# Petition — L. & J. Press Corp. v. Murphy > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0020%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 434 U.S. 1025 ## Text alee amramas mean smnaa te ETL Supreme Court, U. S, FILED NOV 9 1977 NTI JR., CLERK IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1977 No.0 2-662 L. & J. PRESS CORPORATION, Petitioner, VS. DAVID RADFORD MURPHY, and UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT, Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT, AND ALTERNATIVE PETITION FOR WRIT OF MANDAMUS ROBERT A. WULFF JAMES J. AMELUNG STEPHEN D. HOYNE AMELUNG, WULFF & WILLENBROCK 722 Chestnut Street 16th Floor International Building St. Louis, Missouri 63101 436-6757 Attorneys for Petitioner St. Louis l.aw Printing Co.. Inc. 812 Olive Street 63101 314-231-4177 TABLE OF CONTENTS Page Motion for Leave to File Petition for Writ of Certiorari and Alternative Petition for Writ of Mandamus ...... l a sive 50 bell dee wees bass OS teehee 3 Statement of Juriediction ........cccccccccccccccess 4 NS PEST CO eT Se Le Pe 4 Constitutional Provisions, Statutes and Rules Relating to RED bie ka nea'n one nab kee eed CARR Rese bh) re. wce awh tose eeennanada + aaunw ks 10 Statement of Original Federal Jurisdiction ............. 14 PE 28. 06-0:60:066: 6666406600000 0b46 5600 cdb wee 15 IS a re ee ee ee ee 28 ed boc ee Ova wii oe Pee Pe ETE Oe eT A-1l Appendix A. Opinion of the U.S. Court of Appeals for the EY iso ban end Vale 6045 bec akeeeeuaees A-1 Appendix B. Affidavit of Olive L. Poole, Court Reporter, U.S. District Court, Eastern District of Missouri ...... A-12 Appendix C. Title page and index of Designated Record Utilized by Court of Appeals .................... A-14 Appendix D. Motion of Appellee to Withdraw Opinion ID fo heey nuccbaceccerdeniecesuas A-16 Appendix E. Motion of Appellee for a Rehearing or Trans- fer to the Court En Banc, or Alternative Motion to Modify Opinion to Conform to the Designated Record SE 6 6. w0-006006ndensndisivedewksannbaess A-20 Appendix F. Order of August 1, 1977 Denying Appellee’s Motion to Withdraw Opinion and Dismiss Appeal .. . .A-30 Appendix G. Notice of Issuance of Mandate of Court of Pee Te Ges GET cb kd osaecs Gacsuxsecvns A-31 Appendix H. Order of August 15, 1977 Denying Motion of Appellee for a Rehearing or Transfer to the Court En Banc, or Alternative Motion to Modify Opinion to Conform to the Designated Record on Appeal ...... A-32 Appendix I. Memorandum and Order of U.S. District ee Gs GE AS OY nv cs 6 scsea es Scs eek seen A-33 Table of Cases La Buy v. Howes Leather Company, 352 U.S. 249, 77 S. CR. SER, F LAs Bee OF ccc ccccccess 23, 24, 26 Murphy v. L & J Press Corp., 558 F.2d 407 (8th Cir. gg FR OU EEE ETE OL TT ET ETT EEE PEE TEC ee | Schlagenhauf v. Holzer, 379 U.S. 104, 85 S. Ct. 234, 13 Ge GED 0 Kes na densunceeescsecsionan 24, 26 eae | aR tS mere agnor 1, 4, 6, 23 RENE ORO ER EES A dy 8 10 a a lee ee, 14 IN I res on Ct 14 NR Bee). Secs snccue'd Kaaheen 4, 6, 25 MM es Lo on tee 6, 23 i i. «si onvddadudkeosal 4,7, 12, 21 ne ee 8, 11, 21 a I 0 8 Oo ore 5,9, 10, 16, 21 SD FA IY wee vedccasccccecantsmenesem 24 iil i ee dee peeveeeee hae dee 24 Rule 19(b), Rules of the Supreme Court of the United LS ee ae 23 Rule 11, A.(2), Rules of the United States Court of Ap- UN, HE GED occ cers esevceess 9, 10, 11, 13, 16 Constitution of the United States, Article III, Section 1 .. 5 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1977 See L. & J. PRESS CORPORATION, Petitioner, VS. DAVID RADFORD MURPHY, and UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT, Respondents. MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF CERTIORARI AND ALTERNATIVE PETITION FOR WRIT OF MANDAMUS The petitioner moves the Court for leave to file the Petition for Writ of Certiorari and Alternative Petition for Writ of Man- damus, hereto annexed, and further moves that an order and rule be entered and issued directed to the Honorable United States Court of Appeals for the Eighth Circuit, and particularly Honorable Floyd R. Gibson, Chief Judge, calling up for review by certiorari the records of the United States Court of Appeals for the Eighth Circuit for review by this Court pursuant to 28 U.S.C. Section 1254 (1), or alternatively that an order and rule be entered and issued directing the Honorable United States Court of Appeals for the Eighth Circuit to show cause why a i) writ of mandamus should not be issued against such Court of Appeals, in accordance with the prayer of said petition and why petitioner should not have such other and further relief in the premises as may be just and meet. ROBERT A. WULFF JAMES J. AMELUNG STEPHEN D. HOYNE AMELUNG, WULFF & WILLENBROCK Attorneys for Petitioner 16th Floor International Building 722 Chestnut Street St. Louis, Missouri 63101 436-6757 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1977 ee aes L. & J. PRESS CORPORATION, Petitioner, VS. DAVID RADFORD MURPHY, and UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT, Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT, AND ALTERNATIVE PETITION FOR WRIT OF MANDAMUS OPINIONS BELOW Judgment was entered in favor of petitioner by the U.S. District Court, Eastern District of Missouri without opinion upon a jury verdict in favor of defendant-petitioner. On appeal the U.S. Court of Appeals for the Eighth Circuit reversed and remanded the cause for retrial. The opinion of the U.S. Court of Appeals is reported as Murphy v. L & J Press Corp., 558 F.2d 407 (8th Cir. 1977). STATEMENT OF JURISDICTION Petitioner seeks review of the decision of the United States Court of Appeals for the Eighth Circuit by certiorari pursuant to 28 U.S.C. Section 1254 (1). The opinion of the United States Court of Appeals for the Eighth Circuit in the present contro- versy was filed June 16, 1977, and the Court of Appeals man- date was issued August 11, 1977. Petitioner's motion for re- hearing or for rehearing and transfer to the Court en banc was denied August 15, 1977. Because the appeal in the United States Court of Appeals was heard and decided upon an in- complete record as the result of appellant, David Radferd Mur- phy’s, failure to make satisfactory arrangements for payment of costs of transcript in violation of Rule 10, (b), Federal Rules of Appellate Procedure, thereby denying petitioner its due proc- ess, and because petitioner’s motion for rehearing upon complete record was denied, petitioner seeks invocation of this Court's superintending power to enforce the Federal Rules of Appellate Procedure through review by certiorari. In the alternative, petitioner seeks relief by writ of man- damus to the United States Court of Appeals for the Eighth Circuit requiring rehearing on complete record as an exercise of this Court’s power under 28 U.S.C. Section 1651, the All Writs Act. QUESTIONS PRESENTED 1. Where the failure of appellant’s counsel to make satis- factory arrangements with the U.S. District Court court reporter for payment of the cost of transcript in violation of Rule 10 (b) Federal Rules of Appellate Procedure resulted in the absence from the record on appeal of over 700 pages of trial transcript designated by petitioner as part of the original record to be utilized on appeal pursuant to Rule 30 (f), Federal Rules of Appellate Procedure, which omission was hidden from detection by an erroneous minute entry on the docket sheet of the United States Court of Appeals, was petitioner denied due process? 2. Did the United States Court of Appeals act in excess of its jurisdiction in hearing this controversy and entering its decision on trial issues without the benefit of the complete record on appeal? 3. Did the United States Court of Appeals act in excess of ju- risdiction in failing to vacate its decision and grant petitioner a rehearing upon discovery that its original consideration of trial issues was based upon a record devoid of trial proceedings? 4. Where the failure of appellant's counsel to make satis- factory arrangements with the United States District Court court reporter for payment of the cost of transcript in violation of Rule 10 (b), Federal Rules of Appellate Procedure resulted in the absence from the record on appeal of over 700 pages of trial transcript, designated by petitioner as part of the original record to be utilized on appeal pursuant to Rule 30 (f), Federal Rules of Appellate Procedure, which omission was hidden from detec- tion by an erroneous minute entry on the docket sheet of the United States Court of Appeals, did the United States Court of Appeals act in excess of its jurisdiction in denying petitioner's motion to vacate opinion and dismiss the appeal? CONSTITUTIONAL PROVISIONS, STATUTES AND RULES RELATING TO CONTROVERSY Article III, Section 1, Constitution of the United States The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress an.” oe may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during Good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be di- minished during their Continuance in Office. 28 U.S.C. Section 1254 (1). Cases in the court of appeals may be reviewed by the Supreme Court by the following methods: 1. By writ of certiorari granted upon the petition of any paiiy to any civil or criminal case, before or after rendition of judgment or decree; * * * 28 U.S.C. Section 1651. Writs. (a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law. (b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction. 28 U.S.C. Section 2072. Rules of civil procedure. The Supreme Court shall have the power to prescribe by general rule, the forms of process, writs, pleadings, and mo- tions, and the practice and procedure of the district courts and courts of appeals of the United States in civil actions, including admiralty and maritime cases, and appeals therein, and the practice and procedure in proceedings for the review by the court of appeals of decisions of the Tax Court of the United States and for the judicial review or enforcement of orders of administrative agencies, boards, commissions and officers. — Such rules shall not abridge, enlarge or modify any substan- tive right and shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment to the Constitution. Such rules shall not take effect until they have been re- ported to Congress by the Chief Justice at or after the begin- ning of a regular session thereof but not later than the first day of May, and until the expiration of ninety days after they have been thus reported. All laws in conflict with such rule shall be of no further force and effect after such rules have taken effect. Nothing in this title, anything therein to the contrary notwithstanding, shall in any way limit, supersede, or repeal any such rules heretofore prescribed by the Supreme Court. Rule 10 (b), Federal Rules of Appellate Procedure. (b) The Transcript of Proceedings; Duty of Appellant to Order; Notice to Appellee if Partial Transcript Is Ordered. Within 10 days after filing the notice of appeal the appel- lant shall order from the reporter a transcript of such parts of the proceedings not already on file as he deems necessary for inclusion in the record. If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evi- dence or is contrary to the evidence, he shall include in the record a transcript of all evidence relevant to such finding or conclusion. Unless the entire transcript is to be included, the appellant shall, within the time above provided, file and serve on the appellee a description of the parts of the transcript which he intends to include in the record and a statement of the issues he intends to present on the appeal. If the appellee deems a transcript of other parts of the proceedings to be necessary he shall, within 10 days after the service of the statement of the Sa eo appellant, file and serve on the appellant a designation of addi- tional parts to be included. If the appellant shall refuse to order such parts, the appellee shall either order the parts or apply to the district court for an order requiring the appellant to do so. At the time of ordering, a party must make satis- factory arrangements with the reporter for payment of the cost of the transcript. Rule 30(b), Federal Rules of Appellate Procedure. (b) Determination of Contents of Appendix; Cost of Pro- ducing. The parties are encouraged to agree as to the contents of the appendix. In