And how has she done that before?
A She gets it, obviously, and she makes me get
out or I just curl up at the end and she pours it in.
Q This time how did she do it?
A She had us get out, stand behind her and she
poured it in.
Q Can you tell these nice folks how this
happened? What happened?
A Well, we got out and then
Q You got out of the tub.
A Yeah.
Q Did you get clear onto the ground?
A Yes.
Ex A
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S. Burkholder - D
Q Okay. Then what?
A We -- she started -- my mom started pouring
the water in, and the next thing I my dad was asking
me where we wanted to sleep, and I said we wanted to
sleep in the living room. And the next thing I know
Qadira was in the tub.
Q Later did you talk to Qadira about what
happened?
A Yes.
Q And what did she say about getting into the
tub?
A She said that she tried to jump on the
outside of our tub but she slipped off and fell into
the tUb.
Q What happened after she got burnt?
A My dad put a robe around her and we gave her
some ice, and then when we -- we -
Q
First -- I'm sorry. Right in the tub, did
something happen first? As soon as she was burned,
what did your mom do?
A She put cold water on her leg.
Q Okay. And then your dad did what you just
said. Did someone call her mom?
A Yeah.
Q Who?
Ex A
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S. Burkholder - D
A I can't remember.
Q
Okay. Then what happens?
A We went downstairs and watched a movie, and
we switched it from a bag of ice to frozen peas.
Q To what?
A Frozen peas.
Q Oh, okay. On the
--
on the burn?
A Yeah.
Q Okay. And did Qadira calm down eventually
down there?
A No, she just wanted her mom.
Q Okay. Then her mom comes?
A Yes.
Q And that's all you knew that day, right?
A Yeah.
Q And then a few days later, did you go see
her?
A Yeah.
Q And what did you do?
A We brought her over a video game and a
stuffed animal.
Q Do you remember what game it was?
A It was something that had to do with Sponge
Bob.
Q Did you take her a card or two?
Ex A
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s. Burkholder 0
A We took her cards a couple days later.
Q Okay.
A The whole class's stuff.
Q We'll come back to that in just a second.
When you saw her that first time, was she crying?
A No.
Q Was she playing games?
A Yeah.
Q And was she happy to see you?
A Yeah.
Q You were happy to see her?
A Yeah.
Q Okay. How long did you stay?
A I can't remember.
Q All right. Then you said you brought some
school cards to her. How did that happen?
A The teacher was going to bring them, but I
volunteered to take them over.
Q And how long was that after this happened?
A I can't remember.
Q Before she went back to school for sure,
right?
A Yeah, sometime, so ...
Q Okay. When you saw her that second time, how
she was she doing?
Ex A
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S . Burkholder - D
A She was doing pretty well.
Q Later she came to school?
A Yes.
Q Did she show people at school her scar?
A Just a couple people.
Q Just what?
A Just a couple people, Ii ke her closest
friends, not everyone.
Q Okay. Did she participate in the show at the
end of the year?
A Yes.
Q And you've seen her since then a lot, right,
at school?
A Yes.
Q Okay. And does she seem to be the same girl
she always was?
A Yes.
Q Now, you're not currently real good friends?
A No.
Q You were for quite a while, though, right?
A Yes.
Q Have you been allowed to go to her house?
A No.
Q Has she been allowed to come to your house?
A No.
Ex A
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s. Burkholder - D
Q Do you have different friends now?
A Yes.
Q But you're still friendly to each other,
right?
A Yeah.
Q Before this incident, did Qadira play on the
playground?
A Yes.
Q After this incident, did she play on the
playground?
A Yes.
Q Did she go to the powwow this year?
A Yes, she was in it.
Q We saw a little video of that. Was that a
fun dance?
A Yeah.
Q There wasn't any music that we played here,
but it actually had music you were dancing to, didn't
it?
A Yes.
Q What was the name of it, do you know?
A No. The name of the dance or the name of the
song?
Q I'm sorry?
A The name of the dance or the name of the
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S. Burkholder - X
song?
Q
But you can't remember either one.
A I can remember the name of the dance.
Q Okay.
A It's the Jingle Dress Dance.
MR. LACHENMEIER: Thank you very much. That's
all I have.
THE COURT: All right. Any cross?
CROSS-EXAMINATION
BY MR. KOCHER:
Q Hi, Sophie.
A Hi.
Q I just have a couple questions and then
you'll be all done.
A Okay.
Q Sophie, do you see the picture behind you?
A Yeah.
Q Can you see that that's kind of a diagram of
your bathroom?
A Yeah.
Q And I just want to ask you where people were
when Qadira got burned.
A Okay.
Q Do you think you could walk up to that
diagram and point first and show me where you were when
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S. Burkholder - X
Qadira got burned?
A I was over there by the toilet.
Q
You can't quite reach high enough
A Yeah.
Q
-- but you were just to the left of the
toilet?
A Yeah.
Q And your mom was standing next to you, right?
A Yeah.
Q She was standing in the .-- kind of in the
middle of the tub?
A Yeah, right there.
Q And where was Qadira?
A Over here.
Q She was to your mom's left, right?
A Yeah.
Q And you were right there when Qadira got
burned?
A Yes.
Q And I know it was kind of bad what happened.
But I want to ask you, do you remember what Qadira did
when she got burned?
A No.
Q Did she scream?
A Yes.
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S. Burkholder - ReD
Q I know you felt bad for her, right?
A Yeah.
Q And you -- you still feel bad for her?
A Yeah.
MR. KOCHER: Thank you. That's all I have for
you. You're done.
MR. LACHENMEIER: Just one redirect.
MR. KOCHER: Oops, I'm sorry. He's got one
question. You're almost done.
BY MR. LACHENMEIER:
Q So when you walk out of here, is the jury
going to see brand new shoes?
A Yep.
THE COURT: All right. Okay. Thank you.
Next witness for the defense.
MR. LACHENME I ER: The next thing we want to do is
to read Qadira's deposition.
THE COURT: Okay.
MR. LACHENMEIER: Betsy, you want to corne
forward. I think you need to be sworn in, even to
to -- to read, or does she or
THE COURT: I don't believe so.
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MR. LACHENMEIER: Okay. This is Betsy Fernley.
She's a legal assistant at my office.
THE COURT: So folks, what's doing to happen is
a -- a deposition is going to be read to you, and
Mr. Lachenmeier will introduce when this deposition
took place and who was present.
But rather than having an actual witness
testify, he's chosen to read the deposition of Qadira
Stephens. So the person from Mr. Lachenmeier's office
is simply -- he'll be reading the questions he asked
her; she'll be reading the answers that were given in
the deposition.
This, obviously, is not the testimony of the
actual person who's sitting here but is the sworn
deposition testimony of Qadira Stephens.
All right. Mr. Lachenmeier.
MR. LACHENMEIER: I just have to unshuffle these
papers enough to get everything to her.
THE COURT: Okay.
MR. LACHENMEIER: Just hang on just a second.
These magnify just a little.
MS. FERNLEY: (Indiscernible.)
MR. LACHENMEIER: To see if these magnify just a
little, to see whether it's you or I that needs to use
the -
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MS. FERNLEY: I think I'll be okay. I'll use the
little thing.
MR. LACHENMEIER: -- to use the -- you can do the
little one?
MS. FERNLEY: Sure.
MR. LACHENMEIER: Okay. I'll leave these here in
case you need them.
MS. FERNLEY: Okay.
THE COURT: Mr. Lachenmeier, if you could just
introduce when the deposition took place and who was
present.
And folks, this is test- - this is evidence,
you know, that this is -- I mean, although it may seem
unusual if you're not used to seeing other people read
the testimony of someone else, this is evidence in the
case that you can consider.
MR. LACHENMEIER: This is the deposition of
Qadira Stephens taken February 26, 2008. The court
reporter was Brenda Rogers. It's commenced at 9:17 in
my law offices, Lachenmeier, Enloe, RaIl and Heinson,
at 9600 Southwest Capitol Highway; those present,
counsel, Scott Kocher and myself, and also present was
Karellen Stephens, Aimee McQuiston and Susan O'Leary.
THE COURT: Thank you.
MR. LACHENMEIER: I think we start at the very
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top so that they see everything.
DIRA STEPHENS
deposition testimony, questions read by Mr. Lachenmeier
and answers read by Betsy Fernley as follows:
EXAMINATION
BY MR. LACHENMEIER:
Q Hi.
A Hi.
Q What's your name?
.A Qadira.
Q Qadira, this is a court reporter and her name
is Brenda Rogers, and she's writing down every single
thing that either one of us says, do you understand
that?
A Uh-huh.
Q It's easier if you say yes or no rather than
uh-huh, so we don't have to argue later about who said
what, okay?
A Okay.
Q This is being put down and it's going to go
into a book. If it was used later, if you said
something different than you did today, it could be
pointed out, but as long as you tell the truth, we have
nothing to worry about, right?
Ex A
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Q. Stephens - Deposition Testimony
Q That's yes, for the record?
A Yes.
Q Okay. Do you know what it means to tell the
truth?
A Uh-huh. Yep.
Q She, referring to the court reporter, she's
going to give you an oath and ask you if you're going
to tell the truth, and that's what this is all about.
If you agree, you can just say yes, and if you don't,
we have to figure out why, okay?
A Okay.
MR. LACHENMEIER: Qadira Stephens was thereupon
called as a witness and, after having been first
administered a child's oath to tell the truth, was
examined and testified as follows. And my questions
begin again.
BY MR. LACHENMEIER:
Q Let's start with some easy questions, okay?
How old are you?
A Nine.
Q Where do you go to school?
A Hayhurst.
Q Hayhurst, okay.
A Elementary School. What was the last part of
a little (indiscernible)? Do you have any friends or
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grandpas or anything that are hard of hearing? I'm a
little hard of hearing.
A Well, yeah, I have a grandmother, that I have
to speak up for my grandma.
Q
I know it's a little intimidating for a
lawyer to ask you silly questions, but I need you to
speak up loud, okay? I listened to too much loud music
when I was a kid and I don't hear as well as I once
did, okay?
A Okay.
Q Are you missing school today?
A No.
Q Is it a day off?
A No.
Q Well, tell me the rest of it then. How come
you're not missing school and it seems like a school
day?
A I'm just going to go after this deposition
thing.
Q Fair enough. Tell me a little bit about
Sophie. How do you know Sophie?
A Uh-huh.
Q But you know Sophie, don't you? Excuse me.
A Uh-huh.
Q How long have you known Sophie, a long time?
Ex A
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A When I was in kindergarten, that's how long.
Q Is that where you met her?
A I met her at Maplewood. We were in
kindergarten when we met. After first grade, I decided
to move to Hayhurst, and I told her if she wanted to
and her parents agreed, so we -- yeah, we went to the
same school and I got into second grade.
Q My understanding is Hayhurst has a regular
public school and another school, and you're in the
other school, right?
A There's like, okay, two hallways. One is
like, yeah, just regular school, and then one hallway
is like the Odyssey side, which the Odyssey side is
more like learning and history and more like
experience.
For one thing, I'm studying Native Americans
and like we dress for powwow and we're going to start
studying Ii the white man's perspective and we're
going to the Yakima Reservation for a three-day
two-night trip and we're going to sleep in teepees and
sketch pictures and stuff of how the Yakima Reservation
looks like.
Q Are you an artist? Do you draw pretty well?
A Yeah, pretty much.
Q I think you told us that you actually made
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your headband, right?
A Yep.
Q Is that a school thing, too?
A Yeah.
Q Very nice, very nice. Before this incident
occurred, and we're going to call it an incident with
hot water. Before this incident, had you ever been to
Sophie's house?
A Uh-huh, yes.
Q Had you stayed overnight before?
A Yes.
Q
Had you taken a bath with Sophie before?
A No.
Q That was the first time?
A Yes.
Q
Okay. The day that happened, was it a school
day or not a school day or what was going on?
A I think it was a Friday.
Q Okay. Do you remember whether or not you
went to school that day?
A Yeah, I went to school on Friday. I'm pretty
sure it was a Friday. I'm not sure but pretty sure.
Q It was a Friday anyway and whether it was a
day off or
--
a day on or a day of f, right?
A Uh-huh.
Ex A
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Q
So when did you first talk to Sophie that
day?
A Well, I'm not pretty -- I'm not sure.
Q When did you - do you remember whether you
saw her in the morning or saw her for lunch or when's
the first time you're sure you were with Sophie?
A Well, in the morning, in the morning when
school started.
Q
Hmm.
A In the morning when school started.
Q
In the morning when school
A Yes. Yeah, we were in our classrooms.
Q What about the afternoon? What did you do?
A After school?
Q Yes.
A Well, I think Aimee pick us up and
-- well,
I'm not sure, but I think we dropped off Jeremy,
Sophie's carpool, first. Then we went to Sophie's
house. Then we just like played.
Q What was the plan ahead of time? In other
words, did you know the day before that you were going
to go to Sophie's house that day?
A Yes.
Q And were you going to Sophie's house to do
what?
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A Spend the night.
Q And you spent the night there before? Yes?
A Yes.
Q And she spent the night at your house before?
A Yes. Yes.
Q I forgot to ask. Do you have brothers and
sisters?
A Yes, three siblings.
Q How old are they?
A I have a sister who right now is four and
she's going to turn five June 1st.
Q What's her name?
A Camea (ph).
Q What other siblings do you have?
A I have a brother named Kamani (ph. Right now
he's seven, and he's going to turn eight
September 13th, and I have a little brother who's
three, and his name is Kaden, but we call him Tevy.
Q Call him what?
A Tevy.
Q How come?
A I don't know.
Q Just for fun?
A Yep.
Q Okay.
Ex A
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A And it's his nickname.
Q
All right. His birthday is December,
December -- what's his
Q It's okay, Mrs. Stephens said.
MR. LACHENMEIER: Me continuing.
BY MR. LACHENMEIER:
Q
That's all the brothers and sisters?
A Yep, and I'm the oldest.
Q You're what?
A The oldest.
Q
What was his birth
--
date of birth?
A September 27th.
Q
What year? This is a test here.
A 1998.
Q
Okay. So you end up at Sophie's house after
school in the afternoon anyway, right?
A Uh-huh.
Q Who's there at the house?
A Aimee, Todd. I'm not very sure if Sophie's
sister was there, but I know that Aimee and Todd were
there.
Q
And Sophie, of course?
A Yeah.
Q And when you first got there, do you remember
what you did? Did you play?
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A Yeah, we played.
Q What did you play?
A I'm not sure, but we played.
Q
What kind of things do you usually play?
A Well, like we did Karaoke and like we -
Q Do they have a Karaoke machine?
A Yes.
Q
What did you sing?
A I'm not sure either, but I know I sing the
song.
Q What else did you do that day that you
remember?
A We played with this -- with these little
Polly pocket thingies. I'm not sure. Okay. I had one
and it was from like China. My dad brought one. It's
like these little tiny girl people, and there's stores
and stuff, house and stuff.
Q So teeny dollhouse, sort of?
A Yeah.
Q Who's idea was it to take a bath?
A Sophie.
Q What was the idea? Were you going to play in
the tub?
A I guess, yeah.
Q
Did she have any bathtub toys?
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A No, we were just going to splash around or
something.
Q Splash around in the water. So what happens
next? Somebody decides you're going to take a bath.
So what happens?
A Okay. So we wait for a while. We were going
to playa board game, but we didn't end up doing that,
so we took a bath. We turned on the water, and Sophie
told me that her mom like -- like makes this hot
boiling water and pours it in the tub so it's hotter,
because we both really like hot water.
Q Do you usually take baths at home or do you
usually take showers?
A Showers.
Q So Sophie had told you you might have to get
some hot water to get it hot enough?
A No, she told me like do you want to get -- do
you - do you get the -- do you want me to have my mom
get hot water and pour it in the tub so it's hotter.
said yeah, because -
Q Usually like hot water? Do you take hot
showers?
A Yeah. Well, not very hot but hot enough.
Q Have you ever been in a hot tub?
A No.
I
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Q No, okay. So you were in the tub a while
before the hot water came in?
A Yeah.
Q How long? Any idea how long? Were you
playing for a while or -
A Yeah, we were playing for a while, and then
when Aimee came in with the hot boiling water, Sophie
stood on one side of the corner of the tub and I stood
on the other side, and when she was pouring the hot
water, I slipped and then it got on me, the hot water
got on me, and then she stopped pouring.
And Todd came in and Aimee said don't come in
here. And she put a robe on me and put me on the
upstairs couch, and I waited there for a little bit
with Sophie and then they moved me downstairs so I
could watch a movie, and I was crying, I want to go
home, I want to see my mommy and daddy. After a while,
I calmed down, and then Aimee told me that she would go
to the house, go to my mom and dad's house. She would
put me in the car and take me to my mom and dad's house
because she was trying to call them, but they didn't
answer.
And then I guess what Mom said was, Camea,
she really wanted to she really wanted to call me,
and she was like -- she was crying and stuff and
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finally they let her call me and then that's how they
found out that I was burned.
Q Let's back up a little bit, okay? I want to
make sure I understand how this happens. Now, you're
in the bathtub with Sophie. That's where we are. And
Aimee comes in with a teakettle, right?
A Yeah.
Q At that point, do you get out of the bathtub?
A Yes, I get out and stand on the corner and
hang onto the edge of the wall.
Q You were on the edge balancing?
A I was right here and hanging onto the wall
and here was Sophie, and I slipped, and she was still
pouring. That's when I got burned.
Q But what I want to understand lS, first of
all, the bathtub sits a little higher off the floor,
right?
A Yep.
Q When she was pouring, were you standing on
the edge of the bathtub or the floor of the bathtub?
A I was standing on the edge of the bathtub on
the corner.
Q Of the bathtub itself?
A Yes.
Q Was Sophie standing on the other side of the
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195
Q. Stephens Deposition Testimony
tub or was she completely out of the tub?
A She was on other side of the tUb.
Q Completely out of the tub?
A Yes.
Q What were you holding onto?
A I was holding onto the corner, onto the wall.
I was just holding onto the wall.
Q So Aimee starts pouring the water?
A Yes.
Q And she's halfway between you and Sophie?
A Yes.
Q Is there anything else that happens that
scares you or causes you to fall, or what happened?
A I slipped and I hurt myself. I hurt myself.
I slipped on -- in the water where she was pouring, and
I was like -- I was like I got burned, I got burned.
