Opposition — Lin v. American Airlines, Inc.

No. 80-1713 cee eg E " '

IN THE . Jul i ‘te

Supreme Court of the United States

October Term, 1980

SHUTAO H. LIN, as Administrator of the Goods, Chattels and

Credits which were of SHU REN LIN, M.D., Deceased;

JOSEPH P. MALACYNSKI, as Administrator of the Estate

of MICHELLE MALACYNSKI, and JOSEPH P. MALA-

CYNSKI, individually; DONALD R. LYON and SOPHIE

H. LYON; and JANE S. SHATKIN, as Executrix of the

Estate of LLOYD J. SHATKIN, Deceased,

Petitioners,

vs.

AMERICAN AIRLINES, INC. and

McDONNELL DOUGLAS CORPORATION,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF OF RESPONDENT McDONNELL

DOUGLAS CORPORATION IN OPPOSITION

Norman J. BARRY

JoserpH P. DELLA Maria, Jr.

RoGer J. GUERIN

Two First National Plaza

Chicago, Illinois 60603

(312) 372-2345

Attorneys for Respondent, McDonnell

Douglas Corporation

Of Counsel:

Puitie B. KURLAND, Esa.

ROTHSCHILD, Barry & Myers

Two First National Plaza

Chicago, Illinois 60603

(312) 372-2345

Very L. Rippxe, Esa.

Tuomas C. Wa su, Esa.

JOHN J. HENNELLY, Jr., Eso.

Bryan, Cave, McPueeters & McRoserts

500 North Broadway

St. Louis, Missouri 63102

(314) 231-8600

James M. FitzSimons, Eso.

Garrett J. Fitzpatrick, Eso.

Menpes & MOUNT

Three Park Avenue

New York, New York 10016

(212) 683-2400

Pandick Press Midwest Inc., Chicago © 454-7600

Statement Required by Rule 28.1

This brief is filed on behalf of McDonnell Douglas Corpo-

ration, which has no parent companies or subsidiary or affil-

iated companies (except wholly-owned subsidiaries ).

i

TABLE OF CONTENTS

Ae I veitatsseaierecntentnciecseentorcesnencunnemdeisianevseseente

ee Fe ankicthenssietrebeciebinictensationesantnsintinsinniebens

TE OE ne GI i iciciiticacnciicavicteininttnnendorietinsorsentiorensoes

IT PII ssnicrictinsnvsciensdsoriacenpenscrscandeiniorrenenins

The Writ Should Be Denied ..............ccccccsrocesscssssesesceessees

I. No Reason Exists for This Court to Review the

Interlocutory Judgment on the Choice of Law

Issues Presented in This Case, Which Are Issues

INN cst tccscsncienaceleisiianiablartibiisivcmmibbeeine)

II. No Choice of Law Rule Required the Court of

Appeals to Apply the Substantive Law of Mis-

souri, Which Has No Interest in This Litigation ..

Ill. Wrongful Death Acts Disallowing Punitive Dam-

ages Do Not Violate the Equal Protection

EDUNUIID ‘sucrsscaneionsensonennosiancniabiobacadbavennesoannionntehasesinsépenete

ee icccndecsditinsacadeiodidiadobdonbaiitelabanncsduasdonnciabaddaibinmemnase

ii

TABLE OF AUTHORITIES

Cases

Aetna Life Insurance Co. v. Moses, 287 U. S. 530

INIT Buicihivethscekaisbinuhiatiosencpsesisbishdaiianbaniannstetsiartientieania

Babcock v. Jackson, 12 N. Y. 2d 473, 240 N. Y. S.

2d 743, 191 N. E. 2d 279 ( 1963)........ccccccsseeeeeees

Baker v. Bolton, 1 Camp. 493, 170 Eng. Rep. 1033

ES EIFE PSichacaiecccbensidnsssunaniedetsidinnetiinsapiinatiensnstebaibads

Estate of Spiegel v. Commissioner, 335 U. S. 701

General Box Co. v. United States, 351 U.S. 159

I sinanes toeotntescsnceesnpuceibasinchpnitinasedebiadesavibdeipiaenceti

Gentile v. Altermatt, 169 Conn. 267, 363 A. 2d 1

(1975), appeal dismissed for want of a substan-

tial federal question, 423 U.S. 1041 (1976).........