the absence of agreement, the appellant shall, not later than 10 days after the date on which the record is filed, serve on the appellee a designation of the parts of the record which he intends to include in the appendix and a state- ment of the issues which he intends to present for review. If the appellee deems it necessary to direct the particular atten- tion of the court to parts of the record not designated by the appellants, he shall, within 10 days after receipt of the desig- nation, serve upon the appellant a designation of those parts. The appellant shall include in the appendix the parts thus des- ignated. In designating parts of the record for inclusion in the appendix, the parties shall have regard for the fact that the entire record is always available to the court for reference and examination and shall not engage in unnecessary designation. Unless the parties otherwise agree. the cost of producing the appendix shall initially be paid by the appellant, but if the appellant considers that parts of the record designated by the appellee for inclusion are unnecessary for the determination of the issues presented he may so advise the appellee and the appellee shall advance the costs of including such parts. The cost of producing the appendix shall be taxed as costs in the +e ne, ere — we case, but if either party shall cause matters to be included in the appendix unnecessarily the court may impose the cost of producing such parts on the party. Rule 30(f), Federal Rules of Appellate Proce¢’ re. (f) Hearing of Appeals on the Original! Record Without the Necessity of an Appendix. A court of appeals may by rule applicable to all cases, or to classes of cases, or by order in specific cases, dispense with the requirement of an appendix and permit appeals to be heard on the original record, with such copies of the record, or rele- vant part thereof, as the court may require. Rule 11, A. (2), Rules of the United States Court of Appeals for the Eighth Circuit. (2) In a case to be heard on original record, the portions of the original record, including both the clerk’s record and the transcript of testimony, to be transmitted to the court of ap- peals by clerk of the district court are to be designated by the parties in accordance with the procedure set forth in Rule 30 (b) of the Federal Rules of Appellate Procedure for the deter- mination of the contents of an appendix modified as follows. The appellant shall within 10 days of the filing of the notice of appeal file with the clerk of the district court and serve on the appellee his designation of the record and statement of issues. The appellee shall similarly file and serve his designa- tion within 10 days of the receipt of the designation of the appellant. The appellant and the appellee shall designate only those portions of the original record and transcript of testimony necessary for a determination of the appeal. The clerk of the district court shall prepare and file with the clerk of the court of appeals the original and two copies of the original record, including the transcript of testimony, so designated. The cost of preparation of the two copies is to be taxed in accordance with Rule 39 (e) of F.R.A.P. iy as STATEMENT OF CASE The present action was commenced by the filing of a peti- tion in the Circuit Court for the City of St. Louis seeking dam- ages in the amount of $350,000.00 for alleged personal in- juries caused by an alleged unreasonably dangerous and defec- tive mechanical power press manufactured by defendant. The controversy was removed by defendant to the United States District Court for the Eastern District of Missouri, diversity of citizenship having existed between the parties, and subsequently plaintiff filed an amended complaint seeking damages in the amount of $1,400,000.00 as compensatory damages and seek- ing punitive damages in the amount of $5,000,000.00. After nine days of trial the jury returned a verdict in favor of de- fendant, L. & J. Press Corporation and the District Court, Honorable John F. Nanzle, entered judgment for defendant. Plaintiff-appellant filed notice of appeal pursuant to 28 U.S.C. Section 1292. Counsel for plaintiff-appellant ordered a complete transcripi of proceedings in a U.S. District Court from the court reporter. This is demonstrated by the affidavit of Olive L. Poole, court reporter for the U. S. District. Eastern District of Missouri, a copy of which is attached as an appendix to this petition, and the original of which was filed in the U.S. Court of Appeals for the Eighth Circuit. Plaintiff-appellant then filed his motion for appeal on the original record pursuant to Rule 11, Rules of the United States Court of Appeals for the Eighth Circuit and Rule 30 (f), Federal Rules of Appellate Procedure. The U.S. Couri of Appeals granted plaintiff-appellant’s motion. Thereafter plain- tiff-appellant sought and obtained six separate extensions of time for filing brief and designation of record excusing appellant's delay on the ground that the transcript of trial proceedings had not yet been prepared. Designations of record by plaintiff- appellant Murphy and by petitioner were ultimately filed and UI a ne nee - served. The designations of record by the parties included designation as a part of the record on appeal of over 700 pages of the transcript of trial proceedings. As demonstrated by the minutes of the United States District Court for the Eastern District of Missouri, the U.S. District Clerk forwarded to the United States Court of Appeals for the Eighth Circuit on January 18, 1977, “original documents paged and indexed in triplicate, along with depositions”. On January 21, 1977, the Clerk of the U.S. Court of Appeals for the Eighth Circuit, having apparently received those documents. made the following minute entry: “Received original and 2 copies designated records: deposi- tions of Mathias and Kemp.” As demonstrated by the affidavit of Court reporter Olive L. Poole, payment for the balance owed on fees for preparation of the transcript was not made, and the Court's copy of the tran- script was not filed with the U.S. District Clerk, nor was a copy filed with the U.S. Court of Appeals for the Eighth Circuit. Petitioner, relying on the minute entry of the U.S. Court of Appeals dated January 21, 1977, as quoted above, argued and submitted petitioner's case believing that the U.S. Court of Appeals for the Eighth Circuit would have the benefit of the substantial portions of the transcript designated by petitioner as a part of the record pursuant to Local Rule 11 of the Rules of the U.S. Court of Appeals for the Eighth Circuit and pursuant to Rule 30 (b) Federal Rules of Appellate Procedure. The opinion of the U.S. Court of Appeals was filed June 16, 1977. The opinion filed misstated relief sought by plaintiff, misstated theories under which plaintiff sought relief, and mis- stated undisputed facts concerning the occurrence itself. Like- wise, the opinion of the U.S. Court of Appeals contained a quotation of closing argument in the case which counsel for — =a petitioner recognized as having been taken from the brief of appellant, rather than from the transcript of proceedings, be- cause the quotation included parenthetical notes as a part of the quotation which were not included in the trial transcript but which were added by plaintiff-appellant when the argument was quoted in the brief of appellant. The obvious lack of background and knowledge of the facts of the case reflected in the opinion of the U.S. Court of Appeals, together with the quotation containing appellant's editorial com- ment as a part of the quotation, caused petitioner to suspect that the Court was deprived of the benefits of the over 700 pages of trial transcript in reaching its decision in this matter. Accordingly, counsel for petitioner appeared in the office of the Clerk of the United States Court of Appeals for the Eighth Circuit and requested to inspect a copy of the designated record distributed to members of the panel who had heard the case. Inspection of those copies revealed that the designated record included only 112 pages of pleadings and depositions, and totally omitted over 700 pages of transcript designated by the parties as a part of the original record on appeal. The record did in- clude copies of the designation of record by both parties which clearly indicated that substantial portions of the 1193 page transcript were to have been included. However, not a single page of trial transcript was included in the documents forwarded by the U.S. District Clerk and filed by the Clerk of the U.S. Court of Appeals for the Eighth Circuit as “designated record”. Counsel for petitioner then contacted the Court reporter and, for the first time, learned that the trial transcript was not filed with the U. S. District Court or with the U. S. Court of Appeals for the Eighth Circuit because counsel for plaintiff-appellant had failed in his duty under Rule 10 (6), Federal Rules of Ap- pellate Procedure, to make satisfactory arrangements for pay- ment of the cost of the transcript. The reporter had delivered to counsel for petitioner a copy of the trial transcript for which ame we _ . —_ vow counsel of petitioner had made full payment. But, as demon- strated by the affidavit of Court reporter, Olive L. Poole, the transcript was not filed with the U. S. District Court, or with the U. S. Court of Appeals because payment of the fees for preparation of the transcript had not been completed by counsel for plaintiff-appellant. Petitioner immediately obtained the affidavit of Court re- porter, Olive L. Poole. along with the certified copies of the docket sheets of the U. S. District Court, Eastern District of Missouri and prepared and filed in the U. S. Court of Appeals for the Eighth Circuit Motion of Appellee to Withdraw Opinion and Dismiss Appeal, Motion of Appellee for a Rehearing or Transfer to the Court En Banc, or Alternative Motion to Modify Opinion to Conform to the Designated Record on Appeal, and suggestions in support thereof. Petitioner’s Motion to Withdraw Opinion and Dismiss Appeal was denied August 1, 1977. The mandate of the Court of Appeals was issued August 11, 1977, the motion for rehearing was denied August 15, 1977. Because, as a result of violations of the Federal Rules of Appellate Procedure and Rule 11 of the U. S. Court of Appeals for the Eighth Circuit, petitioner was deprived of the Court of Appeals’ consideration of designated portions of the trial tran- script, and because no further remedy is available from the United States Court of Appeals for the Eighth Circuit, petitioner now seeks redress from this Court to invoke its superintending powers to enforce petitioner's right to due process and a ful! and fair hearing of the appeal. = STATEMENT OF ORIGINAL FEDERAL JURISDICTION The original petition for relief was filed in behalf of plaintiff, a Missouri resident, against defendant, an Indiana corporation, seeking damages of $350,000.00. Petitioner L. & J. Press Cor- poration filed its petition to remove pursuant to 28 U.S.C. Sec- tion 1441 on grounds of original Federal jurisdiction based upon diversity of citizenship, 28 U.S.C. Section 1332. ARGUMENT I. Petitioner Was Denied Due Process and Deprived of Its Right to a Hearing on the Full and Complete Record as Desig- nated Pursuant to the Federal Rules of Appellate Procedure. a. The appeal was heard and decided on an incomplete record which was totally devoid of the trial proceedings below. The decision of the U. S. Court of Appeals for the Eighth Circuit was rendered upon a record on appeal which was totally devoid of any record of the trial proceedings below. The index to the designated record obtained by counsel for petitioner from the Clerk of the U. S. Court of Appeals for the Eighth Circuit following issuance of the Court’s opinion clearly indicates that no portion of the trial transcript was included in the record. Likewise, the minutes of the U. S$. Court of Appeals demonstrate that only exhibits and depositions were filed in addition to the “designated record”. The affidavit of Court reporter, Olive L. Poole, demonstrates that the transcript of trial proceedings was neither filed with the U. S. District Court or with the U. S. Court of Appeals because counsel for appellant failed to complete payment of the cost of preparation