Opposition Brief — Grammer v. Patterson Servicess, Inc.

2)\ a 20

NO. 88-1747| eos"

In the

Supreme Court of the United States

OCTOBER TERM, 1988

WILLIAM GRAMMER,

Petititoner

PATTERSON SERVICES, INC.,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ANSWER TO PETITION FOR WRIT OF CERTIORARI

JOSEPH L. WAITZ

WAITZ & DOWNER z

423 Goode Street

Houma, Louisiana 70361

Tel: (504) 876-0870

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

i

QUESTIONS PRESENTED

Whether a federal appellate court has the power and

duty to grant a judgment notwithstanding the ver-

dict where the evidence presented precluded sub-

mission of an issue to the jury without denying peti-

tioner rights guaranteed by the Seventh

Amendment.

Whether the appellate court properly found respon-

dent/principal did not have operational control over

the functions of its independent contractor.

Whether appellate court properly denied peti-

tioner’s motion for new trial and directed judgment

for respondent.

ii

TABLE OF CONTENTS

Page

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TAs SE AUT RSET EGGS ois ee ba es ee iii

SIAtmmoens OF THE CASE ...... 026s cenncns. ]

ARIES Ue A oo ee 2 on ek Ree eee 3

I. POWER OF APPELLATE COURT TO RULE ..... 3

II. STANDARD OF SUBMISSION ................ 4

Hi. MUTION FOR NEW Tents... oo... ec ceeeee 7

CONCLAUAION 2. odd knees doth eee 8

iii

TABLE OF AUTHORITIES

CASES:

Boeing Company v. Shipman, 411 F.2d 365 (CA 5th

NR Pe erie Pe fora acd iy ie Fernie ei

Commercial Union Insurance Co. v. International

Flavors and Fragrances, Inc., 822 F.2d 275 (CA

SE et apeiron ae tare ee

Galloway v. United States, 319 U.S. 372, 63 S. Ct.

SN goa sige vw alate ace x x te 0

Grammer v. Patterson Services, Inc., 860 F.2d 641

Se ROO ise eed lek ee eee dy

Mayfield v. Wall Shipyard, Inc., 510 F. Supp. 605

PE 8S Gg yo tea dc ss bs abe wots se Das

Neely v. Martin K. Eby Construction Co., 386 U.S.

wey et Ge Ge BTS EDO)... ee ee...

O’Neil v. W. R. Grace & Co., 410 F.2d 908 (CA 5th

Ge, SUT ce a ee ee ee ae ee ene re

Parfait v. Central Towing, Inc., 667 F.2d 1198 (CA

RCI 20 Oe re yy Clara a

Tarlton v. Exxon, 688 F.2d 973 (CA 5th Cir. 1973) ....

Wallace v. Oceaneering International, 727 F.2d 427

NI OO nik a voy cs pS ee ee eco es

Statutes:

Rule 50(d) Federal Rules of Civil Procedure, 28

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1

In Che

Supreme Court of the United States

OCTOBER TERM, 1988

WILLIAM GRAMMER,

Petititoner

Vv.

PATTERSON SERVICES, INC.,

Respondent

ANSWER TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

STATEMENT OF THE CASE

Because of the nature of this writ, respondent sug-

gests a brief factual outline is necessary.

Patterson Services, Inc., hereinafter referred to as

respondent, is in the business of leasing oilfield drilling

pipe to drilling companies. However, before the pipe can be

let out it must meet certain structural and sealing stan-

dards dictated by the industry. Thus prior to any lease

transaction the pipe must be tested to ensure its conformi-

ty with those standards. Gator Hawk was an ongoing con-

cern that performed pipe testing by utilizing an automatic

hydrostatic internal tester or AHIT. This machine

2

automatically plugs both ends of a joint of pipe, injects

water or another fluid into the pipe bringing the internal

pressure up to 18,000 psi. After the test is completed

whether the pipe failed the test by bursting or it passed,

the machine automatically reduces the pressure and

disengages the plugs. As stated the test is to ensure the

pipe has the structural integrity to withstand the pressure

and to check the three seals at each end of the pipe. It was

during such a test performed by Gator Hawk and its

employees that the petitioner was unfortunately injured.

Sometime prior to the accident Gator Hawk was re-

quested by respondent to test all three seals of each joint

of Patterson pipe. Respondent did not request how this was

to be performed nor were any of its employees involved

with any of the testing procedures, this was strictly within

the province of Gator Hawk. Gator Hawk complied with

this request by tightening the plugs on the ends of the pipe

so as to engage all three seals. On the date of the accident

the AHIT was malfunctioning in that it could not properly

grip the pipe to disengage the plugs. This information was

not communicated to nor was respondent aware at all of

the malfunction. However, instead of performing a five

minute procedure to replace the grips, Gator Hawk in-

structed the petitioner to grip the pipe with a wrench after

the water pressure was released. During the testing of one

joint of pipe, petitioner approached the machine, wrench in

hand, before the pressure was released. The pipe being

tested did not meet industry standards and ruptured caus-

ing the petitioner’s injuries.

