The opinion
1 THE HONORABLE MARSHA J. PECHMAN
2
3
4
5
6 UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT TACOMA
7
THAN ORN, individually, THALISA ORN,
8 individually, J.O. and C.O., by their
Guardian, CLARISSE ORN,
9 No. 3:13-cv-05974-MJP
Plaintiffs,
10
Vs. PRETRIAL ORDER
CITY OF TACOMA, a municipal
12 corporation; and KRISTOPHER CLARK, in
B his individual capacity;
Defendants.
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26
VERTETIS AMALA
PARTIES’ JOINT PRETRIAL ORDER ATTORNEYS AT LAW
909 A Street, Suite 700
JURISDICTION
3 This Court has subject matter jurisdiction over this action under 28 U.S.C. § 1331.
4 This Court has supplemental subject matter jurisdiction over the state law claims
5 pursuant to 28 U.S.C. § 1367.
6 CLAIMS AND DEFENSES
7 (A) Plaintiffs will pursue the following claims at trial:
° 1. 42 U.S.C. § 1983: Violation of Fourth Amendment as to Kristopher Clark.
Plaintiff Than Orn asserts that Kristopher Clark violated the Fourth Amendment’s clearly
ul established prohibitions against excessive force when he employed the use of deadly force
12 against Than Orn for failing to yield or failing to obey instructions without any objectively
13 reasonable belief that Orn posed an immediate threat of harm to himself or others. Than Orn
14 was unarmed and was not suspected of a violent criminal offense. Moreover, Orn was driving
's out of the path of police officers at an extremely slow speed, but Clark affirmatively created a
danger by unlawfully establishing a roadblock which endangered his partner officer, getting out
8 of his vehicle against orders, drawing his gun, chasing the path of Orn’s vehicle, and firing 10
19 rounds at Orn through the passenger side and rear of Orm’s vehicle with deliberate indifference
20 to the safety of Orn and those in the immediate vicinity.
21 2. 42 U.S.C. § 1983: Violation of the Fourth and Fourteenth Amendment as to City
of Tacoma — Monell Claim. Plaintiffs allege that the City of Tacoma violated the Fourth and
Fourteenth Amendment. Defendant City of Tacoma and the Tacoma Police Department have
5 customs, policies, and practices that amount to deliberate indifference to the rights of persons
26 with whom its officers regularly come into contact, including nonviolent suspects like Than
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1 Orn. Defendants City of Tacoma and the Tacoma Police Department, with deliberate
2 indifference, failed to train the Tacoma Police Department’s law enforcement officers and
5 failed to adopt and implement policies for, among other things, the use of de-escalation
techniques, non-lethal tactics, proper nonviolent suspect apprehension techniques, and the
decision-making process that should accompany use of deadly force.' The failure by Defendant
7 City of Tacoma and the Tacoma Police Department to adequately and appropriately train its
8 officers and employee amounts to deliberate indifference to the rights of the persons with whom
9 the Tacoma Police Department’s employees regularly come into contact, including nonviolent
10 suspects like Than Orn. It was highly predictable that Defendant’s failures would result in
constitutional violations, like those that occurred in this case. Plaintiff's permanently
debilitating injuries are the foreseeable consequence of the Tacoma Police Department’s failure
13
4 to equip its law enforcement officers with the necessary training and tools to handle recurring
15 situations, such as those involving a nonviolent suspect failing to yield or failing to obey an
16 officer’s instructions. The actions of the officers involved, which deprived the Plaintiff of his
17 Constitutional rights, conformed to official policy, custom, and practice of Defendant City of
18 Tacoma. Defendant City of Tacoma and the Tacoma Police Department’s policy of shooting
9 an unarmed individual failing to yield, but avoiding officers and driving at an extremely low
speed is blatantly unconstitutional and jeopardizes the safety of all citizens, as evidenced by the
39 police shooting of Than Orn. Moreover, Defendant City of Tacoma has ratified the conduct of
23 Defendant Clark in relation to the injuries of Than Orn, by refusing to appropriately sanction
24 Defendant Clark for his actions. Furthermore, the actions of the City of Tacoma and its police
25
26 ' Plaintiffs understand that Defendants believe that Judge Leighton dismissed claims brought under § 1983 in his
summary judgment order. Dkt. 124. This order dismissed Plaintiffs’ state law negligent hiring, training and
supervision claim.
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1 officers resulted in the disintegration of Than Orn’s marriage and the destruction of the parent-
2 child relationship between Than Orn and his children J.O., C.O., and Thalisa Orn.
3
4 3. Battery as to Kristopher Clark. Defendant Kristopher Clark intentionally shot
5 plaintiff Than Orn multiple times in the back and spine and other parts of his body without
6 provocation, license or justification. The acts of Defendant Clark were done with intent to
7 cause harmful or offensive contact or an apprehension by Than Orn of such contact.