of the transcript. In addition, counsel for petitioner, in an effort to further investigate this matter, conferred by telephone with the law clerk of Mr. Justice Clark, at the chambers of Mr. Justice Clark, and it was con- firmed that no part of the trial transcript had been obtained for review or use in the preparation of the opinion in behalf of the Court of Appeals. Petitioner included the affidavit and associated information in its Motion to Withdraw Opinion and Dismiss Appeal, in its Mo- tion for Rehearing or Transfer to the Court En Banc, or Alterna- tive Motion to Modify Opinion to Conform to the Designated —— Record on Appeal, and in the suggestions in support thereof, al! filed with the U.S. Court of Appeals for the Eighth Circuit. In his reply to these motions, plaintiff-appellant admitted that the transcript was not filed and was not available for use by the Court of Appeals. Further, the cost of the transcript was dis- allowed as costs by the U.S. District Court because the Court of Appeals decision was rendered “without benefit of a tran- script.” Therefore, it is established beyond question that the U.S. Court of Appeals for the Eighth Circuit did, in fact, hear the appeal and issue its opinion and mandate without the bene- fit of the complete record on appeal, and without those portions of the designated record recording the trial proceedings. The records of the U.S. Court of Appeals establish that sub- stantial portions of the trial transcript were properly designated and required to be included in the record on appeal. Plaintiff- appellant filed its motion to proceed on the original record pursuant to Rule 30 (f), Federal Rules of Appellate Procedure, and pursuant to Local Rule 11, Rules of the U.S. Court of Ap- peals for the Eighth Circuit, which motion was granted. Local Rule 11 required the designation by the parties of the portion of the clerk’s record and transcript of testimony “necessary for a determination of the appeal,” and further required that the clerk of the District Court prepare and file with the Clerk of the Court of Appeals the original and two copies of the original record “including the transcript of testimony so designated.” The designation of record filed in behalf of petitioner was, itself, included as a part of the designated record actually forwarded to the U.S. Court of Appeals for the Eighth Circuit, and Peti- tioner’s designation of record clearly listed over 700 pages of the trial transcript. Petitioner had previously reviewed the 1,193 pages of trial transcript to eliminate those portions un- necessary for a consideration of the issues on appeal. Because the designation of record prepared and filed by petitioner in the U.S. District Court was included as a part of the incomplete record forwarded to the Court of Appeals by the U.S. District _— Court, the incomplete record on appeal showed, on its face, that over 700 pages of trial transcripts had been designated and obviously were not included in the 112 page record forwarded to the Court. Therefore, there is no question that substantial portions of the trial transcript were properly designated and were required by the Federal Rules of Appellate Procedure and by the Local Rules of U.S. Court of Appeals for the Eighth Circuit to be included in the record on appeal. Likewise, there is no question that this portion of the designated record recording the trial proceedings of the case in the U.S. District Court was absent from the designated record, was unavailable for the Court's use in hearing the case, and was unavailable during the preparation by the Court of its opinion. Consequently, it is established as fact that this appeal was heard by the U.S. Court of Appeals on a deficient record. B. The portion of the designated record omitted was essential to a fair hearing of the issues raised on appeal. The index to the designated record, a copy of which was ob- tained by petitioner from the clerk’s office of the U.S. Court of Appeals from a deputy clerk who had obtained the designated record from judicial chambers, indicates that the supposed desig- nated record forwarded by the U.S. District Clerk contained only pleadings and docket entries. The minutes of the U. S. Court of Appeals for the Eighth Circuit indicates that depositions and trial exhibits were also filed in addition to the supposed “desig- nated record.” Those records further demonstrate that no part of the trial transcript was filed for use by the Court in its de- cision. The record as actually filed was totally devoid of any recording of the trial proceedings. Yet, the decision of the U.S. Court of Appeals reversed the judgment entered by the District Court on the grounds that trial tactics of petitioner and the Dis- trict Court’s rulings on evidence mislead the jury concerning the trial issues. The opinion of the Court of Appeals states: aa $6 an “However, these questions, which lead to the feasibility of L. & J. providing proper guarding, were transformed into a question of ‘who had the duty to guard?’ through L. & J.’s introduction of the ANSI and OSHA materials into evidence, statements concerning those materials during clos- ing argument by L. & J.’s counsel and the perusal of the material by the jury during its deliberations” (558 F.2d 407, 411, emphasis as quoted). Likewise, the actions of the trial court found to be error by the Court of Appeals were the introduction of ANSI and OSHA materials into evidence, the allowance of statements concerning those materials during closing argument by counsel and the allowance of those exhibits to go to the jury during its delibera- tion. Each of these events occurred during the trial of the case. But the portion of the designated record relating to the trial were absent from the record on appeal. The Court of Appeals had before it only copies of pleadings, depositions and exhibits, none of which related to the issues the U.S. Court of Appeals found determinative. In the appeal petitioner argued that ANSI standards and OSHA regulations were a proper response to completely explain the standards and rebut an inference raised by plaintiff-appel- lant’s own use of earlier additions of the ANSI standards in plaintiff-appellant’s own case. Likewise, petitioner argued that the standards and regulations were admissible to demonstrate a consensus of opinion supporting the design decision of defend- ant to rebut evidence offered by plaintiff which recounted the history of press design throughout the world and back into the 19th century. Petitioner further argued that ANSI standards and OSHA regulations were admissible for use by the jury in deter- mining the issues of culpability and malice injected into the case by plaintiff-appellant’s prayer for punitive damages and plain- tiff-appellant’s evidence in support thereof. The Court of Appeals could not possibly have fairly considered these arguments with- _— out a review of the portions of trial relating to the evidentiary issues involved. Yet the Court entered its decision on a record which excluded all recordings of the nine day trial proceeding. The opinion of the Court of Appeals holds that trial court allowed the evidence to be unfairly utilized and unfairly argued. Throughout the trial, the trial court actively solicited the aid of counsel for plaintiff-appellant in suggesting a cautionary instruc- tion advising the jury of the restricted use of the evidence of ANSI standards and OSHA regulations. On three separate occasions conferences on the record occurred outside the hear- ing of the jury regarding this request by the trial court and the relative positions of the parties on the evidence and the proper inferences of the evidence. Counsel for plaintiff by using the prior additions of ANSI standards was a proponent of the stand- ards and was utilizing the standards to raise the inference that petitioner press manufacturer could feasibly guard a mechanical power press. However, counsel for plaintiff-appellant opposed the admission of other portions of the ANSI standard which clearly indicated that the guarding suggested by the ANSI stand- ard could only feasibly be installed by press users, rather than the press manufacturer. The expert testimony presented in be- half of petitioner was testimony by the chairman of the commit- tee which formulated the ANSI standards regarding the intent of those standards. Therefore, the position and intent of the parties with regard to the use of this evidence, and the testimony of witnesses concerning the meaning of the standards and how they related to the question of feasibility were extremely im- portant considerations for review by the Court of Appeals in rendering its decision. Yet, the Court of Appeals in the present case entered its decision while in total ignorance of the trial pro- ceedings regarding these matters. The very minimal acquaintanceship of the Court with the trial issues and proceedings is obvious upon the face of the opinion. The opinion filed misstates the relief sought by the _— plaintiff and the theories under which plaintiff sought such relief. The opinion misstates the facts of the occurrence itself, facts which plaintiff-appellant’s expert and defendant-appellee- petitioner’s expert agreed were a physical impossibility. The opinion considering the admissibility and argument of ANSI standards and OSHA regulations fails to consider the permis- sive use of this evidence in light of plaintiff's evidence and argument for punitive damages, and the opinion further failed to consider the plaintiff-appellant’s own use of ANSI standards to raise the inference that the standards required the manu- facturer to guard the machine. Likewise, the opinion failed to consider the trial court’s several direct requests to counsel for plaintiff-appellant to prepare a cautionary instruction to advise the jury on the proper use of such evidence. Finally, the Court’s opinion contains a quotation of counsel for peti- tioner’s closing argument, which, on its face, demonstrates the unavailability to the Court of Appeals of the trial transcript because the quotation contains additional materials which were not a part of the trial transcript, but which counsel for plain- tiff-appellant added to the transcript language when the quota- tion was set out in the brief of appellant before the Court of Appeals. In summary, then, the opinion of the U. S. Court of Appeals turned on the trial court’s decisions concerning trial issues. The Court of Appeals’ opinion condemned the trial court for evidentiary decisions and found such decisions reversible error. Yet, the record before the Court of Appeals was totally barren of any recording of the trial proceedings, and the environment in which the trial court was called upon to reach its decision was entirely absent from the record, though those portions of the record were prcperly designated by petitioner as a part of the record on appeal. There can be no question that the U. S. Court of Appeals made its decision on the basis of issues of trial, though the Court of Appeals had no record of the trial before it. —_— ~ C. Petitioner did nothing to waive its right to have the rec- ord considered by the Court; rather petitioner was deprived of the Court of Appeals’ consideration of the full record on ap- peal as a result of the failure of opponent counsel to comply with his duties under the Federal Rules of Appellate Procedure, and this violation was hidden from detection by an erroneous entry on the docket sheet of the U. S. Court of Appeals for the Eighth Circuit. The duty of counsel for piaintiff-appellant to order the tran- script and to make “satisfactory arrangements with the reporter for payment of the cost of the transcript” is plainly stated in Rule 10(b), Federal Rules of Appellate Procedure. Counsel for petitioner received notice that opponent counsel had or- dered the entire transcript. After the transcript was completed, counsel for petitioner received a copy of the transcript, for which petitioner made prompt payment to the Court reporter as requested. Petitioner complied with Rule 30(b), and Rule 30(f), Federal Rules of Appellate Procedure, to designate only those portions of the trial transcript which, in the judgment of counsel for petitioner, were necessary. Petitioner took extra care in making the designation, because the Court of Appeals had granted