Opposition — New York v. Warner-Lambert Co.

ae

No. 80-1409

IN THE

Supreme Court of the United States

October Term, 1980

THE PEOPLE OF THE STATE OF NEW YORK,

Petitioner,

against

*WARNER-LAMBERT COMPANY Doing Business Under the Name

of WARNER-LAMBERT CO., AMERICAN CHICLE DIVISION,

ARTHUR KRAFT, ED HARRIS, JAMES O'MAHONEY and

JOHN O'ROURKE,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF THE STATE

OF NEW YORK

DOUGLAS M. PARKER

20 Broad Street

New York, New York 10005

(212) 422-6767

ROBERT KASANOF

114 East 55th Street

New York, New York 10022

(212) 355-6505

Attorneys for Respondent

Warner-Lambert Company

STANLEY S. ARKIN

Attorney for Respondents

Kraft and Harris

600 Third Avenue

New York, New York 10016

(212) 869-1450

ANDREW M. LAWLER, JR.

Attorney for Respondents

O'Mahoney and O'Rourke

630 Fifth Avenue

New York, New York 10111

(212) 765-6990

TABLE OF CONTENTS

Table of Authorities ...........0.006. li

Summary 2 eee ee ee ili

ss Sb 5 he o's 0 ee ee a ee l

fos os 2 Sk > 2 od eS 4

Appendices:

List of Corporate Affiliation Pursuant to

8 SS ee a eee eee Al

Remittitur of the New York Court of

RE fas O a gb ee wa ek ee A2

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TABLE OF AUTHORITIES

Cases:

Beck v. Washington, 369 U.S. 541,

rehearing denied, 370 U.S. 965

DE Cia tk ne ea a nw hee. 8 ee o's

Department of Banking v. Pink, 317

U.S. 264 (1942), rehearing denied,

516 UB. GO2Z (1943) 2 ww wt es

Louisville & Nashville Railroad v.

Higdon, 234 U.S. 592 (1914) ..........

Oxley Stave Co. v. County of Butler,

ek 8 eee eee ee

Raley v. Ohio, 360 U.S. 423 (1959) .......

Schacht v. United States, 398 U.S. 58

SE etic a Gata 2 Ne Jol Sn ee oo ee 8

Constitutional and Statutory Provisions:

Title 28, United States Code, § 1257

NI ae ee Ce eA Ch ge eh te ae a

Rules of the Supreme Court of the

Rees Steeen, Ze. br Be 6 ie ee

iil

SUMMARY OF ARGUMENT

The judgment of the New York State Court of

Appeals was rendered on November 20, 1980 and the

Petition is therefore untimely under Rule 20 of this Court.

Further, no federal statute, treaty or constitutional issue

was ruled on by any court below, nor did Petitioner make

any constitutional claim whatever in any court below. The

decisions of the New York courts involved solely a determi-

nation of New York law.

a

ARGUMENT

THE PETITION SHOULD

BE DENIED

This brief is filed on behalf of all Respondents in

‘opposition to the petition of the People of the State of New

York (‘Petitioner’) for a writ of certiorari to review a

unanimous judgment of the New York State Court of

Appeals dismissing an indictment charging Respondents

with six counts of reckless manslaughter and criminally

negligent homicide.

A. The Petition is Untimely

Petitioner asserts that the judgment of the New York

Court of Appeals for which Petitioner seeks review was

entered on December 2, 1980. Thus, pursuant to

Rule 20.1 the 60 day period within which to file a petition

for certiorari in accordance with this Court’s rules would

have terminated on January 31, 1981. The present peti-

tion, however, was not served and filed with this Court until

February 19, 198! and, therefore, is clearly untimely.'

1. In fact, the judgment was entered by the New York Court of

Appeals and became final for purposes of certiorari on the date it was

rendered, i.e. on November 20, 1980. See Appendix A2; Department of

Banking v. Pink, 317 U.S. 264 (1942), rehearing denied, 318 U.S. 802

(1943); Supreme Court Rule 20.4. Accordingly, the petition should have

been filed on or before January 19, 1981.

While this Court has, on occasion, accepted untimely

petitions, there are no mitigating circumstances which

would make such action appropriate in this case. Compare,

e.g., Schacht v. United States, 398 U.S. 58, 63-65 (1970).

B. The Decision Below Involved Solely a

Determination of New York Law

Petitioner purports to invoke the jurisdiction of the

Court pursuant to 28 U.S.C. § 1257(3). That statute pro-

vides jurisdiction to review final state court judgments by

writ of certiorari only where the validity of a federal statute

or treaty is at issue, or where a claim has been asserted

below that a state statute violates federal law, or where a

claim has been made below expressly based on a federally

created title, right, privilege or immunity. The highest state

court must have expressly ruled on the federal question

sought to be reviewed, Louisville & Nashville Railroad v.

Higdon, 234 U.S. 592 (1914); Raley v. Ohio, 360 U.S. 423

(1959) or the federal question must have been “specially set

up or claimed” in the state court proceeding so that it was

properly before the highest state court, Beck

v. Washington, 369 U.S. 541, rehearing denied, 370

U.S. 965 (1962); Oxley Stave Co. v. County of Butler, 166

U.S. 648, 655 (1897). None of the requisite criteria are

present in this case.