Q I understand that. But I'm trying to figure
out is what caused you to slip. Do you remember?
A The water, I think some water on the tub.
Q Was there soap in the water?
A I'm not sure. I think there probably was,
but I think it was just the water.
Q Well, for instance, was there a bubble bath
going on?
A No.
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Q No bubbles?
A I'm not sure.
Q
Any toys?
A No.
Q
Any squirt guns?
A No.
Q No? I guess that's a boy thing. So nothing
scared you. You weren't trying to get away from
anything? You just slipped into the tub?
A Uh-huh.
Q Is that right?
A Well, wait. I remember then like Todd coming
in, and I was trying to hide so he wouldn't see me and
then slipping.
Q So Todd came into the bathroom or just heard
his voice or what?
A He came into the bathroom. That's when Aimee
said, oh, don't come in here, and I'd slipped because
didn't want to be seen.
Q So you were trying to get around the edge of
the tub.
A Yes. This is where the tub is and this is
the water running and this is where she's pouring and
this is me I and I hear him coming in and I tried to
move right here and I slipped.
I
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Q Sounds like you could draw this. Could you?
A I guess.
Q Let's give it a try, and if it gets too hard,
we won't do it, all right?
A I'm just going to draw stick people.
Q What I want to know is right before you fell.
That's what I want to see.
A Okay.
Q You can put anything else you want in the
diagram.
A This is supposed to be Sophie. Looks likes
she's falling down.
Q Write a little S on her somewhere.
A Okay. And this is me.
Q Perfect.
A And this is - we kind of look like we're
falling down right now.
Q
Well, you're doing better than I could draw.
A Just drawing stick people. I can draw better
than this.
Q Well, I can't. Is that right in the doorway?
Is that where Todd was?
A This is the sink thingy. This is the sink,
so this is kind of where I was.
Q So what was Todd doing? Coming in the
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bathroom? Was he asking where you wanted to sleep?
A I don't know.
Q
Was he saying something to somebody?
A I don't know. I'm not sure.
Q
Did he get clear in the bathroom or just in
the door?
A He was like -- here's the door. He was about
right here.
Q
Right in the doorway.
A Yeah.
Q Was the door open or halfway or all the way?
A All the way.
Q Did it open in or open out?
A This way here, out.
Q
Okay. What did Todd say, anything?
A He didn't say anything.
Q
What did Aimee say?
A Well, what -- I'm not sure what she said, but
all I know is kind of how -- like how it happened, like
when they pour -- because I forgot. Where she poured,
she was like, oh, no, and she gave me the robe and all
that stuff.
Q Your voice is getting so soft. Then she gave
you a robe, and then what?
A I just sat on the couch, and Sophie and Todd
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said just try not to think of what just happened and it
won't hurt that much, try not to think of how it hurts.
And I just cried, and I stopped a second and I started
crying. When I got downstairs, I stopped and said, I
want my mommy.
Q Let's talk about the water itself. It's
coming out of the teakettle?
A Yes.
Q And it hit what leg?
A It hit me -
Q The one you just showed us, right?
A Yeah.
Q Which one is that? Do you know your right
and your left?
A I guess it was my right.
Q Well, tell me this.
A Or my left.
Q Tell me this.
A This way.
Q What direction were you facing when you
slipped? Were you facing towards the wall, behind the
tub, towards the front -
A This is me and I fell down right here, and I
was like right here.
Q Looking which way?
Ex A
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A This way.
Q Right towards Aimee?
A Yeah.
Q Okay. That's fine. That's enough drawing,
though. If you draw anymore, I'll get confused.
A Okay.
Q When we're done here, remind me to mark that.
Obviously, it hurt.
A Yes.
Q So there's -- so somebody gives you a robe.
Was that Aimee?
A Uh-huh.
Q Did someone get some frozen peas or something
to put on it?
A Yes.
Q Did you go down to the basement?
A First I went to the up
--
on the upstairs
couch, then to the basement.
Q Did you get the peas right away?
A Yes, but first she put water on me.
Q From the tub?
A Yes.
Q She ran the cold water on it right away?
A Yes.
Q Did that help? Did it take some of the sting
Ex A
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out of it or not?
A Not really how I felt. It didn't really
because I wasn't thinking about anything else, but
Q Okay. And so you took -- and so who took you
to the basement?
A I think Todd carried me down.
Q Okay. And then what happened after that?
You were watching movies or TV while they were trying
to call your mom?
A Uh huh, watching the movie.
Q Eventually they get ahold of your mom, is
that right?
A Well, they don't get ahold of her. They
don't get ahold of my mom. Camea really wanted to call
me, and then pretty soon my mom and dad just called so
Camea can get on the phone. So that's when they heard
about it.
Q You're saying Cameas.
A Camea.
Q That is who?
A My sister.
Q Oh, okay. I'm sorry. Then who comes to pick
you up?
MR. KOCHER: It's - it's Camaia (ph).
MS. FERNLEY: Camaia, sorry.
Ex A
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Q
And then they
MR. LACHENMEIER: Oops, sorry.
A Oh, my mom and dad, and then they take -
then we go to the house first. I'm not sure why. Then
we go to the hospital.
Q Okay.
A And like then I like go to the emergency
room. I'm in a wheelchair because I don't want to
walk.
Q What did they do for you in the hospital?
A They gave
--
they like put this cream on.
First I went to the emergency room and they put this
cream on me at first. Well, first I waited a little
bit, then they put this cream on me at first, then this
wrapping on me, then like I just
Q Did they give you anything for your pain?
A Yes. They gave me like a Teddy Bear or
something.
Q Oh, cool. Did you have to take any pain
medication?
A No.
Q By the time you left the emergency, was it
better?
A Yes.
Q Wait. I'm not sure if they gave me pain
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medication. They probably did.
Q Every time I've been in emergency, they take
forever to get to me. Did they take forever to get to
you or did they get to you pretty quick?
A They took forever.
Q You must have priority. Usually they take
the heart attacks first, and it seems like they take
forever if you have anything else.
A Yes, they took forever. Then they took me.
When I got home, I stayed for a while. That night when
I slept, I just slept. And in the morning, like that's
when it got into like well -
Q
That's when what happens? The next morning
what happened?
A The next morning I got like candy and stuff
and I got to sit in my mom and dad's bed and I got to
have Sour Skittles, and yeah.
Q So you got treated pretty special for a
while, huh?
A Yeah, but the thing is I missed a lot of
school, and it was a division unit and stuff and I
missed all that. Now I have to re study my math a lot.
Q So when you got home, it was in a wrap,
right, a dressing wrapped around your leg?
A Just like -
Ex A
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Q Band-Aid sort of?
A Yeah.
Q And they probably had to -- they probably
changed those a few times a day?
A Yeah, and they had to change it. Sooner or
later - sooner or later my dad got me crutches because
I didn't like to walk. It's hard to walk.
Q Okay. How long did you use crutches?
A For a few days.
Q Okay. And sooner
MR. LACHENMEIER: Whoops. Sorry.
A And sooner or later my leg got better and we
went to like this doctor, this doctor, and my leg just
turned into like a bruise thingy. And then I went to
this doctor
l
and he said I was fine and I could go back
to school, so I went back to school.
Q How much did you miss, a week, two weeks?
A I think it was two weeks or maybe a week.
Q When you were home
l
did you do homework and
stuff? Did someone bring you homework?
A Yes
l
I'm pretty sure.
Q But you got behind a little bit in division?
A Yeah.
Q Did you get caught up? Can you do division
well now?
Ex A
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A No.
Q No?
A But like Sophie came over sometime with Todd,
and they gave me like this video game, because I have
an NQ (ph) and they gave me a video game, a Mario video
game and a little stuffed animal. Sophie played with
me for a little bit. Then yeah, they just left, and
just played the video game. I moved downstairs.
Q When were you home, did you have to sit on
the couch or what did you have to do?
A I sat. I just laid in my bed a lot, and I
just I got served like lunch and stuff in bed, and
after a while, I began to like walk around and stuff,
and sooner or later I felt like I can just go to
school.
Q Do you know what it means to get infected?
A Yeah.
Q Did it get infected?
A No.
Q No? Okay.
A Only I knew if it got infected or not,
because they told me if it got white, if it was
whitish, it would be like infected.
Q And that didn't happen?
A No.
I
Ex A
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Q I saw some pictures where your leg was really
red. Did they put some red dye on you or something?
A No, that's just how it looked.
Q
That's not medicine?
A No.
Q So you went back to school, and after you
went back to school, what problems did you have, if
any, with your leg?
A Well, I showed my friends and it - well, I
showed some of my friends, and they said, ew, it's
g r 0 s s , and I' .m I ike, it' s no t t hat g r 0 s s . And I
really - I wasn't really like embarrassed at all
and
Q You were not embarrassed?
A I wasn't very embarrassed, no.
Q After you went to school, did you have any
trouble walking?
A No.
Q Did you have to be careful what clothes you
had on?
A Yes.
Q Is that because it was still in a wrap, still
had cloth around it and bandages?
A Well, actually
--
well, I wore short pants
and stuff because I didn't have to be in bandages
Ex A
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anymore, but actually I had to wear long pants because
I had to sun block it all the time and it was really
sunny.
Q Okay. Did you make up all the school that
you missed? Did you get caught up?
A I'm not sure. I think I was doing my
homework at home.
Q Do you have any problems with your leg right
now?
A No.
Q Okay. And when's the last time you saw a
doctor for your leg?
A The last time? I think it was that time,
that day where we went to the doctor's, went to the
doctor and they told me that my leg was fine, that it
didn't need a bandage anymore and I had to moisturize
it every day and put sun block.
Q Are you planning to see more doctors or are
you all done with the doctors?
A All done with the doctor.
Q I wonder what you do for fun. Do you play
sports?
A I play tether ball.
"
Q You have a couple little marks on your leg,
little scars from playing soccer or something. I've
Ex A
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got them allover my body. Do you ever play soccer?
A No.
Q
Do you know what I'm talking about, like
little bruises on your leg?
A Yeah, I have some of those, yeah.
Q Where did you get them from? Don't know?
A I don't know.
Q Didn't stop you, whatever it was, huh? Are
you a dancer?
A I used to be.
Q Were you a skater?
A No. Well, I like to go roller skating a lot,
and I hardly got to go roller skating but liked to go
roller skating and ice skating. I was scared to go on
ice before.
Q Did you ever get an ice lesson?
A No.
Q Did you get roller skate lessons?
A No, I just learned how to roller skate.
Q Where did you skate?
A I roller skated at Oaks Park. For ice
skating, I went to like the Alley and like at the mall.
It's the ice skating rink, I guess. I think it was
with my friend Sadiera.
Q Tell me about the dancing. Were you dancing
Ex A
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where?
A Well, I danced at the dance class thingy.
Q
The what?
A The academy thingy.
Q The dance academy?
A Yeah.
Q Where is it?
A It's somewhere here, around here.
Q What did you do for the -- with the dance
academy?
A Well, first, when I was really little, I
danced, and when I got older, I started doing ballet
and I did tap for a long time and I started jazz last
year, but I quit all of them.
Q Why?
A Just because I didn't want to do dancing
anymore. It took up to too much of my week.
Q You were dancing how many days a week?
A I think Monday was ballet, Tuesday, Saturday
or something. It was a lot. And I just hated the
going, constantly going to the dance classes. I took
jazz and tap at the time. I took two of those on the
same day and I took ballet separately.
Q So did you learn how to Shuffle Off to
Buffalo and all that good stuff that all the tap people
Ex A
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learn?
A I didn't learn that much, but I learned a
lot.
Q Slap tap?
A Yeah, so I learned a lot. But I just didn't
want to do it anymore.
Q But you're giving up dance didn't have
anything to do with your knee, did it?
A No.
Q Are you having any pain at all -
MR. LACHENMEIER: Wait.
Q Are you having any pain now at all?
A No, not at all.
Q Does it keep from - keep you from doing
anything?
A No.
Q Does it bother you at all?
A No.
Q Okay. You mentioned that you had to stay out
of the sun or something like that, right?
A I had to have sun block on my leg if I went
to go like play in the sun or play in the water and
stuff.
Q Hopefully, you put sun block more than just
your leg, don't you?
Ex A
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A Yes.
Q
Other than having to put sun block on it, is
there anything else that's an inconvenience or bothers
you in any way about your burn?
A No, except one thing I really don't like
about it is just -- I missed a lot of math and like I'm
behind on differing stuff, and I have to get caught up
on division and stuff. Mom and Dad are working on
that.
Q
They're working on" your division?
A Working on my times, division. I'm in a
first grade book.
Q
What grade are you in? I forgot.
A Third grade.
Q Okay. Are you and Sophie still friends?
A Yeah.
Q But you don't do anything together anymore?
A Not really. We don't have play dates and
stuff, but we play together at school sometimes, just
like basketball with our friends. Sometimes I just
play with my friends, like with Ginny, one of my
friends, and Ellie and Charlotte, tether ball.
Q
So you play tether ball and sometimes you
play basketball?
A Yeah.
Ex A
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Q Can you play with a 10-foot hoop? Can you
get the ball all the way up there or do you have lower
hoops?
A They're not like baby sizes. They're about
this high, if this is a person.
Q But not as tall as the adult ones?
A I think they're about as high as the adult
ones.
Q Okay. Are you pretty good?
A Yeah.
Q Are you pretty good at other sports, too?
A I'm good at tether ball and basketball.
Q Do you dribble with both hands?
A What do you mean?
Q I mean dribble sometimes with your right hand
and sometimes with your left hand?
A Yeah.
Q Which are you? Are you right-handed or
left-handed normally?
A Right-handed.
Q You never played soccer you said.
A No, I never took soccer. I never played it.
Q Are you doing anything this spring at school?
I know you're going to the cool thing with the Indian
reservations.
Ex A
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A Yeah.
Q
But are you doing any plays or -
A I just did a powwow, and I think I'm going to
do another play thingy because I'm doing two units.
Q Do you act at the powwow? Do you pretend to
be an Indian or
A Yeah, you pretend to be an Indian, do the
traditional dances, and yeah.
Q Sounds like a nice school. Little classes?
How many people in your classes?
A Well, I have two teachers. There's like
so like in the Odyssey, it's K, kindergarten, first
grade, second grade. That's one all clustered. And
then third grade, fourth grade, fifth grade all
clustered. I have two rooms, so some of the third
graders, fourth graders, fifth graders in this room and
some of the third graders, fourth graders, fifth
graders in this room. And K through K -- kindergarten
through second graders are in the other rooms.
Q Do you have -- do you do physical education
at school?
A Yeah, I do like gym. My school goes up to
the eighth grade.
Q
But in your gym class, what did you do this
year?
Ex A
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A Just all the normal. I just like do warmups,
pushups, gymnastics, like climbing ropes and stuff.
Q
You can do that?
A Yes, and soccer. I actually played soccer in
the gym.
Q
Are you pretty good?
A No.
Q
I think I'm done, but I need to talk to my
client for just a minute, but I think I'm done, okay?
MR. LACHENMEIER: "The Witness: Okay." Then "I
have nothing further."
THE COURT: All right. Thank you. You can step
down.
All right. Anything further from the
defense?
MR. LACHENMEIER: Other than making sure all of
my exhibits are in, that would be it for the defense.
THE COURT: All right. Will there be any
rebuttal testimony for the plaintiff?
MR. KOCHER: No, Your Honor.
THE COURT: Okay. Folks, a quarter to five,
we're going to break for the day. We've heard all the
testimony in the case. I'm going to -- I'll have the
attorneys make sure all the exhibits that they've
intended for you for your deliberations that are
Ex A
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215
entered into evidence and they've done that.
I'm going to -- I'll meet with them in the
morning and discuss the legal instructions that apply
to this case, and then we'll have you here at -- well,
Paul, we have an 8:45? Is that -
THE CLERK: We have an 8:45 in custody.
THE COURT: I think having you come - I mean,
normally I would have you come in at 9:00. I think
that's going to be too early because I need to take
care of a custody sentencing on a criminal case at
8:45, and just the time it takes to get somebody to and
from the jail takes about 15 minutes right there.
So -- and I need to have some discussions about the
instructions, so I'm thinking 9:30 to have you in the
jury room.
When we get started, what we'll go right into
is our closing statements. The attorneys will give
their closing statements. I'll give you the legal
instructions that apply to the case and you'll begin
your deliberations.
Oh, also, make sure before you leave tonight
that Paul gives you a copy or one of our business
cards, so if you have any emergency, you're going to be
late or something comes up, you can call my staff.
The other thing is that the parties are
Ex A
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entitled to the considered decision of each juror but
not necessarily each juror and their friends and
family. So you're going to go home tonight and be
around your folks that -- you know, either in your home
or friends, family. If your friends and family are
like mine, they have an opinion on just about
everything.
We're going to ask you not to -- you know
what? People may just want to jump in and give you an
opinion on what you think if you were to talk to them
about the case, so I'm going to ask you not to talk to
them about the case. Simply keep the facts to yourself
so that you are not soliciting, even if you felt -- if
I could tell my family, I don't want to - they're
going to jump in and give an opinion anyway.
So it's very important that we ask - that I
ask you not to solicit opinions from friends and
family, that you not look up, again, any information on
the Internet or from any other source and that you come
back here at 9:30 tomorrow morning and we'll go into
closing statement and instructions.
So Paul will see you back into the jury room.
Make sure you have our business cards, and we'll see
you all tomorrow at 9:30. Thank you very -
(End of audio.)
Ex A
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Plaintiff,
v. Nos. 0711-13836
A140487
AIMEE McQUISTON,
Defendant.
Volume II of III
- 269
matter came on regularly for Jury Trial before the
Honorable MICHAEL J. MCSHANE, Judge of the Circuit
Court of the State of Oregon for the County of
Multnomah, on the 12th day of August, 2008.
APPEARANCES
SCOTT F. KOCHER,
Attorney at Law,
RUDY R. LACHENMEIER,
Attorney at Law,
MaryAnn Gianni
503-307-3749
Ex A
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---
218
Jury Instruction Discussion
(August 12, 2008)
PRO C E E DIN G S
(Open court:)
THE COURT: All right. We are on the record
on -- on Karellen Stephens versus Aimee McQuiston, Case
0711-13836. We're in a jury trial, and we've concluded
the evidence.
I think the parties went -- went through
exhibits yesterday evening to make sure those were all
cleared up. I've given the parties a draft of the jury
instructions I intend to give, and going first to
Mr. Kocher for the plaintiff, any additional requests
for the plaintiff or any objections to any of the ones
I'm giving?