4. Negligence as to City of Tacoma. Defendant City of Tacoma was responsible
for the actions of its agents and employees under the theory of respondeat superior. Defendant
City of Tacoma, through its employees, including the named individual defendant Kristopher
12 Clark and the officers who engaged in a police pursuit of Than Orn, owed a duty to use
13 reasonable care with regard to its attempts to take Than Orn into police custody. Defendant
14 City of Tacoma, through its employees, including the named individual defendant Kristopher
15 Clark and the officers who engaged in a police pursuit of Than Orn, violated that duty through
the following activities, including but not limited to, engaging in a police pursuit against policy,
blocking all avenues of exit against policy, and firing a weapon into the rear of a moving
19 vehicle.
20 (B) Defendants will pursue the following defenses at trial:
71 1. Claims Dismissed on Summary judgment
As an initial matter, defendants assert that the pretrial order should not contain any
mention of their “failure to train’ claims as all such claims, both federal and state, were
25 dismissed on summary judgment. Dkt 124.
26
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1 a. Monell Claim
2 The only Monell claim remaining against the City is based upon plaintiffs’ theory of
3 ratification. Judge Leighton held that:
4
Municipalities are required to review police shootings and carefully determine
5 whether the shooting complied with local policy, and then determine whether or not
6 discipline is appropriate. A rational jury could find that Clark’s decision to shoot was
not constitutionally justified, and that Tacoma ratified that unconstitutional decision
7 by determining it was lawful and within policy.
g Summary judgment on the Monell claim against Tacoma is accordingly DENIED.
9 Dkt 124, p. 12:11-15. Plaintiffs did not address Defendants’ summary judgment motion related
10 to the hiring, training and supervision claim, but instead changed to the ratification argument,
ll upon with summary judgment was denied. Id.
12
b. State negligence claims
13 . .
Plaintiffs admit that the state claim based upon “hiring, training and supervision was
14 .
dismissed on summary judgment.” See FN 1, supra; see also Dkt 124, pp. 15:3-16:2. As such,
15 . . Lo. . .
the “negligence” claim plaintiffs allege is still survives cannot be based upon negligent hiring,
16 . . .
training or supervision. In fact, Judge Leighton’s order makes clear that the “negligence” claim
17
that remains is on based upon respondeat superior, premised solely upon a finding that Officer
18 . . .
Clark committed the intentional act of “battery.” Dkt 124, p. 16:4-7:
19
Plaintiffs’ negligence claim seeks to hold the City responsible for the actions of its
20 agents, which Defendants acknowledge were acting within the course and scope of
their employment. As such, if the jury finds Officer Kristopher Clark liable for the
battery of Than Orn, the City of Tacoma is ultimately responsible for the actions of its
22 agents and employees.
23
2. Failure to mitigate — Than Orn, The defendants allege that Than Orn failed to
24
35 mitigate his damages by refusing to follow medical advice, by failing to take reasonable steps
6 to meet hygiene requirements, by repeatedly refusing recommended treatment and by
VERTETIS AMALA
PARTIES’ JOINT PRETRIAL ORDER ATTORNEYS AT LAW
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1 continuing to ingest illegal substances, all of which resulted in new and avoidable medical
2 conditions.
3 3. Failure to mitigate as to the destruction of the parent/child relationships. The
defendants allege that the destruction of the parent/child relationship between Than Orn and the
other plaintiffs is the result of Than Orn’s own actions and decisions, including, but not limited
7 to, his significant, ongoing use of illicit substances.
8 3. No Causation. The defendants allege that the destruction of the parent/child
? relationship was not caused by the defendants’ actions. Instead, the relationship was impacted
10 by Clarisse Orn’s decision not to expose her children to Than Orn and by Than Orn’s illicit
drug use, which predated the defendants’ actions.
12 4. Qualified Immunity. The defendants allege that Officer Clark is entitled to
13 qualified immunity where he acted reasonably under the totality of the circumstances.
14 5. Punitive Damages, The defendants allege that plaintiffs cannot establish the
IS existence of circumstances sufficient to allow for an award of punitive damages against Officer
16 Clark. Punitive damages cannot be awarded against a municipality.
" ADMITTED FACTS
1. On October 12, 2011, at or around 8:30 p.m., Plaintiff Than Orn was in South
20 Tacoma driving his family car, which was registered to his wife, Clarisse Orn, and to his home
2] address.
22 2. At or about that same time, Tacoma Police Department (TPD) Patrol Sgt. Alan
23 Morris attempted a traffic stop of Orn because Orn was driving without headlights.
3. A short time after attempting the traffic stop, Morris called over the police radio
system to report that Orn would not stop the vehicle. Approximately five (5) minutes after he
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1 began following Orn, Morris told dispatch the vehicle was not driving recklessly, just that the
2 driver allegedly would not stop.
5 4. At or about 8:43 p.m., Than Orn continued on toward his apartment complex
located at 6634 Tacoma Mall Boulevard.