Georgie Boy Manufacturing, Inc. v. Superior Court,

115 Cal. App. 3d 217, 171 Cal. Rptr. 382

Glick v. Ballentine Produce Inc., 396 S. W. 2d 609

(Mo. 1965), appeal dismissed for want of a

substantial federal question, 385 U.S. 5 (1966)..

Hicks v. Miranda, 422 U.S. 332 (1975) ...cccccccceeeees

Hill vy. Garner, 277 Ore. 641, 561 P. 2d 1016,

appeal dismissed for want of a substantial federal

question, 434 U.S. 989 (1977) w..ccccecccseseeseeeseeeees

Hempel v. American Airlines, Inc., 102 Misc. 2d

563, 423 NW. VS. 26 TIS C1DTD) cesicisssccocccocccsceeses

Huddleston v. Dwyer, 322 U.S. 232 (1944).........04.

Huff v. White Motor Corp., 609 F. 2d 286 (7th Cir.

In re Air Crash Disaster At John F. Kennedy

International Airport, 407 F. Supp. 244 (Jud.

A a ky MPU <otcatidustopbethsonbidibiesonnsiaienvanen

PAGE

In re Air Crash Disaster At Boston, Massachusetts,

399 F. Supp. 1106 (D. Mass. 1975) ............s000e8

In re Air Crash Disaster Near Chicago, Illinois,

644 F. 2d 594 (7th Cir. 1981), 500 F. Supp.

1044 (N. D. Ill. 1980), 476 F. Supp. 445 (Jud.

Pan. Mult. Lit. 1979)..........

In re Paris Air Crash, 622 F. 2d 1315 (9th Cir.),

cert denied, 66 L. Ed. 2d 237 (1980)..........:.ss0000

Jackson vy. Koninklijke Luchtvaart Maatschappij

N.V., 459 F. Supp. 953 (8. D. N. Y. 1978)..........

Jefferson v. Chronicle Publishing Co., 108 Cal.

App. 2d 538, 238 P. 2d 1018, appeal dismissed

for want of a substantial federal question, 344

SM AY TIED cecdiseentncisidephenicenendoeshdncepabsoce ;

Johnson v. International Harvester Co., 487

F. Supp. 1176 (D. N. D. 1980) oc. eeeteeeeeee

Klaxon Co. v. Stentor Electric Manufacturing Co.,

313 U.S. 487 (1941)

Krause v. State, 31 Ohio St. 2d 132, 285 N. E. 2d

736, appeal dismissed for want of a substantial

Sederal question, 409 U.S. 1052 (1972)..............

Minnesota v. Clover Leaf Creamery Co., 66 L. Ed.

2d 659 (1981) mA

Moragne v. States Marine I es, Inc., 398 U.S

TI soho hint seniaisisndniieeinspeedcambeinsenssoests

Richards v. United States, 369 U.S. 1 (1962)..........

Robert v. Ford Motor Co., 73 App. Div. 2d 1025,

424N. Y.S. 2d 747 (1980)

Rosenfeld v. Isaacs, ___. App. Div. 2d —__., 433

N. Y. S. 2d 623 (1980)

Sibley v. KLM-Royal Dutch Airlines, 454 F. Supp.

ES Cle EPs Bee. Be TOD casssssepeniotevevevvccccoscceteeensenene

Van Dusen v. Barrack, 376 U.S. 612 (1964)..........

PAGE

4

iv

PAGE

Other Authorities

Be TE, Bee SB BG OP ccecectciennervcectinpentoveenctive a

Be hc Bs Nee 0 CO ictrestacnctnsncentivetibnes |

Restatement (Second), Conflict of LAWS ........0.0000+ 5

Holthus, Punitive Damages In Wrongful Death, 20

Clev. St. L. Rev. 301 (1971 )..........ccscssssssssseesreeees 9

Note, Wrongful Death Damages in North Caro-

lina, 44.N. C. L. Rev. 402 (1966). .........:cccsceseeee 9

IN THE

Supreme Court of the Gnited States

October Term, 1980

SHUTAO H. LIN, as Administrator of the Goods, Chattels and

Credits which were of SHU REN LIN, M.D., Deceased;

JOSEPH P. MALACYNSKI, as Administrator of the Estate

of MICHELLE MALACYNSKI, and JOSEPH P. MALA-

CYNSKI, individually; DONALD R. LYON and SOPHIE

H. LYON; and JANE S. SHATKIN, as Executrix of the

Estate of LLOYD J. SHATKIN, Deceased,

Petitioners,

VS.