No federal treaty or statute was involved and the New

York Court of Appeals did not rule on any federal

question. Respondents’ motions to dismiss the indictment

in the state court were litigated and decided solely under the

standards of the New York Criminal Procedure Law.

Respondents’ motions turned solely on the issue of whether

there was legally sufficient evidence, as defined by state

statutory and decisional law, that Respondents were or

should have been aware of a substantial and unjustifiable

risk of death under circumstances amounting to a gross

deviation from reasonable care. In deciding this issue, the

Court of Appeals clearly determined an issue of state, not

federal, law. It held that, under New York law, causation is

an essential element of the crimes charged and that there

was no evidence presented to the grand jury that

Respondents were or should have been aware of at least one

possible cause of the explosion - the formation of volatile

liquid oxygen from the use of liquid nitrogen

(“‘liquefaction’’). (Opinion of the New York State Court of

Appeals, reprinted as Appendix C to the Petition, at 55a).

Petitioner asserts that such a decision was

“tantamount” to a finding by the New York State Court of

Appeals that a trial would violate Respondents’ due process

rights (Petition at 5). The assertion is totally groundless.

The decisions below were all concerned, expressly and

exclusively, with the interpretation and application of the

New York statute. They made no reference whatever to

_ due process.

It is equally clear that no federal question was spe-

cially set up, or claimed in any manner, in the courts below.

Throughout the proceedings below, Petitioner, like the New

York courts, addressed itself solely to the interpretation of

the New York statute. Accordingly, there is no basis on

which the: jurisdiction of this Court can be invoked.

—-4-

CONCLUSION

For all the foregoing reasons, the petition of the

People of the State of New York for a writ of certiorari

should be denied.

Respectfully submitted,

Douglas M. Parker

20 Broad Street

New York, New York 10005

(212) 422-6767

Of Counsel:

Mudge Rose Guthrie

& Alexander

John P. Hederman

William P. Laino

Robert Kasanof

114 East 55th Street

New York, New York 10022

(212) 355-6505

Attorneys for Respondent

Warner-Lambert Company

Of Counsel:

Kasanof Schwartz Iason

Of Counsel:

Arkin & Arisohn, P.C.

Mark §S. Arisohn

Arthur T. Cambouris

Of Counsel:

Dennis E. Milton

March, 1981

Stanley S. Arkin

Attorney for Respondents

Kraft and Harris

600 Third Avenue

New York, New York 10016

(212) 869-1450

Andrew M. Lawler, Jr.

Attorney for Respondent

O’ Mahoney and O'Rourke

630 Fifth Avenue

New York, New York 10020

(212) 765-6990

Appendices

Al

LIST OF CORPORATE AFFILIATION

PURSUANT TO RULE 28.1

Respondent Warner-Lambert Company has no

parent. The following are the subsidiaries (except wholly

owned subsidiaries and companies wholly owned by such

subsidiaries) and affiliates of Respondent Warner-Lambert

Company:

Bermer Tool & Die, Inc. (U.S.)

Cor Candies Corporation (U.S.)

Filtronics Ltd. (U.S.)

Tetra Sales (U.S.)

Vergo, S. A. (France)

Laboratorios Substantia C.A. (Venezuela)

Velarca, S.A. (Venezuela)

Laboratorios Promaco, S.A. (Peru)

Meito Adams K.K. (Japan)

Parke Davis & Sankyo, Ltd. (Japan)

Parke Davis & Company, Limited (Pakistan)

Parke Davis (India) Limited

Parke Davis (Private) Limited (Iran)

Warner - Hudnut (Lanka) Limited (Sri Lanka)

Warner - Hindustan Limited (India)

Warner - Lambert (Pakistan) Limited

C. Reichert Optische Werke, A.G. (Austria)

Goedicke A.G. (Germany)

Kessi-Werke Max Messmann G.m.b.h. (Germany)

P.T. Warner-Lambert Parke-Davis Indonesia

(Indonesia)

Pharma-Deko Ltd. (Nigeria)

Sisterna Integrado Prescripciones Offalmicas

Optoservicio Ltda. (Columbia)

Perma-Sharp Celik Sanayii Anonim Sirketi (Turkey)

Perma-Sharp Boudros Hellas S.A. (Greece)

A2

Court of Appeals :

State of New Pork 7/ 077

The Hon, Lawrence H. Cooke, Chief Judge, Presiding

2 No. 281

The People &c.,

Respondent,

v.

Warner-Lambert Company, doing

business under the name and

style of Warner-Lambert, Co.,

American Chicle Division, et al.,

Appellants.

The appellant(s) in the above entitled appeal appeared by Mudge Rose Guthrie &

Alexander’ Robert Kasanof & Bart Ne Schwartz; Arkin & Arisohn; and

the respondent(s} appeared by John J. Santucci, District Attorney, Queens

County.

The Court, after due deliberation, orders and adjudges that the order is

reversed and the indictment dismissed. Opinion by Jones, J.

Concur: Cooke, Ch.J., Jasen, Gabrielli, Meyer, Sweeney and

Cardamone, JJ.

The Court further orders that the papers required to be filed and this record of the pro-

ceedings in this Court be remitted to the Supreme Court, Queens County,

there to be proceeded upon according to law.

I certify that the preceding contains a correct record of the proceedings in this appeal in

the Court of Appeals and that the papers required to be filed are attached.

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Court of Appeals, Clerk's Office, Albany, ......November 20, yg 80.