# Petition — International Ass'n of Machinists & Aerospace Workers v. United Aircraft Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1814%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 425 U.S. 973 ## Text IN THE Supreme Court of the United States OcTOBER TERM, 1975 No. 75-1263 INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WorKERS (AFL-CIO), tT au, Petitioners, Vv. UNITep AIRCRAFT CorRPORATION, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF CONNECTICUT Piatto E. Papps Machinists Building Washington, D.C. 20036 Mozart G. RATNER 1900 M Street, N.W. Washington, D.C. 20036 Attorneys for Petitioners Press or Brron S. ApAMs Parintine, Inc., Wasuincron, D. C. >, Bupreme Court, U. & SO RILED MAR 5 1976 r i eel ‘ MICHAEL RODAK, | IR., CLERK : INDEX Page I Ee el dd eeebetheanenne 2 II rs 2. Les eg Les ok Do ee aad 2 I I conn occ can bidbeneeccnncecease 3 CONSTITUTIONAL PROVISIONS AND StaTuTE INVOLVED.... 4 I. STATEMENT OF THE CASE .......cccccccccccces 4 EES ERA Ls Rt er Ree a 4 PR EP one ee ONS EM CA Roe 5 B. Mr. Mooney’s Opinion and Its Deficiencies... 8 1. Mr. Mooney’s Method ................. 8 2. The Deficiencies in Mr. Mooney’s Method 10 a. Mr. Mooney had no relevant experience OP GE GE 0:0-660idccenestsenns 10 b. Mooney was biased ...............6. 12 ce. There is no logical nexus between the facts on which Mooney relied an his SEE a. Visas nkenusieeesckiesoun 12 d. Defendants’ experts confirmed the ab- sence of any logical nexus ........... 14 e. Defendants’ experts establish that Mooney’s method is not recognized in — fr er rrr 17 3. Objective Evidence Bearing on the Relia- bility of Mooney’s Method ............. 19 a. The extent of variance between the esti- mates of Mr. Mooney and Dr. North- SU ccuuunedededhwoueskonsnceeaseuns 19 ii Index Continued Page b. The trend lines established by plain- tiff’s involuntary absence witnesses prove that Mooney’s are fictitious ex- RE Rdcucuscdescbunddveseess e. The Referee’s own decision fatally un- dermines Mooney’s estimates ........ II. Tue History or Tuts Litigation ............. A. The Liability and First Damage Trial ..... B. The First Opinion of the Supreme Court of GS. hin whbdbcsse dkadkaness caves C. The Second Damage Trial ................ D. The Second Decision of the Supreme Court Oe GND Shab bib Si6ccecncaeiessccss REASONS FOR GRANTING THE WRIT ................-... I. Tue Decision BeLow UNDERMINES THE COoNGRES- SIONALLY Protrectep Ricut To Srrike py AwaArp- ING DAMAGES FOR Conpuct Nor Proven To Be ProximaTELy Cavusep By ILLEGAL Conpuct Il. Tue Dectstoxn Betow Deprivep DEFENDANTS OF Proverty WirHout Due Process or Law ...... CONCLUSION CONSTITUTIONAL PROVISIONS AND Stature INVOLVED.... CHART 1 REFERENCE TaBLE 1A Cart 2 REFERENCE TaBLe 2A Cuart 3 TaBLe 3A Cuart 4 TABLE 4-A ili AUTHORITIES CITED Page CasEs: Automobile Workers v. Russell, 356 U.S. 634 ........ 43 Bigelow v. RKO Radio Pictures, 327 U.S. 251 ...... 37, 38 Boilermakers v. Hardeman, 401 U.S. 233 ............ 45 Coleman Motor Co. v. Chrysler Corp., 525 F.2d 1338 Unc veh enartaceebsceNeheebes cases teses 38 Douglas v. Buder, 412 U.S. 490 2.0... ccc ccccccecs 45 Galloway v. United States, 319 U.S. 372 ........ 36, 43, 46 Hoefferle Truck Sales y. Divco-Wayne, 523 F.2d 543 ee De Cee eae eeE ne 41 Jenkins v. United States, 307 F.2d 637 (D.C. Cir.) ... 40 Johueen V. Florida, Bi UB. GES... ccccccccccccecss 45 Letter Carriers v. Austin, 418 U.S. 264 ............ 34, 36 Linn v. Plant Guard Workers, 383 U.S. 53 :........ 35, 36 Luria Brothers & Company v. United States, 369 F.2d gk * Beppe are rere, Per rere 40 Mine Workers v. Gibbs, 383 U.S. 715 ............ 33, 34, 35 NLKB vy. Madison Courier, Inc., 472 F.2d 1507 (D. C. SED ad ce eee tab ciGk eeddshen see ubeaeanneeeaes 43 Norland v. Washington General Hospital, 461 F.2d 694 ee ee geben ee ah beeen 40 Schware v. Board of Bar Examiners, 353 U.S. 232. ..45, 46 Shuttlesworth v. Birmingham, 382 U.S. 87 .......... 45 Stephanofsky v. Hill, 136 Conn. 379, 71 A.2d 560 ....11, 29 Story Parchment Co. v. Paterson Parchment Co., 282 EE Gib eudekduvsebcuaueanavevaaeenuncess 37, 38 Sunbeam Corp. v. Golden Rule Appliance Co., 252 F.2d Se ava c Red Vadweveek she eeekessodnses 42 Teamsters Union v. Morton, 377 U.S. 252 ............ 33 Thompson v. Louisville, 362 U.S. 199 .............. 45, 46 Thurber Corp. v. Fairchild Motor Corp., 269 F.2d 841 40 United States ex rel. Vajtauer v. Commissioner, 273 Ee oo eee eN aaah ewe Seeee wees 45 Vachon v. New Hampshire, 414 U.S. 478 ............ 45, 46 Volasco Products v. Fry Roofing Co., 308 F.2d 383 (6 8 A ee yn yy rr tee or eee re 37, 38 Wood v. Strickland, 420 U.S. 308 .........cccccveees 45 Yesbera v. Hardesty Mfq. Co., 166 Fed. 120 (6 Cir.) .. 42 Youngdahl v. Rainfair, Inc., 355 U.S. 131 ..........-. 33 iv Table of Authorities Continued Page STATUTES: United States Constitution Supremacy Clause of Article VI ............... 4, 1b Due Process Clause of the Fourteenth Amendment.4, 1b National Labor Relations Act, as Amended, 49 Stat. 449, et seq., 29 U.S.C. §§ 1141, et seq. eee F oocccviwvecesesuseeuse alee 4, 1b Doetiem 18 .....cccecestsuces€enccusnee 4, 1b 38 UDC. § IGBTS) «0c ccicdccevcecnneeeee 3 MISCELLANEOUS: Manual for Complex Litigation, 1 Part 2, Moore’s Fed- eral Practice (2d ed), pt. 2.732 ................ 42 Rehnquist, The Bar Admission Cases; A Strange Judi- cial Aberration, 44 ABAJ 229 (March, 1958) .... 46 Wigmore, Evidence (3rd ed., 1940) ................ 37, 40 en IN THE Supreme Court of the United States OcroBer Term, 1975 No. INTERNATIONAL ASSOCIATION OF MACHINISTS AND Agrosrace Workers (AFL-CIO), et a., Petitioners, V. Unirep Arrcrarrt Corroration, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF CONNECTICUT International Association of Machinists and Aero- space Workers (AFL-CIO), its Distriet Lodge No. 91, and its Loeal Lodges Nos. 743 and 1746, pray that a writ of certiorari issue to review final judgments of the Supreme Court of Connecticut affirming awards of com- pensatory damages against petitioners in favor of re- 2 spondent totalling $1,424,001, plus interest from Sep- tember 4, 1973 (A. 107a-109a).* OPINIONS BELOW The opinions of the Superior Court (Judge Gaffney) are not reported. They are printed in the separate Appendix (‘‘A.’’) at pp. 1-27a (pre-trial memoranda), 29-55a (decision on liability) and 56-64a (decision on damages). The first decision of the Supreme Court of Connecticut, 161 Conn. 79, 285 A.2d 330, cert. denied on a question preserved but not presented herein, 404 U.S. 1016, is printed at A. 65-89a, amended at A. 91a. The opinion of the Referee on remand from the Supreme Court of Connecticut is not reported. It is printed at A, 94a-106a. The second opinion of the Su- preme Court of Connecticut, 99 LRRM 2249, is not yet officially reported. It is printed at A. 110-125a. The decision of that court denying reargument is printed at A. 125a. JURISDICTION The final opinion of the Supreme Court of Connecti- cut was entered on September 2, 1975. A timely motion for reargument was denied on October 7, 1975. (A. *‘*A.’’ refers to the separately bound appendix to this petition containing the opinions and judgments below. Under Connecticut practice, the record below is divided into two parts, one referred to as the ‘‘ Record,’’ containing pleadings, rulings on exceptions, findings, draft (rejected) findings, ete., and the other denominated ‘‘Appendix’’, containing narrative sum- maries of the testimony of plaintiffs* and defendants’ witnesses (“A-P.’’; “‘A-D.’’). Because there were two trials and two ap- peals below, there are two records and several appendices. Oc- casional references to these documents will be designated ‘‘TR,’’ “TIR’’, TA’, “‘TTA’’. The symbols ‘‘F’’ and ‘‘DF’’ refer to ‘*finding’’ and ‘‘draft finding’’ respectively. a ee ee ee Oe ts cena oe oe tnemy o 3 125a). By orders dated December 30, 1975, and Jan- uary 29, 1976, Mr. Justice Marshall extended the time for filing this petition to March 5, 1976 (A. 126a). The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(3). QUESTIONS PRESENTED 1. In a federally protected strike accompanied by violence, may a court award damages to the employer for losses resulting from employee absence, where the court differentiates the amount of absence caused by tortious conduct from the amount caused by federally protected conduct only by accepting as ‘‘expert testi- mony’’ the speculative estimate of an employer official and (a) that witness does not suggest, and the court does not find, any rational nexus between the wit- ness’ factual assumptions and his opinion; (b) the witness’ method is unknewn to and un- accepted in any scientific discipline ; (ec) the opinion is contradicted by the court’s own findings and objective facts of record ? 2. Does a judgment so grounded deny the defend- ants property without due process of law? 1 The Court below recognized that ‘‘defendants extensively and vigorously attack{ed] the [trial court’s] findings and conclusions’’ regarding the percentage of employees absent due to defendants’ tortious acts (A. 116a), which the court had held in its first opinion (A. 8la-82a) raised a federal question, as defendants had argued (Brief for defendants on the first appeal, p. 59). Pe- titioners’ claim that entry of judgment on the basis of Mooney’s estimates was also a denial of due process in violation of the Four- teenth Amendment was expressly raised at p. 40 of defendants’ brief on the second appeal; see also defendants’ brief on the first appeal asserting this claim with respect to acceptance of North- rup’s opinion at the first damage trial, p. 88. 4 CONSTITUTIONAL PROVISIONS AND STATUTE INVOLVED This case involves the Supremacy Clause of Article VI and the Due Process Clause of the Fourteenth Amendment of the United States Constitution and §§ 7 and 13 of the National Labor Relations Act, as amend- ed, 49 Stat. 449, et seq., 29 U.S.C. §§ 141 et seq. These provisions are reprinted at p. 1b, infra. I. STATEMENT OF THE CASE Introduction This case involves an award of compensatory dam- ages for losses assertedly suffered by respondent em- ployer as the result of violence in the course of peti- tioner Unions’ strike for new collective bargaining agreements. Recovery was awarded on the theory that the violence caused involuntary absenteeism whieh in turn caused economic injury to the Company in the form of wasted overhead, spoiled work, excess overtime and otherwise.’ Since, under federal law, an employer may not reeover for strike absence which was not tortiousiy caused (see pp. 32-33 infra), the central issue litigated below was the amount of absence which was caused by the violence. The courts below decided that question solely on the basis of the opinion of one witness (a retired high offi- cial of respondent) who estimated how many employees were absent involuntary each day of the strike. It is our contention that description of the witness’ avowed method of arriving at his estimates, and of record facts * The formula for converting involuntary absences into dollars lost, and the application of that formula, were the subject of oon- siderable controversy below (A. 113a-116a); however, we do not here challenge the State Court’s resolution of these matters. ee ad ee ee ee WAS eee lg ee tee 5 which beer on their reliability and indeed their ration- ality, establishes that the witness was engaged in sheer speculation ; that his estimates are gross exaggerations ; and that a judgment based thereon penalizes lawful strike conduct under the guise of compensating for in- voluntary absence. Indeed, we shall show that the amount of involuntary absence found below on the basis of this witness’ opinion was far in excess of that which would be derived by-a projection of the testimony of those absentees whom the Company put on the stand —a handpicked sample strongly biased in plaintiff’s favor. We also submit that even if rights protected by federal statute were not involved, the judgment could not constitutionally stand because the sole testimony relied on is so far from being rationally probative that it cannot serve as ‘“‘evidence’’ adequate, as a matter of due process of law, to support any judicial judgment. A. The Strike Respondent (hereinafter sometimes referred to as ‘‘»laintiff’’ or ‘the Company’’) is engaged in the manu- facture of airplane engines and parts at several plants in Connecticut, including plants at East Hartford and Manchester (in the Pratt & Whitney Division) where the employees are represented by Local Lodge 1746 and at Windsor Locks and Broad Brook (in the Hamil- ton Standard Division) where the employees are repre- sented by Local Lodge 743. The Local Lodges are af- filiates of the International Association of Machinists and Aerospace Workers (hereinafter referred to as ‘*the International’’), and of its District Lodge 91. The Company is concededly an ‘‘employer engaged in com- merece” and petitioners are ‘labor organizations’’ sub- ject to the National Labor Relations Act. (A. 30a, 66a). 6 For many years prior to 1960, the Company and the respective Local Lodges were parties to collective bar- gaining agreements. The Lodge 1746 agreement ex- pired on December 7, 1959, and the Lodge 743 agree- ment expired on April 21, 1960. A legal, federaliy protected strike for new agreements began June 8 1960, and ended August 11, 1960 (A. 30a, 32a). ; . From June 8-13, the strikers engaged in mass picket- ing in front of the entrances to the employer’s plants as well as assorted other acts of misconduct directed at individual non-strikers. On June 13, the state court approved and entered a stipulation (in which the Un- lons joined) prohibiting mass picketing and violence but allowing picketing to continue. On June 16 . similar stipulation was entered by the federal court at the instance of the National Labor Relations Board These stipulations limited the number of pickets and prohibited tortious conduct on the picket lines (state court) aud also off the picket lines (federal court). After June 13 mass picketing ceased and, as author- ized by the stipulations, picketing in limited numbers continued. Widespread publicity was given by tele- vision, newspapers and radio to the stipulations and to the restoration of order on the picket lines (A. 105a; IT R, 64-65, D.F. 449-458; D.Ex. 34, 35, 36). The record showed also that as early as June 10 foremen and employees who had returned to work in- formed other employees that it was safe to do so (II R. 65, D.F. 463). Newspapers covering the Hartford- Springfield-Middletown-New Britain-Manchester areas reported that picketing was orderly beginning June 11 (IT R. 64, D.F. 453). By June 11, the State Police assisting the local police, had brought the mass picket- a ee 7 ing under control (II R. 64, D.F. 452). Arrests of pickets for misconduct at or on the plant premises virtually ceased after June 13 (II R. 64, D.F. 457). The State Police were withdrawn on June 14 (II R. 65, D.F. 458). In anticipation of a strike, plaintiff had installed motion picture cameras at its plant gates, with which it recorded mass picketing and other mis- ecaduct. Although it kept some cameras in position after June 13, plaintiff stopped taking metion pictures after that day (A. 105a; II R. 64, D.F. 449,450). Whereas on Friday, June 10, 3,098 of approximately 16,200 bargaining unit employees reported to work at Pratt & Whitney and 365 of approximately 3,800 bar- gaining unit employees reported at Hamilton-Stand- ard, on Monday, June 13, 4,273 and 522 reported at those plants. These numbers increased as follows in the next two weeks: June 14 (Tues.) —P&W: 4,639; H-S: 598. June 20 (Mon.) —P&W: 7,344; H-S: 1,208. June 27 (Mon.) —P&W: 9,340; H-S: 1,634. July 1 (Fri.) —P&W: 9,977; H-S: 1,744. (IR. 285, 287 F. 634, 635.) A total of 4535 bargaining unit employees at Pratt & Whitney and 2019 bargain- ing unit employees at Hamilton-Standard remained out during the entire strike and registered as strikers to return to work at the end (IR. 244, F. 393, 394). Although the courts below held that the Unions were liable only for the consequences of tortious acts on the picket lines and at the plant premises, and although these were isolated and sporadic after June 13 (A. 105a), the courts did not limit respondent’s recovery through that date; they accepted the Company’s con- tention that the after-effects of the fear induced by the 8 tortious acts prior to the injunctions continued through the week of July 1, 1960 (A. 105a-106a), though not thereafter, (id.), as the Company urged and as its wit- nesses had opined. Compeve pp. 22-23 with p. 19, infra. In determining the amount of absenteeism which Was caused by violence directly and on this residual fear theory, the trial court did not rely cn the testi- mony of absentees themselves, or on a projection based on a sample (representative or otherwise) of such ab- sentees. Instead, it accepted, and relied exclusively upon the opinion of Morgan R. Mooney, the Company Personnel Director at the time of the strike, and its Vice President for Industrial Relations at the time of the first trial in these actions, see A. 99a, n. 2, A. 118a- 119a. Mr. Mooney gave it as his opinion, and the trial eourt found, ‘‘that from June 9 up to and ineluding July 1, the number of involuntary absences proximate- ly caused by the tortious acts at or on the premises of the Pratt & Whitney plant were approximately 62,900 out of a total absences of the bargaining unit for the tull pei'od of the strike of approximately 266,000 or approximately 23.6% ”’ and that at Hamilton Standard ‘*!T}he involuntary absences numbered 17,600 out of approximately 91,000 during the strike period of 33 days or approximately 19.3%.’ (A. 105a, 106a). We next describe the method by which Mooney ar- rived at these figures. B. Mr. Mooney’s Opinion and Its Deficiencies. 1. Mr. Mooney’s Method. Mr. Mooney deseribed as follows the method and theory by which he arrived at his opinion as to the ap- proximate number and percentage of involuntary ab- sences each day of the strike (II R. 193, F. 268, Cf. IT R. 72-78, D.F. 502-543). ee ee ee _ aienbianes 9 1. The first figure in Mooney’s caleulations was an es- timated number of ‘committed’ or ‘‘hard core’’ strik- ers in each bargaining unit, by which he meant persons who would have stayed on strike for its duration, re- gardless of anything else (II A-P. 117). Because the infirmities in that estimate themselves fatally infect his opinion, and reveal in microcosm the methodological deficiencies of his whole approach, we describe and discuss that estimate in*the margin.* 2. Mr. Mooney then subtracted the ‘‘committed strik- ers’? from the number absent each day of the strike, a number not in dispute (A. 117a). 3. Mooney divided the remaining absentees into two categories: voluntary and involuntary due to defend- 3 He stated that he had based that estimate on (a) the number of union members who voted for the strike on May 26, 1960 (3488 at Pratt & Whitney and 1493 at Hamilton Standard); (b) the average number who were paid strike benefits during the strike, except for the first week of payments (as to which he considered the evidence unreliable) (3487 at Pratt & Whitney, 1298 at Ham- ilton Standard): and (e) the number who registered as strikers (4500 at Pratt & Whitney, 2000 at Hamilton Standard) at the end of the strike. He chose a number which he considered ‘‘rea- sonably related’’ to the aforesaid figures (IT A-P. 108, 119). At Pratt & Whitney, he chose 3500; at Hamilton Standard, 1500 (IT R. 193, F. 268). This formula gives a certain patina of reason to Mooney’s esti- mate, but closer inspection shows that the number chosen is merely the number of union members voting for the strike rounded off to the nearest hundred. There is nothing .a Mooney’s testi- mony, or elsewhere in the record—and the trier of fact did not find—that. only union members who vote to go on strike will be committed to the strike if it occurs. Nor did the Company show, or the trier find, that Mooney’s asserted formula for determining the number of committed strikers is predicated on industrial ex- perience or otherwise validated. In fact, the number of strikers who did stay out to the end was far greater (see (c) above) and the trial court found that in the last month of the strike no one was absent because of violence (see p. 23 infra). 10 ants’ tortious acts at the premises. In the voluntary classification he included all absences (voluntary and involuntary) for any reason other than fear or inability to cross the picket lines resulting from defendants’ tortious acts at the plant premises. The number of involuntary absences chargeable to defendants was the ultimate fact to be determined. He formulated his opinion of that number on the basis of his ‘‘experi- ence’’, by the following reasoning: a. First, he estimated how many absences during the first three days of the strike were involuntary. This estimate was not shown to be anything more than speculation. b. Involuntary absence thereafter he attributed to ‘‘residual fear’’ reinforced by tortious conduct on the picket line. ce. He opined that the volume and duration of such post-stipulation involuntary absence was substantial and that it continued throughout the strike. This opinion was not shown to be anything more than specu- lation . d. He estimated the amount of that involuntary ab- sence guided by the ‘‘trend lines’’, which showed an increasing number of absentees returning to work each day. He expressed his estimates as a percentage of the total absentees, less committed strikers, and as a per- centage of the entire bargaining unit. 2. The Deficiencies in Mr. Mooney’s Method. a. Mr. Mooney had no relevant experience or scien- tific aids. Mr. Mooney’s background and training con- sisted of his service in the federal government for two years as a labor compliance officer, seven years as AU een rete eet 11 Connecticut Deputy Commissioner of Labor, in which position he had investigated a large number of strikes, and employment in labor relations capacities by the Company (personnel director during the strike and as vice president for industrial relations at the time of the first trial) (Note 2, A. 118a-119a). However, nothing in Mr. Mooney’s experience bore on the question of approximately how many or approxi- mately what proportion of the strike period absences were caused by defendants’ tortious conduct, or on any method for answering that question without input from the absentees themselves.