5. At approximately 8:46 p.m., Orn pulled into his apartment complex with TPD
7 K-9 Officer David Johnson directly behind him.
8 6. At or about this same time, Defendant Kristopher Clark was positioned at or
9 very near the north entrance to the parking lot of Than Orn’s apartment complex waiting for
10 Orn to arrive.
7. At some point after Plaintiff Orn pulled into his apartment complex via the south
entrance to the parking lot, Defendant Kristopher Clark exited his police vehicle. Defendant
Clark is the only TPD officer to draw and fire his weapon at Orn.
15 8. Defendant Clark fired his weapon multiple times in the direction of Plaintiff
16 Than Orn’s vehicle. Plaintiff Than Orn was struck multiple times in the neck, right shoulder
17 and back by Defendant Clark’s gunshots. According to medical reports, Orn suffered complete
18 spinal cord injury (SCI) at the L2-L3 vertebra due to a bullet lodged in his spine. Plaintiff also
9 suffered cervical spine trauma including fractures of the fourth, fifth and sixth cervical vertebrae
transverse process, as well as a fracture to his right scapula. Plaintiff Orn did not recover any
39 function below the L1 level of his spine.
23 ISSUES OF LAW
24 It is plaintiffs’ position that Judge Ronald B. Leighton has ruled on Defendants’ Motion
25 for Summary Judgment, including a determination that qualified immunity does not apply in
26 this case. This ruling was affirmed by the Ninth Circuit. Plaintiffs believe that the only
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1 remaining legal issues, outside of evidentiary rulings, relate to punitive damages and the award
2 of attorney fees and costs in the event Plaintiffs prevail on their civil rights claims. Plaintiffs
5 believe that all other matters, including causation, present questions of fact for the jury.
Defendants assert that, in addition to evidentiary rulings, the following issues of law
remain to be addressed at trial.
7 Qualified Immunity as to Officer Clark
8 Judge Ronald B. Leighton denied Defendants’ Motion for Summary Judgment,
9 including a determination that qualified immunity should not be granted to Officer Clark based
10 upon viewing the facts in the light most favorable to Plaintiffs. The denial of qualified
M immunity has been affirmed by the Ninth Circuit. Defendants note, however, that the Ninth
Circuit indicated that factual disputes between the versions of the events presented by Plaintiff
Than Orn and by Officer Clark must be resolved by the jury, not by a court adjudicating a
15 motion for summary judgment. Orn v. City of Tacoma, 949 F.3d 1167, 1181 (2020) (“When
16 the facts are viewed in the light most favorable to Orn, as they must be at this point in the
17 litigation, Clark had ‘fair and clear warning of what the Constitution requires.” What Clark
18 most forcefully contests is whether his alternative account of the shooting should be accepted
9 as true. Factual disputes of that order must be resolved by a jury, not by a court adjudicating a
motion for summary judgment.) Defendants assert that if at trial they can establish alternative
9 facts supporting Officer Clark’s version of events, they may again seek a finding of qualified
23 immunity as to Officer Clark.
24 Causation
25 Plaintiffs assert that all of Plaintiff Than Orn’s medical treatment and current conditions
26 were caused by Defendants’ conduct. Defendants assert that Plaintiffs cannot establish
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1 causation as to a significant amount of Plaintiffs’ damages as those damages were caused by
2 Plaintiff Than Orn’s own conduct, ongoing drug use and resultant conditions, not Defendants’
3 conduct.
4
Punitive Damages as to Defendant Clark under 42 U.S.C. § 1983
5
Under Washington law, punitive damages are not available on any state claim against
6
7 either Defendant. Dailey v. N. Coast Life Ins. Co., 129 Wn.2d 572, 574, 919 P.2d 589, 590
8 (1996). As to the federal claims, municipalities are immune from punitive damages under §
9 1983. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S. Ct. 2748, 2762, 69 L.
10 Ed. 2d 616 (1981).
M As to the federal excessive force claim against Defendant Clark, Defendants assert that
12
punitive damages are not appropriate based upon the facts of this case and the standard under
13
4 which an award of punitive damages must be measured.
15 Plaintiffs disagree with defendants’ position on the issue of punitive damages and assert
16 that the jury should be instructed on punitive damages and decide whether to award punitive
17 damages against Defendant Kristopher Clark.
18 EXPERT WITNESSES
19
(A) On behalf of Plaintiffs:
20
1. Neil Robert Bennett (will call)
OSC Vocational Systems, Inc.
7 10132 NE 185" St
Bothell, WA 98011
23 .
Neil Robert Bennett has specialized training, background, and expertise in economic
24
analysis. He will provide testimony based on his review of records. He has provided a report
25
in this case and has been deposed.
26
VERTETIS AMALA
PARTIES’ JOINT PRETRIAL ORDER ATTORNEYS AT LAW
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1 2. Cloie Johnson (will call)
OSC Vocational Systems, Inc.
