Opposition Brief — Burlington Northern Railroad Co. v. Whitt

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90-1250 — |

In The

SUPREME COURT OF THE UNITED STATES \

October Term, 1990

BURLINGTON NORTHERN RAILROAD COMPANY;

R. H. SHALHOOP

Petitioners,

vs.

JOAN FAYE WHITT, ADMINISTRATRIX OF THE

ESTATE OF WILLIAM CHARLES WHITT, DECEASED

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Alabama

RESPONDENT’S BRIEF IN OPPOSITION

OF COUNSEL: DAVID CROMWELL JOHNSON’

GARVE IVEY, JR. Johnson & Cory, P.C.

Wilson & King 300 21st Street North

1816 Bankhead Byars Bldg. Birmingham, AL 35203

Jasper, AL 35502-0498 205-328-1414

205-221-4640

LEILA HIRAYAMA

Johnson & Cory

300 21st Street North

Birmingham, AL 35203

205-328-1414

CHARLES W. GAMBLE

Attomey at Law

727 Canyon Circle N.

Tuscaloosa, AL 35406 " Counsel of Record

205-758-0794

i

QUESTIONS PRESENTED

I. WHETHER THIS PARTICULAR PUNITIVE VERDICT IS

II.

Il.

AN APPROPRIATE SUBJECT FOR CERTIORARI

REVIEW WHEN, CONTRARY TO THE FACTUAL

CHARACTERIZATIONS MAINTAINED THROUGHOUT

BURLINGTON NORTHERN’S BRIEF, IT WAS LEVIED

FOR WANTON HOMICIDE COMPOUNDED BY

COVER-UP AND IS THEREBY DISSIMILAR TO OTHER

PUNITIVE VERDICTS REVIEWED BY THIS COURT?

WHETHER CERTIORARI JURISDICTION LIES WHEN

THE STATE OPINION BELOW IS SILENT AS TO THE

CONSTITUTIONAL ISSUE NOW ASSERTED AND

PETITIONERS AT TRIAL OBJECTED ONLY TO THE

JURY CHARGES REGARDING DAMAGES AND DID

SO WITHOUT THE SPECIFICITY AND OFFER OF

ALTERNATE CHARGES AS IS REQUIRED UNDER

STATE AND FEDERAL STANDARDS OF ISSUE PRES-

ERVATION?

WHETHER ALABAMA’S PUNITIVE-ONLY, WRONG-

FUL DEATH STATUTE IS AN APPROPRIATE SUB-

JECT FOR THE DISCRETIONARY EXERCISE OF

CERTIORARI REVIEW:

A. When the statute’s due process constitutionality has

been upheld expressly by this Court in Pizitz Dry

Goods Co. v. Yeldell and impliedly in the 1989 denial

of certiorari review in Clardy v. Sanders?

B. When the statute stands unique in the nation as the

only wrongful death action limited solely to punitive

damages, thus avoiding this Court’s expressed due

ii

QUESTIONS PRESENTED - Continued

process concern arising from a great disparity between

compensatory and punitive damages?

C. When the statute, enacted to prevent homicides within

the borders of Alabama, provides for:

1. The assessment of punitive damages only; and

2. Upon a sliding scale under which punitive damages

increase as the culpability of the defendant

accelerates from negligence to gross negligence to

wantonness and, ultimately, to intentional homi-

cide?

IV. WHETHER THIS PARTICULAR PUNITIVE DAMAGE

AWARD CONSTITUTES AN APPROPRIATE VEHICLE

FOR CERTIORARI REVIEW OF DUE PROCESS CON-

STITUTIONALITY:

A. When the verdict was subjected to four levels of post-

verdict review, by both trial and appellate courts, under

which it was held nonexcessive as measured under

multiple standards judicially developed to counteract

unbridled jury discretion?

B. When the state’s highest court conducted its own

$10,000,000 de novo reduction of the jury verdict

under a shock-the-conscience redetermination of dam-

ages?

C. When a significant body of prior jury awards could

have given petitioners adequate notice, in satisfaction

of due process fairness, that a wanton homicide could

lead to a verdict of $5,000,000?

CRD

POTN STN II CV Nap geen I eT

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ...................

TABLE OF AUTHORITIES ................00.

STATEMENT OF THE CASE .................

SUMMARY OF THE ARGUMENT ..............

I.

II.

THIS PARTICULAR PUNITIVE VERDICT IS NOT

AN APPROPRIATE VEHICLE FOR CERTIORARI

REVIEW BECAUSE, CONTRARY TO THE FAC-

TUAL CHARACTERIZATIONS MAINTAINED

THROUGHOUT BURLINGTON NORTHERN’S

BRIEF, IT WAS LEVIED FOR WANTON HOMI-

CIDE COMPOUNDED BY COVER-UP AND IS

THEREBY UNLIKE THOSE PUNITIVE VERDICTS

REVIEWED BY THIS COURT IN BROWNING-

FERRIS INDUSTRIES v. KELCO DISPOSAL, INC.