the request of plaintiff-appellant to hear the ap- peal on the original record, therefore, making it impossible for the Court of Appeals to go beyond the appendix to refer to the entire record as would be the case under other circum- stances as outlined in Rule 30(b) which states: “in designating parts of the record for inclusion in the appendix, the parties shall have regard for the fact that the entire record is always available to the Court for ref- erence and examination and shall not engage in unnec- essary designation.” Having made its designation of the portions of the transcript necessary for inclusion in the records to be used on appeal in lieu of appendix, petitioner presented its argument and sub- = mitted its case to the Court of Appeals suffering under the misapprehension that the trial transcript designated as a part of the record on appeal was available for the Court of Appeals and would be utilized by it in reaching its decision. Counsel for petitioner was further assured by the minute entry of the U. S. Court of Appeals indicating “received original and 2 copies designated records;” That statement, of course, was in error because over 700 pages of the trial transcript designated as a part of the record in peti- tioner’s designation of record which, itself, was included in the documents actually filed with the Court of Appeals, was omitted. Only an examination of the copies of the designated record distributed to the Court of Appeals panel would have revealed to petitioner the absence of all trial proceedings from record. In summary, then, petitioner did everything required by the Rules of Appellate Procedure and the Local Rules of U.S. Court of Appeals for the Eighth Circuit to invoke its right for inclu- sion in the record on appeal of those portions of the nine day trial proceedings petitioner believed to be “necessary” for re- view. Opponent counsel, on the other hand, failed in his duty to see that proper arrangements for payment of the transcript were made, and that the transcript was duly filed with the U.S. District Clerk so that portions designated as record could have been forwarded to the U.S. Court of Appeals. While petitioner did nothing to waive its right under the Federal Rules of Ap- pellate Procedure to obtain a complete record necessary to the issues On appeal, petitioner was nevertheless deprived of that right as the result of opponent counsel's failure to comply with those same rules. The Court of Appeals, having failed to grant reliei or rehearing, has determined that petitioner must suffer for the breach by opponent counsel of the Rules of Appellate Procedure. Therefore, the present controversy in the U. S. Court of Appeals for the Eighth Circuit has so far departed from the accepted and usual course of judicial proceedings and has so far departed from the rights and duties set forth in the Federal Rules of Appellate Procedure, that only action by this Court can save petitioner from deprivation of its right to due process heretofore thrust upon it by the omissions and derelic- tions of opponent counsel. Il. Certiorari Should Issue So That This Court Can Exercise Its Superintending Power to Correct a Grave Departure From the Accepted and Usual Course of Judicial Proceeding by the U.S. Court of Appeals for the Eighth Circuit. Petitioner seeks review by certiorari pursuant to 28 U.S.C. Section 1254 (1). Petitioner believes the circumstances shown by its petition demonstrate that the proceedings below have so far departed from the accepted and usual course of judicial pro- ceedings, that assumption of jurisdiction by this Court to review the proceedings below is warranted. Therefore, pursuant to Rule 19 (b), Rules of the Supreme Court of the United States, petitioner believes the circumstances herein shown justify the exercise of the Court's judicial discretion in favor of issuing its writ of certiorari to the U.S. Court of Appeals for the Eighth Circuit. Petitioner has been denied its right to due process by the fail- ure of the U.S. Court of Appeals to require compliance with the Federal Rules of Appellate Procedure, and the failure of the U.S. Court of Appeals to rectify the burden cast upon petitioner by the noncompliance of opponent counsel with the Federal Rules of Appellate Procedure. The Rules of Appellate Pro- cedure are, of course, established by the exercise of this Court’s authority pursuant to 28 U.S.C. Section 2072. Likewise, this Court has held that certiorari will issue so that this Court can exercise its superintending power over the administration of those rules it has created. Thus in La Buy v. Howes Leather Company, 352 U.S. 249, 77 S. Ct. 309, 1 L.Ed.2d 290 (1957) this Court reviewed by certiorari a'decision of the U.S. Court of _— vo Appeals for the Seventh Circuit issuing its writ of mandamus to a U.S. District Judge who had referred matters pending before him in anti-trust litigation to a special master pursuant to Rule 53 (b), Federal Rules of Civil Procedure. There the Court of Appeals held that the U.S. District Court had acted in excess of its jurisdiction because the reference of the cases to the master was beyond the power of the trial judge under Rule 53 (b). There this Court noted the importance of that question to the administration of the Federal Rules of Civil Procedure lead to the grant of a writ of certiorari to review the matter. (352 U.S. 249, 251, 77 S. Ct. 309, 311). Likewise, in Schlagenhauf v. Holzer, 379 U.S. 104, 85 S. Ct. 234, 13 L.Ed.2d 152 (1964) this Court again granted certiorari to review the decision of the U.S. Court of Appeals for the Seventh Circuit on a question involving an order of physical examination pursuant to Rule 35 (a), Federal Rules of Civil Procedure. In that opinion the importance of this Court's responsibility to formulate necessary guidelines and to enforce the rules of practice established by the Court was noted: “However, in this instance the issue concerns the con- struction and application of the Federal Rules of Civil Procedure. It is thus appropriate for us to determine on the merits the issues presented and to formulate the nec- essary guide lines in this area. See Van Dusen v. Bar- rack, 376 U.S. 612, 84 S.Ct. 805, 11 L. Ed2d 945. As this Court stated in Los Angeles Brush Mfg. Corporation v. James, 272 U.S. 701, 706, 47 S.Ct. 286, 288, 71 L. Ed. 481: ‘(We think it clear that where the subject con- cerns the enforcement of the * * * rules which by law it is the duty of this Court to formulate and put in force * * * it may * * * deal directly with the District Court * * *..” (379 U.S. 104, 112, 85 S. Ct. 234, 239). — The present controversy involves the application and enforce- ment of the Federal Rules of Appellate Procedure, also formu- lated by this Court, and the enforcement of those rules also merits direct action. Thus, where the rights of a litigant. which the rules were designed to protect, have been violated by a failure in the court of appeals to enforce the Federal Rules of Appellate Procedure, the Supreme Court should exercise its superintending power to enforce the rules it has promulgated by granting certiorari to review the actions of the U.S. Court of Appeals. III. Mandamus Should Issue to Prevent the Court of Ap- peals From Acting in Excess of Its Jurisdiction by Allowing Its Decision, Founded on a Deficient Record, to Stand Without a Reconsideration of the Case on a Full and Complete Record as Designated by the Parties. Petitioner has, in the alternative, -petitioned this Court for writ of mandamus directed to the U.S. Court of Appeals for the Eighth Circuit requiring a vacation of its opinion and man- date previously entered, and granting rehearing or other ap- propriate relief. Petitioner seeks to invoke the power of this Court pursuant to 28 U.S.C. Section 1651, the All Writs Act. Petitioner contends that mandamus is the appropriate remedy, and the only remedy remaining available to rectify the depri- vation cast upon petitioner by the failure of the U.S. Court of Appeals to enforce the Federal Rules of Appellate Procedure. In the proceedings below, immediately upon learning that the transcript of trial proceedings had been omitted from the record on appeal, petitioner filec its Motion to Withdraw Opin- on and Dismiss Appeal, and its Motion for a Rehearing or Transfer to the Court En Banc or Alternative Motion to Mod- ify Opinion to Conform to the Designated Record on Appeal. Those motions have been denied by the U.S. Court of Appeals, Eighth Circuit. Therefore, petitioner has no other remedy re- = = maining available. Likewise, in the absence of relief from this Court petitioner will have been deprived of its right to have the appeal heard on the complete record designated pursuant to the Federal Rules of Appellate Procedure. This Court has held that mandamus will issue in those circumstances to ¢n- force a rule promulgated by this Court. In La Buy v. Howes Leather Company, 352 U.S. 256, 77 S.Ct. 309, 1 L.Ed.2d 290 (1956), previously cited, this Court stated: “The exceptional circumstances here warrant the use of the extraordinary remedy of mandamus. See State of Maryland v. Soper, 1926, 270 U.S. 9, 30, 46 S.Ct. 185, 187, 87 L.Ed. 449. As this Court pointed out in Los Angeles Mfg. Corp. v. James, 1927, 272 U.S. 701, 706. 47 S.Ct. 286, 288, 71 L.Ed. 481: ‘* * * [WJhere the sub- ject concerns the enforcement of the * * * [rJjules which by law it is the duty of this court to formulate and put in force,» mandamus should issue to prevent such action thereunder so palpably improper as to place it beyond the scope of the rule invoked. As was said there at page 707 of 272 U.S., at page 289 of 47 S.Ct., where the Court ‘* * * to find that the rules have been practically nulli- fied by a District Judge * * * it would not hesitate to restrain [him] * * *..” (352 U.S. 249, 256, 77 S.Ct. 309, 313). Likewise, in Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), this Court approved the remedy of mandamus from the U.S. Court of Appeals to the U.S. Dis- trict Court to enforce an application of the Federal Rules of Civil Procedure, though in that case the action of the trial judge was found proper and no usurpation of judicial power was found to require actual issuance of mandamus. In the present controversy, then, mandamus is an appropri- ate remedy, and the only remaining remedy. The circumstances — demonstrate that tie Court of Appeals for the Eighth Circuit heard the present controversy on a record totally devoid of any recording of the trial proceedings, though over 700 pages of trial transcript were designated by petitioner as part of the rec- ord pursuant to the Federal Rules of Appellate Procedure. Like- wise, the Court of Appeals reversed the decision of the U.S. District Court finding error in the handling of trial issues on the part of the trial court, without ever having examined the transcript to be informed of the actual proceedings in which the Court of Appeals found error. The Court of Appeals has further refused to rehear the appeal on a full and complete record or to grant any other relief whatsoever. Under these circumstances petitioner’s right to have the Court of Appeals consider necessary portions the recorded trial proceeding as that right is established in the Federal Rules of Appellate Procedure has been deprived. The orders of the U.S. Court of Appeals for the Eighth Circuit denying petitioner's Motion to Withdraw Opinion and Dismiss Appeal, and denying petitioner's Motion for Rehearing or Transfer to the Court En Banc, or alternative motion to modify opinion ‘> conform to the desig- nated recerd on appeal are in excess of its jurisdiction, and the entry of opinion and mandate of the U.S. Court of Appeals for the Eighth Circuit without ever having reviewed the re- corded trial proceedings properly designated as a part of the record is a usurpation of judicial power. Therefore, justice re- quires that this Court issue its writ of mandamus to the U.S. Court of Appeals for the Eighth Circuit requiring that Court to withdraw its opinion and mandate previously entered and requiring a further hearing by that Court on the full record as designated pursuant to the Federal Rules of Appellate Pro- cedure. = CONCLUSION For the foregoing reasons, petitioner respectfully prays that this Court grant its writ of certiorari directed to the U.S. Court