‘ Nor did Mr. Mooney himself, although pressed, offer any connection between his experience and his opinion. In accepting Mooney’s estimates through July 1, the trier and the Supreme Court of Connecticut (A. 105a and 121a) relied, in part, on Mooney’s personal observation of the strike violence. They thus failed to distinguish between two different testimonial qualifications—observation and experience.’ And finally, they took no account of the fact that Moon- 4 Before the 1960 strike, Mr. Mooney had talked to only 20 to 25 employees about their reasons for absence during a strike (II R. 192, F. 262). Mr. Mooney had no prior experience in making estimates or ascertaining approximate percentages of the number of employees who were absent from work during a strike because of fear of violence or tortious conduct at the plant premises. He had no prior experience with a situation in which there was violence during the first few days of a strike and then a stipulation en- joining violence. (II R. 82, D.F. 573; I] A-P. 132, A-P. 86). He had never interviewed any employees to discover their reasons for absence before or after such a stipulation (IT 192, F. 263). * The importance of the distinction and its implications are dis- cussed in Stephanofsky v. Hill, 136 Conn. 379, 383, 71 A.2d 560, 562. 12 ev’s observation was necessarily sporadie and, by his own admission, imperfect. (II R. 80-81, D.F. 560-566 ; It A-P, 129-130). Although Mooney relied o\ bo num- ber of cars he saw back up and leave during the first day of the strike, he described this as ‘* 100, 150, or pos- sibly 200 ears’”’ (LI R. 80, D.F. 560) ; a margin of 100%. b. Mooncy was biased. The courts below treated Moon- ev’s experience as the Company personnel director dur- ing the strike and subsequently as its vice president for industrial relations as affirmative qualifications (A. 99a, 118a-119a, n, 2 cont.). Their opinions do not show that they considered that his relationship to the plain- tiff cast doubt upon the impartiality of his opinion. ce. There is no logical nexus between the facts on which Mooney relied and his estimates. Mooney was completely unable to describe how he proceeded from his factual assumptions to his ultimate numerical esti- mates of involuntary absence. Although Mr. Mooney was repeatedly asked to explain, his answers were tini- formly evasive and unresponsive. At times he reiter- ated at length various aspects of the process described above. In the end, he declared simply that he knew how many employees were absent each day because of tortious conduct ‘ton the basis of my experience, I reach that conelusion, that opinion, on the basis of my total experience.”’ (IT A-P. 127, 134-135.) It developed that what Mr. Mooney meant was that the estimates he made were, in his own ‘*judgment’’, ‘‘reasonable’’: “* * * it was my judgment based on that experi- enee, Which | think is reasonably extensive, that this was a reasonable opinion for the absences i a Se 13 proximately caused by the violence.’’ (II A-P. 127-128). To be sure, Mr. Mooney also testified : ‘“* * * it is my view that a reasonable probability ts that about half, in reund figures, of the thirteen thousand |absentees on June 9 and 10] * * * were so affected by the intimidation and tortious conduct and the fear induced by them, that they remained away from work for that reason’? (emphasis added; II A-P. 126-127).° But he offered no explanation whatever of how he hit upon the number 6500, or to any reasoning which led him to conclude that 6500 was a more *‘ probable’? num- ber than any other. Dr. Herbert Northrup, Chairman of the Department of Industry of the Wharton School of Finance and Commerce of the University of Penn- svivania (Note 2, A. 117a-118a), alse gave his opinion as to the number of involuntary absences, purporting to follow the same method. (As will be discussed at pp. 19-20 below, his estimate of daily involuntary ab- senteeism differed substantially from Mooney’s). He, too, was unable to describe any logical nexus between his premises and his conclusion. Particularly reveal- ing is the following colloquy between the Referee and Dr. Northrup: “The Referee: What is your answer? Is there any scientifie basis? Is there any principle that can be taught to others in a school of learning that would assist one in arriving at these conclusions ? Cf, (IL A-P. 134): ‘‘I'm not attempting to say anything with reasonable certainty. OO, Oe. Be et Fe ee ee ee ee a ees 17 tify any logical nexus between Mooney’s premises and those of his conclusions the trier accepted. Nor did the Supreme Court of Connecticut supply this critical omission. In response to an inquiry from the Referee, Pro- fessor Gomberg distinguished between an estimate de- rived by inference from data which will logically sup- port it, and a “‘subjective,.intuitive,’’ guess, or specula- tion (II A-D. 168). Although directed to Dr. North- rup’s testimony, Gomberg’s reasoning applies as well to Mr. Mooney. “There is a technique of logic which gives us the laws of inference. And the laws of inductive logic in turn which are based on the precepts of mathe- matical statisties, give me a sanction for generaliz- ing from the particular to the general under cer- tain circumstances. I see no evidence of that pro- cedure on [Dr. Northrup’s] part, that justifies his quantitative figures.”’ In answer to the Referee’s question, ‘‘ When is * * * deduction pure speculation; when is it reasonable ?”’, Professor Rees stated (II A-D, 145-146): ‘‘When the maker doesn’t have sufficient facts to enable him to draw an inference with any aecuracy.’’ See also, Pro- fessor Lipset, IT A-D. 65, 74; Professor Haire, IT A-D. 16-18 (Dr. Northrup’s percentage estimate “‘was just a wild guess’’). e. Defendants’ experts established that Mooney’s method is not recognized in any profession. Neither Mr. Mooney nor Dr. Northrup nor any other wit- ness testified that the Mooney-Northrup ‘‘process”’ or *‘method’’ of estimating the number and _ per- centage of involuntary absentees is ‘accepted in his 18 branch of learning’’ (II A-P. 86) and none of defend- ants’ experts had ever seen or heard of it before. De- fendants’ experts, whose collective expertise covers all scientific disciplines relevant here, agreed that the only source from which an inference could be drawn as to a reasonably approximate amount or proportion of in- voluntary daily absence is data based upon the accu- rately ascertained subjective motivation of absent in- dividuals (A. 122a; II R. 92, D.F. 605; II A-D. 5-6, 17, 29, 32-34, 38, 51-52, 54-55, 89, 137-138, 140). This could be probed through each absentee individually, or by representative sampling, through interviewing, or by testimony (II R. 63, 92, D.F. 445, 606; II A-D. 147-148, 82-83), with results of varying degrees of ac- curacy. They testified uniformly that except by ex- amining the employees’ subjective reasons there is no probative source of evidence to support any inference as to the reasonably approximate quantum of involun- tary absence an any day or all days of the strike (II R. 92, D.F. 605, 607, II A-D. 6-7, 16-19, 27, 29, 36, 37, 49- 51, 56-57). Without such evidence, ‘‘there is no field of expertise that will make possible other than a specu- lative response’ (II A-D. 10).”° Dr. Northrup inadvertently corroborated this testimony in explaining why he was unable to make an approximation of the number of employees who returned to work each day because they could no longer stand the economic privation (rather than) the ebbing of fear (II A-P. 92): ‘*Because I did not interview and find out the economic situ- ation for each individual worker or reasonable sample thereof who returned to work on each particular day.’’ Pe ee 19 3. Objective Evidence Bearing on the Reliablity of Mooney’s Method. a. The extent of variance between the estimates of Mr. Mooney and Dr. Northrup. The trier properly observed (A. 105a) that “TT]n estimating the number of involuntary ab- sences, the daily total in the early period was greater in Dr. Northrup’s opinion than the number indicated by Mr. Mooney, while in the latter period of the strike, it was the reverse.’’ But he did not foeus on, and therefore failed to draw the appropriate conclusion from, the extent of the vari- ance between them. To demonstrate the variances we have plotted their estimates of daily involuntary ab- sence at Pratt & Whitney and Hamilton Standard on Charts 3 and 4, annexed, with accompanying tables, infra. For example, Dr. Northrup estimated that on June 13, there were 7822 involuntary absentees at Pratt & Whitney (II R. 188, F. 248). Mr. Mooney estimated that on that date there were 5500 (II R. 194, F. 269). Dr. Northrup’s estimate is 42 percent higher than Mr. Mooney’s (Table 3A, infra.) ™ Even greater discrepancy appears when their esti- mates of involuntary absence at the end of the strike are compared. For example, Dr. Northrup estimated that at Pratt & Whitney, on July 29, there were 577 involuntary absentees (II R. 188, F. 248). Mr. Mooney estimated 1000 (II R. 195 F. 269), 73 percent more 11Dr. Northrup estimated that on that day there were 1914 involuntary absentees at Hamilton Standard (II RP. 189, F. 249). Mr. Mooney estimated 1500 (II R. 195, F. 272). Dr. Northrup’s estimate is 28 percent higher than Mr. Mooney’s (Table 4A, infra). 20 (Table 3A, infra).’