2 10132 NE 185" St
3 Bothell, WA 98011
4 Cloie Johnson has specialized training, background, and expertise in rehabilitation and
5 vocational assessment. She will provide testimony based on her review of records. She has
‘ provided a report in this case and has been deposed.
7 3. Kenneth Muscatel, Ph.D. (will call)
411 12" Avenue, Suite 305
8 Seattle, WA 98122
9 Kenneth Muscatel, Ph.D. has specialized training, background, and expertise in
10 psychology. He will provide testimony based on his review of records. He has provided a
11 report in this case and has been deposed.
12
4. Virtaj Singh, MD (will call)
13 Seattle Spine & Sports Medicine
3213 Eastlake Ave East, Suite A
M4 Seattle, WA 98102
15 Virtaj Singh, MD has specialized training, background, and expertise in physical
16 medicine and rehabilitation. He will provide testimony based on his review of records. He has
17 provided a report in this case and has been deposed.
18
5. Kay M. Sweeney (will call)
19 KMS Forensics, Inc.
20 P.O. Box 2458
Kirkland, WA 98083
21 Kay M. Sweeney has specialized training, background, and expertise in forensic
22 science. He will provide testimony based on his review of records. He has provided a report
23 in this case and has been deposed.
24
6. Edward A. Leach (will call)
25 P.O. Box 2088
2% Coeur d’Alene, ID 83816
VERTETIS AMALA
PARTIES’ JOINT PRETRIAL ORDER ATTORNEYS AT LAW
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Edward A. Leach has specialized training, background, and expertise in law
2 enforcement practices. He will provide testimony based on his review of records. He has
provided a report in this case and has been deposed.
4
5 (B) On behalf of Defendants:
6 1. Rebecca Bellerive, RN, CDMS, CCM, CLCP (will testify)
5500 Olympic Drive, Suite H105, PMB 244
7 Gig Harbor, WA 98335
(253) 649-0314
8
9 Ms. Bellerive is a registered nurse and certified life care planner who may testify
10 regarding plaintiff Than Orn’s possible future care and needs as it relates to the incident of
11 October 12, 2011 as outlined in her report.
12
2. John Hunter (Expert) (will testify)
13 Investigative Training Services, Inc.
PO Box 16487
14 Seattle, WA 98116
(425) 788-7590
15
16 Mr. Hunter is an accident reconstruction expert who may testify regarding his
17 findings and conclusions from his review of reports, photographs and inspection of the accident
18 site as outlined in his report.
19
3. Jennifer James, M.D. (will testify)
20 Northwest Physical Medicine
801 Pine Street, Suite 100
21 Seattle, WA 98101
(206) 226-9183
22
23 Dr. James is board certified in Physical Medicine and Rehabilitation and Spinal
24 Cord Injury Medicine and is expected to testify as her evaluation and assessment of plaintiff
25 Than Orn and any recommended treatment as it relates to Mr. Orn’s long-term prognosis as
26 outlined in her reports.
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1
2 A, Matthew Noedel (will testify)
13002 151“ Street East
3 Puyallup, WA 98374
(253) 227-5880
4
5 Mr. Noedel is a forensic scientist specializing in ballistics, firearms, crime scene
6 examination and crime scene reconstruction. Mr. Noedel is expected to testify regarding the
7 forensic aspects of the shooting as it relates to Plaintiff Than Orn’s injuries, as outlined in his
8 report.
9
5. William Partin, CPA, ABV, MAFF (will testify)
10 400 108" Avenue NE, Suite 615
Bellevue, WA 98004
11 (425) 455-0303
12 Mr. Partin is a Certified Public Accountant who may testify regarding plaintiff
1S Than Orn’s economic damages as outlined in his reports.
14
15 6. Urey W. Patrick (Expert) (will testify)
Patrick Consulting
16 309 Sage Road
Virginia Beach, VA 23456
17 757-426-6389
18 Mr. Patrick is expected to testify concerning the police procedures and the force
19 used by Officer Kristopher Clark during the October 12, 2011, pursuit and shooting of Than
20 Orn, given the circumstances and information available to Officer Clark at the time of the
21 incident as outlined in his report.
22
23 7. Jennifer Piel, J.D.,M.D. (Expert) (will testify)
4111 E. Madison Street, Suite 357
24 Seattle, WA 98112
25 (206) 295-9114
26
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Dr. Piel is board certified in psychiatry, neurology and forensic psychiatry. Dr.
2 Piel will testify regarding her records review, psychiatric testing, examination and assessment
of plaintiff Than Orn as outlined in her reports.