of Appeals for the Eighth Circuit calling up for review the records of that Court and the opinion and mandate of that Court reversing the judgment of the U.S. District Court, with- out ever having reviewed the record on appeal properly desig- nated pursuant to the Federal Rules of Appellate Procedure. In the alternative, petitioner respectfully prays that this Court issue its writ of mandamus to the United States Court of Ap- peals for the Eighth Circuit requiring that Court to show cause why its opinion and mandate should not be vacated, and further requiring that Court to show cause why the Motion of Appel- lee to Withdraw Opinion and Dismiss Appeal and the Motion of Appellee for Rehearing or Transfer to the Court En Banc, or Alternative Motion to Modify Opinion to Conform to the Designated Record on Appeal previously filed in the U.S. Court of Appeals for the Eighth Circuit should not be granted. ROBERT A. WULFF JAMES J. AMELUNG STEPHEN D. HOYNE AMELUNG, WULFF & WILLENBROCK Attorneys for Petitioner 16th Floor International Building 722 Chestnut Street St. Louis, Missouri 63101 436-6757 APPENDIX —_—* APPENDIX A United States Court of Appeals For the Eighth Circuit No. 76-1092 David Radford Murphy, : Plaintiff-Appellant, Appeal from the United States Dis- . trict Court for the Eastern District of L & J Press C tion, ' ress Corporation met Defendant-Appellee. | Submitted: February 14, 1977 Filed: June 16, 1977 Before Clark, Associate Justice,* Heaney and Webster, Circuit Judges. Mr. Justice Clark. This action was filed by appellant David Radford Murphy in the Circuit Court of the City of St. Louis against appellee L & J Press Corporation (L & J) for personal injuries sustained while operating a punch press manufactured by the latter. L & J removed the action to the United States District Court *Associate Justice Tom C. Clark, United States Supreme Court (Ret.), sitting by designation. —. for the Eastern District of Missouri on diversity grounds pur- suant to 28 U.S.C. § 1441(a). Murphy's complaint alleged that: (1) on strict liability prin- ciples he had suffered $1,400,000 damages as the result of the amputation of four fingers of his right hand while operating a punch press manufactured by L & J; (2) he had suffered $5,- 000,000 damages for the failure of L & J to provide a guard at the point of operation which would have prevented his in- juries; and (3) that L & J failed to post any warning of the danger so that Murphy might know of its imminence. The case was tried to the jury on the strict liability theory, after which the jury found for L & J, awarding Murphy nothing. The District Court entered judgment accordingly, and Murphy has appealed, briefing some fifteen claims of error and listing fifteen “other errors” for this court’s consideration. We have carefully reviewed each of the claims and agree with Murphy that the case must be reversed and remanded for a new trial for reasons we will set forth below. I Murphy had worked for the Hart Manufacturing Company (Hart)' for some two weeks prior to being assigned to the punch press. He was given a cursory explanation of the press opera- tion and had been using it for only two hours when his injury occurred. The press itself was an open back, inclinable, multifunctional mechanical clutch press of 60-ton rating. It was designed for automatic, semi-automatic or manual operation. L & J neither supplied a guard at the point of operation nor attached any kind of cautionary notice to the press warning of the danger to the operator when used without a point of operation guard. ' Hart is not a party to this action. —_< The function of the press is to supply power in bringing two halves of a die together. The top half of the die is attached to the ram of the press, while the lower half is attached to the base plate. When the clutch is activated, the ram descends with 60 tons of force bringing the two die halves into contact, thereby shaping the metal stock between them. The ram then ascends to its original position and when, as here, it is set for a single stroke, it remans raised until the operator again activates the clutch. On May 1, 1972, Murphy was manually feeding the press, placing a blank piece of metal stock in the space between the two halves of the die with his hand. He was also manually ex- tracting the formed metal by lifting it from the space between the die halves with his hand. He had not been schooled in the inherent dangers of the press nor warned thereof; neither was he furnished any tongs to place and remove the metal stock when ready, although testimony indicates he was aware his hand could be severed if it was caught under the ram. Some two hours into the shift, Murphy was reaching for the piece of metal on the die when the ram came down and hit his hand, went all the way back up, came half way down again, shook, and went back up. The four fingers of his right hand were severed, leaving only his thumb and two short stubs. II Missouri follows the strict liability provisions of § 402A of the Restatement of Torts 2d as adopted in Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362 (Mo. 1969), and it was within these parameters that Murphy brought his action. The parties quickly agreed upon a number of points, includ- ing the following: (1) that the safety of the operator was main- tained by manually depressing a foot pedal on the press; (2) 2 No dies were furnished with the press. ar Se ee that the press was highly dangerous without a guard preventing the operator’s hands from entering the point of operation (the area between the die halves); (3) that proper guarding would insure complete safety, indeed that Murphy’s injuries would not have occurred had the press been properly guarded; and (4) that the universal custom of the punch press industry has been to rely solely upon the purchaser and user of the machine to supply the guarding either by making his own guards, hir- ing another company to make the guards, or purchasing pre- fabricated guards from other sources. With the parties in agreement on these points, the evidence presented at trial focused on two basic issues: was it feasible for L & J to provide a guard at the point of operation; and, if not feasible, did L & J have a duty to warn users of the dan- gers of the press? Murphy’s evidence consisted primarily of the expert testi- mony of one expert witness who had examined the press and found three design defects: (1) the lack of a point of operation guard or other protective device to keep one’s hands from entering the ram area during the descent of the ram; (2) no provision for protective control of the foot pedal; and (3) fail- ure to provide adequate warning signs or instructional infor- mation to the operator. Murphy also called the jury’s attention to point of operation guards illustrated in the 1948 and 1960 American National Standards Institute (ANSI) B-11 codes as a means of showing the types of guards available at the time the press was manufactured in 1950. L & J’s case also relied heavily on expert testimony, most of which centered around two propositions. The first was that by placing an adjustable point of operation guard on the ma- chine when manufactured, the functions of the press would be unduly limited in the dies which could be attached, thereby restricting the number of press operations. The second was that the press, as manufactured, was not dangerous and did not - a ie scene — = become so until a method of feeding as well as dies were added by the purchaser or user. Further testimony indicated that 95% of L & J’s presses are sold through dealers, as was this one, and that L & J has no contact whatever with the ultimate press user im those instances. Over Murphy's objection, counsel for L & J was allowed to introduce the 1971 ANSI code as well as Occupational Safety and Health Act (OSHA) regulation 1910.217 into evi- dence. The former placed the duty to guard the point of op- eration on the purchaser or user of the machine, and the latter, which was admittedly modeled after the ANSI code, placed the duty to guard on the purchaser or user as well. During closing argument, counsel for L & J took the ANSI code and OSHA regulations and made the following statements: . . I'm going to lay right here in the table [counsel laid 1971 ANSI B11.1 and OSHA Regulation 1910.217 on the counsel table closest to the- jury] my evidence on who—who has the responsibility of guarding at the point of operation, and this is for you to determine what the preponderance of the evidence is. Just because this book says so don’t mean you have to find that way. See? So, you use that as evidence. And I will ask you to wait and watch what Mr. Igoe puts on the table as evidence . . . So, now, we have the '71 standards, OSHA is just get- ting off the ground. God love our government, we don't want anything different, and we know that in our demo- cratic processes things take a little time, we've got to get our house in order, we've got to set up committees, we've got to set up reinforcing agencies, but one thing has been done, and this you may rest assured, we now have on the statute books from our United States Congress’s law that says, “Mr. Dudley, you're right, and what you have been doing throughout your years we're now going to back you up and we're going to put the power of the United — * States Government and the power of the United States District Court behind you, and we are going to do some- thing about it, and they have done something about it in the form of a statute, part of which reads: “It shall be the responsibility of the employer to pro- vide and ensure the usage of point-of-operation guards or properly applied and adjusted point-of-operation de- vices On every operation performed on a mechanical press.” And I submit to you, ladies and gentlemen of the jury, that you heard what I had to say from the statute. We know why the Congress is concerned, and they set it forth in their Act, Public Law 91-596, which I read to you during the case, and it starts off by saying what they are going to do to encourage employers and employees in their efforts to reduce the number of occupational and safety health hazards. They go on further, and I'm not going to read all of the inbetween, but you have heard the important point, and you also heard that Section 5 talks about the employer furnishing the employee a safe place to work, and, by gum, if he don’t do it, he’s going to be hauled before this court and he’s going to be fined up to $10,000 for each violation. Following closing arguments, the jury retired to deliberate. Some six and one-half hours later, they asked for copies of the ANSI and OSHA materials, which the trial court allowed over Murphy’s objection. A short time later, the jury returned a verdict against Murphy. Il The Restatement of Torts 2d § 402A provides in pertinent part: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his — property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it was sold. There is no dispute as to L & J’s status as a seller,* nor is there any claim that the press was not in substantially the same condi- tion as when manufactured at the time Murphy sustained his injuries. Thus it would follow that L & J is liable to Murphy if the press constituted a “defective condition unreasonably dan- gerous” to Murphy. It is well settled law in Missouri that failure to provide a safety factor in a machine's design (here a point of operation guard or some other protective device) can constitute a “defec- tive condition,” Keener, supra; Higgins v. Paul Hardeman, Inc., 457 S.W.2d 943, 947 (Mo.App. 1970), and the jury could certainly so find. Moreover, as Murphy had been working on the press for the first time and for less than two hours at the time of his injuries, the jury could also find that under those circumstances, the punch press without proper guarding was unreasonably dangerous. Higgins, supra at 947. However, these questions, which lead to the feasibility of L & J providing proper guarding, were transformed into a question of “who had the duty to guard?” through L & J’s introduction of the ANSI and OSHA materials into evidence, statements concerning those ma- terials during closing argument by L & J’s counsel and the perusal of the materials by the jury during its deliberations. 