United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN CHIEF UNITED STATES DISTRICT JUDGE
matter comes before me on four post-trial motions: Defendant
City of Hillsboro's Objections to Plaintiffs'
Proposed Form of Judgment , Defendant Washington
County's Motion for Election of Remedies, Remittitur, and
to Reduce Award Consistent with OTCA Limits , and
Defendants' Motions to Alter or Amend Judgment [406,
412]. For the reasons below, these motions are resolved in
evening of March 13, 2012, officers from Washington County
and the cities of Hillsboro and Portland started to execute a
“high risk” search and arrest warrant in Columbia
Villa, a neighborhood with a high incidence of drug- and
gang-related activity. Adalberto Flores-Haro's home was
next door to the target address and the officers were on and
around his property. Two officers went into Mr.
Flores-Haro's backyard when the operation started. Other
officers moved through an alleyway adjacent to his home.
Neither the officers nor the police departments asked for
permission to be on Mr. Flores-Haro's property, nor did
they warn him of their plans.
Flores-Haro and his family, unaware of the police operation,
became scared that a home invasion was afoot. Plaintiff Alma
Granado-Milan, Mr. Flores-Haro's wife, heard their dogs
barking and went downstairs to investigate. She alerted her
husband that there was someone in the backyard after she saw
an unfamiliar person through the blinds and heard a noise by
their fence. Mr. Flores-Haro then saw a shadowy figure
running towards his front yard and went outside to confront
the intruder. Upon exiting his house, Mr. Flores-Haro saw
more shadowy figures in the area. Hoping to intimidate
whomever was circling his house, Mr. Flores-Haro yelled
inside to his son for a .44 caliber handgun. When his son
could not find the gun, Mr. Flores-Haro went inside to get it
himself. After retrieving the gun, Mr. Flores-Haro took one
or two steps past his front door with the gun in his hand
before he was shot by the officers. He sustained wounds to
his right elbow, right hand, and abdomen.
being shot, Mr. Flores-Haro sought protection inside his
home, stating that he was terrified whoever had shot him
would try to hurt his family. His children were downstairs
screaming while Mr. Flores-Haro lay on the ground clutching
his wounds. The police ordered the family out of the house at
gunpoint, forcing them to step over their father, who was now
unconscious. Mr. Flores-Haro regained consciousness when the
police officers dragged him outside by the arms. He was in a
coma for almost two weeks after the shooting and was left
with permanent injuries, pain, and substantial physical
the incident, the officers who shot Mr. Flores-Haro reported
that they had been fired upon. No casings or bullets from Mr.
Flores-Haro's gun were recovered from the scene.
Flores-Haro, along with his wife and their children, brought
suit against the two officers who shot him and the
officers' employers, Washington County and the City of
Hillsboro. Asserting Fourth Amendment violations, Mr.
Flores-Haro and his family brought claims against the
officers and the municipalities under 42 U.S.C. § 1983.
Plaintiffs also brought state law claims of battery,
negligence, and intentional infliction of emotional distress
against the two municipalities. After interlocutory appeal,
the § 1983 claims were dismissed on the basis of
qualified immunity, leaving only the state law claims against
Washington County and Hillsboro. See Flores-Haro v.
Slade, 686 Fed.Appx. 454 (9th Cir. 2017).
trial, Plaintiffs' counsel submitted evidence of Mr.
Flores-Haro's medical bills related to the shooting,
which totaled $498, 006.79. Pl. Ex. 25. In his closing
argument, Plaintiff's counsel stated that “[t]he
only type of economic damages are Mr. Flores-Haro's
medical bills. The amount of those bills, reasonableness and
necessity, is not in dispute; and that's in Exhibit 25
before you.” Trial Tr. 1695. Plaintiffs' counsel
also presented evidence of Mr. Flores-Haro's ongoing
pain, permanent disability, and the possibility of an elbow
replacement surgery when Mr. Flores-Haro is older.
conclusion of Plaintiffs' evidence, Hillsboro argued for
judgment as a matter of law on the ground that the negligence
and battery claims were inconsistent. Trial Tr. 826. Because
there was only one alleged harm-the shooting-Hillsboro argued
that Plaintiffs' negligence claim was foreclosed by their
battery claim. Id. In support of this argument,
Defendants have asserted that “there can be no
unintentional, intentional conduct.” Hillsboro's
Reply Obj. Limit J.  at 9.
denied the motion for judgment as a matter of law, finding
that the battery claim and the negligence claim rested on
distinct factual predicates. The jury returned a verdict in
favor of Mr. Flores-Haro. The jury found Washington County
and Hillsboro liable for battery, awarding $1, 500, 000 in
economic damages and $1, 000, 000 in noneconomic damages. The
jury also found liability for negligence, awarding Mr.
Flores-Haro $500, 000 in economic damages and $4, 000, 000 in
noneconomic damages, but also finding Mr. Flores-Haro
comparatively negligent. The jury found Washington County 50%
negligent, Hillsboro 8% negligent, and Mr. Flores-Haro 42%
negligent. The jury did not find Defendants liable for
intentional infliction of emotional distress to Mr.
Flores-Haro's family members. In total, after accounting
for Mr. Flores-Haro's comparative negligence, the jury
awarded $5, 110, 000 to Mr. Flores-Haro on the battery and