MR. KOCHER: Your Honor, I have one brief motion
before we get to the jury instructions, if I may.
THE COURT: Okay.
MR. KOCHER: I realized as we were doing the
exhibits last night that the diagram that was described
by the deponent or the -- the plaintiff actually,
Qadira's drawing that was described at length during
her read deposition yesterday was not offered by the
defense as an exhibit. It's not admitted as an
exhibit, so I would move to reopen the evidence so that
~ ~ ~ ~ - ~ ~ ~ - - - - ~
Ex A
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I could admit this an exhibit and have it for the jury.
THE COURT: All right. For defense?
MR. LACHENMEIER: Well, I object, and the reason
I object primarily is the diagram is so difficult to
interpret without the child to explain it, and so I do
object and I did not offer it.
THE COURT: Is it -- that's the evidence of the
bathroom, right? I mean, is it that difficult to
interpret? Can I see it?
I -- I will allow it. I -- I'm not sure it's
hard to interpret. It just doesn't -- I don't know if
it adds or subtracts very much from the case, so I'll
allow the exhibit. And that's going to be then
Plaintiff's Exhibit
MR. KOCHER: 20, Your Honor.
THE COURT: 20. Thank you.
All right. Then with regard to the
instructions for the plaintiff?
MR. KOCHER: Your Honor, with regard to the jury
instructions, I'm going off of the set that Mr. Shoen
gave to us last night. There are a couple in there
that I think are probably unnecessary. I think defense
counsel might agree, so we -
THE COURT: Okay.
MR. KOCHER: - might think about taking out
Ex A
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evaluating witness testimony, circumstancial evidence,
physical facts.
THE COURT: These are probably the most standard
ones that -- I don't think I've ever been requested not
to give them.
MR. KOCHER: Oh, that -- that -- I make no
objection to their inclusion, Your Honor, just simply
if there -- if there were any that -- that could be
excluded for the sake of brevity. That's my only
suggestion.
There is one that is is not included there
that plaintiff would request, and that's the previous
infirm condition instruction. It's included in our
proposed jury instructions.
THE COURT: Right, and I -- I guess I need some
explanation of why you think that's relevant.
MR. KOCHER: The -- the issue there is that in
voir dire one of the jurors mentioned the fact that
her someone she knew had a burn injury, but because
the child was light-skinned, there was no permanency.
In this case, Qadira does have a moderate
skin tone. I'm concerned that some of the jurors might
say, well, she's got this darker skin tone and that's
why she has this continuing scar where if she were
lighter skinned, she wouldn't, and somehow they -- the
Ex A
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jury might not re- -- might not understand the law,
which is that the defendant takes the plaintiff as the
defendant finds the plaintiff.
THE COURT: This is going to be somewhat
distasteful, some of the jurors, if you argue that skin
tone is an infirm condition.
MR. KOCHER: It's not accurately worded, I agree,
but that's what we have with the uniform instruction.
THE COURT: Right.
MR. KOCHER: And if -- if some modification of
the wording were in order, we would be supportive of
that.
THE COURT: I'm not going to give the instruction
on previous infirm condition.
MR. KOCHER: Apart from that, Your Honor,
plaintiff has no other comments on the jury
instructions.
THE COURT: All right. For defense?
MR. LACHENMEIER: Your Honor, the defense objects
to the ability to pay instruction for the reason that
you've already instructed them on the insurance issue,
and I really don't want them to talk about insurance
anymore, and so that would be my request on that one.
THE COURT: Yes, unfortunately, I was giving them
an example, having just car accidents, and I did think
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of that as I was saying it. Of course, you know, this
would be maybe a similar issue, and I apologize for not
thinking that through. I was assuming the ability to
pay was a request by the defense, so if you don't want
it, I'm not going to give it.
MR. LACHENMEIER: I don't want it.
THE COURT: Okay.
MR. LACHENMEIER: It was not my request.
THE COURT: All right. Usually it's ability to
pay is often -- often at the defense request, so -
MR. LACHENMEIER: Right.
THE COURT: so if you're not asking for it,
will not give ability to pay.
MR. LACHENMEIER: Thank you, Your Honor. The -
the next concern I have has to do with the one called
pleadings and issues.
My first concern is that the explanation of
the pleadings, while technically correct, has no
application here, at least portions of it. I would
like to stop the first sentence -- well, the first
in the third line after the word "facts," I'd put "and
the defendant's answer."
THE COURT: Yeah.
MR. LACHENMEIER: And I'd put a period after the
word "plaintiff" because we didn't assert any
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affirmative defenses -
THE COURT: Yes, I'm sorry. I know, I jus t - we
should have -- you're right. We do need to fix that.
So it should read: "These consist of plaintiff's
complaint which sets forth the plaintiff's claims as to
the facts
MR. LACHENMEIER: "And the defendant's answer."
THE COURT: -- and the defendant's answer,"
period. Oh, well, yeah, just -
MR. LACHENMEIER: That I think it could go clear
through the word "plaintiff" and "defendant's answer in
which the defendant either admits or denies the various
claims of the plaintiff," period.
THE COURT: Okay. You're right. Yeah. Okay.
MR. LACHENMEIER: And then the -- then the
sentence that starts with "by," that's fine, "by these
pleadings, the questions of fact."
Then in terms of the discussion that starts
with "plaintiff," in light of the -- the questioning of
my clients, I would like it to say "Plaintiff Karellen
Stephens, as guardian for Qadira Stephens, claims that
defendant Aimee McQuiston was negligent, II just so that
it's very clear that it's -- that's who this is between
and that they don't get confused about Todd.
THE COURT: Ah, okay. That's fine. Well, let me
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get in there before we - because I'm going to hand
this to Paul to change.
MR. LACHENMEIER: When you're done, I actually
have more on that same instruction.
MR. KOCHER: Mr. Lachenmeier, could I have that
again? I -- I didn't write that down.
MR. LACHENMEIER: I'm sorry?
MR. KOCHER: Could you tell me that last change
again, please? I didn't note that change regarding -
MR. LACHENMEIER: I was just saying, "Plaintiff
Karellen Stephens is guardian for Qadira Stephens,
claims that defendant Aimee McQuiston ... " I just put
in the names of the parties so it was real clear.
THE COURT: Okay.
MR. LACHENMEIER: And then as I read the
plaintiff's complaint, there really is only one
allegation of negligence. There's a precipient fact
that we knew or should have known that hot water would
cause injury, but the only allegation is defendant was
negligent in failing to take reasonable care to avoid
pouring heated water onto Qadira.
And what I propose is that the -- that just
that sentence be read, but if the Court thinks the
"knew or should have known" should be in there, then
would read it as follows: "Plaintiff Karellen
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Stephens, as guardian for Qadira Stephens, claims the
defendant Aimee McQuiston was negligent in that
defendant failed to take reasonable care to avoid
pouring heated water onto Qadira when she knew or
should have known that heated -- that pouring heated
water would cause severe injury."
I think that's really what the allegation -
the other is just a precipient fact, so I just tucked
it on the end instead of the beginning of that. But
otherwise, it looks Ii there's two allegations and
and I don't believe there really is "knew or should
have known"
THE COURT: So let me just -- let me just make
sure I do this. So you say that what we have is a -
you know, Section 1 is really just -- I mean, is
really, I guess, maybe the foreseeable, foreseeability
issue of the negligence claim set forth in Section 2?
MR. KOCHER: Yes. Yeah, so I just took it out of
the first part and put it after it, so it reads that
the allegation then reads just like its negligence
allegation Paragraph 6 reads: "Defendant was" -
"Defendant failed to take reasonable care to avoid
pouring hot water on Qadira," and then I added the
precipient phrase, "when she knew or should have known
that pouring hot water onto Qadira could cause severe
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injury."
THE COURT: Okay.
MR. KOCHER: Your Honor, if I could comment on
that last change.
THE COURT: Yeah.
MR. KOCHER: I would propose, if any change is
made, that paren 1 regarding knowing or shoulding
should have known should be removed but should not be
re-added at the end, that that simply complicates
what
MR. LACHENMEIER: I have no problem with that.
That's even better.
THE COURT: All right. I -- I think so, too. Of
course, that's -
MR. KOCHER: And one other objection, Your Honor,
I'm concerned that the wording that
Mr. Lachenmeier -- Mr. Lachenmeier is proposing
regarding plaintiff Karellen Stephens, as guardian ad
litem for Qadira Stephens. I'm concerned that this is
an attempt to sort of personalize the dispute in a way
that's unnecessary.
I would request that the instructions simply
refer to plaintiff and defendant. If there's any
concern about Mr. Mr. Burkholder's conduct, I would
have no objection to naming defendant Aimee McQuiston,
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adding her name there.
THE COURT: In the first sentence there at the
second paragraph, we'll name the parties as they're
listed in the pleadings. So I will do that. We're not
going to repeat it every time, but I do think it's -
it's the -- we clarify who's suing who and we'll get
that specific to the jury at least there.
Okay. So Paul, let me -
MR. LACHENMEIER: Well, Your Honor, what that
causes is a slight change in the one on negligence and
causation because then it should read, "Plaintiffs must
prove that the defendant was negligent in the way
claimed in plaintiff's complaint" as opposed to "in at
least one of the ways."
THE COURT: You're right. We'll make that
change.
MR. KOCHER: No objection.
MR. LACHENMEIER: And on the non-economic damage
instructions, they -- they have both under 1 and 2 a
claim for future damages. No.1, I guess they could
argue that humiliation is possible in the future, but
on No.2, when they're talking about any inconvenience
or interference with plaintiff's normal and usual
activities, there's no evidence that there will be any
future interference with any of those.
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THE COURT: Mr. Kocher, on that issue?
MR. KOCHER: Your -- Your Honor, there was no
directed verdict on that issue and that is part of the
case. There certainly is evidence that a continuing
scar that remains on Ms. on Qadira's leg could cause
future non-economic harm to her. It's appropriate for
that instruction to remain.
THE COURT: Well, isn't that -- I mean, that's a
pain and mental suffering. I don't think the -- the
defense is arguing with that. But any inconvenience
and interference with plaintiff's normal and usual
activities? I mean, I guess I can't think of any
evidence that would support in the future. I mean,
certainly, she was on crutches and -- and you know,
during the time of recovery, but is there any evidence
to support that her activities are going to be impaired
in the future?
MR. KOCHER: Yes, Your Honor. Her selection of
clothing is an activity to the extent that she's going
to the powwow wearing pants that cover her knees, this
sort of thing. There is evidence that she's less
inclined to wear shorts like other girls do, so that
that counts.
THE COURT: Yeah, that's a big inference to draw
from that powwow, that because she wore -- I mean, did
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anybody I don't recall anybody testifying that she
won't wear shorts.
MR. KOCHER: There was testimony that she has on
occasion gone out into public wearing short clothing
but that she tries to be private with her scar.
THE COURT: All right. I'm going to strike that
language if - then it should read, "Any inconvenience
or interference with the plaintiff's normal and usual
activities that you find have been sustained from the
time" -- or how should that read? "Have been
sustained" -
MR. KOCHER: Your Honor, the plaintiff would
propose a period at the end of the word "sustained."
All right. Mr. Lachenmeier, anything else?
MR. LACHENMEIER: No, Your Honor. Thank you very
much.
THE COURT: I believe your verdict form -- well,
let's see. There's two different verdict forms.
They're a little bit different. I just don't know
whose is whose. Oh, here's -- Mr. Kocher's verdict
form does not break down negligence and foreseeable
cause of damages. It's in the typical kind of single
question.
What are your thoughts on them?
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Mr. Lachenmeier, Mr. Kocher -
MR. LACHENMEIER: Well, it's certainly at the
Court's discretion to do whatever the Court thinks is
right. I think that under the circumstances that
having the question that focuses on the foreseeable
part is appropriate.
THE COURT: All right. I think both sides will
be able to argue that. I'll give Mr. Kocher's verdict
form.
All right. Paul, I'm going to hand you a
couple pages. Causation, we got that one. This is the
first time I've had them read them so carefully.
That's good.
All right. Anything else we need to discuss
before closing statements?
MR. KOCHER: Your Honor, I think we have a -- a
brief projector issue that we'd like to resolve before
the jury comes in.
THE COURT: Oh, okay. We'll go off the record
and you can work on that.
(Audio off.)
THE COURT: All right. Please be seated,
everybody. Folks, welcome back.
Again, you've heard all the evidence in the
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Closing Argument by the Plaintiff
case. All the exhibits have been squared away. What
we're doing now is going into closing statements of the
attorneys.
Remember, again, that the closing statements,
opening argument -- or closing arguments, opening
statements are not evidence. They're really the
recollection of the attorney, so if your memory is
different, you do need to rely on your own memory of
the evidence.
The purpose of closing argument is to focus
you in on the issues, the facts of the case and
summarize the case as the lawyers see it.
After that, I'll read the legal instructions
that apply to the case and then you'll begin your
deliberations and help us solve this conflict.
So with that, keep in mind that the burden of
proof is on the plaintiff who brought the claims.
We'll talk more in the instructions about the burden of
proof and the level of proof that's required, but
because the burden of proof is on the plaintiff,
Mr. Kocher will go first followed by the defense. Then
Mr. Kocher will have an opportunity to provide a
rebuttal argument.
For the plaintiff.
MR. KOCHER: Thank you, Your Honor.
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Ladies and gentlemen, counsel. The rule in
this case is that you don't play games with scalding
hot water around kids. Scalding hot water is serious
business. In a situation where you are handling
scalding hot water around kids, you have to be really
careful.
You're going to hear instructions from the
Judge when the closing arguments are done, and one of
those instructions is the negligence instruction, and
that instruction talks about a person using reasonable
care. I want you to listen to that instruction
carefully, because in that instruction, it talks about
the use of reasonable care and talks about -- I'll read
the language that I have:
"In deciding whether a party used reasonable
care, consider the dangers apparent or reasonably
foreseeable when the events occurred."
So you have to ask yourselves when you're
deliberating were these d a n ~ e r s -- what were the
dangers apparent in the bathroom on April 12th when
Mrs. Stephens (sic) decided to take the kettle in at
the girl's request and keep the bath hot the way they
wanted to.
This situation is a little different. You
can imagine a situation where a -- a mother is cooking
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spaghetti for dinner. She needs to feed the girls
dinner and the spaghetti water's boiling, and something
bad happens to the spaghetti water. In that situation,
you have to cook dinner.
In this situation, it was unnecessary for
that water to be involved at all. The girls - there
was some mention about, well, was there a cat allergy.
There was suggestion as to that. The girls had been in
there long enough that the water had cooled down. They
were splashing. The bulk of the evidence shows that
they were playing in there.
The -- the fact that they're playing, the
water was brought in to continue to a game. It was not
brought in there because they somehow needed more time
to get clean and the water had cooled down, they needed
to scrub more. This was splashing around. This was
fun time.
So you have to look at what happened in the
context of a game. It's playing games and mom
participating in a game and saying, okay, this game can
continue and this is the way it's going to continue,
rather than (indiscernible) go around, it's time to go
on to something else.
In your deliberations, you will have on your
verdict form a discussion of -- questions about
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liability and damages. Essentially, there are two
issues, liability and damages. Liabilities plus
damages produce the verdict. That's the law. You've
heard quite a bit about liability.
You've heard about could
Mrs. Ms. Stephens -- I'm sorry, Ms. McQuiston.
Could Ms. McQuiston have closed the door so that the
situation didn't arise? Could she have gotten the
girls not just out of the tub -- there's a discrepancy
about whether Qadira, as she said in her deposition,
was holding onto the tub onto the wall and standing
on the tub ledge or whether she was clear out of the
tub. Either way, the girls are close. It's not a big
space there, and Ms. McQuiston acknowledged that
they're within her arm's length.
We've got a diagram that Ms. McQuiston helped
us out with. If this is a normal-sized tub, these
these girls are close. She didn't get the girls far
away. She didn't get them far enough away.
The defense in this case has a lot to do
with, well, how could anybody have predicted that
Qadira could have jumped into the tub or slipped into
the tub, whatever the facts were.
And the defense is saying, essentially, is
sometime accidents -- I think the words were "sometimes
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accidents just happen." Sometime accidents just
happen, but other times accidents happen because there
is a sequence of decisions that lead up to them.
In this situation, it might not have been
foreseeable that exact sequence of events would play
out, that Todd walked down the hall (indiscernible) and
that Qadira would get fright- -- frightened and that
she would -- or that she's standing on the tub ledge or
standing outside of the tub, that she would go that way
instead of the other way or go into the tub and get out
of sight instead of grabbing a towel, whatever.
But that's not what the foreseeability
requirement means. And you'll hear the Judge read a
foreseeability instruction, and -- and it is -- it's
certainly the case a person is liable only for the
foreseeable consequences of his or her actions.
There are two things that must be
foreseeable. First, the plaintiff must be within the
general class of persons that one reasonably would
anticipate might be threatened by the defendant's
conduct, the class of persons.
So you could imagine a scenario where she's
pouring water into the tub and the floorboards are
rotten and that extra weight of the water in the tub
sends the tub through the floor and crushes somebody in
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the basement.
That would be a situation where she's pouring
water and it causes harm, but if there's a burglar in
the basement, the burglar is not a foreseeable class of
people that would be harmed by pouring water into the
tub.
The next part of the instruction is that the
harm suffered must be within the general class of harms
that one would reasonably anticipate might result in
the defendant's conduct.
So, again, she pours the water and the extra
weight causes the tub to crash through and hurts the
burglar in the basement. The burglar in the basement
isn't probably within the class of -- class of -
that's not a class of harms that you'd be thinking
about when you're pouring scalding water into the
bathtub.
So the foreseeability instruction is
something I want you to be -- be careful about because
there's something that we -- we are likely to hear
about from the defense.
Another example of foreseeability, if I'm
throwing rocks off off a bridge and I happen to hit
John Q. Smith walking down below, I can't then say,
well, what are the chances that John Q. Smith would
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have been walking down there. There's 6 billion people
in the world. What are the chances that he would have
have happened to be in exact -- that spot at that exact
time? It's foreseeable if you're throwing rocks off a
bridge, that somebody's going to get hurt somehow.
In this case, it was foreseeable that
somebody was going get hurt somehow with that setup.