3 Restatement of Torts 2d § 402A, Comment (f) provides: The rule stated in this Section applies to any person engaged in the busi- ness of selling products for use or consumption. It therefore applies to any manufacturer of such a product. . . —_* These actions constitute reversible error and require that the case be remanded to the District Court for a new trial. L & J claims that the ANSI code and OSHA regulations were offered and admitted for three purposes: (1) to rebut erroneous impressions made on the jury from Murphy's use of 1948 and 1960 ANSI standards; (2) to explain the consensus of opinion supporting the design alternative of leaving the guarding to the purchaser or user; and (3) to demonstrate that L & J was com- plying with the “government-approved custom of industry” to refute Murphy's allegation that L & ! was completely indifferent to or in conscious disregard of the safety of others. In light of the facts as reflected in the record, we find these arguments unpersuasive. It is clear that Murphy's use of the 1948 and 1960 ANSI codes was to illustrate the availability of point of operation guards at the time the press was manufactured in 1960. He read no section regarding who had the duty to guard, he did not state that L & J's presses were defective for failure to use those guards illustrated in the manual, but directed the jury's attention to the fact that adjustable point of operation guards were avail- able. The use of these standards for this limited purpose is clearly admissible under Rule 402 of the Federal Rules of Evi- dence, as it relates directly to the feasibility question, i.e., could L & J have feasibly included some form of protective device on the press. L & J's argument that the ANSI standards and OSHA regu- lations reflected a consensus of opinion supporting their “design alternative” of leaving the guarding to the purchaser or user must also fail. First of all, it has only the most tenuous, if any, relev- ance to the question of feasibility. These materials go to who Should guard rather than whether L & J could guard the point of operation. Second, even if arguably relevant. the impact of these materials on the jury is certainly far more prejudicial than ARE CE tte ee — * we probative and should have been excluded on this ground. Finally, neither the ANSI standards nor the OSHA regulations were in effect at the time the press was manufactured in 1960. Indeed, the ANSI code was not adopted until 1971, while the OSHA regulations were not even in effect at the time Murphy's injuries were sustained. L & J’s final argument, that it was trying to demonstrate com- pliance with the government-approved industry custom is likewise without merit. This claim relates directly to the “consensus of Opinion” issue discussed above and is unpersuasive for the same reasons. The prejudice against Murphy's case was multiplied during closing argument when counsel for L & J stated: I'm going to lay right here on the table my evidence [the ANSI and OSHA materials) of who—who has the responsibility of guarding at the point of operation. (em- phasis supplied.) Although L & J contends that the following statement, “Just because this book says so don’t mean you have to find that way” eliminated any problem the “my evidence” sentence might have created, we are not of that opinion, because shortly there- after, counsel for L & J went on to argue that Congress passed a law stating employers shall provide point of operation guards and that the power of the United States Government and the United States District Courts were now behind the ANSI code in the form of The Occupational Safety and Health Act. Mur- phy’s objections to the “my evidence” statement as well as to the “United States Government” statement were both overruled. L & J contends that the following instruction given during closing argument: I'll sustain the objection and I will tell Mr. Igoe, and in the event Mr. Amelung might do likewise, | will instruct — A-10 — the jury on the law and the jury will listen to those instructions, and what the lawyers say, in any event, is merely argument. as well as this closing instruction: Opening statements and closing arguments of the attor- neys are intended to help you in understanding the evi- dence and applying the law, but they are not evidence. have corrected any errors. In view of the highly prejudicial and erroneous statements of L & J's counsel. we find these in- structions inadequate. Counsel first led the jury down a blind alley by stating that the ANSI and OSHA materials were “[his| evidence of .. . who has the duty to guard.” This injected a false issue of fact into the proceedings, i.c., who should guard as opposed to could L & J guard. White v. Gallion, 532 $.W.2d 769 (Mo. App. 1976); Will v. Gilliam, 439 $.W.2d 498 (Mo. 1969). Moreover, Congress obviously did not pass the OSHA regu- lation pertaining to employers providing protective guarding on presses, as counsel led the jury to believe, but passed the Act by which OSHA was authorized to promulgate such regu- lations. The United States District Court has nothing to do with OSHA enforcement proceedings—they come to the United States Court of Appeals for review from the Occupational Safety and Health Review Commission. Finally, we note that the trial court’s instructions both during oral argument and in clos- ing did nothing to rectify L & J's argument that the ANSI and OSHA materials were “[L & J’s| evidence of . . . who has the duty to guard.” As a final blow to Murphy's case, the trial court allowed, over Murphy's objection, a jury request for the ANSI code and OSHA regulations. The jury had been out for several hours before asking for these materials, but shortly after gain- ing access to them, returned a verdict for L & J. We find it — A-ll — somewhat more than coincidental that a verdict was reached so quickly after receiving these materials. In light of all that has been discussed above, we are of the view that the jury was unduly influenced by these materials. IV In reversing this case and remanding for a new trial, it might be well for us to point out that we are not, in effect or in spirit, directing a verdict for Murphy. We make no findings pertaining to the punch press as manufactured insofar as whether it is free of defects or defective, whether it is unrea- sonably dangerous or not. What we do find is that the introduction of the ANSI code and OSHA regulations so seriously altered the course of the trial that the central issue of “feasibility” was lost and the improper issue of “who had the duty to guard” was tried. All that we expect on remand is that Murphy have the opportunity to fairly and impartially present his case, that L & J be awarded the same opportunity and that the issues remain clear. Reversed and Remanded. A true copy. Attest: Clerk, U.S. Court of Appeals, Eighth Circuit. —_—* = APPENDIX B United States Court of Appeals For the Eighth Circuit David Radford Murphy, Plaintiff-Appellant, VS. Cause No.: 76-1092 L & J Press Corporation, Defendant-Appellee. | AFFIDVAIT OF OLIVE L. POOLE Comes now Olive L. Poole, and on her oath states: 1. I am official Court reporter for Division 4 of the United States District Court, Eastern District of Missouri and I was present and recorded stenographically all testimony and pro- ceedings in the cause known as David Radford Murphy v. L & J Press Corporation, cause number 74-834 C (4). 2. Following conclusion of the trial in the United States Dis- trict Court I was requested by Vincent Igoe, attorney for plain- uff, Murphy, to prepare a complete transcript of proceedings in the case of Murphy v. L & J Press Corporation. 3. At the time I received the order for the transcript I ac- cepted a deposit toward payment of my fees. 4. I transcribed my notes and completed the transcript of proceedings which constituted 1,193 pages. 5. I delivered the original copy of the transcript to Igoe & Igoe and informed them that a balance was still owed on my fees for preparation of the transcript. — A-13 — 6. I contacted the offices of Igoe & Igoe at least twice to remind them that my fees were not paid. 7. I never filed the Court’s copy of the transcript of proceed- ings with the U.S. District Clerk because my fees were not paid by Igoe & Igoe. 8. Counsel for defendant, James J. Amelung, ordered a copy of the transcript, paid for his copy and a complete copy was delivered to him. 9. To the best of my knowledge no part of the transcript was filed with the U.S. District Clerk nor with the United States Court of Appeals, Eighth Circuit. ‘s/ Olive L. Poole—Court reporter State of Missouri City of St. Louis Before me, a notary public, appeared Olive L. Poole, and in my presence, she placed her signature on this affidavit, having first sworn that the information contained therein was true and correct to the best of her knowledge and belief. Act performed 6-22-77. /s/ Robert A. Wulff, Notary Public Commissioned within and for the County of St. Louis, Missouri which adjoins City of St. Louis, where this act was performed. My commission expires: June 16, 1980. om (0b on APPENDIX C COVER SHEET AND INDEX FROM “DESIGNATED RECORD” PRODUCED FROM JUDICIAL CHAMBERS United States Court of Appeals for the Eighth Circuit David Radford Murphy, ) Plaintiff-Appellant, vs. 865/4 Paid File No. 76-1092 L & J Press Corp., Defendant-Appellee. } INDEX Page Filed No. Answer to amended complaint .......... 7/16/75 l Plaintiff's second amended complaint .... 8/18/75 7 Answer of defendant L & J Press Corp. to Count V of Plaintiff's second amended PPR et Ban te 8/29/75 16 Supplemental answers to interrogatories .. 9/22/75 17 rer ee oe 10/18/75 61 Motion of plaintiff for directed verdict on the issue of liability at the close of all the evidence and ruling thereon ......... 11/ 3/75 63 — A-15 — Motion of plaintiff for judgment notwith- standing the verdict on the issue of li- ability and for a new trial on the issue of actual and punitive damages or, in the alternative, motion for new trial ...... of rere rrr rT Tyree Issues to be presented on appeal and record needed in support thereof ............ Appellee’s designation of record ........ Clerk’s docket entries ................ eS ee ware Filed 11/14/75 12/30/75 9/24/76 1/12/77 Page No. — A-16 — APPENDIX D In the United States Court of Appeals For the Eighth Circuit David Radford Murphy, ) Plaintiff-Appellant> VS. . Cause No. 76-1092. L & J Press Corporation, Defendant-Appellee. | MOTION OF APPELLEE TO WITHDRAW OPINION AND DISMISS APPEAL Comes now Appellee L & J Press Corporation and, having now discovered that the Court of Appeals heard and decided this case without the benefit of the substantial portion of the trial transcript designated as a part of the records, and having now discovered that the failure of the Court of Appeals to receive these portions of the transcript was a direct result of Appel- lant’s violaticn of Appellant's duties under Rule 10 (b), Federal Rules of Appellate Procedure, now moves the Court to with- draw its opinion filed June 16, 1977 and to dismiss the Appeal under Rule 13, Rules of the United States Court of Appeals for the Eighth Circuit. For its motion Appellee states: 1. As demonstrated by the affidavit of court reporter, Olive L. Poole, filed with the Court and marked “Appellee’s Ex- hibit 1”, Counsel for Plaintiff-Appellant ordered from the Court reporter a complete copy of the transcript in this case. —<; 2. As demonstrated by the minute entries of this Court, on February 23, 1976 this Court entered its order allowing Appeal on designated records pursuant to Local Rule 11. 3. As demonstrated by the minute entries of this Court, ap- pellant sought and obtained six separate extensions of time for filing brief and designation of records excusing appellant's delay on the grounds that the transcript of trial proceedings had not as yet been prepared. 4. As demonstated by the minute entries of this Court, on October 15th the parties were granted permission to file designa- tion of record ten days after the filing of briefs for Appellecs. 5. As demonstrated by the minutes of the United States Dis- trict Court, a certified copy of which has been hied with this Court, on September 24, 1976 Appellants filed their document entitled “Issues to be Presented on Appeal and Records Needed in Support Thereof.” 