4
5 8. Thomas Wickizer, Ph.D., MPH (Expert) (will testify)
Chair, Division of Health Services Management and Policy
6 College of Public Health
202 Cunz Hall
7 1841 Neil Avenue
Ohio State University
g Columbus, OH 43210
(614) 688-3854
9
10 Dr. Wickizer will testify regarding the reasonable value of medical treatment and
services provided to plaintiff Than Orn and any anticipated medical treatment and services that
12 may be provided to Mr. Orn in the future as outlined in his report.
13
9, Elizabeth Ziegler, Ph.D. (Expert) (will testify)
14 Clinical and Forensic Neuropsychology
421 West Riverside Ave, Suite 717
15 Spokane, WA 99201
16 (509) 995-9265
M7 Dr. Ziegler is a psychologist and neuropsychologist who will testify regarding
18 her records review, neuropsychological testing, examination and assessment of plaintiff Than
19 Orn as outlined in her reports.
20 OTHER WITNESSES
21 (A) On behalf of Plaintiffs:
22 1. Michael Ake (may call)
c/o Jean Homan
23 747 Market Street, Suite 1120
Tacoma, WA 98402
24 (253) 591-5629
25
26
VERTETIS AMALA
PARTIES’ JOINT PRETRIAL ORDER ATTORNEYS AT LAW
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! Michael Ake may testify regarding his review of the circumstances surrounding the
events of October 12, 2011 and his determination that Tacoma Police Department officers’
5 actions related to those events were within departmental policy.
4
2. Daniel Bortle (may call)
5 c/o Jean Homan
747 Market Street, Suite 1120
6 Tacoma, WA 98402
(253) 591-5629
7
Daniel Bortle may testify regarding his observations and actions relating to the events
8
of October 12, 2011.
9
3. Steven Butts (will call)
10 c/o Jean Homan
747 Market Street, Suite 1120
1] Tacoma, WA 98402
(253) 591-5629
12
Steven Butts will testify regarding his observations and actions relating to the events of
13
October 12, 2011.
14
4. Kristopher Clark (will call)
15 c/o Jean Homan
747 Market Street, Suite 1120
16 Tacoma, WA 98402
(253) 591-5629
Kristopher Clark will testify regarding his observations and actions relating to the events
18
of October 12, 2011.
19
20 5. Robert DeNully (will call)
c/o Jean Homan
747 Market Street, Suite 1120
Tacoma, WA 98402
(253) 591-5629
22
33 Robert DeNully will testify regarding his observations and actions relating to the events
of October 12, 2011.
24
5 6. David Johnson (may call)
c/o Jean Homan
%6 747 Market Street, Suite 1120
Tacoma, WA 98402
(253) 591-5629
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! David Johnson may testify regarding his observations and actions relating to the events
of October 12, 2011.
3
7. Richard Kim (may call)
4 c/o Jean Homan
747 Market Street, Suite 1120
5 Tacoma, WA 98402
(253) 591-5629
6
Richard Kim may testify regarding his observations and actions relating to the events
7
of October 12, 2011.
8
8. Gene Miller (will call)
9 c/o Jean Homan
747 Market Street, Suite 1120
10 Tacoma, WA 98402
(253) 591-5629
11
Gene Miller will testify regarding his observations and actions relating to the events of
12
October 12, 2011.
13
9. Alan Morris (will call)
14 c/o Jean Homan
747 Market Street, Suite 1120
15 Tacoma, WA 98402
6 (253) 591-5629
Alan Morris will testify regarding his observations and actions relating to the events of
17
October 12, 2011.
18
1 10. Donald Ramsdell (will call)
c/o Jean Homan
20 747 Market Street, Suite 1120
Tacoma, WA 98402
(253) 591-5629
9 Donald Ramsdell will testify regarding his review of the circumstances surrounding the
33 events of October 12, 2011 and his determination that Tacoma Police Department officers’
actions related to those events were within departmental policy.
5 11. Donald Rose (will call)
c/o Jean Homan
%6 747 Market Street, Suite 1120
Tacoma, WA 98402
(253) 591-5629
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Donald Rose will testify regarding his observations and actions relating to the events of
October 12, 2011.
3
12. Than Orn (will call)
4 c/o Pfau Cochran Vertetis Amala
909 A Street, Suite 700
5 Tacoma, WA 98402
6 Than Orn is the plaintiff in this case. He has been deposed and will provide testimony
7 about the underlying incident and the damages stemming therefrom.
8 13. Clarisse Om (will call)
9 c/o Pfau Cochran Vertetis Amala
909 A Street, Suite 700
10 Tacoma, WA 98402
11 Clarisse Orn is the natural mother of minor children J.O. and C.O. She will provide
12 testimony about the underlying incident and the damages stemming therefrom.
13 14. C.O. (may call)
c/o Pfau Cochran Vertetis Amala
M4 909 A Street, Suite 700
15 Tacoma, WA 98402
16 C.O. is the natural child of Plaintiffs Than Orn and Clarisse Orn. She may provide
testimony about the underlying incident and the damages stemming therefrom.