It could have been the lid falling off the teapot. It
could have been the water allover the slippery floor
where you've got three people, energetic people on a
floor that's covered with water from the girls dripping
out of the tub. Those aren't the claims, but any
number of things could have caused the harm when you're
pouring water at waist height from a teakettle with two
eight-year-olds within arm's reach.
So think about those instructions carefully
when you're deciding the liability part. It's the
first question on the verdict form regarding liability.
"Liability" is a law -- a legal word that's pretty
similar to responsibility. This comes back to the
beginning of this case where we're talking about
responsibility and the fact that in this case the
defendant has taken zero responsibility. And that's
why you have a job to do.
The job that YDU have to do is to make up for
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the harm called economic and non-economic damages in
lawyer's speak, but that's what it is. It's making up
for the harm to Qadira. And it's the law. In our
society, we don't have a magic wand where we can undo
everything that happened to Qadira. And we don't have
an eye-for-an-eye system where if somebody gets hurt,
you go back and you do an eye-for-an-eye. That
wouldn't be good.
The system -- the system we have, and it's
the law that you have to follow, is that when somebody
is responsible for harm to somebody else, the -- a
verdict must compensate for that harm. In this case,
you're being asked to provide a verdict that is fair to
make up for the harm to Qadira.
I want to talk about those harms in a little
bit more detail. In this case, I don't think anybody
can question that Qadira -- Qadira suffered pain. In
darker times in history, people have devised horrible
forms of torture, witch burning, whatever it is. It's
burning that is applied as the most horrible form of
pain.
The defense has not really touched on that,
and the pictures of her burns stay in these folders.
They go with you to the jury room, but we haven't spent
a lot of time putting them up on the projector, this
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1 sort of thing. But you need to see those pictures if
2 you're going to make a fair decision. I just think
3 that if you are - are not too squeamish about those
4 things and you need to think about that, because that's
5 part of what you have to do to apply the law in this
6 case.
7 The second piece is interference with
8 Qadira's activities, her girl stuff, everything that
9 Qadira would have been doing during that evening, the
10 rest of the evening when she went to the ER. Instead
11 she was in the ER. Everything that Qadira would have
-', 1 2 bee n do i n g for the a p pro x i mat ely two wee k s t hat she was
13 home from school and instead she instead of learning
14 her times tables and being at school, she was
15 convalescing at home. That's an interference with her
16 activities and that is compensible. That is to say,
17 she is entitled to have that harm made up under the law
18 that the Judge will instruct you to apply - to apply.
19 The third component is the scar. And when we
20 passed the notebook around here earlier, most of you
21 probably got a chance to see it, and defense counsel
22 had a - a couple of pictures that show or don't show
23 the scar, and that's something that is significant.
24 We don't have to be a superficial society or
25 a superficial family. Scars are something that are a
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I
part of somebody's life, and this scar is a part of
Qadira's life, and under the law that you're asked to
apply, you need to provide a verdict that makes up for
that harm. I was in the magazine store recently and
noticed how many of the hundreds of magazines in the
magazine store have something to do with young women
and their appearance.
And again, we're not going to impose some
kind of superficial values on Qadira. She's not
she's not even old enough yet to really conceive of
that stuff necessarily. But it's something that you
need to think about in the jury room and as you're
deciding what's a fair verdict in this case.
In -- we -- we heard, sort of, through the
defense counsel's paralegal, we heard Qadira's
testimony, and she was strong in that testimony. Does
your burn bother you? No. Are you embarrassed about
it? She's a strong girl, but she's going to be a
strong girl for the rest of her life.
She -- in that deposition she was asked to
draw a picture of the bathtub, and you didn't get to
see that picture but it's going to be in the jury room
with you, and it's here. It hasn't been marked but
it -- well, I guess it has. It's -- it's plaintiff's
Exhibit 20.
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This is the picture that she drew of the
situation in the bathtub when she was burned. And she
says she can draw can better than stick figures. In
fact, we know she can draw better than stick figures
because we have another exhibit that shows -- this
is Exhibit 7 you haven't seen at least, but there are
two other exhibits that you get to take to the jury
room with you.
This is another picture she drew after the
occurrence and the burn, so we know she can do better
than stick figures. This is her in the basement of the
McQuiston house with ice on her leg and sort of the
scene that she visualized after she was burned.
The one thing that these pictures have in
common -- well, she is a pretty good drawer, like she
said, but - and they show a lot. These pictures are
meaningful. The one thing that they don't have is
perspective. They don't have some things farther away
and some things closer. And just the perspective that
you needed in like a photograph to make it work out,
she doesn't have that yet.
So when you hear her testimony about, well,
no, it doesn't bother me and she can get through her
deposition and she can be strong, that's not the end of
the story for Qadira and her injury, and that's
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something to appreciate.
We have the burden in this case to prove
responsibility, or liability, and damages for harms by
a preponderance of the evidence. You're going to get
an instruction on this, but it's -- it's different in
criminal cases. I want to picture that you're equipped
in the jury room to understand or that -- have tools to
apply that standard.
Preponderance of the evidence standard means
that it's more probable than not that we have proved
our case. Some lawyers will bring in two stacks of
paper, 500 sheets each, standard photocopier stacks,
and take one sheet from the top of one stack and put it
on the other stack, and just that tip of the balance is
what it takes for us to prove our case. Maybe it's 51,
49. Maybe it's 501 sheets to 499 sheets. But that's
the burden.
And you have to ask have we proved that
Ms. McQuiston was negligent when she said yes to the
game, yes to reheating the water in the tub instead of
saying the game's done. Was she negligent when she
went in there, left the door open?
MR. LACHENMEIER: Objection, Your Honor. Those
are not allegations.
THE COURT: That's true. Sustained.
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MR. KOCHER: And that's -- that's important to
understand. I apologize.
The -- the particular of leaving the door
open is not an -- like -- and I don't (indiscernible)
on that. The -- the girls are at her sides, the pot is
here. She knows it's hot. So you have to decide
whether by a preponderance of the evidence we've met
our burden (indiscernible). The same thing for
damages: the pain, the inteference and the scar.
There's one additional element of damages
that there's no dispute about. That's the bills.
There's not a lot that medical science can do for
Qadira so far. She had bills. She went to the
doctor I think you've had these records in your
exhibit binders. And if you'll look at them, I think
it was three doctor visits, three or four, and the
bills for those visits -- I have to look this up -
they come out to $1,024.05.
Defendant has not denied, and that's to say
that defendants -- the defendant concedes that those
bills were reasonable and necessary for her injuries,
to say, well, the injuries weren't our fault, we have
no liability at all, but in the event there is
liabilty, we don't contest that amount of the bills.
So that's - so that's a number that you don't have
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Closing Argument by the Defense
deliberate over on the verdict form if you - if you
find liability.
The amounts for the other three, there's no
rule for those. The
(Transcriber's note: FTR system not recording
denoting "Session Break Time: 1 0: 0 8: 50 AM to
10:12:48 AM.")
MR. LACHENMEIER: May it please the Court,
counsel and ladies and gentlemen of the jury. First of
all, on behalf of myself and I'm sure everybody else
involved, thank for your time.
What you do is extremely important. It
prevents us from having to to have duels and things
like that. You are the voice of the community and you
get to answer the questions about what is reasonable
yourself.
Counsel started with a rule. I want you to
listen to every single instruction and see if there is
a rule that if you use hot water you're liable for
everything that happens. There is going to be no such
instruction. There is no such rule.
One of the things that the Court is going to
tell you for sure is you can't let bias, sympathy or
prejudice be part of your verdict. And I think in this
context what we're talking about is are some of those
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pictures gory to start with? Yes. Do you give a
verdict just because they were gory for a few days?
No.
This is a very nice trial in the sense that
everybody here is a very nice person. The plaintiffs
are very caring parents. My clients are very caring
parents. Two delightful kids .. One of them's here to
see it to the end.
The other one, unfortunately, you didn't get
to see live, but you got a feel for her, I think, just
from the way she answers questions, and counsel's sort
of apologizing for how powerful she is and how she's
able to handle everything, but nonetheless, nonetheless
his -- his argument is give us a whole, whole, whole,
whole bunch of money.
This is a little girl who has moved on. Are
you having any pain at all? No, not at all. Does it
keep you from doing anything? No. Does it bother you
at all? No. And yet it obviously still bothers the
parents, but the parents are not the ones before you.
It's not their claim.
There was a couple of weeks where this was
not a good thing. Obviously, it hurt, and there's no
question about that. By the time she goes back to
school, this little spunky girl s a y s ~ I showed some of
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my friends and they said, ew, it's gross, and I'm like
it's not gross and I'm not really embarrassed.
We all have scars, you know, and the stories
that go with them. The basketball game, I could tell
you about this scar. We all have scars. She has
scars, and most of them don't bother her at all.
MR. LACHENMEIER: Once you get in the jury room
and after you look at the bad ones, look at the good
ones. Look at these photos and see whether if we
hadn't told you which leg's involved, if you could even
find it. And notice there is a scar. Does that bother
her? I don't know. It has nothing to do with this
case. Can you find it if you look with a fine-toothed
comb in February, less than a year after this? Yeah,
barely.
Here's another one. Put that up and - and
turn it around sideways and see if you can figure out
for sure which leg it is. And here's two more scars
that have nothing to do with this incident. And tell
me, does this look like an unhappy kid? She's just
darling, absolutely wonderful child, a child to be
proud of, and obviously, her parents are proud of.
Let's talk about liability. The allegation
is that Aimee McQuiston was negligent in failing to
- - - - - - ~ ~ - - - ............
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take reasonable care, not perfect care, but reasonable
care to avoid pouring heated water onto Qadira.
This is not a broadcast sprayer. This is not
like the thing where you where you take stuff out
and it goes everywhere. It only goes where you point
it at. And if you point it in the middle of a bathtub
and you have one child out of the tub on this side and
one child out of the tub on that side, how is it
reasonablely foreseeable that somebody's going to jump
in front of it?
When she did, everybody felt really bad, and
you can bet there won't be any other kids taking baths
just because of the whole process. But the jury
instructions don't say that you look at the harm and
then figure out there must have been some fault, and
that's what counsel's doing.
The negligence instruction is going to say
that the law assumes all persons have obeyed the law
and have been free from negligence. That's the
presumption going in. The mere fact alone that an
accident happened or that a person was injured is not
sufficient to prove negligence.
So does my client feel bad? Absolutely.
Does that make her liable negligently? Only if you say
so, and that is your power. The common law negligence
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instruction you'll get also has a phrase in it, and it
says, do not judge the parties' conduct in light of
subsequent events.
So the issue on liability is can you say that
no reasonable person would have poured hot water into
the bathtub using that teapot with two kids on the
outside of the tub? If the answer is no reasonable
person would have done that, then your verdict has to
be for the plaintiff. If you believe that a reasonably
prudent person could do that, then she wasn't
negligent. That's the liability issue.
Now, I am going to talk about damages. It's
kind of funny; us lawyers stand up ahead of time and
tell you what you're going to see, and we stand up
afterwards and tell you what you saw like you weren't
here, and the trial's so short, you know. Probably you
guys have figured this out. But we're all kind of like
afraid not to at least make an argument thinking
something we'll say might make a difference to
somebody. And I apologize for that, but it's part of
all of our insecurities.
Let's talk about surprises. Well, first of
all, let's talk about 300,000, outrageous number from
my standpoint. You get to make that decision. But
that's the most you can award because the lawyer put
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those many zeros in there. He could have put five more
zeros, I guess, if he wanted to, but at some point,
even he has to blush.
But the difference between a $300,000 and a
$30,000 and a $3,000 case are just zeros on a lawyer's
typewriter, and he doesn't get to tell us what the
damages are, you do. Were the first couple weeks bad?
Well, yes.
But were they as bad as they're talking
about? I mean, she gets to stay in mom and dad's
bed -- bed, she gets cards from her friends, she gets
computer games, she gets toys, so it's not like she's
in a Gestapo or something. So yeah, sure, it hurt, and
changing bandages, it hurt. Anybody that's had one
pulled off and you had to put -- sure, it hurts.
But what are we talking about in term of
reasonable damages? If you get to damages, for sure I
want to give them the thousand dollars for the medical
bills. There is no question about that if you decide
they're entitled to damages.
Well, what's reasonable after that? 500
bucks for the first two weeks and a thousand for the
rest of it? That would make a total of 3,000 counting
the medical bills, and by golly, that works, doesn't
it? Or a thousand dollars a week for two weeks and a
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thousand dollars because she has a scar. And you add
that, then it's 4,000. But we're at least in the
universe of reasonable. This number is ridiculous, and
to argue that I'm only asking for half of what I could
get is disingenuous because he put the number there to
start with. So $150,000 is not reasonable.
Anything -- anything in this area I think is
reasonable. But of course, that's your decision, not
mine, and luckily, not counsel's.
Okay. Let's talk about surprises. Whoops.
As far as I'm concerned, surprise No.1 is no doctors.
He's trying to tell you that this scar's never going to
go away. On what strength is that? No doctor here to
say that. We've got no docs. I'll start over. There
we go. They got no docs.
They're trying -- the -- the mom wants to
tell you that this kid is somehow different. So who
did we hear from? Did we hear from a single teacher?
This is a closed school. You saw how they play
together. They know. Did you hear from a counselor?
Did you hear from a neighbor? You didn't even hear
from Grandma.
That's their burden of proof and their burden
of proof to show both liability and damages. Why don't
we see any of those folks? I think it's fair to assume
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Rebuttal Argument
they're going to say just like the little girl did, you
know? Do you have any problems? No. Does it bother
you at all? No. But the fact that we don't see any of
those people on a case where you're claiming that your
child has been changed and going to be different is
really, really surprising.
I only get to speak once because I have the
burden of proof, and I'm sure counsel's going to say
something about how awful the injuries are, but you're
the voice of the community. Look at how bad it was,
look at how good it is, look at how in the scope of
things it's amazing this case is here.
Thank you very much for your time.
THE COURT: All right. Thank you, counsel.
Rebuttal.
MR. KOCHER: I want to talk about no doctors.
You saw a couple of these. The photos are pretty good.
The scar is what it is. You heard testimony that it
hasn't changed for about six months, and you can
compare them and not taken all in the same light. The
burn photos, the scar photos are all a little dependent
on the light. Sometimes if you get the flash just
right you can wash it out, you can't see any anything.
But these pictures are good enough for you to
see what the scar is and what it has been and how it's
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Rebuttal Argument
changed. It is what it is. If they wanted to bring
you a doctor to tell you that it's going to go away,
you better believe they could have done it just as well
as they could have made a doctor come in here and tell
you what you can see in the pictures.
It is an honor and a privilege for me to
represent Qadira. She is my client. It is my duty to
her. If you have seen me blush once during this case,
it's because I'm nervous. I hope any good lawyer gets
nervous when a lawyer goes to court. This case is not
about blushing. This is a case about a burn.
You heard Todd Burkholder say that he dipped
his finger in the water. It didn't burn his finger.
He's not the defendant. He was a defense witness.
They're minimizing -
MR. LACHENMEIER: Beyond -- beyond the scope of
my argument.
MR. KOCHER: The defense is minimizing this
injury.
It's your job as jurors to look at those
photographs, and before any of you decide that a lower
number is appropriate than the numbers that we've
recommended totalling $161,000 -- 161,024.05 -- we've
lost our 24.05. Before anybody decides that a number
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lower than that is appropriate, I want you to have seen
the photos.
You're not required to spend hours looking at
them in -- in the jury room. Each of you have to
decide really whether you want to look at them at all.
You have to consider all the evidence. You have that
obligation, but you don't have to fixate on them. It's
up to you. If anybody chooses a lower number, I want
you to have looked at those pictures and thought about
them.
You can imagine an ad in the paper that
offers compensation to research subjects to experience
a burn injury. Maybe the ad in the paper -
MR. LACHENMEIER: I don't think this is
appropriate.
MR. KOCHER: Don't let defense' minimizing change
your verdict in this case.
Qadira is not here. I have to speak for her.
In fact, she gave her deposition and you had to hear
the paralegal sort of speak as if she was her.
This is a case about Qadira. Exhibit 1 is
Exhibit 1 for a reason. Those are the pictures of her.
She's a good kid. In fact, all of the pictures in
Exhibit I, they're dated '07 and '08. They're recent
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Jury Instructions
pictures. Those are what she looks like now. She's
not a broken human being. But the defense is
minimizing this case, and it's up to you to think about
her, think about what's fair and to provide that
verdict.
Thank you.
THE COURT: All right. Folks, I'm going to read
the legal instructions that apply to the case. Anybody
need to take a break first? It's going to take me
about ten to fifteen minutes to read the instructions.
Everybody okay?
All right. I'm going to come down here so
I'm not shouting across (indiscernible).
You will each get a copy. You'll have with
you a copy of the instructions in writing, so you don't
need to scribble down every single thing I'm saying.
I'm going to keep reading.
So you will have them in writing, but keep in
mind this. If you do refer to the written
instructions, don't give any undue weight to anyone
instruction. They should be read as a whole.
It is your sole responsibility to make all
the decisions about the facts in this case. You and
you alone must evaluate the evidence and determine how
reliable or how believable that evidence is.
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Jury Instructions
When you make your decisions about the facts,
you must then apply the legal rules to those facts to
reach your verdict. Remember, however, that your power
to reach a verdict is not arbitrary.
When the Court tells you what the law is on a
particular subject or tells you how to evaluate certain
evidence, you must follow these instructions.
Do not allow anything that the Court's said
or done during the course of this trial to suggest the
Court has formed an opinion about this case. Keep in
mind that the Court is required by law to give certain
instructions in every case.
When the Court has sustained objections to
the evidence or ordered that evidence be stricken or
excluded from your consideration, you must follow the
Court's rulings. Do not consider such matters during
your deliberations. Base your verdict on the evidence
and these instructions.
The attorneys' statements and argument are
not evidence. If your recollection of the evidence is
different from that of the attorneys, you must rely on
your own memory.
In deciding this case, you're to consider all
evidence that you find worthy of belief. It is your
duty to weigh the evidence calmly and dispassionately
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Jury Instructions
and decide the case on it merits. Do not allow bias,
sympathy or prejudice anyplace in your deliberations.
All parties are equal before the law. Do not decide
this case on guesswork, conjecture or speculation.
Generally, the testimony of any witness whom
you believe is sufficient to prove any fact that's in
dispute. You're not simply to count the witnesses, but
you are to weigh the evidence.