6. As demonstrated by the minutes of the United States Dis- trict Court, certified copy of which has been filed, on January 12, 1977 Defendant-Appellee filed his designation of record on appeal including therein designation of substantial portions of the trial transcript, and a copy of Appellee’s designation of record was included in the materials forwarded by the U.S. District Clerk to the Court of Appeals. 7. As demonstrated by the minutes of the United States Dis- trict Court, a certified copy of which has been filed, on January 18, 1977 the U.S. District Clerk forwarded to the United States Court of Appeals “Original documents paged and indexed in triplicate, along with depositions.” 8. As demonstrated by the minutes of this Court, on Janu- ary 21, 1977 those documents were accepted and filed as desig- —S nated records, the minute entry reading “received original and two copies designated records; depositions of Mathias and Kemp.” 9. As demonstrated by the affidavit of Court reporter Olive L. Poole (attached hereto and marked Appellee’s Exhibit 1), the transcript of trial proceedings was never filed with the U.S. District Clerk because Counsel for Appellants failed to pay the reporter the balance due on her fees. 10. Pursuant to Rule 10, Federal Rules of Appellate Pro- cedure, Counsel for Appellant was responsible for the filing of the transcript with the U.S. District Clerk, having ordered a complete copy, and Counsel for Appellant was further bound by the provision of the Rule which states “at the time of order- ing, a party must make satisfactory arrangements with the re- porter for payment of the cost of the transcript.” 11. Counsel for Appellee, relying upon the minute entry of this Court dated January 21, 1977, argued and submitted this Appeal believing that the Court would have the benefit of the substantial portions of the transcript designated by Appellees as a part of the record pursuant to Local Rule 11, and pursuant to Rule 30 (b), Federal Rules of Appellate Procedure. 12. Appellee was denied a fair hearing and was denied con- sideration by this Court of the portion of the records designated by Appellee, and in this situation Appellee has been denied its right to due process as a direct result of the disregard by Counsel for Appellants of his duty under the Federal Rules of Appellate Procedure. 13. Pursuant to Local Rule 13 and pursuant to the Rules of Appellate Procedure, this Court is impowered to dismiss the Appeal. Wherefore, Appellee prays for an order of the Court with- drawing its opinion entered June 16, 1977 and dismissing the — A-19 — Appeal for failure of Appellant to comply with Rule 10, Fed- eral Rules of Appellate Procedure. s/ JAMES J. AMELUNG JAMES J. AMELUNG AMELUNG, WULFF & WILLENBROCK ‘s/ STEPHEN D. HOYNE STEPHEN D. HOYNE AMELUNG, WULFF & WILLENBROCK 16th Floor International Building 722 Chestnut Street St. Louis, Missouri 63101 436-6757 Copy of the foregoing sent by postpaid mail to Vincent M. Igoe, Igoe and Igoe, Suite 800, 722 Chestnut Street, St. Louis, Missouri 63101 and Ray E. White, Jr., 7733 Forsyth Boule- vard, Suite 950, Clayton, Missouri 63105, this 28th day of June, 1977. A copy also sent to Ralph Kleinschmit, Co-Counsel for Defendant-Appellee, 314 North Broadway, St. Louis, Missouri 63102. — A-20 — APPENDIX E In the United States Court of Appeals For the Eighth Circuit David Radford Murphy, Plaintiff-Appellant, VS. ‘.. Cause No. 76-1092. L & J Press Corporation, Defendant-Appellee. ) MOTION OF APPELLEE FOR A REHEARING OR TRANSFER TO THE COURT EN BANC, OR ALTERNA- TIVE MOTION TO MODIFY OPINION TO CONFORM TO THE DESIGNATED RECORD ON APPEAL Appellee’s Motion for a Rehearing or Transfer to the Court En Banc Comes now the Appellee and for grounds for rehearing or transfer to the En Banc states: 1. The Court erroneously and prejudicially violated its own rules by deciding this Appeal without the designated portions of the transcript. 2. Appellee was deprived in its constitutional right to a fair and impartial hearing on this appeal when the Court ruled with- out the designated portions of the transcript. 3. Appellee was denied its constitutional right to due process in this Appeal when the Court ruled without the designated Record on Appeal. —_—< 4. The issues in this extended trial and complicated appeal were such that due process required a Record on Appeal along with a designated transcript, for a fair and impartial decision from this Court. 5. The Court by its minute entries misled appellee into the false belief that the designated record on appeal had been filed; thereby causing appellee to incorrectly assume that the desig- nated record would be before the Three Judge Panel hearing this case. 6. The Court misled Appellee further by refusing, neglecting and omitting to inform Appellee that the Appeal was being decided without the designated Record on Appeal. 7. This Court further prejudiced the opinion by failing, omit- ting and refusing to inform Counsel for Appellee at time of oral argument that the designated Record on Appeal had not yet been filed, contrary to the Courts own minute entry stating that it was in fact filed. 8. That at no time prior to the filing of its opinion did this Court inform Appellee that the Appeal was being decided with- out the designated Record on Appeal. 9. At no time prior to the June 16, 1977 filing of this Court’s opinion did Appellee learn that the designated Record on Appeal had not been filed, and Appellee learned only then as a result of its effort to try to learn why the Court’s opinion could be so contrary to the designated Record on Appeal, which Appellee assumed was spread before the Court. 10. The Court’s opinion fails to discuss the age of the press, the year of manufacturing, the state of the art at the time of manufacture, and fails to discuss the evidence that distinguishes the feasibility of guarding a multifunctional and unifunctional press. A fair review of these issues could not be had without the designated Record on Appeal. — A-22 — 11. It is error and pure non-judicious folly for the Court in its opinion to state (Page Two): “We have carefully reviewed each of the claims and agree with Murphy that the case must be reversed and remanded . . . .” when the designated Record on Appeal was essential to a careful review of each of the points raised by Appellant. 12. The Court ignored the issue of a directed verdict and the issue of contributory fault on the part of plaintiff as a matter of law in spite of the Courts own observation (Page Three): “(tes- timony indicates he was aware his hand could be severed if it was caught under the ram”. If the Court had read the Record then a favorable ruling would have been made in favor of Ap- pellee on these issues on the Appeal. 13. The Court in its opinion (Page Four) makes mention of the fact that Appellee agrees “that proper guarding would insure complete safety . . .” and yet the Court neglects to put this statement in the context of Appellee’s laborious efforts through- out the entire trial to show that each multifunctional operation of this multifunctional press must be considered as a separate guarding problem and since there is no limit to the number of dies that could be made for this press then the jury could con- sider the impossibility of the manufacturer to “properly guard” so as to “insure complete safety” and that such safety (100 per- cent safety) being the desired attainable safety, can only be determined after the selection by the user of a die design and method of feeding. Failure of the Court to recognize this legal position of Appellee resulted in the prejudicial misunderstand- ing by the Couri as to why “the universal custom of the punch press industry has been to rely solely upon the purchaser and user of the machine to supply the guarding either by making his own guards, hiring another company to make the guards or purchase pre-fabricated guards from other sources.” (Page Four) A reading of the record could have permitted the Court to avoid the prejudicial rulings based upon Appellees Conces- sions of fact. — A-23 — 14. The Court's opinion (Page Four and Eight) finding that plaintiff's expert calle’! the jury's attention to point of operation guards illustrated in the 1948 and 1960 ANSI B-1! Codes com- pletely ignores the devastating cross-examination of that expert resulting in the piece-by-piece demonstration to the jury that there is no universal guard (Transcript 206-681) and further setting the stage for Appellee’s experts (Dudley and Reed) to testify that an inadequate guarding system is a “booby trap”. The statement by the Court referred to above as well as the Court's statement at the top of Page Nine relative to the feasi- bility questions indicates that the Court did not have a grasp of the issues presented by the plaintiff's introduction of the 1948 and 1960 ANSI Codes and the Court should have had the designated Record on Appeal to completely inform itself of the evidence on this point. At this point it is extremely im- portant and crucial to emphasize the error of the Court in failing to obtain and read and understand the opening state- ments of plaintiff and defendant. The learned trial judge had a firm grasp of the case and a clear understanding of the issues before the testimony began. If this Court had read the opening Statements which were included in the Appellee’s designation of the Record then this Court would not have misunderstood the so called “concession” made by Appellee. 15. The Court erroneously condemns the use of the words “responsibility of guarding” (Page Five) when a reading of the entire record and an understanding of the issues tried to this jury causes no doubt that the learned trial judge and the jury and the plaintiff knew that Appellee was attempting to prove to the satisfaction of the jury that “100 percent feasibility of guarding” was attainable at the site of use of this press and the placing of an inadequate guard on the machine at the time of manufacture would be an act of irresponsibility. At the point referred to by the Court on Page Five of its opinion the argu- ment of Counsel for Appellee referring to “responsibility of guarding” is synonymous with the word “feasibility” as with the —s words “feasibility of guarding” and both expressions would mean the same thing to this jury and to the trial judge and to the plaintiff and to all of the parties knowledgable in the case and who were in a position to review the term “responsibility of guarding” in the light of all of the evidence presented to the jury and that such term was used in connection with Appellee’s contention that 100 percent Safety cannot be achieved by the manufacturer but can be attained only by the user and thus the feasibility (responsibility) of reaching that goal of 100 per- cent safety lies with the user. This Court had only to read the opening statements of Appellee to know that the jury was told at the very outset that “feasibility” was the issue. The jury knew this. The Court knew it. The plaintiff knew it. The failure of this Court to read the Record caused this Court to miss the point of Appeliee’s defense that it was not feasible to attach responsibility on the manufacturer in this case. It is in this context that the word “responsibility” was used and this Court erred in not reading the designated Record on Appeal to inform itself as to the trial positions of the parties and to ascertain that the Trial Court fully understood the issues and correctly conducted the trial of those issues to the jury. If this Court had read the Record the Court would have understood Appellee’s theory of the case and would have avoided the erroneous con- demnation of Appellee’s argument. 