18 15. J.O. (may call)
c/o Pfau Cochran Vertetis Amala
19 909 A Street, Suite 700
Tacoma, WA 98402
J.O. is the natural child of Plaintiffs Than Orn and Clarisse Orn. He may provide
21
testimony about the underlying incident and the damages stemming therefrom.
22
33 16. Thalisa Orn (may call)
c/o Pfau Cochran Vertetis Amala
909 A Street, Suite 700
Tacoma, WA 98402
5 Thalisa Orn is the natural child of Plaintiff Than Orn. She may provide testimony about
2 □□□ .
6 the underlying incident and the damages stemming therefrom.
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1 17. Salvador Mungia (will call)
c/o Pfau Cochran Vertetis Amala
2 909 A Street, Suite 700
3 Tacoma, WA 98402
4 Salvador Mungia is Than Orn’s appointed Litigation Guardian Ad Litem (LGAL). He
5 will provide testimony about his role as Than Orn’s LGAL.
‘ Defendants object to the identification of Mr. Mungia as a trial witness. He was appointed
5 weeks ago, yet just listed as a witness on November 17, 2020. Further, any testimony by Mr.
3 Mungia would be improper and highly prejudicial, confuse the jury and invoke speculation by
9 the jurors, especially given plaintiffs’ denial that Mr. Orn 1s incompetent and will available to
0 provide his own testimony.
ll 18. Dr. Alexander Mohit (will call)
MultiCare Tacoma General Hospital
12 315 M.L.K. Jr. Way
Tacoma, WA 98405
13
Dr. Alexander Mohit treated Plaintiff in this case. He will provide testimony about the damages
14
15 stemming from the underlying incident.
16 .
19. Dr. Michelle Strong (may call)
17 MultiCare Tacoma General Hospital
315 M.L.K. Jr. Way
18 Tacoma, WA 98405
19 Dr. Michelle Strong treated Plaintiff in this case. She will provide testimony about the damages
20 stemming from the underlying incident.
21
22 20. James Martin, PA-C (may call)
MultiCare Tacoma General Hospital
23 315 MLL.K. Jr. Way
Tacoma, WA 98405
24
25 James Martin, PA-C treated Plaintiff in this case. He may provide testimony about the damages
26 stemming from the underlying incident.
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1 21. Nona Govella, RN (may call)
MultiCare Tacoma General Hospital
2 315 MLL.K. Jr. Way
3 Tacoma, WA 98405
4 Nona Govella, RN treated Plaintiff in this case. She may provide testimony about the damages
5 stemming from the underlying incident.
6
22. Dr. Francis Wessbecher (may call)
7 MultiCare Tacoma General Hospital
g 315 M.L.K. Jr. Way
Tacoma, WA 98405
9
Dr. Francis Wessbecher treated Plaintiff in this case. He may provide testimony about the
10
damages stemming from the underlying incident.
11
12 23. Dr. Fred Thompson (may call)
B MultiCare Tacoma General Hospital
315 M.L.K. Jr. Way
14 Tacoma, WA 98405
15 Dr. Fred Thompson treated Plaintiff in this case. He may provide testimony about the damages
16 stemming from the underlying incident.
17
18 (B) On behalf of Defendants:
19 1. Officer Daniel Bortle (will testify)
c/o Jean Homan
0 747 Market Street, Suite 1120
Tacoma, WA 98402
71 (253) 591-5629
22 Officer Bortle may testify regarding his observations and actions relating to the
23 events of October 12, 2011, and documented in Tacoma Police Incident Report No. 11-2851184.
24 2. Tifni Buchanan (will testify)
5 South Sound 911
945 Tacoma Avenue South
26 Tacoma, WA 98402
(253) 798-6588
VERTETIS AMALA
PARTIES’ JOINT PRETRIAL ORDER ATTORNEYS AT LAW
No. 3:13-CV-05974-MJP | Page 17 909 A Street, Suite 700
1
Ms. Buchanan will testify about the Computer Aided Dispatch (CAD) system and the
2
3 records obtained from the CAD system.
4 3. Officer Steven Butts (will testify)
c/o Jean Homan
5 747 Market Street, Suite 1120
Tacoma, WA 98402
6 (253) 591-5629
7 Officer Butts may testify regarding his observations and actions relating to the events of
8 October 12, 2011, and documented in Tacoma Police Incident Report No. 11-2851184.
9
10 4, Officer Kristopher Clark (will testify)
c/o Jean Homan
1] 747 Market Street, Suite 1120
Tacoma, WA 98402
12 (253) 591-5629
13 Defendant Officer Clark will testify regarding his observations and actions relating to the
events of October 12, 2011, and documented in Tacoma Police Incident Report No. 11-2851184.
15
16
5. Officer Robert DeNully (may testify)
17 c/o Jean Homan
747 Market Street, Suite 1120
18 Tacoma, WA 98402
(253) 591-5629
19
Officer DeNully may testify regarding his observations and actions relating to the events of
October 12, 2011, and documented in Tacoma Police Incident Report No. 11-2851184.