Keep in mind that each party is entitled to
the considered decision of each juror. Therefore, you
should not give undue weight to another juror's notes
if those notes conflict with your recollection of the
evidence.
Evaluating witness testimony. The term
witness includes every person who has testified under
oath in this case. Every witness has taken an oath to
tell the truth and is assumed to speak truthfully.
However, this assumption may be overcome by: 1, the
manner in which the witness testifies; 2, the nature or
the quality of the witness' testimony; 3, contradictory
evidence that you find to be more probably true; and 4,
evidence concerning the bias, motives or interests of
the witness.
Circumstantial evidence. There are two types
of evidence. One is direct evidence, such as the
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Jury Instructions
testimony of an eyewitness. The other is
circumstantial evidence, which is the proof of a chain
of circumstances pointing to the existence or the
nonexistence of a certain fact. Proof may you may
base your verdict on either direct, circumstantial
evidence or on both.
Physical facts. Your factual conclusions
cannot be based on evidence that is contrary to
established physical facts. Consider all the evidence.
The term "evidence" refers to testimony and exhibits.
In deciding this case, you're going to consider and
weigh all of the evidence that you find worthy of
belief.
This gets repetitious, but the statements and
arguments you have heard from the attorneys are not
evidence. They are 'intended to be helpful for you, but
if your recollection of the evidence is different, rely
on your own memory.
The burden of proof. A party has the burden
of proving by a preponderance of the evidence any claim
made in the party's pleadings. In the absence of such
proof, the party cannot prevail as to that claim. In
this case, the defendant has not made any claims in the
pleadings, and the burden of proof in all issues in
dispute is on the plaintiff.
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Jury Instructions
Preponderance of the evidence. The term
"preponderance of the evidence" means the greater
weight of evidence. It is such evidence that when
weighed to -- when weighed with that opposed to it, has
more convincing force and is more probably true and
accurate. If on any question in the case the evidence
appears to be equally balanced or if you cannot say on
which side it weighs heavier, you must resolve that
question against the party upon whom the burden of
proof rests.
Pleadings in issue. The questions to be
decided in a lawsuit are defined in certain formal
papers filed in court by the parties known collectively
as the pleadings. These consist of the plaintiff's
complaint, which sets forth the plaintiff's claims as
to the facts, and the defendant's answer in which the
defendant either admits or denies various claims of the
plaintiff. By these pleadings questions of fact are
presented, and it is these questions and only these
that are submitted for the jury's determination.
So as a summary of the pleadings in this
case, here they are. The plaintiff, Karellen Stephens,
as Guardian Ad Litem for Qadira Stephens, claims the
defendant, Aimee McQuiston, was negligent in that Aimee
McQuiston failed to take reasonable care to avoid
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Jury Instructions
pouring heated water onto -- onto Qadira. Plaintiff is
asking for $1,024.05 in economic damages and requesting
$300,000 in non-economic damages. Defendant denies
negligence and the amount of damages.
What I have read - what I've just read to
you is a summary of the pleadings.
I'll start that one over.
What I have just read to you is merely a
summary of the pleadings. You are not to take anything
in them as true unless it is admitted or proved by the
evidence.
Negligence and causation. The law assumes
that all persons have obeyed the law and have been free
from negligence. The mere fact that an accident
happened or that a person was injured is not sufficient
of itself to prove negligence. It is, however, a
circumstance that may be considered along with other
evidence.
To recover, plaintiff must prove two things
by a preponderance of the evidence: 1, that the
defendant was negligent in the way claimed in the
plaintiff's complaint; and 2, that the defendant's
negligence was a cause of damage to the plaintiff.
Common law negligence. The law requires
every person to use reasonable care to avoid harming
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others. Reasonable care is the degree of care and
judgment used by reasonable, careful people in the
management of their own affairs to avoid harming
themselves or others.
In deciding whether a party used reasonable
care, consider the dangers apparent or reasonably
foreseeable when the events occurred. Do not judge the
party's conduct in light of subsequent events.
Consider what the party knew or should have known at
the time. A person is negligent, therefore, when that
person does some act that a reasonably careful person
would not do or fails to do something that a
reasonablely careful person would do under similar
circumstances.
Foreseeability. A person is liable only for
the reasonably -- reasonably foreseeable consequences
of his or her actions.
There are two things that must be
foreseeable: First, the plaintiff must be within the
general class of persons that one reasonably would
anticipate might be threatened by the defendant's
conduct; second, the harm suffered must be within the
general class of harms that one would reasonably
that one -- that one reasonably would anticipate might
result from the defendant's conduct.
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Jury Instructions
Damages, preliminary instruction. If you
find that the plaintiff is entitled to prevail, then
you must decide whether the plaintiff has been damaged,
and if so, the amount of damages. The fact that I am
instructing you with respect to damages is not to be
considered by you as an attempt by the Court to suggest
that you should or should not award damages nor should
the amount claimed for damages by the plaintiff in the
complaint be considered by you in arriving at your
verdict, except in one respect; that is, the amount of
damages claimed does fix a maximum amount that you can
award the plaintiff.
There are two types of damages in this case,
economic and non economic damages. Of these two types
of damages, you should consider those which you find to
have been sustained by the plaintiff as a result of
defendant's negligence. The plaintiffs (sic) must
prove economic and non-economic damages by a
preponderance of the evidence.
I will now explain what are economic and
non-economic damages. Economic damages are objectively
verifiable monetary losses that a plaintiff has
incurred -- has incurred or will probably incur. In
determining the amount of economic damages, if any,
consider, one, the reasonable value of necessary
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Jury Instructions
medical care and services for the treatment of the
plaintiff. The total amount of economic damages may
not exceed the sum of $1,024.05.
Non-economic damages. Non-economic damages
are the subjective non-monetary losses the plaintiff
has sustained. The law does not furnish with you a
fixed standard by which to measure the exact amount of
non-economic damages. However, the law does require
that all damages awarded be reasonable. You must
supply your own considered judgment, therefore, to
determine the amount of non-economic damages.
In determining the amount of non-economic
damage, if any, consider each of the following: 1, the
pain, mental suffering, emotional distress and
humiliation the plaintiff has sustained from the time
she was injured until present and that the plaintiff
probably will sustain in the future as a result of her
injuries; 2, any inconvenience and interference with
the plaintiff's normal and usual activities that you
find have been sustained. The amount of non-economic
damages may not the exceed the sum of $300,000. If you
find the plaintiff is entitled to recover economic
damages, you must award some non-economic damages.
We're at the verdict form. So when you
return to the jury form -- jury form -- jury room, you
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Jury Instructions
do need to select one of your members to act as the
presiding juror. The presiding juror does not have any
greater voting weight than the other jurors and is to
preside over your deliberations and to be the
spokesperson for the jury.
If you need to have any communication with
the Court, that needs to be in writing. You've heard
all the evidence. The exhibits are all in evidence.
We can't present you with any more evidence. If you
have specific questions, those do need to be in
writing. I need to talk to the attorneys. If we can
answer them, we will. We can't always do that to your
satisfaction, but we will if we can.
This is a civil case, so at least nine jurors
must agree on each answer unless the verdict form
instructs you otherwise, which it doesn't. When you
have -- when nine of you have agreed on the verdict,
the presiding juror will date and sign the verdict form
and will summon -- Paul will be your bailiff - and we
will assemble and take your verdict.
The verdict form I think is pretty
self-explanatory. It says, "We, the jury, find" and
the first question is: Was defendant Aimee McQuiston
negligent in the ways alleged in plaintiff's complaint,
and if so, was the negligence the cause of damage to
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Jury Instructions
Qadira Stephens? It's a compound question. Keep that
in mind. And then you have to answer that yes or no.
If your answer is no, you're done. You've reached a
verdict if nine of you agree no. If nine of you agree
yes, that Aimee McQuiston was negligent and the
negligence was the cause of damage to Qadira Stephens,
then you proceed to Question 2.
Question 2 is what are Qadira Stephens'
damages, and there's simply two lines. One is for
economic damages; one's for non-economic damages. At
least nine of you who agreed on Question 1 have to
agree -- if -- if nine of you agree yes, the same nine
or at least nine of you who said yes have to agree on
the damage question. Okay?
Paul, we need to make one very small -
THE CLERK: Okay.
THE COURT: I need to (indiscernible) the
courtroom, and Paul's now going to take his bailiff
oath because he's now charged with making sure you
folks are somewhat sequestered.
(Bailiff sworn.)
THE COURT: Thank you. So Paul will get you set
up in the jury room with the - the exhibits. They'll
all be back there for you to look at as well as the
written instructions and the verdict form. You can
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Jury Instructions
select your presiding juror and begin deliberations
immediately.
I want to thank you on behalf of both
parties. We'll see you when you reach your verdict.
(Audio off.)
THE COURT: Paragraph one, "We, the jury, find:
Was defendant Aimee McQuiston negligent in one or more
of the ways," and we' 've kind of narrowed that down to
just one. So it should just put was negligent -
MR. LACHENMEIER: In the way.
THE COURT: -- in the way. So I don't know if -
do you have that on disk to make the change? You could
e-mail it to Paul.
MR. KOCHER: We -- we do, Your Honor. It might
take a few moments, but we can -- we could do that. In
the meantime, Your Honor, I think we have the exhibits
available. I might request that those go to the jury.
THE COURT: Yes, Paul's going to take all those
back now. But if you could just strike one or more
"of," then e-mail that to Paul and he'll print it out,
and it's a a new form.
All right. If you folks could let Paul know
where you're going to be so he could get ahold of you
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Exceptions
when we have a verdict.
MR. KOCHER: Yes, Your Honor.
MR. LACHENMEIER: Yes.
THE COURT: Anything else you need to put on the
record?
MR. LACHENMEIER: Not for the defense, Your
Honor.
MR. KOCHER: Your Honor, I -- I would like to
renew our exceptions to the jury instructions. I don't
think they were significant, but if I could do that.
THE COURT: Okay.
MR. KOCHER: Plaintiff moves to renew her
objections to the jury instructions.
THE COURT: All right. Thank you. That is on
the record.
(Audio off.)
THE COURT: You don't need to stand for me.
Thank you. All right. Ready for the jury?
THE COURT: All right. Please be seated, folks.
I understand that the jury's reached a
verdict, is that correct?
PRESIDING JUROR: Mm-hmm.
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Verdict
THE COURT: And is it Dr. Glosser? Are you the
foreperson of the jury?
PRESIDING JUROR: Mm-hmm.
THE COURT: All right. If you'd like to hand the
verdict form to Mr. Shoen.
And omitting the caption, the jury verdict
reads: "We, the jury, find as follows: Was defendant,
Aimee McQuiston, negligent in one of the ways
alleged -- in -- in the way alleged in the plaintiff's
complaint, and if so, was such negligence a cause of
damage to Qadira Stephens?" The answer is no. The
verdict form is signed and dated by Ms. by
Dr. Glosser.
Dr. Glosser, was it a -- a -- how many people
agreed on the answer?
PRESIDING JUROR: It was unanimous.
THE COURT: All right. Does either side wish to
have the jury polled further?
MR. KOCHER: Yes, please, Your Honor.
THE COURT: All right. If I could just see a
show of hands. The verdict form reads that the jury
answered no as to any negligence of Aimee McQuiston.
If this was your verdict, if you could please raise
your hand.
11m seeing all 12 hands, so that it is -- it
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doesn't matter which hand. I am seeing all 12 hands,
so it is a unanimous verdict. So with only nine of you
having to agree, we do have a verdict. The jury is
discharged.
Folks, this is how we resolve conflicts that
corne up in your community. I mean, it's so great an
idea, just a whole great concept to have folks like
yourselves who just come in from the community resolve
these issues for us, and that you've done that for us
today, I appreciate on behalf of both sides. I want to
thank you very much for your time and effort in this
case, your patience.
If you have questions and want to stay a
moment in the jury room, I'll be back in a second and I
can possibly answer some questions for you. If you
have any input you want me to give the attorneys, I'm
happy to do that as well.
So with that, though, you're free to go. You
don't have to stay, certainly. Paul will collect up
your jury badges in the jury room. If you need
letters, employment letters, he can generate those for
you as well. Again, thank you very much. You are
discharged at this time.
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THE COURT: All right. Are there any matters we
need to discuss at this time?
MR. LACHENMEIER: No, Your Honor.
THE COURT: Okay.
MR. KOCHER: No, Your Honor.
THE COURT: All right. Okay. Thank you very
much, folks, appreciate it. If you need a copy of the
verdict form, Paul will make copies for you. If -- and
I'll hear -- should the jury have any feedback, I'll
I'll be happy to pass that on to you if you want to
contact me bye-mail.
THE COURT: Okay. Great. Thanks very much.
(End of audio.)
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Plaintiff,
v. Nos. 0711-13836
A140487
AIMEE McQUISTON,
Defendant.
Volume III of III
(Pages 270 - 285)
matter came on regularly for Motion for New Trial
before the Honorable MICHAEL J. MCSHANE, Judge of the
Circuit Court of the State of Oregon for the County of
Multnomah, on the 24th day of September, 2008.
APPEARANCES
STEPHEN RIEDLINGER,
Attorney at Law,
RUDY R. HENMEIER,
Attorney at Law,
MaryAnn Gianni
503-307-3749
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(September 24, 2008)
2
1
PRO C E E DIN G S
3 (Open court:)
4 THE COURT: All right. We're on the record on
Karellen Stephens, Guardian Ad Litem for Qadira
6 Stephens, versus Aimee McQuiston, Case 0711-13836.
7 This is the time and place set for the plaintiff's
8 motion for a new trial.
I've got the attorneys. Starting with the 9
plaintiff's attorney, please introduce themselves for
11 the record.
12 MR. RIEDLINGER: Thank you, Your Honor.
13 THE COURT: My name is Steve Riedlinger. You
14 want my bar number? 77066.
THE COURT: All right. Thank you,
16 Mr. Riedlinger.
17 Counsel.
18 MR. LACHENMEIER: Rudy Lachenmeier for the
19 defense, Your Honor.
THE COURT: Thank you, Mr. Lachenmeier.
21 All right. I've reviewed the motion and the
22 defendant's response, the accompanying affidavits.
23 Mr. Ridling- Ried -- Riedlinger?
24 MR. RIEDLINGER: Yes.
THE COURT: Would you like to go ahead.
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MR. RIEDLINGER: Thank you, Your Honor.
Well, it -- it appears to me that we have
affirmatively alleged in our declaration by my client
here, Karellen, that Exhibit 109 was introduced and -
THE COURT: Well -- I mean, it was -- if it was
introduced, it was stipulated to by the parties. It
was never presented to me.
MR. RIEDLINGER: I -- I -- I cannot argue with
that one way or another because the record does not -
is - is pretty silent.
THE COURT: And I mean, your client says in her
affidavit we had a long discussion about insurance. We
didn't -
MR. RIEDLINGER: Mm-hmm.
THE COURT: and that's just simply a -- a
fabrication. We had no discussion -- we had some
discussions about certain documents and whether they
came in, but we did not have -- I mean, everybody here
understood that, generally speaking, insurance doesn't
come in. That's not a discussion I needed to have with
the attorneys. It didn't take place.
MR. RIEDLINGER: I wasn't here. And I -- I
cannot comment upon that, Your Honor.
THE COURT: You have access to the record.
MR. RIEDLINGER: Yeah. There's nothing on the
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record except later on in the record you do apologize
at one time because you mentioned to the jury there was
something about insurance. And -- and that's all I
know about the insurance issue on the record.
THE COURT: And I'm not even sure the extent of
that, and it may be Mr. Lachenmeier can refresh my
memory.
MR. RIEDLINGER: Well, it - it -
THE COURT: But I think there was a discussion; I
used an example.
MR. RIEDLINGER: On the second day of trial, if
you'll look at the - the materials sent out by
Mr. Lachenmeier, on -- at line 17, paragraph 16 and
I believe this is in the record that you said
that -- they were talking about the ability to pay
instruction at that time, and you said, unfortunately,
you had used insurance as an example to the jury
earlier and. you apologized for doing so.
THE COURT: Right.
MR. RIEDLINGER: I am not saying anything more
than that.
THE COURT: Right. What that was is that when we
were talking about the jury's ability to ask questions,
I said, for example, in a car accident case, it is very
typical that one of the jurors will ask a question
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whether somebody was insured and that's not appropriate
under Oregon law, so
MR. RIEDLINGER: Yeah.
THE COURT: -- so that was my -
MR. RIEDLINGER: Well, don't get me wrong. I'm
not here to -- to impeach your credibility.
THE COURT: No, but you're -- what - what -
MR. RIEDLINGER: I'm here to argue for a -
THE COURT: -- is upsetting to me is my client's
(sic) affidavit allegedly, you know, under oath, that
we had this long discussion about insurance not coming
into the record. We -- in -- in any event, go ahead.
MR. RIEDLINGER: All right. Well, you know, I
can only say -- well, all right, I'll go ahead. And so
we have averred this issue -- the positively was said
on this issue that it was admitted.
Now, I -- I freely tell you today that I have
gone through the record and I cannot tell if it was
admitted or was not admitted from the record. There's
simply no record, and I have gone through plaintiff's
trial material and there are no notations one way or
another and there are no notations from your clerk and
there are no notations from Mr. Lachenmeier. But it's
my client's recollection.
Now, that's -- and that's what we're standing
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lon, so we think that that's what happened. And
2 and and so if that's what happened, then the issue
3 is for you to consider, in my opinion, would be was it
4 prejudicial if it went in; assuming it went in, was it
prejudicial enough to warrant a new trial or not.
6 And we have submitted to you the - the brief
7 that we had with the cases. And I just want to comment
8 a little.
(Phone ringing.)
MR. RIEDLINGER: Shall I go ahead?
11
9
THE COURT: Yeah, go ahead.
12 MR. RIEDLINGER: Okay. I just wanted to comment
13 a little bit about Mr. Lachenmeier's assertion that
14 there was no objection if it did go in or it wasn't
noted as an objection from the plaintiff's lawyer. But
16 I'm pointing out that the case law seems to be that if
17 there's an irregular -- irregularity in the trial and
18 a -- as such, that a new trial may be granted on
19 account of error even if it's not known to you.
And I suspect it was not known to you, nor -
21 and even if there's no exception to it, you can still
22 grant a new trial. So even if plaintiff's lawyer
23 stipulated to these things or didn't, and I don't know
24 if he stipulated or not. There's nothing in the record
about this -- any stipulation.