? At Hamilton Standard there was never a difference of less than 15 percent, and for the dates between July 15 and the end of the strike the difference ranged from 129 percent to 171 percent (Table 4A, infra). At Pratt & Whitney there were, after the first two days seven days on which the differ- ence was less than 10 percent but it was already as high as 46 percent and 47 percent during the first full week of the strike and after the 4th of July it was less than 15 percent only twice and ranged as high as 95 per- cent (Table 3A, infra). b. The trend lines established by plaintiff’s involun- tary absence witnesses prove that Mooney’s are ficti- tious exaggerations. At the first damage trial the Company produced 212 employees handpicked by its counsel, each of whom had been absent for one or more, but less than all, days of the strike, who testified that their absence had been involuntary.” At the second damage trial the Company introduced a transcript of 75 of these witnesses and one hundred and thirty-five additional hand-picked witnesses. (A.116a, 101a- 102a). Company counsel did not claim that these witnesses had been selected by any randomizing tech- nique or that the universe interviewed included all employees still on the Company’s payroll who had '? Dr. Northrup estimated that at Hamilton Standard on Augus’ 8 there were 200 involuntary absentees (II R. 188, F. 248). Mr. Mooney estimated 500 (II R. 196, F. 272), 150 percent more. (Table 4A, infra.) '* The trial court found that the testimony of these witnesses established ‘‘a clear pattern of lost work days directly and proxi- mately attributable to the illegal acts of the defendants’’ (A, 57a) but failed to describe what the pattern was. me Lo eth a I etn tlie a ; 21 been absent during the strike; he did not even deny that the witnesses had been selected for the purpose of maximizing an impression of extended involuntary absence. No explanation was ever offered for the Com- pany’s failure to despose or call all available strike period absentees whose absence the Company claimed was involuntary, or even to call or despose an unbiased, random, sample of all absentees still in its employ. The Mooney involuntary absence estimates and his involuntary absence ‘‘trend lines’? are in conflict not only with the facts, but with the ‘‘trend !ne’’ or ‘‘nattern’’, p. 20, n.13 supra, established by collation of the testimony of the Company’s winesses. Of those who testified that their absence was involuntary, 77 percent at Pratt & Whitney and 75 percent at Hamilton Standard had returned to work by June 20 and 93 14 Of the 16,000 employees in the Pratt & Whitney Division bargaining unit at the time of the strike 6800 remained on the Company’s payroll at the time of the 1972 retrial. Of these 6800, 3800 had been absent one or more days but not for the entire duration of the strike, and 1600 had stayed out during the entire strike (11 R. 139, F. 10). Of the 4350 employees in the Hamilton Standard Division bargaining unit at the time of the strike, 1550 remained on the payroll at the time of the 1972 retrial. Of these 1550, 1000 were absent one or more days but not for the entire duration of the strike, and 500 had stayed out during the entire strike (IIT R. 139, F. 11). The Connecticut courts ultimately found that ao absence after the week ending July 1 was involuntary (A. 117a, 105a.) Thus, by restricting the universe to employees who had been absent less than all days of the strike, rather than including ‘‘all who had refrained from work’’ (A. 87a), the Company excluded thousands of voluntary absentees who were easily available. This deliberate skewing precludes drawing from its witness ‘‘sample’’ any infer- ence favorable to the Company as to the percentage of absence which was involuntary, 22 percent at Pratt &€ Whitney and 90 percent at Hamil- ton Standard had returned by June 27.” Even disregarding the exaggeration inherent in the Company’s biased witness collection, by comparison with it, Mooney’s estimates of involuntary absence between June 17 and July 1 are vastly inflated, as appears from Charts 1 and 2, infra, and the following table: Pratt & Whitney Hamilton Standard Plaintiff ’s Plaintiff ’s Date Mooney Estimate Witness Sample Mooney Estimate Witness Sample No. %* No %* No. %* No. %* 6/9 6500 100 113 100 1500 100 20 100 6/13 5500 85 88 78 1500 100 20 = 100 6/17 4500 69 20 44 1100 73 9 45 6/24 2600 40 11 10 800 53 t 20 7/1 = 1800 28 4 3. 600 40 1 4) *In this Table the figures in the number columns for June 9 equal 100%. Subsequent figures in each % column show the per- cent for that date as compared with the June 9 figure. ce. The Referee’s Own Decision Fatally Undermines Mooney’s Estimates. The Referee found that: ‘*Both Dr. Northrup and Mr. Mooney testified that the effects of * * * fear engendered by the tortious acts of the defendants at the gates of the Pratt & Whitney and Hamilton Standard Plants were a proximate cause of involuntary absences of a por- tion of the plaintiff’s direct labor employees down to the end of the strike.’’ (A. 104a). % Only 4 ont of 113 at Pratt &Whitney and 2 out of 20 at Hamilton Standard were still absent on July 1, and the Referee refused to believe that the absence of even this handful after that date was attributable to fear. ee ee a | 23 The Referee discredited this testimony. He said (id): ‘*Taking into consideration the injunction of June 13, 1960, a similar injunction issued by the U.S. District Court of this State, the cessation of film taking by the plaintiff of picket activity; the with- drawal of the state police; the widespread publi- city both on T.V., Radio and the newpapers of the issuance of the injunctions, I am not persuaded that the after effects of the fear induced by the tortious acts of the defendants caused involuntary absences, after the week ending July 1, 1960.”’ -Nevertheless, the Referee adopted Mr. Mooney’s estimate of the amount of strike absence up to July 1 which was involuntary. In doing so, he overlooked that his own finding established that Mooney had virtu- ally ignored and grossly undervalued the fear-dissipat- ing effects of the events of June 11 to July 17, on which the Referee relied. That error did not merely infect and invalidate Mooney’s estimates of involuntary absence after July 1, it similarly infected and invali- dated his estimates before July 1.° It did so for several reasons." First, Mooney used the same facts, assumptions and method of computing daily involuntary absence 16 The same is true, of course, of Northrup’s estimates. 17 Mooney’s method is further impeached by the first decision of the Supreme Court of Connecticut. Mooney had given his opinion with ‘‘reasonable probability’’ as to how long the strike would have lasted had there been no violence, but the court found that this opinion was too speculative to be accorded ‘‘significant weight’? (A. 84a-85a). Mooney gave no explanation as to why his quantification of involuntary absence was more reliable than his estimate of strike duration, which was based on that quantification (A. 84a-85a), and neither the Referee nor the Supreme Court in its second opinion explained the difference. 24 throughout the strike. There is no rational basis for believing that his judgment on this matter has any worth whatsoever if he so completely misunderstood the dynamics of the situation that he ascribed fear as the reason for absence of 1800 employees (at Pratt & Whit- ney alone) as of July 4, whereas the trier of fact found that none of the absences on that date were involun- tary. Second, Mooney’s estimates of pre-July 1, involun- tary absence were based on the assumption that 1000 of the registered strikers at Pratt & Whitney and 500 at Hamilton Standard had been absent involuntarily throughout the strike. (1I R. 83, 196 D.F. 577, 595, F. 272). In other words, the starting point of his analysis was that although more than 4500 emplovees registered as strikers (that is, were absent during the entire strrike) at Pratt & Whitney and 2000 at Hamilton Standard, only 3500 at Pratt & Whitney and 1500 at Hamilton Standard were ‘‘committed”’ strikers who had voluntarily gone on strike and stayed out voluntar- ilv for its duration. See p. 9, n. 3 supra. By his find- that none of the absences from July 1 to the end of the strike were involuntary (A. 105a), the trier destroyed the starting point of Mooney’s analysis and every single figure thereafter. Third, reasoning backwards in time from the Ref- eree’s finding that 1800 absentees at Pratt & Whitney and 600 at Hamilton Standard whom Mr. Mooney counted throughout as involuntary were not absent, as of July 4, involuntarily, it follows that their absence from June 9 to July 1 likewise cannot be attributed to fear. For, there was no testimony by Mooney (and no other evidence in the reeord), and the Referee did not find, that anything occurred on the weekend be- tia oan —_ erento ne eA AL err Tome, cs. eee Uh Ont ad ere ay sth OF OME cocked = Riedel Oe ee ; i 25 tween July 1 and July 4 to transform 2400 “involun- tary’? absentees into ‘“‘voluntary’’ absentees. The find- ing that their absence after July 1 was not involun- tary therefore required deducting 1800 at Pratt & Whitney and 600 at Hamilton Standard from Mooney’s daily involuntary absence totals each day prior to July 1. Adjustment of the ‘‘trend lines’’ to show disappear- ance of involuntary absence by July 1 is plotted in Charts 1 and 2 and accompanying Table 1A and 2A, infra. In sum, the Referee’s own findings strip Mooney’s pre-July 1 daily involuntary absence figures of their only supporting structure.” Il. THE HISTORY OF THIS LITIGATION. A. The Liability and First Damage Trials. The case was assigned for trial to Gaffney, J. The trial was bifurcated into liability and damage stages. After the liability trial the court found defendant unions liable for violence at the plants’ premises, pri- marily by mass picketing during the first few days of the strike before the June 15 stipulation and also for ‘arious vicious and lawless acts, referred to as ‘night 18 Even if, notwithstanding all of the foregoing, the Mooney ‘‘method’’ were given credence, that is, if one were to assume that there were involuntary absence trend lines as postulated by Mooney, but reduced by 1800 at Pratt & Whitney and 600 at Ham- ilton Standard, the percentage of involuntary absence at Pratt & Whitney would be diminished from 23.6 percent to 12.1 percent (IT R. 202, F. 299), and at Hamilton Standard from 19.3 percent to 8.1 percent (IT R. 202, F. 301). Plaintiff’s damages at Pratt & Whitney would thereby be reduced from $979,200 (IT, 212, F. 355) to $508,337, and at Hamilton Standard from $444,811 (TI R. 212, I, 356) to $172,682. 