16. The Court observed (Page Six) that the jury returned a verdict shortly after receiving copies of the ANSI and OSHA materials and speculates as to the reasons why the jury wanted this material. No where does this Court observe that during the trial Counsel for Plaintiff had intimated to the jury that the 1948 and 1960 ANSI Code did not require the employer to guard the point of operation of the punch press. This intimation was put forth in the direct testimony of plaintiff's expert witness Joseph Movshin, which the Court on Appeal did not read. The attempt of plaintiff to erroneously mislead the jury was met by defendant (Appellee) through its expert (Dudley) who told —< the jury that he was familiar with the ANSI Standards, having worked on the committees writing the standards and presently acting as Chairman of the 1971 ANSI B 11 Committee and thereafter told the jury that it was always the position of the ANSI standards (including the 1948 and 1960 Codes) that the employer should guard the point of operation and this was specifically spelled out in subsequent ANSI B 11 Codes and in the current 1971 B11-1 Code as well as the OSHA Standard on the subjects. The jury could just as easily have wanted to check the credibility of Counsel for Plaintiff and there was no preju- dicial error shown in letting the jury see with their own eyes what had been read to them during the trial and in permitting them to decide on this trial issue involving the credibility of the requirements of the ANSI Codes and the erroneous opinion of this Court is further compounded when this Court failed to ob- serve, note, or give attention to the numerous offers of the Trial Court during the trial to allow Counsel for Plaintiff to offer ap- propriate instructions limiting the role of the ANSI or OSHA Standards in this case. 17. The Court erroneously ruled (Page Eight) that admission of the ANSI and OSHA Standards were reversible error when there was an issue of punitive damages in the case. The state of the art; the issue of feasibility; the opinions of the experts in the Punch Press Industry comprising the experts who drafted all the ANSI and OSHA Standards, past and present, all were admissi- ble to permit the jury to fairly consider the issue of punitive damages if plaintiff had obtained a verdict. What plaintiff could have used as a sword the defendant should be able to use as a shield. A reading of the Record on Appeal would have made it obvious to the Court that the plaintiff's claim for punitive damages pervaded the entire trial and was an integral part of the decision of the trial Court to allow evidence of the net worth of defendant. 18. The Court erroneously decided (Page Eight, Twelve) that the issue of feasibility was transformed into the question of — who had the duty to guard. The failure of this Court to iead the designated transcript and especially the opening statements results in the failure of this Court to possess the understanding that the jury possessed as to the issues in the case and the pur- pose of the ANSI and OSHA Standards and results in an er- roneously reversal for a new trial. 19. The Court's opinion (Page Eight) erroncously attempts to summarize the motives for Appellee’s use of the ANSI and OSHA Standards when a complete understanding of the issues and the evidence should have caused the Court to conclude that the first and primary and admissible reason for the use of the ANSI and OSHA Standards was to demonstrate that all of the knowledgeable people in the Punch Press Industry agree that only the user or employer can achieve 100 percent safety with guarding at the point of operation. The failure of the Court to recognize that there was no evidence of a universal guard that would be 100 percent effective on this multifunctional press leads the Court to the immaterial conclusion that “adjustable point of operation guards were available”. (Page Eight) 20. The Court erroneously failed to recognize the probative value of the ANSI and OSHA Standards. (Page Nine) 21. For the Court to observe that the 1971 ANSI Code and the OSHA Regulations “were not even in effect at the time Murphy's injuries were sustained” (Page Nine) fails to recog- nize the proposition that post occurrence studies and research could very well be utilized to support prior acts. The Court also erred in declaring “highly prejudicial” (Page Ten) the state- ments of Counsel for Appellee in closing argument relative to the ANSI and OSHA evidence and finding the quoted instructions inadequate (Page Ten) when at the same time the Court in its opinion ignores, or did not inform itself with a designated Record on Appeal, that the Trial Court had offered Counsel for Plain- tiff an opportunity to submit clarifying instructions but plaintiff declined. — 22. The Court erroneously declared certain closing argu- ment comments of Counsel “highly prejudicial” (Page Ten) when the Court failed to read the designated Record on Appeal that would have permitted it to understand the case in the context the words were intended to convey. A reading of Ap- pellee’s opening statement alone would have avoided this er- roneously finding by the Court in its opinion. The same applies to the erroneously comment by the Court (Page Ten) that Coun- sel first led the jury down a blind alley by stating that the ANSI and OSHA materials were “(his) evidence of . . . who had the duty to guard.” The Court again erred in failing to understand the context the words were intended to convey. 23. The Court erroneously concluded (Page Eleven) that the jury was “unduly influenced” by the ANSI and OSHA materials when such materials were proper for the jury to consider under all of the other evidence and issues in the case and any possi- bility of undue influence could have been corrected by an instruc- tion which plaintiff refused to request. 24. The Court in concluding its opinion (Page Twelve) re- mands for plaintiff and defendant to have a fair and impartial presentation of their case and yet the failure of the Court to utilize a designated Record on Appeal of this lengthy trial and complicated Appeal belies its own mandate and compels a re- hearing with the proper availability of a designated Record on Appeal or transfer to the Court En Banc. Wherefore the premises considered the Appellee moves the Court for a rehearing or for transfer to the Court En Banc. Alternative Motion of Appellee to Modify Opinion to Conform to the Designated Record on Appeal Comes now Appellee and moves the Court to Modify its Opinion to Conform to the Designated Record on Appeal and for grounds states: — A-28 — 1. The Court should obtain the Record on Appeal and the designated transcript and after review of same modify its present opinion to conform to the Record by affirming the jury verdict. 2. The Court should find contributory fault on the part of plaintiff as a matter of law and affirm the jury verdict. 3. The Court should find that plaintiff did not make a sub- missible case and should affirm the jury verdict. 4. The Court should modify its opinion and state that its decision was reached and an opinion filed without having a designated Record on Appeal. 5. The Court should modify its opinion by disclosing in the opinion that the Appellee had every reason to believe that this Court would use the designated Record on Appeal but that Ap- pellee was not informed of the absence of a designated Record of Appeal and was allowed to argue the case without being told that a designated Record on Appeal was not filed even though the minutes of this Court indicate that the designated Record on Appeal was filed. Wherefore the premises considered the Appellee moves the Court to modify its opinion on the grounds aforesaid. JAMES J. AMELUNG AMELUNG, WULFF & WILLENBROCK STEPHEN D. HOYNE AMELUNG, WULFF & WILLENBROCK Attorneys for Defendant-Appellee 16th Floor International Building 722 Chestnut Street St. Louis. Missouri 63101 436-6757 —_< A copy of the foregoing motion sent by postpaid mail to Vincent M. Igoe, Igoe and Igoe, Suite 800, 722 Chestnut Street, St. Louis, Missouri, 63101 and Ray E. White, Jr., 7733 Forsyth, Suite 950, Clayton, Missouri 63105, this 28th day of June, 1977. Copy also sent to Ralph Kleinschmit, Co-Counsel for Defendant-Appellee, 314 North Broadway, St. Louis, Mis- souri 63102. — A-30 — APPENDIX F United States Court of Appeals for the Eighth Circuit 76-1092 September Term, 1976 David Radford Murphy, ) Appellant, | Appeal from the United VS. ; States District Court for the Eastern District of L & J Press Corporation, Missouri. Appellee. | Appellee’s motion to withdraw opinion and dismiss this ap- peal has been considered by the court and is denied in all respects. August 1, 1977 — A-31] — APPENDIX G United States Court of Appeals for the Eighth Circuit Robert C. Tucker, Clerk St. Louis, Mo. 63101 August 11, 1977 Mr. Vincent M. Igoe Mr. Leonard P. Cervantes Igoe & Igoe 800 Intl. Bldg. Suite 800—722 Chestnut St. 722 Chestnut St. St. Louis, Mo. 63101 St. Louis. Mo. 63101 Messrs. James J. Amelung Mr. Ralph C. Kleinschmidt & Stephen D. Hoyne Boatmen’s Bank Bldg. Amelung, Wulff & 314 N. Broadway Willenbrock St. Louis, Mo. 63102 722 Chestnut St. St. Louis, Mo. 63101 Re: No. 76-1092. David Radford Murphy v. L & J Press Corp. Dear Sirs: The mandate of this Court in the above case is being issued today and sent to the Clerk of the United States District Court at St. Louis, Mo. Very truly yours, ROBERT C. TUCKER, Clerk eh P. S. When the necessary costs bills are received from counsel for appellant, we will enter an appropriate order taxing costs in favor of appellant in the above case. —~ APPENDIX H United States Court of Appeals for the Eighth Circuit 76-1092 September Term, 1976 David Radford Murphy, ) Appellant, | Appeal from the United VS. States District Court for the Eastern District of L & J Press Corporation, Missouri. Appellee. | The Court having considered petition for rehearing en banc filed by counsel for appellee and, being fully advised in the premises, it is ordered that the petition for rehearing en banc be, and it is hereby, denied. Considering the petition for rehearing en banc as a petition for rehearing, it is ordered that the petition for rehearing also be, and it is hereby, denied. August 15, 1977 — A-33 — APPENDIX I United States District Court, Eastern District of Missouri, Eastern Division David Radford Murphy, , Plaintiff, | No. 74-834 C (3) L & J Press Corporation, Defendant. MEMORANDUM AND ORDER (Filed Oct. 25, 1977) This matter is before the Court upon defendant's objections to plaintiff's bill of costs. Defendant also seeks to strike the same. On August 12, 1977, the Court of Appeals for the Eighth Circuit reversed the judgment herein and remanded this cause for a new trial. On August 18, 1977, the Court ordered that defendant pay the following costs of plaintiff: Clerks docketing fee $ 50.00 Costs of printing appellant's brief and reply brief $ 91.44 On September 8, 1977, plaintiff submitted a bill of costs which included the following: Fees of the court reporter for all or any part of the transcript necessarily obtained for use in the case $1,873.00 Fees and disbursements for printing $ 99.38 Costs as shown on Mandate of Court of Appeals $ 141.44 Appeals Bond $ 20.00 —< The record herein indicates that the court reporter was not paid for the costs of the transcript at any time prior to the de- cision of the Court of Appeals. Said decision was rendered without benefit of a transcript. Thus, this Court is unable to conclude that the fees of the court reporter were for the tran- script “necessarily obtained for use in the case”. Plaintiff has failed to provide support for the costs listed for fees and dis- bursements for printing. If said costs were incurred in the print- ing of the appellate briefs, such costs are already included in the costs awarded pursuant to the mandate of the Court of Appeals. Similarly, plaintiff has failed to support the claimed cost of $20.00 for an appeals bond. Additionally, the Court notes that Rule X, Rules of the United States District Court for the Eastern Judicial District of Mis- souri, provides: Within ten days after entry of a final judgment or decree, the party recovering costs shail file in the office of the Clerk of this court a verified bill of costs . . . [emphasis added}. Thus, the bill of costs filed herein was untimely. Cf., Dickinson Supply Incorporated v. Montana-Dakota Utilities Co., 423 F.2d 106 (8th Cir. 1970). Accordingly, the Court concludes that only those costs man- dated by the Court of Appeals may be recovered herein. Therefore, IT IS HEREBY ORDERED that defendant's objections to plaintiff's bill of costs be and are sustained and that plaintiff shall file an amended bill of costs in accordance with this memo- randum within seven (7) days of this date. '7 IS FURTHER ORDERED that defendant's motion to strike be and is denied. /s/ JOHN F. NANGLE United States District Judge Dated: October 25, 1977. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0020%3A1. Public record. Not legal advice.