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THE COURT: It either came in accidentally
through a stipulation or it did not come in, but it
certainly if there had been any objection and
reviewed it, we would have had a discussion about it.
I would have remembered the exhibit. This is not the
kind of exhibit that I would have simply forgotten, so
it certainly did not come in in the -- during the trial
with counsel having, you know, presented it to
co-counsel and to the witness.
A number of documents came in by ,stipulation
pretrial. It's possible it came in, under your theory
then by accident of plaintiff's counsel, probably not
reviewed it. But I -- I -- you know, it -- it would
surprise me that your client would specifically know
what stack of stipulated exhibits went to the Court.
MR. RIEDLINGER: Okay. Well, at any rate, the
case law seems to be on this issue, not - not ignoring
what your comments -
THE COURT: Right.
MR. RIEDLINGER: But if - if you don't know
about it or it came in by accident or there's no
exception to it even from -- from any lawyer, adverse
lawyer to it, that that doesn't matter, or it doesn't
have to matter, you can still grant a new trial and
that's -- I'm just commenting upon what Mr. Lachenmeier
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said -- Lachenmeier said in his filings.
And that case is -- I'm going to get closer
to read it Northern Wascoe County People's Utility
District. It's 23 -- 213 Or 264. There's also another
case called Young v. Crown Zellerbach, which is 244
Or -
THE COURT: And I agree with you on that point.
MR. RIEDLINGER: Okay.
THE COURT: You know, there can be irregularities
unpreserved by, you know, counsel just simply wasn't
behaving in a competent manner, that would result in a
new trial.
MR. RIEDLINGER: So assuming that this went in,
for the sake of my argument to you to you today,
the -- the exhibit itself, if we turn to it, it clearly
talks about insurance, and I have to get to it,
sorry. The exhibit itself, 109, which is clearly
marked as a defendant's exhibit, page 3 of it says that
"Renee called to work to ask for homeowner's insur- -
I-n-s numbers. Qadira's -- Qadira's burns are bad and
she will need multiple visits."
So anybody, if they saw that, reading that,
would understand there was insurance. Well, how does
that prejudice the plaintiff? The jury could have
decided, look, there was insurance, all of her bills
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and things have been covered by insurance, and for that
reason, we think it was prejudicial.
Okay. Mr. Lachenmeier.
MR. LACHENMEIER: May it please the Court, to
start with, so that the record is clear, the -- the
first discussion about insurance that I recall was
simply when you were talking to the jury about things
that wouldn't normally come in, for instance, in an
auto accident, whether a person does or doesn't have
insurance is not something you should concern yourself
with, or something like that. And they were
specifically told don't pay any attention to insurance.
The other discussions about insurance that I
recall were never in front of the jury. Counsel and I
had a discussion, which I'm not even sure was before
the Court, about making sure that in all those medical
records he wanted to put in that he had deleted
references to insurance, and I showed him some and he
agreed to do that.
There was a discussion about my IME doctor's
report, and the the Court ultimately decided not to
let the IME report in because I wasn't calling my
doctor and there was all kinds of collateral issues.
But the -- the jury decided this case on liability, so
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I don't think that has anything to do with anything
either.
I - when I first filed my response, I
couldn't find Exhibit 109. And my best recollection
was that the only thing I used were photographs and
that videotape of the dance, kind of an Indian dance
that they went to in Idaho or wherever it was. I think
that's the only exhibits I offered. The -- the I
did mark this, and as I look at it now and can see the
four pages of it, there's no way I would have offered
it as an affirmative exhibit.
What I anticipated was that they might
challenge something my client said and I might need to
refresh her memory or show that there was a prior
consistent statement. But certainly, there's no
possibility that I would put it in to demonstrate that
we have itisurance.
So I think the record is devoid of -- of any
improper reference to insurance, and I didn't find a
single case anywhere that says the fact that defendant
might have insurance is prejudicial to the plaintiff.
I -- I don't follow that logic at all.
The -- the particular portion, you know, it
doesn't even say insurance. It says I-n-s, and sure,
somebody could figure that out maybe, but it's right
~ ~ - - ~ - - -
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next to "Qadira's burns are bad." Boy, I wouldn't put
that in. I was trying to show that now she's doing
fine. So I'm - I'm 99.9 percent positive I didn't
offer it. I'm a hundred percent positive there was no
objection and no discussion about the insurance issue.
The discussion that was referenced when my
associate listened to whole tape - and there's like 20
minutes missing somewhere. But when he listened to the
whole tape about you apologizing was to me when the
jury was gone because -
THE COURT: Right -- yes, we did not have that
discussion in front of the jury.
MR. LACHENMEIER: No, it was about the jury
instructions, and you had thought that I had asked for
the -- the instruction about oh, what's the -- the
one that you're not supposed to consider whether people
do or don't have insurance, and I didn't want him to
talk about insurance anymore at all, and since I hadn't
offered that - or hadn't tendered that instruction,
you didn't give it, and that's all that conversation
was about.
THE COURT: Right.
MR. LACHENMEIER: It wasn't in front of the jury.
I'm sort of baffled. I I don't think I offered it.
I know there was no objection. There's nothing in my
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record, and my associate confirms that. No one argued
insurance, no one mentioned insurance, and the one case
that I cited in my -- was it my response or
supplemental response -- no. The -- it's a case where
on appeal the Court of Appeals sanctioned somebody for
appealing from a discretionary ruling when there
clearly was reference to insurance. So apparently that
Volt case was sort of amazing, because not only did the
Court of Appeals affirm the judgment, but they
sanctioned the attorney that appealed it and there was
mention inadvertently of insurance.
So the bottom line is I don't think there was
any mention, but it certainly -- if it came
inadvertently, it wasn't prejudicial, it wasn't argued,
and it certainly -- it's my client's insurance that was
referenced, not even that they had it, but he called
and asked for -- if they had it or asked for a number,
I guess is what the correct thing is.
So I think the case law is clear. This is
not grounds for a new trial.
THE COURT: All right. Reply.
MR. RIEDLINGER: Your Honor, I don't - I hope
that I have not been misunderstood here. We do not
think that any discussion of insurance occurred in
front of the jury. If there was any discussion and
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I -- I try plaintiff's cases, and usually what happens
is if there's any discussion, it's outside of the jury.
We go over a few ground rules, and one of which is
we're not going to talk about insurance, and -- but
we're not accusing anybody of -- of discussing it in
front of the jury.
All we're saying, that it was brought up, and
it looks like to us, in our recollection, that it went
to the jury, and therefore -- and was prejudicial for
the reasons I've already given you.
And the second thing I want to point out is
let's assume that - that, you know, we - nobody
really actually can prove one way or another, except
for recollections, his recollection and her
recollection. To me, that's an irregularity enough.
We can't decide for sure. That's irregularity enough
that we should be granted a new trial. We don't know
and we ought to know, and there should be a presumption
of fairness that we don't know if it occurred or not.
THE COURT: Well, I'm not convinced 109 went to
the jury. It's certainly not an exhibit that was
presented to me. If it went to the jury, it went to
jury -- the jury, is the defense accidentally put it in
as a stipulated exhibit, and it's somewhat disingenuous
now for the plaintiff to corne in and say, Judge, I
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mean, we're -- we're objecting that the defendant's
insurance company information comes in in this case
when, of course, at trial it would have been -- made
the most sense for plaintiff's counsel to have quietly
agreed to the stipulation and tactically would have
wanted that information before the jury.
I've never heard of a case where the
plaintiff has not wanted the jury to know that the
defendant had a pocket behind them in the form of an
insurance company. It's unfathomable for me to believe
that a plaintiff at trial would have objected to that.
So this is not an irregularity.
If it came in, it was a mistake on the part
of the defense, and it was, you know, typically to the
benefit of the plaintiff. I -- I don't understand the
prejudice argument. That being said, also, this was a
liability case. The jury came back in approximately 15
to 20 minutes finding no fault for the plaintiff -- or
for the defense in this case. The evidence in this
case, when weighed against this issue, is still
overwhelming in favor of the defense.
And if there was any error at all, if there's
any vague argument that could be made that it's somehow
prejudicial to anybody other than the defense, it's
outweighed by the overwhelming evidence that was
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presented to the jury showing that there was no
negligence in this case, so I'm going to deny the
motion for new trial.
MR. RIEDLINGER: (Indiscernible.)
THE COURT: All right. Thank you both.
(Audio off.)
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Certificate
STATE OF OREGON )
) ss.
COUNTY OF MULTNOMAH)
I, Mary Ann Gianni, a Court Transcriber for
the State of Oregon, do hereby certify that I
transcribed the audio recording of the proceedings had
upon the hearing of this cause previously captioned
herein, before the HONORABLE MICHAEL J. MCSHANE, Judge
of the Circuit Court of the County of Multnomah, State
of Oregon; that I thereafter had reduced by
computer-aided transcription the foregoing transcript;
and that the foregoing transcript, consisting of Pages
1 to 285, both inclusive, constitutes a full, true, and ~
accurate record of the proceedings had upon the hearing
of said cause, and of the whole thereof.
WITNESS my hand as Court Transcriber this 23rd
day of March, 2009.
~ ~ ~ - - - - - -
Court Transcriber
(503)307-3749
.. ~
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Bureau of Police
Dan Saltzman, Police Commissioner
Rosanne M. Sizer, Chief of Police
1111 S.W. 2nd Avenue. Portland, OR 97204. Phone: 503-823-0000 Fax: 503-823-0342
Integrity Compassion Accountability Respect Excellence Service
May 14,2009
Karellen Stephens
7135 SW 54
th
Avenue
Portland, OR 97219
Dear Mrs. Stephens:
The Portland Police Bureau's Internal Affairs Division (lAD) has completed the review of your
complaint. In the complaint you filed with the Independent Police Review Division (IPR), which
was forwarded to the Internal Affairs Division, you made the following allegations:
1. Sergeant Liu failed to do an investigation of possible child abuse. (PROCEDURE)
2. Sergeant Liu was argumentative, rude and hung up the phone on you. (COURTESY)
3. Chief Sizer did not respond to your letter requesting an investigation. (PROCEDURE)
I have reviewed the information in your complaint, your letter to Chief Sizer, relevant police
reports and your correspondence with the Oregon State Bar.
On April 12,2007, your daughter, Qadira, was severely burned on her left leg, by scalding hot
water, while visiting a friend's house. The Portland Police were not called at that time and
instead you opted for a civil trial. It appears that the other party involved, Aimee McQuiston was
found to be absolved of negligence in that civil trial. On August 16, 2008, your husband, Renee
contacted Portland Police Officer Herb Miller at Central Precinct, 16 months after the initial
incident (case # 08-80238).
Officer Miller wrote a police report with the details that Renee provided, then contacted our Child
Abuse Team. August 16, 2008 was a Saturday, which is not normal business hours for the Child
Abuse Team, though a Sergeant is always on call and can be reached by phone. Since the
incident was 16 months old, and Qadira was safe, the report was faxed to the Child Abuse Team,
and would later be reviewed for possible follow-up.
On October 14,2008, the Portland Police Bureau's Chiefs Office, received your letter that was
not dated. It was time stamped as "Received" at 9:39 a.m., and immediately given to the
Investigations Branch Assistant Chief Bret Smith. Assistant Chief Smith gave it to our Detective
Division Commander John Eckhart for review.
Your letter details the bum incident, your phone contact with Sergeant Dan Liu of the Child
Abuse Team, the civil trial and also mentions your complaint with the Oregon State Bar.
Community Policing: Making the Difference Together
An Equal Opportunity Employer
Police Information Line: 503-82.3-4636, TTY (for hearing and speech impaired): 503-82.3-4736 Website: http://www.portlandpolicebureau.com
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Commander Eckhart reviewed the entire case and your letter in a timely manner. On October 29,
2008, he wrote a memorandum to Assistant Chief Smith. The memorandum stated, "I
have ... found no criminal violations by any of the listed parties. There is also no evidence of any
wrongdoing or policy violations of any Portland Police personnel. I request this case be
closed... with no additional review."
Though Chief Rosie Sizer did not write a letter back to you, I assure you that your letter to her
was reviewed by the appropriate police personnel and evaluated to determine if a full
investigation was necessary.
On April 16, 2009, I contacted the Oregon State Bar and was provided with many documents
pertaining to your case. Most specifically, I looked at correspondence between their General
Counsel and you.
On November 17,2008, assistant General Counsel, Scott Morrill wrote you stating, "Mr. Kocher
was educated at Harvard ... " and "Mr. Kocher communicated extensively with you about your
daughter's claim and explained the risks and possible rewards oflitigating it." On November 26,
2008, you replied stating, "I do not believe that a Harvard degree is an indication that a person is
ethical or trustworthy."
On December 5, 2008, Scott Morrill wrote to Mr. Kocher's attorney, Mark Fucile, stating, "As
you know, we dismissed Ms. Stephens complaint because we did not find any ethical violation
had occurred." On February 2,2009, General Counsel, Sylvia Stevens wrote you, stating, "Your
complaint about Mr. Kocher is that he was incompetent in representing your daughter's injury
case. Mr. Kocher is an experienced personal injury lawyer who has tried many cases
successfully. The evidence indicates he thoroughly prepared your daughter's case and presented
it to the best of his ability. That you disagree with some of his choices, now regret your
decisions, or are disappointed by the jury's verdict, is not evidence that he was incompetent or
failed to communicate with you as required by our rules. After carefully considering the facts
presented, I concur in the Client Assistance Office's dismissal of your complaint. The Oregon
State Bar's file concerning your complaint is now closed."
I spoke with Sergeant Liu who said that he personally spoke with Officer Miller the day he took
the report. Sergeant Liu told Officer Miller to write the report and fax it to him, so that he could
read it the following Monday. Sergeant Liu acknowledged that he did speak with you and
possibJy Renee, on a couple of occasions. Sergeant Liu said that you demanded an investigation,
though one was not appropriate in this situation because of timeliness and that it appeared to be
an accident, determined by both the report and civil trial. Sergeant Liu also said that you were
argumentative and would not listen to him as to why the Child Abuse Team would not
investigate. Sergeant Liu remembered you or Renee stating, "What if it was your kid?" Sergeant
Liu said that he did, indeed, hang up on you because you were yelling at him over the phone.
Sergeant Liu said that he told you to lower your voice or he would terminate the conversation.
When you did not comply, Sergeant Liu hung up the phone.
Portland Police Bureau employees are not expected to stay on the phone while the other party
yells at him or her. Sergeant Liu acted appropriately in this situation, especially since he did
warn you of the pending disconnection.
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Lastly, I contacted Department of Human Services, Case Worker, Firdousi Chowdhury. This
case was previously assigned to her. She said that she visited your home and Aimee's home. In
November of2008, she closed your case, noting the injury was an accident.
I do wholeheartedly agree with you that Qadira getting severely burned at a friend's house was a
horrible and unfortunate event. This experience was obviously terrifying and painful for not only
Qadira, but for you and your family.
Given that, I have no information that leads me to believe that the Portland Police Bureau acted
inappropriately in regard to your case. Usually, in child injury cases such as this one, the first
instinct of most people is to seek medical attention and notify the police. I am not saying that this
case would have turned out any differently had you notified police sooner, but at least a
preliminary investigation by both police and the Department of Human Services would have
occurred immediately following the incident. Reporting this incident to the police 16 months
after the occurrence has put all the involved parties at a great disadvantage.
Administrative rule ARB-PSF-5.20 allows me to decline to assign allegations for a full lAD
investigation and take no further action in find that the employee's conduct, as alleged by the
complainant, does not violate Bureau policy.
At this time, I find that the conduct in this matter does not violate Bureau policy, therefore lAD
declines to take any further action on your complaint.
If you have any questions, you may contact me at (503) 823-0236, Monday through Friday, 8:00
a.m. to 4:00 p.m.
KRISTY GALVAN
ACTING LIEUTENANT
Internal Affairs Division
09c0081 dec-stephens
KJG/cmr
Independent Police Review
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HARDY MYERS
PETER D. SHEPHERD
DEPUTY ATTORNEY GENERAL ATTORNEY GEl'iERAL
DEPARTMENT OF JUSTICE
1162 Court Street NE
Justice Building
Salem. Oregon 97301-4096
Telephone: (503) 378-4400
TTY: (503) 378-5938
November 13, 2008
Karellen Stephens
7135 SW 54
th
Ave.
Portland, OR 97219
Dear Ms. Stephens:
I am writing in response to your correspondence received by the Department of
Justice October 20, 2008 regarding injuries suffered by Qadira Stephens.
The Department of Justice is unable to assist you in this matter. The Department
does not have the authority to instruct the Portland Police Department to investigate this
matter or conduct its own investigation into the matter. Under Oregon law, the local law
enforcement agency, Portland Police, would have jurisdiction over any investigation.
I hope that this information is useful.
JACOB WEIGLER
Executive Assistant
Oregon Department of Justice
--_._------_...._---.... _-----_... --_.....__..._-....._---
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FOR THE COUNTY OF WASHINGTON
No. C083317CV
RENEE STEPHENS,
COA No. A141956
Plaintiff,
v.
NIKE, INC. ET AL,
Defendant.
VOLUME 3
BE IT REMEMBERED that the above-entitled matter came
on for hearing before the Honorable Donald R. Letourneau,
Judge of the Circuit Court for the County of Washington,
State of Oregon, commencing on the 30th day of March, 2009.
Appearances:
Appearing in behalf of the Plaintiff
PK Runkles Pearson, Attorney at Law
Appearing in behalf of the Defendant
Renee Stephens, pro se
TRANSCRIBED FROM ELECTRON
ROBYN M. ANDERSON
3351 SW REDFERN PLACE
GRESHAM, OREGON 97080
IC RECORDING BY: ANDERSON ASSISTANCE
OFFICIAL TRANSCRIBER
(503) 618-9938
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March 30, 2009
9:55:21 a.m.
(Judge Letourneau)
PRO C E E DIN G S
THE COURT: That's fine.
And could Counsel state her name I please -
Counsels? Her repres- -
MS. PEDERSEN: Good morning, Your Honor. Amy
Joseph-Pedersen for Defendant, Nike.
THE COURT: And is this your representative?
MS. PEDERSEN: This is -- I'm sorry -- this is
Erin Potemka from Nike.
THE COURT: Thank you.