26 riding’, which were committed by individuals away from any of plaintiff’s plants. (A. 27a-55a, 75a-80a). In first damages trial the Company presented vari- ous theories including, inter alia, that the unions were responsible for its entire strike loss; that they were responsible for the loss after the point at which the strike would have ended but for violence; and that they were responsible for all involuntary absences. As to the latter point, the Company asserted that it was impossible to sparate involuntary absences from vol- untary absences, but that if it was possible, the burden of separation was on the defendants (A. 8la-82a). The Company did not seek to prove involuntary absenteeism hy testimony of the employees themselves, although they obviously knew best their own motivation—which was the point at issue. Nor did the Company offer a representative sample of such employees; that is, a sample chosen on a random basis. Rather, it offered some employees, chosen by Company counsel, who had returned to work before the end of the strike and who testified that their absence was involuntary. These, the Company argued, established a ‘“pattern,’’ from which the trier could draw “inferences.” Lastly, the Company offered two “‘experts,’’ Dr. Herbert North- rup and Mr. Morgan R. Mooney, who estimated the amount of involuntary absenteeism on each day of the strike and testified that the strike would have ended sooner but for the violence. They attributed the con- tinuation of substantial involuntary absence after the third week of the strike to fear engendered by the ‘night riding’ (I R. 293, F. 651). Judge Gaffney adopted the opinion of Dr. North- rup that, absent violence, the strike at Pratt & Whit- ney would not have lasted beyond three weeks and that at Hamilton Standard it would not have extended oi let een 6 Ae ON 6 et ee VR ed Orr 27 beyond four to six weeks (id.). He also accepted Northrup’s estimate that at the end of the three-week period fear was the reason that 50 per cent of the em- ployees did not report to work, a figure which North- rup reduced to 25-3314 per cent by the end of the strike ; he also believed Northrup’s estimate that at the end of the strike 20 per cent of the Hamilton Standard work force failed to report due to fear (A. 57a-58a). B. The First Opinion of the Supreme Court of Connecticut. Both parties appealed to the Supreme Court of Con- necticut. That court sustained the liability determina- tion except with respect to incidents not connected to union officers and incidents away from the plants, which it held could not be attributed to petitioners (A. 79a- 80a). The court held that because of this error in the liability determination, a new trial on damages was necessary. It then instructed the trial court on how to proceed on the retrial (A. 80a-S1a). It held that proof of how long the strike would have lasted absence violence is unnecessary ; plaintiff could obtain damages for involuntar’ absence at any time during the strike (A. 85a). With respect to proof of that issue, the Court said (A. 87a): ‘The court made its determination * * * mainly on the basis of the testimony of [Dr. Northrup] * * * who was permitted, over the defendants’ objec- tion, to state his opinion as to the percentage of the plaintiff's employees who stayed away from their employment involuntarily, and the reception of this evidence by the court is assigned as error by the defendants. While expert opinion would be relevant provided the court accorded it per- suasive weight as was done in these cases, other methods of determining the element of involun- tary absence of equal or greater weight might be resorted to such as a representative sampling of employees who refrained from work. The evi- 28 dence to be relied on for arriving at a reasonable approximation is for the court to decide.”’ C. The Second Damage Trial. On remand, the case was assigned to the Hon. Joseph KE. Klau, State Referee. Despite the invitation of the Supreme Court of Connecticut, plaintiff did not offer to produce a sample of available absentees selected at random, that is one which was representative in a statis- tically meaningful sense. Again, the Company offered opinion testimony of Dr. Herbert Northrup and Mr. Mooney which challenged as unscientific guesswork, pp. 14-18, supra, petitioners’ witnesses. The Referee construed the above quoted portion of the opinion *‘to mean that the testimony of Dr. North- rup and Mr, Mooney were admissible, and that it could he accorded persuasive weight if in the opinion of the trier it was entitled to it’’ (A. 101a). He decided to accord it ‘“‘persnasive weight’’ be- cause (absent any evidentiary support and contrary to the testimony of all defendants’ expert witnesses) : ‘*In view of the practical and legal problems of obtaining reliable data from a statistically repre- sentative sample of absentees either during or im- mediately after the strike, the State Referee, acting as the Court, finds that at no time during or after the strike was plaintiff able to obtain reliable data from a statistically representative sample of ab- sentees for introduction into evidence.”’ ® IT R, 201- 202, F’. 297. '* Plaintiff had adduced no evidence of any ‘‘ practical and legal problems of obtaining reliable data’’ from all or a statistically rep- resentative sample of absentees immediately after the strike, when virtually all absentees were available and memories were fresh. Nor did it adduce any evidence that ‘‘difficulties’’ of any kind were the reason it did not then undertake a representative sam- pling. The portion of the above quotation beginning ‘‘The State’’ and ending ‘‘time’’ is inadvertently omitted from the Appendix, A. 119a. _ i ee ee “~ i ee. a rn cin i ee ee Seale htt ines, 29 However, the Referee did not find that it was im- practical for plaintiff to have presented as witnesses at the retrial a sample of available absentees selected at random. As stressed at pp. 22-25, supra, the Referee found that after July 1, 1960, no employee was absent either because of the aftereffects of fear induced by defend- ants’ tortious conduct before the stipulations, or be- cause of tortious conduct thereafter (A. 105a). The portion of plaintiff’s strike loss attributable to defendants was arrived at by obtaining the percentage of involuntary absence days compared to tetal strike absence days derived from Mr. Mooney’s estimate of involuntary absence days to and including July 1, and applying that percentage to the total strike loss alleged by the Company (A. 105a-106a). D. The Second Decision of the Supreme Court of Connecticut. The Supreme Court of Connecticut approved the Referee’s acceptance of Mooney’s speculative esti- mates. It reached that result by eschewing or misap- plying rules indispensable to effectuation of the limi- tation acknowledged in its first opinion, namely, that state courts are bound to limit recovery to the conse- quences of only those strike absences which are proved by competent, probative, evidence to have been caused by “‘tortious acts’’ (A. 82a, 8la). In its first opinion (A. 85a), the court had cited Stephanofsky v. Hill, 136 Coun, 379, 384-385, 71 A.2d 560, 563, for the proposition that expert opinion, if speculative, cannot be relied on as probative.” “In Stephanofsky the court held the opinion of an expert as to the cause of an accident speculative because the facts relied on did not exclude the possibility of other causes. Under that ap- 30 In its second opinion, the court substituted a much earlier, far less sophisticated, statement governing ad- missibility of expert testimony: ‘“*The true test of the admissibility of [expert opinion] testimony is not whether the subjeci matter is common or uncommon, or whether many persons or few have some knowledge of the matter ; but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the ques- tions at issue.’ Taylor v. Monroe, 43 Conn. 36, 44, cited with approval in Schomer v. Shilepsky, —Conn. (37 Conn, L. J., No. 4, pp. 10,12). Impli- cit in this standard is the requirement, later arti- culated, that the expert’s knowledge or experience must be directly applicable to the matter in issue. Siladi v. MeNamara, 164 Conn. 510, 513-14, 325 A.2d 277.”’ (A. 120a-121a). On this basis, the court held Mooney and Northrup qualified ‘‘to render opinions regarding [the extent of] involuntary absenteeism during the strike’’ (A. 117a, 119a). However, it failed to identify any relationship between their ‘‘observations’’ and ‘‘experience’’ on the one hand and eapacity to quantify the motive for non- witness absence on the other, pp. 11-12, 13-14 supra. The court apparently ruled as a matter of law that the trier properly rejected the testimony of defendants’ experts proach the Mooney estimates ‘‘should have been excluded as a guess’’ (136 Conn. at 385, 386, 71 A.2d, at 563, 564), for it is not even asserted that the facts cited by the court (A. 121a) logically erclude the possibility that causes other than misconduet for which petitioners were held responsible (such as strike sup- port or participation, unwillingness to alienate strikers, a ‘‘ wait and see’’ attitude or sheer timidity) motivated all but a handful of the non-witness absences they classified as ‘‘involuntary.’’ on ae ae ee re Se 31 that the facts on which Mooney and Northrup relied are not rationally sufficient to infer the motivation (in re- fusing to cross the picket lines) of the thousands of in- dividuals to whom Mooney and Northrup had not spoken and about whose personal motivation they knew nothing. Nor did the court identify any logical nexus between the assertedly supporting matters they ‘‘took into account’’ (A. 121a) and their qualification to quan- tify. The only apparent explanation for permitting an opinion as to quantum of involuntary absence to be de- rived in this fashion is the following: ‘The fact that the subjective motivation or state of mind, in this ease the absentees’ fear, could be inferred by the trier from other facts is a well settled rule of evidence. Frequently the only method of establishing what lay in the mind of a person when he acted is through such an infer- ence.”’ (A, 122a) Incomprehensibly, the court denied that the Referee had ‘‘reject{ed] Mooney’s opinion as to the number of persons who were still affected by fear after July 1” (A. 123a),"" and likewise denied that the Referee had rejected Northrup’s estimates of pre-July 1 involuntary absence insofar as they were inconsistent with Mooney’s *1The court’s assertion (A. 122a), that the Referee merely “placed more reliance’’ on Mooney’s opinion with respect to the cause of pre-July 1 absences is refuted by the very portion of the Referee’s opinion quoted in the next paragraph. The Referee found that Mr. Mooney was of the opinion that after July 1, the daily involuntary absences were limited to those who were afraid to return to work “‘until the strike was over’’. (A. 124a) In the face of the Referee’s finding (A. 105a) that there were no such absentees, the court’s reference to Mooney’s ‘‘explanation’’ of the “‘leveling off of [involuntary] absences from July 1 to the termination of the strike’’ as ‘‘significant’’ passes understanding. 32 (A, 122a). In holding that the Referee’s finding that fear was not the cause of any absences after July 1 (pp. 22-23, supra), ‘did not affect or destroy the weight which the court gave to Mooney’s testimony and opinion concerning that period between the commencement of this strike and July 1, 1960’’ (A. 124a), the court ig- nored the necessary implications of that finding. REASONS FOR GRANTING THE WRIT I. THE DECISION BELOW UNDERMINES THE CONGRES- SIONALLY PROTECTED RIGHT TO STRIKE BY AWARDING DAMAGES FOR CONDUCT NOT PROVEN TO BE PROXIMATELY CAUSED BY ILLEGAL CON- DUCT. A. When this Court last had before it a judgment for damages imposed upon a union for violence during a strike the Court said: ‘‘Our opinions on this subject, frequently an- nounced over weighty arguments in dissent that state remedies were being given too broad scope, have approved only remedies carefully limited to the protection of the compelling state interest in the maintenance of domestic peace. Thus, in San Diego Building Trades Council v. Garmon, 359 U. 8S. 236, we read our prior decisions as only al- lowing ‘the States to grant compensation for the consequences, as defined by the traditional law of torts, of conduct marked by violence and immi- nent threats to the public order,’ id., at 247, and noted that in Laburnum ‘damages were restricted to the ‘‘damages di- rectly and proximately caused by wrongful con- duct chargeable to the defendants ...’’ as de- fined by the traditional law of torts. ... Thus there is nothing in the measure of damages to indicate that state power was exerted to com- pensate for anything more than the direct con- vita ee i. Mea Tiare , he? ee ee a ee eee esis «ha bln w 33 sequences of the violent conduct.’ Id., 248, n. 6, at 249.” (Mine Workers v. Gibbs, 383 U.S. 715, 729-730. ) The Court took special note that in prior cases in which relief by way of damages or injunction had been approved, the Court had satisfied itself that the dam- ages had been limited to those proximately caused by violence, and that only violent conduct had been en- joined. The Court also pointed to Youngdahl v. Rain- fair, Inc., 355 U.S. 131, where it had modified an in- junction issued against a background of violence to permit peaceful picketing: ‘**[Tt] hough the state court was within its disere- tionary power in enjoining future acts of violence, intimidation and threats of violence by the strikers and the union, yet it is equally clear that such court entered the pre-empted domain of the National Labor Relations Board insofar as it enjoined peaceful picketing ....’”’ (355 U.S. at 139, quoted at 383 U.S. at 730-731.) Additionally, the Court analogized to Teamsters Un- ion V. Morton, 377 U.S. 252, where ‘fa similar analysis was applied to permit re- covery under § 303 of damages suffered during a strike characterized by proscribed secondary ac- tivity only to the extent that the damages claimed were the proximate result of such activity; dam- ages for associated primary strike activity could not be recovered.’’ (383 U.S. at 731, n. 17.) In sum, ‘‘[w]here the consequences of peaceful and violent conduct are separable, * * * it is clear that re- covery may be had only for the latter’’ (383 U.S. at 732). 34 The courts below did not openly defy the principles established in those cases, but they did the next worst thing. They allowed respondent to recover an enor- mous damage award based not on probative evidence but on speculation that a large percentage of employee absence during the strike was caused by illegal con- duet. Because, as detailed in our Statement and fur- ther discussed below, that speculation does not satisfy the requirements of logical inference, it fails to pro- vide the requisite assurance that the huge damage award predicated upon it is ‘‘restricted to the ‘dam- ages * * * caused by wrongful conduct chargeable to the defendants .. .’,’’ (Gibbs, supra, 383 U.S. at 730 quoting Garmon and Laburnum). Indeed, this record compels the conclusion that defendants have been charged for damage largely resulting from successful exercise of ‘‘a weapon of self-help permitted by federal law’? (Morton, 377 U.S. at 259)—the strike and (after the first few days) peaceful picketing designed to in- duce employees to respect the federally permitted and protected picket lines. Cf. @ ibbs, supra, 383 U.S. at 732, n. 18. , Ironically, and unbearably, the federally protected reaction of employees—not to work during the strike —has been transmuted by the alchemy of ‘‘expert opin- ion’’ into a financial liability of the Union to the em- ployer. Unless state courts are to be allowed thus to transform strike absence from a federally protected right to a springe of union liability, the judgment be- low should be reviewed and reversed. B. In Letter Carriers v. Austin, 418 U.S. 264, 282, it was said: ‘“‘The Court has often recognized that in cases involving free expression we have the obligation, a nee a Bh tle oat. 0) sectnelive§ sil. 1 * a - - t % “ 35 not only to formulate principles capable of gen- eral application, but also to review the facts to insure that the speech involved is not protected under federal law. [Citations omitted] ‘We must ‘‘make an independent examination of the whole record,’’ Edwards y. South Carolina, 372 U. 8, 229, 235, so as to assure ourselves that the judgment does not constitute a forbidden in- trusion on the field of free expression.’ New York Times Co. v. Sullivan; supra, at 285. _ While this duty has been most often recognized in the context of ciaims that the expression in- volved was entitled to First Amendment protec- tion, the same obligation exists in cases involving speech claimed to be protected under the federal labor laws. This obligation, derived from the su- premacy of federal labor law over inconsistent state regulation, Hill vy. Florida ex rel. Watson, 325 U. 8.538 (1945) ; Teamsters Local 24 v. Oliver, 358 U. S. 283, 295-296 (1959), requires us to de- termine whether any state libel award arising out of the publication of the union newsletter involved here would be inconsistent with the protection for freedom of speech in labor disputes recognized in Linn |v. Plant Guard Workers, 383 U.8. 53).” Here too, the Court has an ‘‘obligation, derived from the supremacy of federal labor law over inconsisteat state regulation’’ to review the record to insure that the judgment below does not constitute a forbidden in- trusion on the exercise of the federally protected right to strike, to picket and to respect peaceful picket lines. For, as Gibbs clearly indicates, the necessity of this Court’s guarding federally protected labor conduct against potentially inconsistent damage awards is not confined to protected speech. Indeed, Linn equates the balancing state interest in awarding damages for defamation with the state interest recognized in La- 36 burnum and its progeny in awarding damages to pre- serve the peace (see 383 U.S. at 61-62.) Directly applicable too is the observation in Linn also repeated in Letter Carriers: “We think it important again to point out * * * that ‘in view of the propensity of fsa to award excessive damages for defamation, the availability of libel actions may pose a threat to the stability of labor unions and smaller employers.’ Linn 383 U . S., at 64. It is for this reason that the Court in Linn held that ‘[i]f the amount of dam- ages awarded is excessive, it is the duty of the trial judge to require a remittitur or a new trial.’ Jd. at 65-66”. (418 U.S. at 287, n. 17, this Court’s emphasis in Letter Carriers.) Of course, state trial courts have a like duty, not to enter excessive judgments in non-jury cases; and state appellate courts have a duty to set such excessive judgments aside, for they share the Supremacy Clause obligation to avoid such a ‘‘threat to the stability of labor unions.’? But unless this Court reviews such un- precedented judgments as this one, where it appears that the state courts have shirked their duty, the duty 1s a meaningless form of words. C. Acceptance of Mooney’s estimates as ‘expert opinion” makes a shambles of the law of evidence . W hatever may be the general formulation, the essen- tial requirement is that mere speculation be not allowed to do duty for probative facts, after making due allow- ance for all reasonably possible inferences favoring the party whose case is attacked.’ Galloway v. U nited States, 319 U.S. 372, 395. Above all, it flouts what 37 Wigmore properly describes as one of two axioms of admissibility : ‘None but facts having rational probative value are admissible. This principle is indeed axiomatic, for any system of Evidence purporting to be ra- tional. It assumes no particular doctrine as to the kind of ratiocination implied,—whether practical or scientific, coarse and ready or refined and syste- matic. It prescribes merely that whatever is pre- sented as evidence shall be presented on the hypo- thesis that it is caleulated, according to the pre- vailing standards of reasoning, to effect rational persuasion.”” 1 Wigmore, E vidence 289 (3rd ed., 1940, emphasis in original.) We earnestly submit that where a witness gives an opinion without being able to explain the reasoning pro- cess by which he reaches it and is unable to demonstrate a logical nexus between his factual premises and his conclusion, his «pinion has no probative value. To offer such an opinio: ¢o a trier of fact is not to engage in ra- tional persuasion, but to invite a leap of faith. Here, neither the witness himself, nor respondent’s learned counsel on brief, nor the courts below have ever ex- plained the connection between the facts and figures on which the estimates are assertedly premised and the estimates themselves. Applicable to Mr. Mooney is the Sixth Cireuit’s ra- tionale for rejecting the testimony of another expert witness : ‘How he arrived at this figure is unexplained. He applied no mathematical formula. It appears to be a figure arbitrarily taken out of thin air.”’ Volasco Products v. Fry Roofing Co., 308 F.2d 383, 392 (6 Cir.) D. The court below invoked the rule of damages de- clared in Story Parchment Co, v. Paterson Parchment Co., 282 U.S. 555, 563 (reaffirmed in Bigelow v. RKO 38 Radio Pictures, 327 U.S. 251, 264), that damages may be calculated ‘‘as a matter of just and reasonable in- ference, although the result be only approximate” (A. 115a-116a, 120a, 122a-123a). But it disregarded the essential corollary of that rule, that ‘‘even where the defendant by his own wrong has prevented a more pre- cise computation, [which is not the case here, see pp. 40-44 infra] the jury may not render a verdict based on speculation or guesswork.”’ Bigelow, 327 U.S. at 264. See also Story, 282 U.S. at 563. The decision below is thus inconsistent with the principle it purports to ap- ply, and with those decisions, which are faithful to limitations inherent in the Story-Bigelow rule, such Volasco, supra, and Coleman Motor Co.., v. Chrysler Corp., 525 F.2d 1338,.1352 (3 Cir. 1975), where the court, accepting Story, said: ‘damage figures advanced by plaintiff’s expe may be substantially attributable to lawful soles. tition. In the absence of any guidance in the ree- ord, we cannot permit a jury to speculate concern- ing the amount of losses resulting from unlawful as opposed to lawful, competition.” A judge is no more entitled than a jury to attribute losses to unlawful rather than lawful causes on the basis of speculation. E. The reasoning of the Supreme Court of Connee- ticut in sustaining the trial court’s reliance on Moonev’s opinion only introduced new errors into the analysis. We confine ourselves to the most significant: 1. The court held Mooney’s opinion admissibl the theory that , ' seliaity “subjective motivation or state of mind, in this case the absentees’ fear, could be inferred .. . from other facts ...”’ (A. 122a), quoted at p. 31, supra, 39 Heretofore, an inference of subjective motivation from ‘‘other facts’? has been permitted only where those ‘‘other facts’’ have consisted of probative behavior by the individual whose motive is in question. Here there is no such behavior by which the motive of one non- witness absentee can be distinguished from another’s. The rule that motive may legally be inferred from pro- bative circumstantial evidence does not guarantee the existence of such evidence in every case or license an inference as to motive where there is no evidence which permits a reasonable inference. In this case absence is a neutral fact, and to infer motive from its mere e.rist- ence is the essence of forbidden speculation. Possible reasons far absence during a strike are so numerous that the question whether any particular individual’s absence was due to fear of violence, or solidarity with the union, or fear of social ostracism, or hope for eco- nomie gain if the strike is successful, is known only to the individual absentee. It follows that the only com- petent evidence is either the testimony of absentees themselves or of a representative sample.” 2. The court below recited at length Mooney’s ex- perience in industrial relations. But it failed to take 22 Mooney did not (A. 121la), beeanse he could not, quantify, for example, the ‘‘employees who did not want to alienate fellow employees’’: he had not spoken to any of the strikers to learn how they felt. Cf. p. 18, n. 10, supra. But if he could not quantify those who were voluntarily absent for that reason, how could he know that any employees whose absence he attributed to fear were not absent because they ‘‘did not want to alienate their fellow employees’’? And even if it be assumed, without any scientific basis, that the proportion of individuals in a group who were mo- tivated by fear is uniquely subject to quantification, then how could Mooney distinguish (and thus quantify) those who were absent because of fear created by tortious conduct on the premises, if he could not quantify the ‘‘employees who were absent because of fear created by tortious acts committed off the premises”’, for which the court below had ruled the defendants were not liable (A. 79a-80a) ? 40 account of the patent bias inherent in Mooney’s long- time employment by the plaintiff, and his specially adversary relationship to the union as personnel di- rector during a bitter strike, and later as vice presi- dent for industrial relations. Surely, such bias should have caused the court, if not to discredit his subjective estimates, at least to discount them. Contrast: Nor- land v. Washington General Hospital, 461 F.2d 694, 699 (8 Cir. 1972); Thurber Corp. v. Fairchild Motor Corp., 269 F.2d 841, 845 (5 Cir. 1959); Luria Brothers & Company v. United States, 369 F.2d 701, 713 (Ct.Cl. 1966). See II] Wigmore Evidence, p. 646 (3rd ed. 1940) ; IITA id., pp. 786-788. Moreover, like plaintiff and the trial court, the Su- preme Court of Connecticut failed to point to anything in Mooney’s experience which qualified him to give the particular opinions which the state courts accepted, although those courts conceded that nexus between the witness’ expertise and the precise question at issue is crucial to qualification, p. 30, supra. Cf. Jenkins v. United States, 307 F.2d 637, 646 (D.C. Cir., en bane), and particularly the concurring opinion of then Judge Burger, id. at 647 and 649-650. 3. In its first opinion the Supreme Court of Connee- ticut invited plaintiff to prove its damages on remand by use of a representative sample of all absentees (pp. 27-28, supra). The Company chose not to do so, prof- fering only a skewed group of involuntary absentees and the estimates of Mooney and Northrup (id.). In its second opinion, the court approved the trier’s de- termination that because of ‘‘practical and legal ob- stacles * * * plaintiff was at no time able to present a statistically valid sample’’ (A. 119a), and his accept- 41 ance of Mooney’s estimates as a substitute therefor (p. 28, supra). This, too, was grave error: a. Assuming, arguendo, that a representative sam- ple of all strike period absentees was unobtainable, and that a representative sample of all absentees avail- able at the time of the second damages trial would not have provided an acceptable basis for inference as to the quantum or percentage of strike absence which was involuntary, acceptance of Mooney’s opinion would still be unjustified. There is no rule of law which al- lows a plaintiff to maximize his recovery on the basis of incompetent evidence simply because no competent evidence is available. To allow him to do so is not only to dilute his burden of proof, but to reach a judi- cial judgment which has no rational basis. As the Court of Appeals for the Seventh Circuit said recently : ‘Tt is true, of course, as Hoefferle points out and as we have held above, that damages need not be caleulated with mathematical precision. It is also most unfortunate that the deaths of Clarence and Dolly Hoefferle may have the effect of pre- cluding the recovery of damages which rightfully belong to their company. But as disagreeable as this result may be, it does not vitiate the rule that damages must be proved with at least a reasonable degree of certainty, [citation omitted] which we do not here perceive.”’ * 23 Hoefferle Truck Sales v. Divco-Wayne, 523 F.2d 543, 553 (7 Cir., 1975). The Court continued: ‘“The admitted fact of damages, moreover, as presumably established by the liability trial, will not suffice to prove the amount of damages. [citations omitted | The evidence, in short, created little more than a specula- tive inference of the extent of Hloefferle’s injury, and it was therefore properly excluded.”’ So it is here. 42 Even more striking is Judge Learned Hand’s opinion, reaching what he called ‘‘the lamentable result’’ of denying a plaintiff recovery for profits which the de- fendant had obtained in violation of an injunction, because the defendant had destroyed the records which would have made possible computation of his profits. Sunbeam Corp. v. Golden Rule Appliance Co., 252 F.2d 467, 471-472 (2 Cir.) (concurring opinion). Judge Hand approved the reasoning of the early case of Yesbera v. Hardesty Mfg. Co., 166 Fed. 120, 123 (6 Cir.): ‘‘Of course if, in the absence of the better proof, there is still nothing of substance left on which the court can lay hold, there is no help, and the plaintiff must endure his loss.’”” And Judge Hand added: ‘**Much as we should like to find a way by which to com- pute the profits, we cannot do so * * *.”’ (252 F.2d at 472.) b. The trial court’s impossibility finding, quoted at p. 28, supra, is contrary to the expert testimony (IT R. 94, D. F. 624, IT R. 201, ef. F. 295), and, in any event, is irrelevant to the question of why plaintiff elected to present a biased witness sample and speculative expert opinion in lieu of a random witness sample selected from all currently available absentees. ‘*Proof of necessity [for using a representative sample] does not require a showing of total in- accessibility to proof of the facts desired to be shown, but the offeror must show the impracti- eability of making his proof by conventional methods. [Footnote omitted.]’’ Manual for Com- plex Litigation, 1 Part 2, Moore’s Federal Practice (2d ed.), pt. 2.712, p. 97. 43 The ‘“‘conventional method’’ in this case required plaintiff to produce for cross-examination each em- ployee whose absence plaintiff claimed was involuntary. Automobile Workers v. Russell, 356 U.S. 684; NLRB vy. Madison Courier, Inc., 472 F.2d 1307 (D.C. Cir., 1972). As we have seen, plaintiff did not prove that this was ‘“‘impracticable.’’ But assuming, arguendo, that it was, plaintiff was required to prove causation by the best evidence reasonably obtainable. If the hearsay objection is to be overcome because large numbers are involved, the condition precedent necessarily must be proof of compliance, as fully as possible, with judicially approved techniques and procedures for random, 1.¢., unbiased, sampling. Since no legal or practical prob- lems prevented plaintiff from presenting a witness sample chosen at random from the proper universe of available absentees, rather than a collection of hand- picked examples, that is what it was required to do. Projection from such a sample, at the least, would have tended to corroborate or contradict the opinion testi- mony. The present situation is therefore identical to that in Galloway v. United States, 319 U.S. 372, where this Court emphatically disapproved another attempt to substitute ‘‘expert * * * inference’’ for available evi- dence : ‘“‘The only reasonable conclusion is that peti- tioner, or those who acted for him, deliberately chose, for reasons no doubt considered sufficient (and which we do not criticize, since such mat- ters, including tactical ones, are for the judgment of counsel), to present no evidence or perhaps to 44 withhold evidence readily available * * * and to trust to the genius of expert medical inference ~ and judicial laxity to bridge this canyon. ‘**In the circumstances exhibited, the former is not equal to the feat, and the latter will not per- mit it. No case has been cited and none has been found in which inference, however expert, has been permitted to make so broad a leap and take the place of evidence which, according to all rea- son, must have been at hand. To allow this would permit the substitution of inference, tenuous at best, not merely for evidence absent because im- possible or difficult to secure, but for evidence disclosed to be available and not produced. This would substitute speculation for proof.’’ Id. at 386-387, footnote omitted, emphasis added. 4. The courts below determined that the employee witnesses were not a representative sample ‘‘of all the employees employed in 1960, in a statistical or scien- tific sense’? (A. 119a), and assumed that that justified totally disregarding it. They refused to acknowledge, as defendants had urged, that while the sample was unrepresentative, it permitted, and indeed required, the drawing of an inference against plaintiff. The in- ference is that absentees whom plaintiff did not eall would have given testimony that was no more (and most probably less) favorable to plaintiff than the absentees it did call. Since even the biased sample proves that the witness’ estimates were gross exagger- ations (pp. 21-22, supra), the inference is inescapable that a random sample would have proved that involun- tary absence was a miniscule percentage indeed. 