Respondent avers and emphasizes the entire testing

procedure was performed by Gator Hawk personnel only

and only under Gator Hawk supervision. Considering all of

the evidence presented the appellate court determined

reasonable persons could not differ that Patterson had no

control whatsoever over the operation and method of the

3

testing procedure. Respondent is not in the business of

testing pipe and left the performance and decision making

that is involved in the testing to the professionals, Gator

Hawk.

Pursuant to local worker’s compensation statutes,

petitioner had no recourse against Gator Hawk (determin-

ed to be his statutory employer) and initiated this suit

against Patterson. In desperation petitioner argues that by

requesting the three seals on each pipe be tested respon-

dent exercised significant control over the testing opera-

tion. Further, petitioner argues that the appellate court

overstepped its bounds by determining that respondent

had no operational control over the testing.

AGRUMENT OF LAW

The petitioner’ argument is two fold; (1) the appellate

court abused its inherent powers to grant a judgment not-

withstanding the verdict by making a factual determina-

tion contrary to petitioner’s rights; and (2) the appellate

court erred in finding that Patterson did not have opera-

tional control over the testing.

POWER OF APPELLATE COURT TO RULE

Your petitioner argues that the appellate court made

factual determinations that were ‘‘so deeply within the pro-

vince of the jury that the Circuit Court’s reversal was not

merely judicial error, but a mistake of constitutional

magnitude denying Grammer the jury trial and review

guaranteed him by the Seventh Amendment.”’ This allega-

tion is synonymous with saying that Rule 50 of the Federal

Rules of Civil Procedure is unconstitutional. As the Fifth

Circuit Court of Appeals held in Parfait v. Central Towing,

Inc., 667 F.2d 1189 (CA 5th Cir. 1982):

4

“Yet we cannot accept Central Towing’s asser-

tion that all factual inferences are reserved for the

jury alone. The mere existence of the motion for

directed verdict, F.R.Civ.P. 50(a), undercuts the

claim. Where the facts will allow but one conclu-

sion or inference, a judge may properly remove

the issue from the jury. As we stated in United

States v. Williams, 441 F.2d 637, 644 (5th Cir.

1971), ‘this Court does not demand jury con-

sideration of an issue which is determinable by

directed verdict’”’

In addition this Court as well has held:

As far as the Seventh Amendment's right to a

jury trial is concerned, there is no greater restric-

tion on the province of the jury when an appeliate

court enters judgment n.o.v. than when a trial

court does; consequently, there is no constitu-

tional bar to an appellate court granting judg-

ment n.0.Vv.

Neely v. Martin K. Eby Construction Co., 386 U.S.

398, 87 S.Ct. 1072 (1967). Further, section 2106 of Title 28

states:

The Supreme Court or any other court of

Appellate jurisdiction may affirm, modify,

vacate, set aside or reverse any judgment, decree,

or order of a court lawfully brought before it for

review, and my remand the cause and direct entry

of such appropriate judgment, decree, or require

such further proceeding to be had as may be just

under the circumstances.”

SUBMISSION OF THE CASE

The determination remains as to when a factual ques-

5

tion can be removed from submission to the jury. This

Court stated in Galloway v. United States, 319 U.S. 372, 63

S.Ct. 1077 (1943)

“Finally, the objection appears to be

directed at the standards of proof judges have re-

quired for submission of evidence to the jury. But

standards, contrary to the objection’s assump-

tion, cannot be framed wholesale for the great

variety of situations in respect to which the ques-

tion arises. Nor is the matter greatly aided by

substituting one general formula for another. It

hardly affords help to insist on ‘substantia!

evidence’ rather than ‘some evidence’ or ‘any

evidence,’ or vice versa. The matter is essentially

one to be worked out in particular situations and

for particular types of cases.”’

Galloway, 319 U.S., at 395; 63 S.Ct., at 1089.