It's your motion and you may go first.
MS. PEDERSEN: Thank you, Your Honor.
Has Your Honor had an opportunity to review the
briefing? I know you spent five or six hours yesterday -
THE COURT: Well, let's see. You were here when
I said I read stuff for five or six hours yesterday.
MS. PEDERSEN: Yeah. That had to have included
us.
Then I will try to be very brief. There are
three claims as Your Honor is aware. With respect to the
sexual harassment claim, our position is that the
incidents that Mr. Stephens experienced do not rise to the
61o-'i'13o
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level of severe or pervasive such that they altered the
conditions of his employment.
To refute -- to refresh your recollection, Your
Honor, he observed two incidents by Mr. Wolfe towards Mr.
McCullough. The courts are clear that observation of
conduct is held to a lesser standard or is given lesser
weight than conduct that one experiences themself.
The only three incidents that Mr. Stephens
experienced himself were one the mounting comment the
mounting the presentation boards. Mr. Stephens testified
quite clearly and candidly that he thought that the
mounting comment was a joke; he thought was funnYi and
he laughed about it.
The other two incidents one he elbowed Mr.
Wolfe away when Mr. Wolfe approached him from behind.
Once he had elbowed Mr. Wolfe away, Mr. Wolfe said
something like, "1'11 have to try again when he I s 30.
You're too virile of a man not to have tried sleeping with
a man, n and the other incident
THE COURT: Maybe it's my Catholicism, but I'm
finding this case hard to relate to. You can -- you can
reserve your -- rest of your comments for rebuttal.
That's a practice meaning you're winning.
Yes, sir?
MS. PEDERSEN: I'm sitting down.
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THE COURT: Yes, sir? What would you like to
say?
MR. STEPHENS: Your Honor -
THE COURT: It's your turn to argue.
MR. STEPHENS: First of all, I'd like to say
that the
THE COURT: You can sit, it's fine.
MR. STEPHENS: Okay.
THE COURT: Whatever you feel more comfortable
with, it's fine.
MR. STEPHENS: Your Honor, I was -- first of
all, Mr. Wolfe -- or Defendant Wolfe -- I maintain that
Defendant Wolfe tried to (indiscernible) me and I knew he
was going to do that because he did that to Defendant
McCullough in the same manner twice and he also groped
him, which he also did to me. This behavior was very
disturbing for me, such to the point where I had to
complain about it to management. The defense claims that
these actions that I experienced were crude jokes. I
don't believe that they were crude jokes, Your Honor. I
believe that this was sexual harassment and this was a
hostile work environment, sexual harassment. That's one
of the issues that I believe that a jury needs to decide
in terms of credibility for the actions that were taken
and whether or not it does rise to the level of hostile
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sexual harassment hosti work environment.
Secondly! the defense claims that I was not
terminated in retaliation for complaining! but that I was
terminated because of some reorganization. The -- I
maintain that the reason why I was -- or my position was
eliminated was because of a specific -- the divestment of
a specific initiative which was -- which I was not
specific to. The -- that was brought up time and time
again to me by email from my HR manager! Defendant Brunke
(ph)! and to the EEOC investigator (indiscernible) Marks.
Now the defense is claiming that is not relevant
and that they are - the real reason why that -- my
position was eliminated was because they shut down Exeter!
which frankly is not in -- is a fact that's not in -- it's
not in evidence! Your Honor. The -- they state that this
Exeter is still operating in -- and it's still listed in
- as -- in operating status in their the SEC filings
and also the -- they've produced no evidence that they've
actually shut down this business except for within this
litigation.
Also! that they claim that my -- that I didn't
- that I was not -- when I was terminated! I was not
offered a position with the company that was that I was
able to obtain reasonably. The position that I was -
that they -- actually I wasn't offered a position at all.
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They wanted me to -- the defendants wanted me to apply for
a job that required a degree which they knew I did not
have. I chose not to apply for that position because I
knew I didn't have the basic qualifications for the
position. I never told the defendants that I did not want
to work for their company. As a matter of fact I
continued to apply for positions that I believed I
qualified for, positions that accepted experience in lieu
of a degree of two years, which I had. I had good work
history -- or good performance and work history with the
company, and I was not considered for an interview for any
of those 12 positions even though my -- in spite of my
work history. The -- also, the defense claims that I did
not state a claim for retaliation based on the fact that
they made my severance agreement contingent on a release
of claims, but they knew -- I did state that in my
pleadings, in my third amended complaint and also that
legal theory is based on adverse impact retaliation, which
states that a policy that a company has that affects one
employee more harshly because of a form of discrimination
that they made a complaint about or - basically, I wasn't
able to accept the severance agreement because they had
had claims against the company and they knew it and I
did make a -- and that was a claim in my complaint.
Basically, Your Honor, there are plenty of
I
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material facts that are at issue in this case and I don't
believe that the defendants are entitled to a motion for
summary judgment.
THE COURT: Very well. There's also a motion to
strike. Did you wish to respond to that?
MR. STEPHENS: Oh, yes, the motion to strike.
Your Honor, the motion to strike -- the defense
offers Oregon Rule of Evidence 408. The argument is a
compromise and offers or -- it deals with evidence
produced in compromise and offers to compromise.
Your Honor, in the defendants' brief, she -- or
defenses' brief, she omitted most of the law. I submitted
three reasons as to why the evidence should be upheld and
admissible in court.
One is -- I'm claiming that that evidence -
that that's direct -- the defense, in our settlement
discussions asked me to never apply to their company
again, and I believe that was direct evidence of
retaliatory sediment, and under Rule 408, Subsection
(2) (a) is states that the exclusion of discoverable
evidence is not required. So I believe that that is
basically evidence that -- or direct evidence that they
were or are still retaliating against me for -- and since
my performance was not an issue and I was terminated for
- by no fault of my own supposedly! the defense only
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has only given the reason, to this Court, that -- or the
fact that I make claims or claims against their company to
the federal government and pursued them.
Subsection (a) -- (1) (a) of that rule also
states that only evidence or compromise -- evidence of
furnishing or offering or promising to furnish or
accepting or offering or promise to accept or -- a
valuable consideration, Your Honor, in compromising or
attempting to compromise a claim which was disputed as to
either validity or amount is not admissible to prove
liability, and subsection (1) (b) of that rule states that
the conduct and statements made in compromise are likewise
and according to -- or with r e f ~ r e n c e to (1) (a) are
conduct and statements of value are not admissible but
there was no value to their offer to -- for them to ask me
to never apply to their company again.
And also, I contend that -- on subsection (2) (a)
of that -- of Rule 408 that that particular offer was made
for a different reason and in subsection (2) (a) it states
that -- of Rule 408 states that "exclusion not required
of evidence offered for another purpose" and I believe
that that was offered as a further way to retaliate
against me, Your Honor, and not to come to an amicable
compromise of these claims.
THE COURT: Just out of curiosity, did Judge
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Gardner tell you that anything that you said or that the
parties said during your meeting with him would not be
admissible?
MR. STEPHENS: Yes, Your Honor. We did -- he
did have
THE COURT: So wouldn't that be an independent
grounds for the motion -- the statute aside, if you
entered into a settlement conference and everybody agreed
it was going to be confidential -- forget the statute
we just made an agreement to have the settlement
conference; we I agreed it would be confidential
MR. STEPHENS: Well, Your Honor -
THE COURT: I'm just asking. It's a yes or no
question.
MR. STEPHENS: Yes.
THE COURT: Okay. Thank you.
You may respond.
MS. PEDERSEN: Just so that the record is clear,
Mr. Stephens referred to Mr. Wolfe as Defendant Wolfe.
He's not a Defendant in this sanction.
THE COURT: Yeah, he should be, though.
MS. PEDERSEN: With respect to the hostile work
environment claim, Your Honor. I understand your comment
earlier and I take it as you -- I think you intended it.
But Mr. Stephens has failed to address, even if the Court
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thinks that they're his sufficient evidence of severity or
pervasiveness such that the terms and conditions of
employment were affected here, Mr. Stephens has failed to
put on any evidence to refute Nike's evidence that it took
prompt, remedial, and effective action as soon as he made
the complaint.
In fact, he admitted in his deposition and he
has admitted in his pleadings that after Nike
investigated, after Nike took action with respect to Mr.
Wolfe there was no further harassment of any kind. He
testified to that quite clearly in his deposition. That
testimony I'm reading from 185 -
"After you made your complaint to Brunke, does
Mr. Wolfe ever harass you again? II
"No
l
he did not."
That is Mr. Stephens' testimonYI that is a key
component of his first claim for relief. He doesn't have
a claim for sexual harassment. His claim is based on co
worker harassment. He acknowledges that Mr. Wolfe was a
co-worker and not a supervisorl and once he made this
I complaint, Nike took prompt, remedial and effective
action, and he doesn't dispute I in facti that the action
was prompt, remedial I and effective. Therefore I there's
no first claim.
With respect to the retaliation claim, first of
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1 all, Mr. Stephens is right. We made a mistake in our
2 briefing. We said that he had not raised the issue of the
3 severance agreement being an act of retaliation itself in
4 his pleadings. He did. That was a mistake in our
briefing. But the fact that he was offered severance when
6 he was terminated from Nike is not evidence - can't be
7 evidence of retaliation without some evidence that he was
8 treated differently than other similarly situated
9 employees.
In other words, if he i& distinguishable from
11 the other from every other Exeter employee who was
12 terminated at the same time and offered severance, he
13 might be able to state a claim, but he hasn't put forward
14 any evidence in that regard to show that he was treated
any differently than anybody else.
16 With respect to the remainder of the retaliation
'17 claim, he contends that the elimination of the Exeter
18 subsidiary of Nike, which is a multibillion dollar
19 enterprise every single employee of Exeter was laid
off, that the company doesn't engage in any business any
21 more, it doesn't have any employees, that subsidiary was
22 somehow all in retaliation, an effort to get rid of him.
23 He contends that Exeter is still operating, that the SEC
24 filings indicate that it's still operating. What the SEC
filings indicate is that the subsidiary Exeter still
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exists. The evidence before the Court is by way of a
declaration from Claire Hammel the former CEO of the
subsidiary Exeter
l
in which she says that Exeter has no
employees and conducts no business.
Mr. Stephens contends that his layoff was
retaliatory because he was not specific to the NASCAR
initiative. What he fails to refute is the fact that
regardless of whether or not he was specific to the NASCAR
initiative
l
there was no other position for a junior
footwear designer anywhere within the Exeter enterprise at
the time of his layoff and in factI he admitted as much in
his deposition on page 296.
I asked himl "Was there any open position in
Exeter for which you believe you qualified?"
Answer: "No
l
I don't believe so. I'm not
sure. "
Question: "But you can't tell me any position
at this time that you believe you qualified for?"
Answer: "No
l
I can't."
And the other evidence before the Court from the
Nike witnesses iS in factI that there was no other
I
position available for him and that every other person
within a matter of months after Mr. Stephens was laid off
were also laid off from the Exeter subsidiary.
With respect to Mr. Stephens' allegation that he
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was retaliated against and the proof of that is that he
has been unable to get another job at Nike, he's failed to
provide the Court with any causal evidence whatsoever.
There is no evidence before the Court indicating that any
decision maker with respect to any of the other jobs that
he's applied for was even aware that he had ever filed any
EOC complaint or let along that he was even a former Nike
employee. There's no evidence of that in the record
whatsoever.
With respect to the motion to strike, Your Honor
is correct. Mr. -- Judge Gardner was very clear that the
all matters stated in the settlement negotiations were
confidential, and Mr. Stephens violated that by putting
that evidence before the Court. We'd simply like it
stricken for purposes of protecting the record.
THE COURT: Very well. Thank you.
MS. PEDERSEN: I have nothing further unless you
have any questions.
THE COURT: I'm fine.
The motion to strike is granted both on the
agreement made by the parties in consenting to a
settlement conference with Judge Gardner and also based on
the evidence code.
Real quick aside, I volunteered to do this
docket most -- in part because I was bored, and I knew I
Ex A
Page 530 of 542
1
2
3
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5
6
7
8
9
10
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12
13
14
15
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17
18
19
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would learn a lot and I have learned a lot. I learned
that the standard of how you prove sexual harassment is
much more difficult than I think laymen or even lawyers of
31 years would have thought. It's really a very high
hurdle that I don't really quite understand policy reasons
why that is the case/ but I'm not a legislator.
That being said/ I am sympathetic to what
happened to you at Nike. It was highly inappropriate/
which I'm sure Nike would agree. I don't know if a lawyer
would have got you around all the technical problems you
face in your pleadings or not/ but I'm going to grant the
motion for summary judgment on all the reasons advanced by
the defense.
MR. STEPHENS: Your Honor
THE COURT: And I didn't interrupt you when you
were talking and -
MR. STEPHENS: I'm sorry.
THE COURT: I'm done.
You may prepare the jUdgment. Thank you.
MS. PEDERSEN: Thank you/ Your Honor.
(Proceedings concluded)
Ex A
Page 531 of 542
5
10
15
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25
28
2
3
4
6
7
8
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12
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16
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19
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DECLARATION OF TRANSCRIBER
I, Robyn M. Anderson, of Anderson
Assistance, hereby certify that:
a. I am an Official Transcriber for the
State of Oregon;
b. that I personally transcribed the
electronic recording of the proceedings had at the time
and place herein before set forth;
c. that the foregoing transcript totaling
32 pages, consisting of pages 1 through 28, represent an
accurate and complete transcription of the entire record
of the proceedings, as requested, to the best of my bel
and ability.
WITNESS my hand at Gresham, Oregon this
29th day of June, 2009.
ANDERSON ASSISTANCE
Robyn M. Anderson
Official Transcriber
Ex A
Page 532 of 542
IN THE COURT OF APPEALS OF THE STATE OF OREGON
KARELLEN STEPHENS, guardian ad litem for Qadira Stephens,
Plaintiff-Appellant,
v.
AIMEE McQUISTON,
Defendant-Respondent
Multnomah County Circuit Court
071113836
A140487
APPELLATE JUDGMENT and SUPPLEMENTAL JUDGMENT
Michael J. McShane, Judge.
Argued and submitted on July 14, 2010.
Before Schuman, Presiding Judge, and Wollheim and Rosenblum, Judges.
Attorney for Appellant: Andy Simrin.
Attorney for Respondent: Rudy R. Lachenmeier.
AFFIRMED WITHOUT OPINION
DESIGNATION OF PREVAILING PARTY AND AWARD OF COSTS
Prevailing party: Respondent [Xl Costs allowed, payable by Appellant.
MONEY AWARD
Creditor(s): Aimee McQuiston
Attorney: Lori DeDobbelaere, 9600 SW Capitol Hwy, Portland OR 97219
Debtor(s): Karellen Step hens
Attorney: Andy Simrin
Costs: $615.40
Total Amount: $615.40
Interest: Simple, 9% per annum, from the date of this appellate judgment.
Appellate Judgment COURT OF ApPEALS
Effective Date: February 16, 2011 (seal)
APPELLATE JUDGMENT and SUPPLEMENTAL JUDGMENT
REPLIES SHOULD BE DIRECTED TO: State Court Administrator, Records Section,
Supreme Court Building, 1163 State Street, Salem OR 97301-2563
Page 1 of 1
Ex A
Page 533 of 542
'''::
.,. ""'"
~ o
FILED: December 29, 2010
IN THE COURT OF APPEALS OF THE STATE OF OREGON
RENEE STEPHENS,
v.
NlKE, INC., an Oregon corporation; and EXETER BRANDS GROUP, LLC,
a wholly owned subsidiary ofNike, Inc.,
Defendants-Respondents.
Washington County Circuit Court
C083317CV
A141956
Donald R. Letourneau, Judge.
Submitted on December 03, 2010.
Before Haselton, Presiding Judge, and Armstrong, Judge, and Duncan, Judge.
Attorney for Appellant: Renee Stephens pro se.
Attorney for Respondents: P. K. Runkles-Pearson.
AFFIRMED WITHOUT OPINION
DESIGNATION OF PREVAILING PARTY AND AWARD OF COSTS
Prevailing party: Respondents
[] No costs allowed.
[X] Costs allowed, payable by Appellant.
- - - - - - - - - - - ~ - - - ............
Ex A
Page 534 of 542
IN THE SUPREME COURT OF THE STATE OF OREGON
RENEE STEPHENS,
Petitioner on Review,
v.
NIKE, INC., an Oregon corporation; and EXETER BRANDS GROUP, LLC,
a wholly owned subsidiary of Nike, Inc.,
Defendants-Respondents,
Respondents on Review.
Court of Appeals
A141956
S059178
ORDER DENYING REVIEW
Upon consideration by the court.
The court has considered the petition for review and orders that it be denied.
April? 2011 Q ; v ~
DATE 'CHiEFJUSiC
c: Amy Joseph Pedersen
P K Runkles-,Pearson
Renee Stephens
jf
ORDER DENYING REVIEW
REPLIES SHOULD BE DIRECTED TO: State Court Administrator, Records Section,
Supreme Court Building, 1163 State Street, Salem, OR 97301-2563
Page 1 of 1
Ex A
Page 535 of 542
CITY OF Independent Police Review Division
1221 SW 4th Avenue, Room 320
PORTLAND, OREGON
Portland, Oregon 97204
Phone: (503) 823-0146
Fax: (503) 823-3530
OFFICE OF THE CITY AUDITOR
E-mail: iprcrc@ci.portland.or.us
8/3/2009
Karellen Stephens
7135 SW 54th Ave
Portland OR 97219
Re: IPR No. 2009-C-0081
On July 6, 2009 you asked to appeal your case to the Citizen Review Committee (CRC). Under
the City's administrative rules, appeals are available only for cases in which formal disciplinary
investigations have been completed. Appeals are not available for cases like yours that
have not been formally investigated.
Although your case is not appealable to the CRC, I have reevaluated all the available
information to determine whether there is enough evidence of police misconduct that a full
disciplinary investigation should now be conducted.
Your complaint alleged that Sgt. Liu failed to conduct a proper child abuse investigation
regarding your daughter's burn injury. On August 16, 2008 your husband and daughter reported
the circumstances to Officer Miller. Officer Miller documented the information in a required
report, which was referred to Sergeant Liu. Sgt Liu determined that the information your family
provided did not meet the definition of a criminal act of child abuse. The Commander of the
Detectives Division, who later reviewed the case file, agreed that further investigation was
unwarranted. Under these circumstances, there is no evidence that Sergeant Liu committed
misconduct.