45 II. THE DECISION BELOW DEPRIVED DEFENDANTS OF PROPERTY WITHOUT DUE PROCESS OF LAW This Court has held, in a variety of contexts, that a judicial or administrative determination which, with- out some evidence, deprives a person of liberty or property, is a denial of due process of law. Thomp- son V. Louisville, 362 U.S. 199, anticipated in Schware v. Board of Bar Examiners, 353 U.S. 232, 246-247, and United States ex rel. Vajtauer v. Commissioner, 273 U.S. 103, 106, and frequently followed. See e.g., Shut- tlesworth v. Birmingham, 382 U.S. 87, 94-95; Johnson v. Florida, 391 U.S. 596; Douglas v. Buder, 412 U.S. 430; Vachon v. New Hampshire, 414 U.S. 478; ef. Boilermakers vy. Hardeman, 401 U.S. 233, 246; Wood v. Strickland, 420 U.S. 308, 323, n. 14. We submit that because the conclusion that the Com- pany suffered losses caused by defendants’ tortious ac- tivity in the amount of over $1,400,000 is not based on any rationally persuasive ‘‘evidence’’ (see most par- ticularly pp. 36-37 supra), the judgment denies peti- tioners due process of law. At the very least, accep- tance of Mooney’s estimates raises a serious due pro- cess question which this Court should consider. Of course, the Company did proffer testimony, which the courts below accepted as if it were rationally proba- tive evidence, to justify the damage award. But so did > the parties who had prevailed below in the cases this Court reversed for lack of evidence. In Thompson it- self the Court examined the record and determined that while there was testimony, ‘**|t]here simply is no sem- blance of evidence from which any person could reason- ably infer”’ (362 U.S. at 205, emphasis added) the essen- tial element of the offense charged. And in Schware, al- though the Board of Bar Examiners had relied on 46 ‘‘certain facts in the record which raised substantial doubts about his moral fitness to practice law’’, 353 U.S. at 240 (described id. at 240-246), this Court con- cluded that ‘‘[t]here is no evidence in the record which rationally justifies a finding that Schware was morally unfit to practice law”? (id. at 246-247).™ CONCLUSION The courts below relied on Mooney’s speculative esti- mate to determine the issue (decisive under federal law) of how much strike absence was involuntary. ‘‘No case has been cited and none has been found in which inference, however expert, has been permitted to make so broad a leap * * *”’ (Galloway v. United States, 319 U.S. 372, 387). This petition for certiorari should be granted. Respectfully submitted, Priato E. Papprs Machinists Building Washington, D.C. 20036 Mozart G. RATNER 1900 M Street, N.W. Washington, D.C. 20036 Attorneys for Petitioners 4 We are aware that the Schware case has been vigorously criticized, Rehnquist, The Bar Admission Cases: A Strange Ju- dicial Aberration, 44 ABAJ 229 (March, 1958), with particular attention to this Court’s review of the record, id. at 230-231. How- ever, Schware was followed in Thompson and its method has sur- vived, see e.g., Vachon, supra, where this Court made an ‘“‘inde- pendent examination of the trial record’’ and determined that the only evidence proffered ‘‘was in no way probative of the crucial element of the crime * * *’’ (414 U.S. at 479-480). The Supreme Court of Connecticut was bound by these precedents, and its disregard of them necessitates this Court’s consideration. 1b CONSTITUTIONAL PROVISIONS AND STATUTE INVOLVED CONSTITUTION OF THE UNITED STATES: ARTICLE VI This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. AMENDMENT XIV ‘* * * * or shall any State deprive any person of life, liberty, or property, without due process of law * * * .”’ NATIONAL LABOR RELATIONS Act, as amended: ‘*See. 7. Employees shall have the right to self- organization, to form, join, or assist labor organiza- tions, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or potection * * *,”’ ‘See. 13. Nothing in this Act, except as specifically provided for herein, shal! be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifi- cations on that right.”’ TREND LINES JUNE 9th THROUGH JULY ist Pratt and Whitney INDEX: June 9 = 100 eeceeeeees MOONEY’S ESTIMATES Source: P. Exh. 2-1 eeeeeeees MOONEY’S ESTIMATES ADJUSTED TO FINDING THAT ° THERE WAS NO INVOLUNTARY ABSENCE AFTER JULY 1. °. Source: AR. 14, 202, F. 298 ————e INVOLUNTARY ABSENCE FOUND ON PLAINTIFF'S EMPLOYEE WITNESS TESTIMONY. 65 ° Source: R. 140, 141-176, F. 13-15, 20-223 e — INVOLUNTARY ABSENCE FOUND ON PLAINTIFF'S .% EMPLOYEE WITNESS TESTIMONY EXCLUDING 58 WITNESSES 55 °° STIPULATED. 5 ‘e Source: R. 140, 141-176, F. 13-15, 20-223 50 45 40 35 30 25 "ie. 20 a 15 meerte. VACATION 10 5 I J | } 4 ae 4 l | 8 9 10 13 14 15 16 17 20 21 22 23 24 27 28 2930 14 5 6 7 8 11 12 13 14 15 18 19 20 21 22 25 26 27 286 29 123 45 8 JUNE JULY AUGUST DATES ABSENT REFERENCE TABLE 1A -- CHART 1 -- PRATT & WHITNEY NUMBER ANP INDEX OF INVOLUNTARY ABSENCE JUNE 9th THROUGH JULY 29th 1 2 3 4 5 Involuntary Absence Found Mooney's Adj. Est. Mooney Estimates (Plaintiff's Employee Excluding 58 Firred to Index of Mooney's Estimates Adjusted (less 1800) Witnesses) Stipulated Wimesses Employee Witnesses Number Index Number Index Number Index Number Index Number Index 6500 100 4700 100 165 100 113 100 4700 100 6500 100 4700 100 162 98.2 112 99.1 4615 98.2 5500 84.6 3700 78.7 105 63.6 88 77.9 2989 63.6 5200 80.0 3400 72.3 84 50.9 82 72.6 2392 50.9 4900 75.4 3100 66.0 75 45.5 7S 66.4 2139 45.5 4700 72.3 2900 61.7 63 38.2 63 55.8 1795 38.2 4500 69.2 2700 57.4 50 30.3 50 44.2 1424 30.3 3500 53.8 1700 36.2 27 16.4 27 23.9 771 16.4 3200 49.2 1400 29.8 22 13.3 22 19.5 625 13.3 3000 46.2 1200 25.5 16 9.7 16 14.2 456 9.7 2800 43.1 1000 21.3 13 7.9 13 11.5 371 7.9 2600 40.0 800 17.0 1] 6. 7 11 9.7 315 6.7 2200 33.8 400 8.5 8 4.8 6 7.1 226 4.8 2100 32.3 300 6.4 7 4.2 7 6.2 197 4.2 2000 30.8 200 4.3 5 3.0 5 4.4 141 3.0 1900 29.2 100 2.3 4 2.4 + 3.5 113 2.4 1800 27.7 0 0 4 2.4 4 3.5 113 2.4 1800 27.7 0 0 4 2.4 4 3.5 23,382 1800 27.7 1800 27.7 1800 27.7 1800 27.7 1800 27.7 1700 26.2 1700 26.2 1600 24.6 1500 23.1 1500 23.1 1400 21.5 1400 21.5 1300 20.0 1300 20.0 1200 18.5 1200 18.5 1100 16.9 1100 16.9 TREND LINES JUNE 9th THROUGH JULY 1st Hamilton Standard INDEX INDEX: June 9 = 100 io --@)- 95 90 . ecceccee. MOONEY’S ESTIMATES Source: P. Exh. Z-2 85 80 eceeseses MOONEY'S ESTIMATES ADJUSTED TO FINDING THAT THERE WAS NO INVOLUNTARY ABSENCE AFTER JULY 1. Source: R. 14, 202, F. 298 75 ———s §=8INVOLUNTARY ABSENCE FOUND ON PLAINTIFF'S 70 EMPLOYEE WITNESS TESTIMONY. Source. R. 140. 141-176. F. 13-15. 20-223 65 60 ——_ INVOLUNTARY ABSENCE FOUND ON PLAINTIFF'S EMPLOYEE WITNESS TESTIMONY EXCLUDING 5 WITNESSES STIPULATED. 55 - Source: R. 140. 141-176, F. 13-15, 20-223 50 - 45 a 40 i w7Trrrrrree eee AC \T ‘a 35 30 25 20 15 10 5 | i 0 , re —— =~ + + . - 8 9 10 13 14 15 16 17 20 21 22 23 24 27 28 2930 14 5 6 7 8 11 12 13 14 15 18 19 20 21 22 25 26 27 28 29 1 2 3 45 8 JUNE JULY AUGUST DATES ABSENT REFERENCE TABLE 2A - CHART 2 - HAMILTON STANDARD NUMBER AND INDEX OF INVOLUNTARY ABSENCE JUNE 9 THROUGH AUGUST 8 l 2 3 4 5 Involuntary Absence Found Mooney's Adj. Est. Mooney Estimates (Plaintiff's Employee Excluding 5 Fitted to Index of Mooney’'s Estimates Adjusted (600 less) Witnesses) Stipulated Witnesses Employee Witmesses June Number Index Number Index Number Index Number Index Number Index 9 1500 100 900 100 25 100 20 100 900 100 10 1500 100 900 100 25 100 20 100 900 100 13 1500 100 900 100 24 96.0 20 100 864 96 14 1500 100 900 100 20 80.0 19 95 720 80 15 1300 86.7 700 77.8 9 36.0 9 45 324 36 16 1200 80.0 600 66.7 9 36.0 9 45 324 3% 17 1100 73.3 500 55.6 9 36.0 9 45 324 36 20 1000 66.7 400 44.4 5 20. 0 5 25 180 20 21 1000 66.7 400 44.4 5 20. 0 5 25 180 20 22 SH 69.0 300 33.3 4 16.0 4 20 144 16 23 999 $9.9 300 33.3 4 16.0 4 20 144 16 24 800 53.3 200 22.2 4 16.0 4 20 144 16 27 700 46.7 100 11.1 2 8.0 2 10 72 8 28 7 46.7 100 11.1 2 8.0 2 10 72 8 29 700 46.7 100 11.1 2 8.0 2 10 72 8 30 700 46.7 100 11.1 2 8.0 2 10 72 8 July 1 600 40.0 0 0 2 8.0 2 10 _72 8 + 600 40.0 0 0 l 4.0 1 5 5508 5 600 40.0 6 600 40.0 7 600 40.0 8 600 40.0 11 600 40.0 12 600 40.0 13 600 40.0 14 600 40.0 1S 600 40.0 Aug. 1 500 33 2 500 33 3 500 33 4 500 33 5 500 33 8 500 33 GbE 6 4a> ter we . NUMBER OF WITNESSES ABSENT ESTIMATED ABSENCE CAUSED BY TORTIOUS ACTS AT PREMISES OF PRATT AND WHITNEY —ee §=MOONEY’S OPINION eeeeeee NORTHRUP’S OPINION 1250 “ogo P ee SS ——_— wens 7 tery ® 750 * 500 © 88 eeee. VACATION 250 0 | | | | a 4 | | | t 1 T T T 7 TT 8 9 10 13 14 15 16 17 20 21 22 23 24 27 28 29 30 14 5 6 7 8S 11 12 13 14 15 18 19 20 21 22 25 26 27 2829 123 465 8 JUNE JULY AUGUST Source. P Exhs. Pl, Z1 DATES ABSENT TABLE 3-A PRATT & WHITNEY DISCREPANCIES BETWEEN ESTIMATES OF MR, MOONEY AND DR, NOK THRUP Mooney Northr up Cost of Difference %. of Estimates Estimates Difference At$1l5.57 Per Absence Difference june 9 6500 6671 171 $ 2,662.47 10 6500 6651 151 2,351.07 2 13 5500 7822 2322 36, 153. 54 42 14 5200 7578 2378 37,025. 46 46 1S 4900 7213 2313 36,013. 14 47 16 4700 6852 2152 33 506. 64 46 17 4500 4905 405 6, 305. 85 9 20 3500 4328 828 12, 891. 96 24 21 3200 4075 875 13, 623. 75 27 22 3000 3890 890 13, 857. 30 30 23 2800 3717 917 14,277. 69 33 24 2600 2373 227 3,534. 39 9 27 2200 2218 18 280. 26 1 28 2100 2159 59 918. 63 3 29 2000 2120 120 1, 868, 40 6 30 1900 2075 175 2, 724. 75 9 jely 1 1800 1505 295 4,593. 15 16 Subtotal (June 9-July 1) 14296 $ 222,588, 72 4 1800 1727 73 1,136, 61 4 5 1800 149 331 5,153. 67 23 6 1800 1441 339 5,278. 23 23 7 1800 1442 358 5.574. 06 25 8 1800 1419 38) 5,932.17 27 1800 1404 396 6. 165. 72 28 12 1700 1349 351 5, 465. 07 26 13 1700 1320 380 5, 916. 60 29 14 1600 1297 303 4,717.71 23 1S 1500 874 626 9, 746. 82 72 18 1500 1228 272 4,235.04 22 19 1400 1204 196 3,051. 72 16 20 1400 1194 206 3, 207. 42 17 21 1300 1182 118 1, 837. 26 10 22 1300 1163 137 2,133. 09 12 25 1200 636 564 8, 781.48 89 26 1200 614 586 9,124.02 95 27 1100 605 495 7, 707. 15 82 28 1100 598 502 7,816. 14 sa 29 1000 $77 423 6,586. 11 73 Subtotal (July 4-29) 7037 $ 109,566.09 TOTAI 21333 $ 332,154.54 NUMBER OF WITNESSES ABSENT ————— 2900 ESTIMATED ABSENCE CAUSED BY TORTIOUS ACTS = AT PREMISES OF HAMILTON STANDARD —eee §=6§MOONEY'’S OPINION eeeeeee NORTHRUP’S OPINION VACATION - VACATION | | | il JUNE JULY Source : P. Exhs. P2, 22. DATES ABSENT AUGUST ' ' ' t 4 Z 8 9 10 13 14 15 16 17 20 21 22 23 24 27 2829 30 14 5 6 7 8 11 12 13 14 15 18 19 20 21 22 25 26 27 2829 123 465 8 TABLE 4-A HAMIL TON STANDARD ; DISCREPANCIES BETWEEN ESTIMATES OF MR, MOONEY AND DR. NORTHRUP Mooney Northrup Cost of Difference %, of Estimates Estimates Difference At $25.27 Per Absence Difference June 9 1500 2030 530 $ 13,393.10 35 10 1500 1993 493 12,458. 11 33 13 1500 1914 414 10, 461. 78 28 14 1500 1876 376 9, 501. 52 25 1S 1300 1790 490 12, 382. 30 38 16 1200 1712 512 12,938, 24 43 17 1100 1499 399 10, 082. 73 36 | 20 1000 1414 414 10, 461. 78 41 21 1000 1385 385 9, 728. 95 39 22 900 1329 429 10, 840. 83 48 23 900 1305 405 10, 234. 35 45 24 800 957 157 3, 967. 39 20 27 700 904 204 5,155. 08 29 28 700 888 188 4, 750. 76 27 29 700 871 171 4,321.17 24 | 30 700 858 158 3, 992, *€ 23 July 1 600 508 _ 9 2,324, 84 1 Subtoml (June 9-July 1) 5817 $ 146, 995. 59 4 600 523 77 1,945, 79 18 5 600 507 93 2,350, 11 18 4 600 506 94 2,375. 38 19 7 600 502 98 2,476. 46 20 . 600 501 99 2,501. 73 20 1 600 500 100 2,527. 00 20 12 600 487 113 2, 855. 51 23 13 600 471 129 3, 259. 83 27 14 600 457 143 3,613. 61 31 15 600 221 379 9,577.33 171 August 1 500 218 282 7,126, 14 129 2 500 216 284 7,176. 68 131 3 500 211 289 7,303, 03 137 4 500 208 292 7,378. 84 140 5 500 205 295 7,454. 65 144 . 500 200 300 _ 7,581, 00 150 Subtotal (July 4- Aug. 8) 3067 $ 77,503.09 TOTAL 8884 $ 224,498, 68 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1814%3A1. Public record. Not legal advice.