AMERICAN AIRLINES, INC. and

McDONNELL DOUGLAS CORPORATION,

Respondents.

ON PETITION FOR WkKIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF OF RESPONDENT McDONNELL

DOUGLAS CORPORATION IN OPPOSITION

STATEMENT OF THE CASE

These actions arise out of the crash of a DC-10 aircraft

manufactured by McDonnell Douglas Corporation (MDC)

and owned and operated by American Airlines. Scheduled to

fly from Chicago to Los Angeles, the aircraft crashed shortly

after takeoff from O’Hare International Airport, killing all on

board. Thereafter, a number of actions against American and

MDC were filed in California, Illinois, New York, Puerto Rico,

Hawaii, and Michigan. Pursuant to 28 U. S. C. § 1407, those

actions not already pending in the United States District Court

2

for the Northern District of Illinois were transferred there for

consolidated pretrial proceedings. 476 F. Supp. 445 (Jud. Pan.

Mult. Lit. 1979).

Many of the complaints filed in these actions contained

wrongful death counts praying for punitive damages. In the

District Court, MDC and American moved to strike those

portions of the complaints on the grounds that punitive dam-

ages for wrongful death were not recoverable under the

relevant state wrongful death acts. The facts relevant to the

choice of law determination are undisputed. MDC is a

Maryland corporation with its principal place of business in

Missouri. MDC’s allegedly wrongful conduct occurred in

California where the aircraft was manufactured. The injuries

were sustained in Illinois where the plane crash occurred. The

District Court denied MDC’s motion (except as to the action

filed in Puerto Rico), granted American’s motion, and certified

the issues for interlocutory appeal pursuant to 28 U. S. C.

§ 1292(b). 500 F. Supp. 1044 (N. D. Ill. 1980).

The Court of Appeals granted the applications for leave to

appeal from the trial court’s order and, after briefing and

argument, reversed the trial court’s order insofar as it held that

the claims against MDC for punitive damages were legally

sufficient claims. 644 F. 2d 594 (7th Cir. 1981). The Plaintiffs’

Committee, which filed the lead briefs on behalf of the

plaintiffs in the interlocutory appeals, has neither sought rehear-

ing in the Court of Appeals nor petitioned this Court for a Writ

of Certiorari. The vast majority of the plaintiffs in the courts

below, therefore, waived any right to have this Court review the

Court of Appeals’ decision. Several of the plaintiffs who

originally filed their actions in New York, however, have

petitioned this Court to review the Court of Appeals’ judgment.

Pursuant to the direction of this Court, MDC respectfully

submits this brief in opposition to that petition.

3

SUMMARY OF ARGUMENT

The choice of law questions raised by Petitioners are solely

issues of state law which this Court declines to review except in

extraordinary circumstances. No such circumstances are

present in this case. Moreover, the decision of the Court of

Appeals declining to apply the substantive law of a state with

no legitimate interest in this litigation is correct under all of the

state choice of law rules involved in these interlocutory appeals.

The Petitioners’ equal protection attack on the unavailabil-

ity of punitive damages is not properly raised as to MDC and,

in any event, is without merit. Every court which has addressed

the issue has upheld wrongful death statutes limited to com-

pensatory damages. The statutes rationally serve the legitimate

state purpose of limiting excessive liability in wrongful death

actions. The Equal Protection Clause requires nothing more in

cases of this kind.

4

THE WRIT SHOULD BE DENIED

I. NO REASON EXISTS FOR THIS COURT TO RE-

VIEW THE INTERLOCUTORY JUDGMENT ON THE

CHOICE OF LAW ISSUES PRESENTED IN THIS

CASE, WHICH ARE ISSUES OF STATE LAW.

The choice of law questions presented by Petitioners are

exclusively state law questions. There is no suggestion by

Petitioners here, or by any of the plaintiffs in the courts below,

that federal law determines the availability of punitive damages

in these diversity actions. Absent, too, is any controversy about

the proper role of the federal court in choosing which state’s

law to apply. As Petitioners acknowledge, and as both of the

courts below held, the whole law of the state, including the

choice of law rules where the several actions were filed prior to

their transfer and consolidation, determines whether punitive

damages are recoverable in these wrongful death actions.

Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U. S.

487 (1941); Van Dusen v. Barrack, 376 U.S. 612 (1964); In re

Air Crash Disaster At Boston, Massachusetts, 399 F. Supp. 1106

(D. Mass. 1975). “[1]t is within the very nature of coordinated

vr consolidated pretrial proceedings in multidistrict litigation

for the transferee judge to be called upon to apply the law of

more than one state.” Jn re Air Crash Disaster At John F.

Kennedy International Airport, 407 F. Supp. 244, 246-47

(Jud.Pan.Mult.Lit. 1976). Thus, the Court of Appeals correctly

looked to and applied the choice of law rules of each of the

states where the actions consolidated below were originally

filed.

The gist of Petitioners’ argument is that the Court of

Appeals erred in construing state choice of law rules. This

Court “ordinarily ... accept[s] and therefore do[es] not

review, save in exceptional cases, the considered determination

of questions of state law by the intermediate federal appellate

courts... .” Huddleston v. Dwyer, 322 U. S. 232, 237 (1944);

5

see, e.g., Estate of Spiegel v. Commissioner, 335 U. S. 701, 707-

08 (1949); General Box Co. v. United States, 351 U.S. 159,

165 (1956); Richards v. United States, 369 U.S. 1, 16 n. 35

(1962). Nothing in this case warrants a departure from this

practice.

Petitioners have cited no state or federal decision holding

that the state of a defendant's principal place of business has an

interest in having its law permitting punitive damages applied

to the exclusion of contrary laws of all other interested states.

There is no conflict between the decision of the Court of

Appeals below and any decision of any state or federal court.

Nor do Petitioners suggest that the Court of Appeals mistook

the relevant choice of law rules. The Court of Appeals held

that Illinois courts generally adhere to “the most significant

relationship” test of the Restatement (Second), Conflict of

Laws. Petitioners agree. The Court of Appeals held that

California courts have adopted the “comparative impairment”

approach. Petitioners agree. In the New York cases, the

Seventh Circuit applied the “governmental interest” approach

of Babcock v. Jackson, 12 N. Y. 2d 473, 240 N. Y. S. 2d 743,

191 N. E. 2d 279 (1963). Petitioners agree. Petitioners merely

quibble that the Court of Appeals misconstrued the concededly

applicable state law.

Il. NO CHOICE OF LAW RULE REQUIRED THE

COURT OF APPEALS TO APPLY THE SUBSTAN-

TIVE LAW OF MISSOURI, WHICH HAS NO INTER-

EST IN THIS LITIGATION.

Petitioners argue that no matter what choice of law rule is

applied, the decisive factor in determining the availability of

punitive damages must, ipso facto, be the defendant’s principal

place of business. No case, state or federal, is cited which so

holds. Such a per se rule would be irrational and contrary to the

flexible, fact-sensitive, and reasoned modern choice of law

approaches now governing in most states. The state of a

6

defendant’s principal place of business may have an interest in

denying recovery of punitive damages in order to shield its

domiciliaries from excessive financial burdens. See, e.g., Sibley

v. KLM-Royal Dutch Airlines, 454 F. Supp. 425 (S. D. N. Y.

1978); Jackson v. Koninklijke Luchtvaart Maatschappij N.V.,

459 F. Supp. 953 (S. D. N. Y. 1978). But absent relevant

contacts not present here, the state of defendant’s place of

business has no interest in permitting non-residents to sue for

punitive damages in cases arising in other states.

Three states might be regarded as having an interest in the

question whether punitive damages could be imposed on MDC:

Illinois—the point of the flight’s departure, the place of the

injury, and, as the Court of Appeals noted, home of the world’s

busiest airport with a strong interest in encouraging air trans-

portation in the state; California—the place of MDC’s allegedly

tortious conduct in the design and manufacture of the airplane,

the place where, as the trial court noted, MDC has “substantial

operations” and which also has an interest in encouraging

business within its borders; and Missouri—MDC’s home office.