Notwithstanding this Court’s guidance that the

evidence determination should be determined on a case by

case situation, the Fifth Circuit outlined specific guidelines

to assist in determining whether a factual question should

not be submitted to the jury in Boeing Company v. Ship-

man, 411 F.2d 365, 373 -377 (CA 5th Cir. 1969). Citing this

Court and numerous others the Boeing court stated:

“On motions for directed verdict and for judg-

ment not-withstanding the verdict the Court

should consider all of the evidence - not just that

evidence which supports the non-mover’s case -

but in the light and with all reasonable inferences

most favorable to the party opposed to the mo-

tion. If the facts and inferences point so strongly

and overwhelmingly in favor of one party that the

Court believes that reasonable men could not ar-

rive at a contrary verdict, granting of the motion

6

is proper... A mere scintilla of evidence is insuffi-

cient to present a question for the jury. The mo-

tions for directed verdict and judgment n.o.v.

should not be decided by which side has the better

of the case, nor should they be granted only when

there is a complete absence of probative facts to

support a jury verdict. There must be a conflict in

substantial evidence to create a jury question.

However, it is the function of the jury as the

traditional finder of the facts, and not the Court,

to weigh conflicting evidence and inferences, and

determine the credibility of witnesses.”’

The Circuit Court’s opinion in the above captioned

matter clearly states that:

‘‘Having viewed the evidence as a whole, we con-

clude that Patterson’s. directions merely

designated the type of test to be conducted rather

than the method to conduct it.”’

Grammer v. Patterson Services, Inc., 860 F.2d 641,

(CA 5th Cir. 1988). This clearly shows that the Circuit

Court did not deviate from its own standards set out in

Boeing. Further, there was no conflicting evidence on this

issue. The question was: does requesting an additional test

amount to operational control over the method to conduct

that additional test? The appellate court said and

reasonable men could not differ in that result.

The petitioner also argues that the respondent had a

duty to discover hazards or is presumed to know of

dangerous conditions that arise during the work of an in-

dependent contractor. Your respondent submits that such

a duty is delegated to a principal only where the principal

is actively participating in the work taking place. Wallace

v. Oceaneering International, 727 F.2d 427 (CA 5th Cir.

7

1984), Tarlton v. Exxon, 688 F.2d 973 (CA 5th Cir. 1973).

Respondent also submits there must be some foreseeability

on behalf of the principal and ‘“‘in the absence of such

foreseeability, there is no negligence.’ Mayfield v. Wall

Shipyard, Inc., 510 F.Supp. 605 ( D.C. LA 1981). The lower

court specifically found that your respondent had no

knowledge that the AHIT was not working properly and

the corollary to that is there was no way respondent could

foresee that petitioner was would be directed by his

employer to expose himself to a pressurized pipe.

PETITIONER‘S MOTION FOR NEW TRIAL

Respondent submits that petitioner HAD the right

to move for a new trial, F.R. Civ. P. Rule 50(d). That right,

however, was exercised and ruled upon by the Ciruit Court.

In Neely, supra, this Court stated that an appellate court

has the right to direct a judgment where it has granted a

judgment n.o.v. The court in O’Neil v. W.R. Grace & Co.,

410 F.2d 908 (CA 5th Cir. 1969), held that the occasion

where a verdict is against the weight of the evidence it is

a situation where the jury did not properly perform its

function. If no other reasons are present to grant a new

trial such as introduction of inadmissible evidence or no

other such ‘‘undersirable or pernicious element”’ has occur-

red, then a new trial should be denied. Also, when the suffi-

ciency of the evidence is against the verdict of the jury then

the appellate court can rule on the case where ‘“‘no useful

purpose can be served by presenting the same evidence to

another jury.’’ Commercial Union Insurance Co. v. Interna-

tional Flavors & Fragrances, Inc., 822 F.2d 275 (CA 5th

Cir. 1987). Since the petitioner has presented no additional

evidence either at the appellate level or before this Court,

the ruling denying his motion should be sustained.

8

CONCLUSION

In the matter before this Court the issues are narrow-

ed down to whether respondent had sufficient operational

control over petitioner’s work as an employee of Gator

Hawk. There was little dispute in the facts on this issue.

The only dispute is the legal significance of a request of an

additional test by respondent on its pipe. Your respondent

contends and the appellate court found this was not opera-

tional control of Gator Hawk’s testing methods. However,

in an act of desperation the petitioner is trying to convince

this Court it is. The petitioner is attempting to cloud the

issue with Seventh Amendment arguments. The appellate

court properly exercised its powers where the jury did not

properly carry out its function. The petitioner has not pro-

vided any additional evidence nor has he shown that a new

trial. should be granted for any other reason. Further,

respondent submits the petitioner has not outlined, argued

or made any reference to this Court that any of his reasons

why this Court should grant his writ conform in any way

to the character of reasons set forth in U.S. Sup. Ct. Rule

17, 28 U.S.C. Therefore, Grammer’s Petiton for Writ of

Certiorari to the United States Court of Appeals for the

Fifth Circuit should respectfully be denied.

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