22 6. Forensic Specialist Paul DePoister (will testify)
c/o Jean Homan
23 Tacoma City Attorney’s Office
747 Market Street, Suite 1120
24 Tacoma, WA 98402
25 (253) 581-5885
26 Specialist DePoister may testify, if necessary, about the photographs of the evidence
VERTETIS AMALA
PARTIES’ JOINT PRETRIAL ORDER ATTORNEYS AT LAW
No. 3:13-CV-05974-MJP | Page 18 909 A Street, Suite 700
1 collected as a result of the shooting, taken by Specialist DePoister prior to the evidence being
2 released to plaintiffs retained forensic expert, Kay Sweeney, as well as his processing of the palm
5 print on the Orn vehicle.
4
7. Lamarcus Gholston (may testify)
5 14523 “C” Street, Apt. 12
Tacoma, WA 98444
6 (253) 754-4694
7 Mr. Gholston may testify regarding his observations regarding the events of October 12,
8 2011.
9 8. Sergeant Henry Gill (retired) (may testify)
Officer Mike Rowbottom
10 c/o Jean Homan
747 Market Street, Suite 1120
1 Tacoma, WA 98402
(253) 591-5629
12
13 Sergeant Gill or Officer Rowbottom may testify about use of force training provided to
14
officers by the Department, including, but not limited to, range training and scenario-based training.
15
14. Sergeant David Johnson (may testify)
16 c/o Jean Homan
747 Market Street, Suite 1120
17 Tacoma, WA 98402
(253) 591-5629
18
Sergeant Johnson may testify regarding his observations and actions relating to the events
19
50 of October 12, 2011, and documented in Tacoma Police Incident Report No. 11-2851184.
1 15. Sergeant Richard Kim (may testify)
c/o Jean Homan
9 747 Market Street, Suite 1120
Tacoma, WA 98402
73 (253) 591-5629
Sergeant Kim may testify regarding his observations and actions relating to the events of
25 October 12, 2011, and documented in Tacoma Police Incident Report No. 11-2851184.
26 16. Sergeant Richard Kim (may testify)
c/o Jean Homan
VERTETIS AMALA
PARTIES’ JOINT PRETRIAL ORDER ATTORNEYS AT LAW
No. 3:13-CV-05974-MJP | Page 19 909 A Street, Suite 700
1 747 Market Street, Suite 1120
Tacoma, WA 98402
2 (253) 591-5629
3 Sergeant Kim may testify regarding his observations and actions relating to the events of
4 October 12, 2011, and documented in Tacoma Police Incident Report No. 11-2851184.
5 17. Asa Louis, Forensic Scientist (will testify)
6 Washington State Patrol Toxicology Laboratory
2203 Airport Way South, Suite 360
7 Seattle, WA 98134
(206) 262-6100
8 Mr. Louis may testify regarding his testing and analysis of Than Orn’s blood sample,
9
and subsequent report.
10
18. Michelle Martin (will testify)
11 621 Washington Ct SW
Mukilteo, WA 98275
12
Ms. Martin is the mother of Plaintiff Thalisa Orn and ex-wife of Plaintiff Than Orn.
13
14 Ms. Martin may testify regarding her knowledge, observations and interactions with plaintiffs.
15 19. Detective Gene Miller (former TPD) (may testify)
c/o Jean Homan
16 747 Market Street, Suite 1120
Tacoma, WA 98402
7 (253) 591-5629
18 Detective Miller may testify regarding his observations and actions relating to the events of
19 October 12, 2011, and documented in Tacoma Police Incident Report No. 11-2851184.
20 20. Than Orn (will testify)
c/o Pfau Cochran Vertetis Amala, PLLC
21 911 Pacific Avenue, Suite 200
Tacoma, WA 98402
22 (253) 777-0799
23 21. Thalisa Orn (will testify)
c/o Pfau Cochran Vertetis Amala, PLLC
24 911 Pacific Avenue, Suite 200
Tacoma, WA 98402
25 (253) 777-0799
26 22. C.O. (may testify)
c/o Pfau Cochran Vertetis Amala, PLLC
VERTETIS AMALA
PARTIES’ JOINT PRETRIAL ORDER ATTORNEYS AT LAW
No. 3:13-CV-05974-MJP | Page 20 909 A Street, Suite 700
1 911 Pacific Avenue, Suite 200
Tacoma, WA 98402
2 (253) 777-0799
3 23. J.O. (may testify)
c/o Pfau Cochran Vertetis Amala, PLLC
4 911 Pacific Avenue, Suite 200
Tacoma, WA 98402
5 (253) 777-0799
6 24. Clarissa Orn (will testify)
c/o Pfau Cochran Vertetis Amala, PLLC
7 911 Pacific Avenue, Suite 200
Tacoma, WA 98402
8 (253) 777-0799
9 Plaintiffs may testify regarding the events of October 12, 2011, and their alleged
10 injuries and treatments.