MDC maintains that none of these states permits recovery

of punitive damages for wrongful death. The Court of Appeals

held that Illinois and California do not allow punitive damages

but that Missouri does. Assuming arguendo that Missouri

allows punitive damages, Missouri cannot have any interest

paramount to either California or Illinois in allowing punitive

damages in this case. In his concurring opinion in the Court of

Appeals below, Judge Cudahy stressed the minimal interest of

Missouri on the question of punitive damages:

“Some question remains for me whether Missouri would,

in fact, have a strong interest in imposing financial sanc-

tions on its own corporate domiciliary, employing Missouri

citizens and paying Missouri taxes, as punishment for that

corporation’s extra-territorial torts affecting non-residents

of Missouri. The finding of such an interest may impute an

unusual level of altruism to Missouri policy and may

overstate the commitment of Missouri (or any other state )

7

to “corporate accountability” in circumstances where both

the misconduct and the injuries took place outside the

borders of the domiciliary state.” [644 F. 2d at 633. ]

None of the choice of law rules at issue required the selection of

the law of a state with no significant contacts with the parties or

the occurrence. The Court of Appeals correctly declined to

reach such an irrational result.

Ill. WRONGFUL DEATH ACTS DISALLOWING PUNI-

TIVE DAMAGES DO NOT VIOLATE THE EQUAL

PROTECTION CLAUSE.

Petitioners’ equal protection argument is diaphanous. It is

apparently limited to a challenge to New York’s wrongful

death act, a law which Petitioners do not contend governs

MDC’s liability in these actions. Although the District Court

considered various state and federal constitutional challenges to

the laws of those states which do not allow punitive damages in

wrongful death cases, the Court of Appeals noted “on this

appeal the only specific constitutional attack is the argument

that New York’s denial of punitive damages violates the federal

Equal Protection Clause.” Thus, the constitutionality of the

substantive law governing MDC’s rights and liabilities is not

properly before this Court. However, to the extent that

Petitioners seek to challenge the laws of California and Illinois,

which do not allow punitive damages in wrongful death cases,

MDC makes the following response.

The Petitioners have not suggested that the various wrong-

ful death statutes disallowing recovery of punitive damages

discriminate on the basis of race, creed, religion, or create any

other suspect classification. Nor has any argument been made

that the statutes discriminate against non-residents either di-

rectly or through the application of choice of law principles.

Equally clear is that no fundamental personal rights are

infringed by these laws. Thus, the question Petitioners raise is

whether the decision to withhold the possibility of punitive

8

damages in a wrongful death case while permitting punitive

damages in other tort cases bears any rational relationship to

any legitimate government purpose. Both of the courts below,

as well as every other court which has considered the issue,

have concluded that the disallowance of punitive damages does

not violate this standard. Jn re Paris Air Crash, 622 F. 2d 1315

(9th Cir. ), cert. denied, 66 L. Ed. 2d 237 (1980) (reversing 427

F. Supp. 701 (C. D. Cal. 1977)); Huff v. White Motor Corp.,

609 F. 2d 286, 298 (7th Cir. 1979); Johnson v. International

Harvester Co., 487 F. Supp. 1176 (D. N. D. 1980); Georgie Boy

Manufacturing, Inc. v. Superior Court, 115 Cal. App. 3d 217,

171 Cal. Rptr. 382 (1981); Robert v. Ford Motor Co., 73 App.

Div. 2d 1025, 424 N. Y. S. 2d 747 (1980); Rosenfeld v. Isaacs,

__— App. Div. 2d __., 433 N. Y. S. 2d 623 (1980); Hempel

v. American Airlines, Inc., 102 Misc. 2d 563, 423 N. Y. S. 2d

778 (1979).

These decisions upholding disallowance of punitive dam-

ages are in accord with numerous decisions of this Court, which

has routinely dismissed equal protection attacks on state tort

laws. See, e.g., Glick v. Ballentine Produce Inc., 396 S. W. 2d

609 (Mo. 1965), appeal dismissed for want of a substantial

federal question, 385 U. S. 5 (1966) (monetary ceiling of

$25,000 on damages in wrongful death cases); Jefferson v.

Chronicle Publishing Co., 108 Cal. App. 2d 538, 238 P. 2d 1018,

appeal dismissed for want of a substantial federal question, 344

U. S. 803 (1952) (statute barring recovery of damages for

certain types of defamation); Gentile v. Altermatt, 169 Conn.