Your complaint and your follow up correspondence also allege that you perceived that Sergeant
Liu was rude and argumentative in subsequent conversations he had with you. Understandably
this was a difficult situation for you and your family, it is clear that emotions ran high for both you
and Sergeant Liu. However there is insufficient evidence in this case that the manner in which
he spoke with you, and his terminating your conversation, rose to the level misconduct.
Finally, although Chief Sizer did not directly respond directly to your letter requesting an
investigation, the Chief's Office immediately sent your request to the Investigations Branch
Assistant Chief Bret Smith and then to Detective Division Commander John Eckhart for review.
Commander Eckhart reviewed your letter and the entire investigation in a timely manner and
wrote a memorandum to Assistant Chief Smith explaining that the information did not provide a
basis to charge any party in the report with criminal violations. I agree with lAD that the
Ex A
Page 536 of 542
evidence shows that Chief Sizer's office ensured that the proper police personnel reviewed your
case to make an informed decision, and that her actions did not constitute misconduct.
IPR only has jurisdiction over complaints against Portland police officers. IPR does not have
authority over judges, lawyers, or other public agencies so I cannot address your concerns
regarding the actions of others.
Again, I want to restate that just because your case was dismissed does not mean that IPR or
the Bureau did not take your complaint seriously. I hope this correspondence helps to clarify
why there will be no further action on your case. If you have any questions, please feel free to
call my office at 503-823-0146.
Ex A
Page 537 of 542
EEOC Form 5 (11109)
CHARGE OF DISCRIMINATION
Charge Presented To: Agency(ies) Charge No(s):
This fonn is affected by the Privacy Act of 1974. See enclosed Privacy Act
Statement and other infonnation before completing this form.
FEPA
X EEOC
AMENDED
551-2009-01277
Oregon Bureau of Labor &Industries Civil Rights Division and EEOC
State or local
Name (indicate Mr., Ms., Mrs.) Home Phone (Incl. Area Code) Date of Birth
Renee Stephens (503) 977-7935 05-051978
Street Address City. State and ZIP Code
7135 Sw 54th Ave., Portland, OR 97219
NIKE INC Unknown
One Bowerman Dr, Beaverton, OR 97005
/
Stree! Address City, State and ZIP Code
DISCRIMINATION BASED ON (Check appropriate box(es).) DATE(S) DISCRIMINATION TOOK PLACE
Earliest Latest
D RACE COLOR D SEX D RELIGION D NATIONAL ORIGIN 01-30-2009 10132009
[K] RETALIATIOND AGE D DISABILITY D GENETIC INFORMATION
D OTHER (Specify) D CONTINUING ACTION
THE PARTICULARS ARE (If additional paper is needed, attach exira sheel(s)):
In 2007, I filed charges against this employer for discrimination and retaliation after I was harassed,
complained of the harassment, and shortly thereafter my job was terminated.
I handled the matter pro se in court all the while still applying for jobs at this employer until they told me on
January 30, 2009, never to apply with them again.
I have been retaliated against, in violation of Title VII of the Civil Rights Act of 1964, as amended.
I believe that the respondents in the above named charge have and continue to retaliate against me for
pursuing charges of discrimination by refusing to contact me, considered me, interview me, or hire me for
positions within their company which I believe I qualify for. The most recent job that I have applied for was
October 13
th
, 2009.
I want this charge filed with both the EEOC and the State or local Agency, if any. I
will advise the agencies if I change my address or phone number and I will
cooperate fully with them in the processing of my charge in accordance with their
NOTARY - When necessary for State and Local Agency Requirements
I swear or affirm that I have read the above charge and that it is true to
I I declare under the .above is true and correct. the best of my knowledge, infonmation and belief.
SI ATURE OF COMPLAINANT
11.--1-----_
__ _______
Ex A
Page 538 of 542
EEOC Form 5 (11/09)
CHARGE OF DISCRIMINATION
Charge Presented To: Agency(ies) Charge No(s);
D FEPA
00 EEOC 551-2010..()1356
Oregon Bureau of Labor & Industries - Civil Rights Division and EEOC
State or local
Name (indicate Mr., Ms., Mrs.) Home Phone (Incl. Area COde) Date of Birth
Mr. Renee A. Stephens (503) 977-7935 05-05-1978
7135 S.W. 54th Avenue, Portland, OR 97219
Named is the Employer, Labor Organization, Employment Agency, Apprenticeship Committee. or State or Local Govemment Agency That I Believe
Name
NIKE INC
Name
Street 'Address City, State and ZIP Code
DISCRIMINATION BASED ON (Check appropriate box(es).)
[KJ RACE 0 COLOR 0 SEX 0 RELIGION 0 NATIONAL ORIGIN
[!J RETALIATION D AGE D DISABILITY D GENETIC INFORMATION
D OTHER (Specify)
THE PARTICULARS ARE (If additional paper is needed, attach extra sheet(s));
No. Employees. Membel'\'! Phone No. (Include Area Code)
500 or More (503) 671-6453
No. Employees, Members Phone No. (Include Area Code)
DATE(S) DISCRIMINATION TOOK PLACE
Earliest Latest
0618-2010 06-18-2010
D CONTINUING ACTION
I have a previous charge of discrimination filed against Nike through the EEOC, and they are retaliating
against me by making offers in a law suit contingent on withdrawal of that EEOC charge.
I believe this retaliation is in violation of Title VII of the Civil Rights Act of 1964, as amended.
I want this charge filed with both the EEOC and the State or local Agency, if any. I
procedures.
I declare under penalty of perjury that the above is true and correct.
Charging Party Signature
- When necessary
Ex A
Page 539 of 542
EEOC Form 5 (11109)
CHARGE OF INATION
Charge Presented To: Agency(ies) Charge No(s):
o FEPA
EEOC 551201001736
Oregon Bureau of Labor and Industries - Civil Rights Division and EEOC
....
Name (indicate Mr., Ms.. Mrs.) Home Phone (Incl. Area Code) Date of Birth
Mr. Renee A. Stephens (503) 977-7935 05-05-1978
7135 S.W. 54th Avenue, Portland, OR 97219
Name
NIKE INC
Name
DISCRIMINATION BASED ON (Check appropriate box(es}.)
o RACE D COLOR D SEX D RELIGION D NATIONAL ORIGIN
o RETALIATION D AGE D DISABILITY 0 GENETIC INFORMATION
o OTHER (Specify)
THE PARTICUlARS ARE (If additional paper is needed. attach extra sheet(s)):
No. Employees. Members Phone No, (Include Area Code)
500 or More (503) 671-6453
No. Employees, Members No. (Include Area Code)
'::>
J>
DATE(S) TOOK PLACE
Earliest --' latest
08-20-2010 08-20-2010
D CONTINUING ACTION
I found out on August 20, 2010, that Nike is refUSing to consider me for future employment because I had
items in my portfolio that were considered to be a violation of their policy not to have publicly unpublished
materials in employee portfolios. When I realized that I had violated their policy, I verified that the materials
had not been viewed and I immediately returned the items to Nike's attorneys.
I have knowledge that Randy Wolfe, a Caucasian, also violated Nike policy, but he was allowed to re-apply,
interview, and was rehired to a higher level position. Nike has not conducted an investigation of my policy
violation, has not given me a chance to explain my actions, has given me no coaching, and I have received
no opportunity to apologize or be rehired like Mr. Wolfe.
I believe that these actions are discriminatory because Nike does not apply its no-rehire policy neutrally to
policy violators. Nike is treating me more harshly for violating its policies because I am African-American and
Mr. Wolfe is Caucasian. In addition, Nike is continuing to retaliate against me for filing charges of
discrimination against them. This is in violation of Title VII of the Civil Rights Act of 1964, as amended.
I want this charge filed with both the EEOC and the State or local Agency, if any, I
. ...,-_.....,._,..-...,-.....,.-.,.,..---:---,____.....,._________--1 I swear or affirm that I have read the above charge and that it is true to
I declare under penalty of perjury that the above is true and correct. the best of my knowledge, information and belief.
SIGNATU OF COMPLAINA
SUBS RIBED AND
(month. day, yeaI')
I Chargmg Party Signature 9nc ///l.
Ex A
Page 540 of 542
Bureau of Police
Sam Adams, Mayor
Michael Reese, Chief of Police
1111 S. W. 2nd Avenue. Portland, OR 97204 Phone: 503-823-0000. Fax: 503-823-0342
Integrity. Compassion Accountability. Respect. Excellence. Service
NOTICE OF STATUS I REQUEST FOR RECORDS
Date: 3/30/2011 Case # 08-80238
To: KARELLEN STEPHENS Claim #
Enclosed is your search fee receipt, minimum of $10 processing fee for each request.
You have received a copy of the attached report with the exempt areas redacted. Applicable exemptions(s) are
marked below.
You have not received all of the pages of this police report due to the exemption or reason noted below.
You have not received reports written by other agencies as we are not authorized to release other agencies' reports.
Please contact:
x
At this time, the entire report is exempt from disclosure. See exemption(s) below.
Status of request or applicable public record exemption(s):
419B.035(1) Information contained in the record involves reports of child abuse and is not accessible for
public inspection except in instances where the Department of Human Services (DHS) is authorized to make
these records available. Please contact DHS.
Please address a letter of request to Latonya Davis, Dependency Liaison/Paralegal, Juvenile Justice Center,
1401 NE 68th Ave, Portland, Oregon 97213.
Pursuant to ORS 192.460, any person denied the right to receive a copy of any public record of a public body, other
than a state agency, may petitiion the District Attorney's Office of the county in which the public body is located. The
District Attorney's Office will review the public record to determine if it may be withheld from public inspection. For
reports written in Multnomah County, write to: Public Records Request Appeals, Multnomah County District Attorney
Michael D. Schrunk, Room 600 Multnomah County Courthouse, 1021 SW 4th Avenue, Portland, Oregon 97204.
Pursuant to ORS 419A.255, Multnomah County Juvenile Court must decide whether to release police reports involving
named juveniles. Contact Juvenile Services Division Intake Unit, 503-988-3460.
If you have any questions, please call the Records Division Correspondence Desk at 503-823-0756
10: 65927
Ex A
Page 541 of 542
Ex B
1 of 2
Page I of3
LEGACY EMANUEL PEDIATRICS Qadira Stephens
2801 N Gantenbein Ave DOS: 9/27/1998 DOS: 7/512011
A.. LEGACY Portland OR 97227-1623 MRN: 8500287838
503-413-2200
, _HEALTH CSN: 414250009
503-413-2200
Discharge Summary
Qadira Stephens (MRN: 8500281838)
Visit Information
Date & Time Department Dept Phone Center
7/5/2011 12:28 PM Lemc Peds 36a 503-413-2200 LEGACY EMANU
Attending Physician
Karin A Selva, MD
Length of Stay
Actual Admission Date
2 days 07/05/2011
General Information
Problem List as of 71712011 Date RevIewed. 7/712011
Noted - Resolved
Diabetic ketoacidosis, type I 7/5/2011 - Present
Allergies as of 7/7/2011
No Known Allergies
Current Immunizations
No immunizations on file.
Current Discharge Medication List
START taking these medications
Details
insulin glargine (LANTUS SOLOSTAR) Inject 17-20 Units into the skin Daily.
100 uniUmL (3 mL) pen injector
Start
Date:
717111
Insulin Aspart (NOVOLOG) 100 uniUmL Inject 1-15 Units into the skin Every Day Before Meals, Nightly, and 0200 Hrs.
Crtg
Start
Date:
717111
glucagon, Human Recombinant. Inject 1 mL into the skin Once.
(GLUCAGON EMERGENCY) 1 mg
injection
Start
Date:
7/7/11
End
Date:
7/7/11
medications which have NOT CHANGED
DetaIls
ACETAMINOPHEN (CHILD APAP ORAL) Take by mouth.
pediatric multivitamin-iron-minerals (MUL TI- Take 1 tablet by mouth Daily.
VITAMINS WIIRON) Chewable tablet
7/5/11
Stephens, Qadira (MR # 8500287838) Printed by [32680] at 717111 2:20 PM
Ex A
Page 542 of 542

PAGE 1 CERTIFICATE OF SERVICE

Karellen and ReneeStephens, Pro Se,
7135 SW 54
th
Ave.
Portland, OR 97219
503-977-7935

CERTIFICATE OF SERVICE

I hereby certify that I served the foregoing NOTICE OF APPEAL on the following
named person(s) on the date indicated below.
[ ] mailing with paid postage
[ ] hand delivery
[ ] facsimile transmission
[ ] overnight delivery
[ x ] email
to said person(s) a true copy thereof, contained in a sealed envelope, addressed to said
person(s) at their last-known address(es) indicated below.

Stephen C. Voorhees, OSB No.794311
svoorhees@kilmerlaw.com
Candice Broock, OSB No. 025200
cbroock@kilmerlaw.com
Kilmer, Voorhees & Laurick, P.C.
Attorneys at Law
732 N.W. 19
th
Avenue
Portland, Oregon 97209-1302
Telephone: 503-224-0055
Fax: 503-222-5290
Of Attorneys for Defendants Scott Kocher,
Richard Vangelisti, and Vangelisti Kocher,
LLP.
Ralph C. Spooner, OSB No. 73288
E-mail: rspooner@smapc.com
SPOONER & MUCH, P.C.
530 Center Street N.E., Suite 722
Salem, OR 97301
Phone: 503-378-7777
Fax: 503-588-5899
Attorney for Defendants
Beth Phipps and Susan OLeary
Karen OKasey, OSB No. 870696
E-Mail: kok@hartwagner.com
HART WAGNER LLP
1000 S.W. Broadway, Twentieth Floor
Telephone: (503) 222-4499
Facsimile: (503) 222-2301
Of Attorneys for OHSU
Defendants


7135 SW 54
th
Ave.
Portland, OR 97219
503-977-7935

Amber A. Hollister, OSB No. 035458
ahollister@osbar.org
Helen M. Hierschbiel, OSB No. 975422
OREGON STATE BAR
16037 SW Upper Boones Ferry Rd.
P.O. Box 231935
Tigard, Oregon 9728-1935
Telephone: (503) 431-6312
Facsimile: (503) 598-6912
Attorneys for Defendants Oregon State
Bar, Scott A. Morrill, and Sylvia E.
Stevens
George S. Pitcher, OSB #963982
gpitcher@williamskastner.com
Rachel A. Robinson, OSB #084550
rrobinson@williamskastner.com
WILLIAMS, KASTNER & GIBBS PLLC
888 SW Fifth Avenue, Suite 600
Portland, OR 97204-2025
Phone: (503) 228-7967
Fax: (503) 222-7261
Attorneys for defendant John Barker
JENNY M. MORF, ACTING COUNTY
ATTORNEY FOR MULTNOMAH COUNTY,
OREGON
Susan M. Dunaway, OSB No. 970506
Assistant County Attorney
501 S.E. Hawthorne Blvd., Suite 500
Telephone: (503) 988-3138
Facsimile: (503) 988-3377
Email: susan.m.dunaway@multco.us
Of Attorneys for Multnomah County
Peter O. Tuenge, OSB #034814
ptuenge@keatingjones.com
Jamie E. Valentine, OSB #075556
jvalentine@keatingjones.com
Keating Jones Hughes PC
One SW Columbia, Suite 800
Portland, OR 97258-2095
Phone: (503) 222-9955
Fax: (503) 796-0699
Attorneys for Jlie W. Andrews, MD; Oregon
Emergency Physicians
Elmer M. Dickens, OSB No. 98048
Senior Assistant County Counsel
Elmer_dickens@co.washington.or.us
Office of Washinton County Counsel
155 N. First Ave., Suite 340-MS 24
Hillsboro, OR 97124-3072
Phone (503) 846-8747
Fax (503) 846-8636
Attorney for Defendant Washington County
KAREN M. VICKERS, OSB No. 91381
kvickers@mershanlaw.com
BLAKE H. FRY, OSB No. 100128
bfry@mershanlaw.com
MERSEREAU SHANNON LLP
One SW Columbia Street, Suite 1600
Telephone: 503.226.6400
Facsimile: 503.226.0383
Of Attorneys for Defendant Portland
Public Schools


7135 SW 54
th
Ave.
Portland, OR 97219
503-977-7935

Paul Silver, OSB #783791
Email: psilver@lindsayhart.com
Katie Eichner, OSB #093405
Email: keichner@lindsayhart.com
LINDSAY, HART, NEIL & WEIGLER, LLP
Phone: 503-226-7677
Fax: 503-226-7697
Attorneys for Defendants
Amy Joseph Pedersen, OSB No. 853958
ajpedersen@stoel.com
STOEL RIVES LLP
Portland, OR 97204
Telephone: (503) 224-3380
Facsimile: (503) 220-2480
Attorneys for Defendants Nike, Inc. and Phil
Knight
JOHN R. KROGER
Attorney General
HEATHER J. VAN METER #983625
Senior Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301-4096
Telephone: (503) 947-4700
Fax: (503) 947-4791
Email: heather.j.vanmeter@doj.state.or.us
Attorney for Defendants
DAVID LANDRUM, OSB No. 955425
Deputy City Attorney
Email: david.landrum@portlandoregon.gov
Office of City Attorney
1221 SW 4th Avenue, Rm 430
Portland, OR 97204
Telephone: (503) 823-4047
Facsimile: (503) 823-3089
Attorney for Defendant City of Portland
Larry Brisbee
lab@brisbeeandstockton.com
Elijah B. Van Camp
evc@brisbeeandstockton.com
Brisbee & Stockton LLC
Attorneys at Law
139 N.E. Lincoln Street
P.O. Box 567
Hillsboro, OR 97123
Attorney for Providence St. Vincent Medical
Center, et al.
Robert L. Winkler
rwinkler@pbswlaw.com
lherndon@pbswlaw.com
mwalker@pbswlaw.com

Helen M. Hierschbiel
hhierschbiel@osbar.org

DATED: August 10,2012.

7135 SW 54
th
Avenue
Portland, OR 97219
503-977 -7935
renee. stephens 1 @comcast..net
Plaintiff in Pro Se
PAGE 4-CERTIFICATE OF SERVICE
Kardlen and Pro Se,
7135 SW 54
111
Ave.
Portland, OR 97219
::1\7 O"'l""t ....,....,I:t:

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