25. They Prim (may testify)
12 1504 E. 97" Street
Tacoma, WA 98445
13
Mr. Prim is the father of plaintiff Than Orn and may testify regarding his knowledge,
14
1s observations and interactions with plaintiff Than Orn.
16 26. Tacoma Police Chief Don Ramsdell (may testify)
c/o Jean Homan
17 Tacoma City Attorney’s Office
747 Market Street, Suite 1120
18 Tacoma, WA 98402
19 (253) 581-5885
20 Chief Ramsdell may testify about his review of the circumstances surrounding the shooting
21 and his determination that the officer’s use of force was reasonable and within departmental policy.
22 27. Officer Donald Rose (will testify)
c/o Jean Homan
23 747 Market Street, Suite 1120
Tacoma, WA 98402
24 (253) 591-5629
25 Officer Rose may testify regarding his observations and actions relating to the events of
26
October 12, 2011, and documented in Tacoma Police Incident Report No. 11-2851184.
VERTETIS AMALA
PARTIES’ JOINT PRETRIAL ORDER ATTORNEYS AT LAW
No. 3:13-CV-05974-MJP | Page 21 909 A Street, Suite 700
1 28. Shane Smith (may testify)
6830 Tacoma Mall Blvd, Apt. 102
2 Tacoma, WA 98409
(206) 550-3867
3
Mr. Smith may testify regarding his observations regarding the events of October
4
12, 2011.
5
6 29. Deshawna Smith Veasley (may testify)
218 Camden Crossing
Clarksville, TN 37040
7 (917) 564-7771
8 Ms. Veasley may testify regarding her observations regarding the events of October
9
12, 2011.
10
11
30. Pierce County Prosecutor’s Office (may testify)
c/o Jean Homan
13 747 Market Street, Suite 1120
Tacoma, WA 98402
14 (253) 591-5629
15 A representative of the Pierce County Prosecutor’s Office may testify regarding Plaintiff
16 Than Orm’s acquittal on the criminal charges, including the jury instructions and varying burden of
17
proof.
18
EXHIBITS
19
20 See Exhibit List attached as Exhibit A.
21
ACTION BY THE COURT
22
23 (a) This case is scheduled for trial before a jury on November 23, 2020.
24 (b) Trial briefs shall be submitted to the court on or before October 30, 2020.
25
26
VERTETIS AMALA
PARTIES’ JOINT PRETRIAL ORDER ATTORNEYS AT LAW
No. 3:13-CV-05974-MJP | Page 22 909 A Street, Suite 700
1 (c) Jury instructions requested by either party shall be submitted to the court on or
2 before October 30, 2020. Suggested questions of either party to be asked of the jury by the
3 court in voir dire shall be submitted to the court on or before October 30, 2020.
4
5 This order has been approved by the parties as evidenced by the signatures of their
6 counsel. This order shall control the subsequent course of the action unless modified by a
7 subsequent order. This order shall not be amended except by order of the court pursuant to
8 agreement of the parties or to prevent manifest injustice.
9 Dated this 19" day of November, 2020.
10
Vrs.
12 °
3 Marsha J Pechman
United States District Judge
14
IS Approved by the undersigned and dated this 18" day of November, 2020.
16 PFAU COCHRAN VERTETIS AMALA, PLLC
17
18 By _/s/ Darrell L. Cochran
Darrell L. Cochran, WSBA No. 22851
19 Thomas B. Vertetis, WSBA No. 29805
Andrew S. Ulmer, WSBA No. 51227
20 Alexander G. Dietz, WSBA No. 54842
21
Attorneys for Plaintiffs
22
23 COCHRAN DOUGLAS, PLLC
24
25
26
VERTETIS AMALA
PARTIES’ JOINT PRETRIAL ORDER ATTORNEYS AT LAW
No. 3:13-CV-05974-MJP | Page 23 909 A Street, Suite 700
1 By _/s/ Loren A. Cochran
Loren A. Cochran, WSBA No. 32773
3 Attorney for Plaintiffs
4 LAW OFFICE OF THOMAS A. BALERUD
5
6 By _/s/ Thomas A. Balerud
Thomas A. Balerud, WSBA No. 19539
Attorney for Plaintiffs
9 FREY BUCK, P.S.
10
u By _/s/ Anne M. Bremner
Anne M. Bremner WSBA No. 13269
12
13 By _/s/ Karen L. Cobb
Karen L. Cobb, WSBA No. 34958
Attorneys for Defendants
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PFAU COCHRAN
PARTIES’ JOINT PRETRIAL ORDER VERTETIS | AM ALA
No. 3:13-CV-05974-MJP | Pace 24 909 A Street, Suite 700