267, 363 A. 2d 1 (1975), appeal dismissed for want of a

substantial federal question, 423 U.S. 1041 (1976) (“no fault”

insurance statute ); Hill v. Garner, 277 Ore. 641, 561 P. 2d 1016,

appeal dismissed for want of a substantial federal question, 434

U. S. 989 (1977) (guest statute); Krause v. State, 31 Ohio St.

2d 132, 285 N. E. 2d 736, appeal dismissed for want of a

substantial federal question, 409 U. S. 1052 (1972) (sovereign

immunity). Each of those dismissals constituted a ruling on the

merits. Hicks v. Miranda, 422 U. S. 332, 343-45 (1975).

9

The rational basis for the laws Petitioners attack here is

evident from the history and purpose of wrongful death acts.

An action for wrongful death was unknown at common law.

See Baker v. Bolton, 1 Camp. 493, 170 Eng. Rep. 1033 (1808);

Aetna Life Insurance Co. v. Moses, 287 U. S. 530, 539 (1933).

See generally Moragne v. States Marine Lines, Inc., 398 U. S.

375 (1970). To alleviate the harsh consequences of the

common law rule, all American state legislatures have enacted

statutes providing a remedy for wrongful death to the dece-

dent’s survivors. In line with the statutes’ remedial purposes,

however, most states do not allow an award of punitive

damages. See Holthus, Punitive Damages In Wrongful Death,

20 Clev. St. L. Rev. 301, 302-03 (1971); Note, Wrongful Death

Damages in North Carolina, 44 N. C. L. Rev. 402, 421 (1966).

In correcting the inequities of the common law rule

prohibiting actions for wrongful death, the legislatures of the

various states were not constitutionally required to create a

wrongful death remedy with all kinds of damages available in

other causes of action sounding in tort or otherwise. As this

Court recently stated:

“This Court made clear that a legislature need not ‘strike at

all evils at the same time or in the same way,’... and that

a legislature ‘may implement [its] program step by step,

... adopting regulations that only partially ameliorate a

perceived evil and deferring complete elimination of the

evil to future regulations.’” [Minnesota v. Clover Leaf

Creamery Co., 66 L. Ed. 2d 659, 670 (1981).]

Petitioners would ignore the fact that a legislature often

seeks to accommodate several purposes in enacting legislation.

Suffice it to say that the failure to allow punitive damages in

wrongful death cases is rationally related to the legitimate state

purpose of protecting defendants from excessive liability. “The

frequently violent and dramatic circumstances of accidents that

lead to wrongful death actions not only would pose [the]

danger of extreme awards, but might also increase the tempta-

tion for a jury to award punitive damages even when concrete

10

elements of fraudulent or intentional wrongdoing are absent.”

In re Paris Air Crash, 622 F. 2d 1315, 1323 (9th Cir.), cert.

denied, 66 L. Ed. 2d 237 (1980).

The fashioning of rules of tort law and appropriate re-

medies is a matter left to the states. A state can rationally

decide that it would not serve the purposes of its wrongful

death act to confer standing upon a deceased’s survivors to seek

quasi-criminal penalties from the alleged wrongdoer. Each

court which has considered the issue has so held, as did both of

the courts below. No substantial federal question is presented

here, and the Petitioners have failed to advance any reason why

this Court should grant review.

CONCLUSION

For the reasons stated, the petition for a writ of certiorari

should be denied.

Respectfully submitted,

NorMaN J. Barry

JoserpH P. DELLA Maria, Jr.

RoGer J. GUERIN

Attorneys for Respondent,

McDonnell Douglas Corpo-

ration

Two First National Plaza

Chicago, Illinois 60603

(312) 372-2345

Of Counsel:

Puitip B. KURLAND, Esa.

ROTHSCHILD, BarRY & MYERS

Two First National Plaza

Chicago, Illinois 60603

(312) 372-2345

Very L. Ripe, Esq.

Tuomas C. Wa SH, Esa.

JOHN J. HENNELLY, Jr., Esq.

Bryan, CAVE, MCPHEETERS & MCROBERTS

500 North Broadway

St. Louis, Missouri 63102

(314) 231-8600

James M. FitzSimons, Esq.

Garrett J. Fitzpatrick, Esq.

MENDES & MOUNT

Three Park Avenue

New York, New York 10016

(212) 683-2400