AND PACIFIC MUTUAL LIFE INSURANCE COM-

Ph eh keh te eee ee cee ee

NO CERTIORARI JURISDICTION LIES BECAUSE

THE FEDERAL QUESTION, REGARDING THE

CONSTITUTIONALITY OF ALABAMA’S PUNI-

TIVE-ONLY WRONGFUL DEATH STATUTE, WAS

NOT PROPERLY PRESSED AT TRIAL OR PASSED

UPON BY THE SUPREME COURT OF ALA-

iv

TABLE OF CONTENTS - Continued

Page

A. Burlington Northern Failed To Press The

Federal Question At Trial With The Prere-

quisite Specificity As Required Under Both

Federal And State Standards Governing Issue

PE Ue ee PE eee 9

ee ee

B. Burlington Northern Failed, In Compliance

With The Requirements of Alabama Appel-

late Practice, To Offer Constitutionally Proper

Jury Charges To Be Given In Lieu Of Those

Attacked As Vague And Violative Of Due

FR Ss 00 aw CEN eke ees eee 11

C The Supreme Court Of Alabama, Whose

Decision Serves As The Basis For Burlington

Northern’s Certiorari Petition, Never Men-

tioned The Federal Constitutional Question. 12

III. ALABAMA’S WRONGFUL DEATH STATUTE IS

NOT A COMPELLING VEHICLE FOR EXERCISE

OF CERTIORARI JURISDICTION ............ 14

A. The Due Process Constitutionality of Ala-

bama’s Wrongful Death Statute Has Been

Upheld By This Court Expressly In Louis

Pizitz Dry Goods Co. v. Yeldell And Implied-

ly In The 1989 Denial of Certiorari review

ee Se eee eee 14

Vv

TABLE OF CONTENTS - Continued

Page

B. Alabama’s One-Of-A-Kind, Wrongful Death

Statute, Judicially Interpreted As Providing

For Punitive Damages Only, Fails Because

Of Its Uniqueness To Present The Kind Of

Substantial And Important Question Upon

Which To Resolve National Due Process

Issues Regarding Punitive Damages ........ 16

C. Due Process Does Not Preciude Alabama,

Desirous of Preventing Homicides Within Her

Borders, From Enacting A Wrongful Death

Statute Which Provides For:........... 18

1. The Assessment Of Punitive Damages Only. 18

2. And For Computation Of Those Dam-

ages Upon A Sliding Scale Under Which

The Punitive Award Increases As The

Culpability Of The Defendant Accelerates

From Negligence To Gross Negligence

To Wantonness And, Ultimately, To

Intentional Homicide............. 20

IV. THE WHITT VERDICT PRESENTS AN INAP-

PROPRIATE SUBJECT FOR THIS COURT’S EX-

ERCISE OF DISCRETIONARY CERTIORARI REV-

a ee aS a Aw eA RR ee wes 22

vi

TABLE OF CONTENTS - Continued :

Page

A. The Whitt Verdict Was Subjected To Four

Levels Of Post-Verdict Trial And Appellate

Reassessment Conducted Under An Extensive

Battery of Standards And Procedural Safe-

guards That Were Judicially Evolved To

Preclude Unbridled Jury Discretion And To

Meet Or Exceed All Due Process Require-

ee a re a eee ee ee 22

B. Reduced From $15,000,000 TO $5,000,000,

As A Result Of The Supreme Court Of

Alabama’s De Novo Redetermination Of

Damages, This Particular Verdict Comes

Before The Court Untainted By Standardless

Jury Discretion And In Full Satisfaction Of

Burlington Northern’s Due Process Rights... . . 26

C. A Review Of Prior Jury Verdicts Would

- Have Given Burlington Northern Notice,

Sufficient To Satisfy Due Process Fairness,

That Its Wanton Homicide Could Lead To A

Verdict Of $5,000,000 ................. 27

CONCLUGEIS iss FUP GG Re BARE E ROE RAS Hee 8 28

vii

TABLE OF AUTHORITIES

CASES

Page

Aetna Life Ins. Co. v. Lavoie,

EE eee ee ee ee ee 22

Alabama Power Co. v. Cantrell,

CS ee 25

Alabama Power Co. v. Turner,

____ So. 2d __— (1991) [Ms. 89-408, Jan. 11, 1991]. ... 23

Appleyard v. Transamerican Press, Inc.,

539 F. 2d 1026 (4th Cir. 1976), cert. denied, 429 U.S.

ELSES ee eee eee eee ee 19

Bailey v. Anderson,

| i Fh ob 644 ce eee as erence ees 13

Baldwin v. Alabama,

CC eee eee ee 22

Bankers Life & Cas. Co. v. Crenshaw,

ee ee rer ae 14

Black Belt Wood Co. v. Sessions,

| 514 So. 2d 1249 (Ala. 1986). ......... Be rs 24, 28

:

Brennan v. United States Postal Serv.,

: “ce aye ath eke ee sesnewiee 15

viii

TABLE OF AUTHORITIES - Continued

Page

Browning-Ferris Indus. v. Kelco Disposal, Inc.,

St OK GN Is Chee ee eee tines 8, 16, 27

Carson v. Allied News Co.,

ee ee A Es BA oc kt cca ewe 19

Central Ala. Elec. Coop. v. Tapley,

oe Bo ee eee 11, 12, 25

Central Microfilm Serv. Corp. v. Basic/Four Corp.,

2. Be a Se eee eee ee 4

Charleston Fed. Sav. & Loan Ass’n v. Alderson,

cf 4 CORTE ET CRC EE CTE 9, 13

Clardy v. Sanders,

551 So. 2d 1057 (Ala.), cert. denied,

110 S. Ct. 376, 107 L. Ed. 2d 362 (1989)..... 15, 17, 18

Coburn v. American Liberty Ins. Co.,

a Fe & of kL. ree a a ree 12

Consolidated Freightways v. Pacheo-Rivera,

Fe fF US ee eee Te eee 23

Crowell v. Randell,

et ee eae ee 13

ix

TABLE OF AUTHORITIES - Continued

4

Page

Cudahy Co. v. Miller,

656 F. Supp. 316 (D. Kan. 1987), aff'd in part,

rev'd in part, 858 F.2d 1449 (10th Cir. 1988),

cert. denied, 109 S. Ct. 3265 (1989) ............. 16

Dewey v. Des Moines,

SOT CCT Eee Te ee eee 10

Douglas v. Alabama,

ch 6 6k ep oh wees ce Oe ee See 9

Esdale v. Baxter,

i ES EET EC EERE TT 21

General Motors Corp. v. Edwards,

ee 23

Green Oil Co. v. Hornsby,

ee 23

Hammond v. City of Gadsden,

493 So. 2d 1374 (Ala. 1986) ............. 22, 23,29

Harding v. Illinois,

SG ee ee ee ee 10

Harmon v. Motors Ins. Corp.,

ES eee eee ee 23

Harper v. Gafa Transp. Co.,

og eee 9

TABLE OF AUTHORITIES - Continued

Page

Herold v. Burlington Northern, Inc.,

761 F.2d 1241 (8th Cir.),

cert. denied, 474 U.S. 888 (1985) ...........044.% 28

Hodder v. Goodyear Tire & Rubber Co.,

426 N.W.2d 826 (Minn. 1988), cert. denied,

oo eee eer ees Pe eee eee 27

Hoyt v. United States,

ae See Se Gee Re BOOED a coe hae es 18

Illinois v. Gates,

ee ee I sk ces 6 kee oe EN es hee os 14

Industrial Chem. & Fiberglass Corp. v. Chandler,

SOF a ee ee Gs BOE kw Oke se one 6 eee 21, 24

Johnson v. Houser,

Coe Bo Se ee) ee er rere 11

Lassitter v. International Union of Operating Engineers,

Pe Pe Oe ee ee eee 19

Lawrence v. Risen,

EOD 8k x oe chee oceans bo ae ee 19

Lockett v. Ohio,

ee I 6. oss OWES ds SSO OTs dS 21

Louis Pizitz Dry Goods Co. v. Yeldell,

Se Se ED 6 a snk Ue A ed eee ee 14, 16, 21

xi

TABLE OF AUTHORITIES - Continued

Page

Massachusetts Bonding & Ins. Co. v. United States,

I 5 6 ais 5 ve 608 6 Oe bg Hw ele ee 18

McGautha v. California,

Ee ee ee 21

Mutual Life Ins. Co. v. McGrew,

ESS eee eee ee 9, 12

Nelms v. Allied Miils Co.,

Fe ee I, PD oe 8 cece cee nee 9

Nitti v. Credit Bureau of Rochester, Inc.,

84 Misc. 2d 277, 375 N.Y.S.2d 817 (1975). .......... L9

Olympia Spa v. Johnson,

aera: eer 24

Pacific Mut. Life Ins. Co. v. Haslip,

553 So. 2d 537, cert. granted,

oo ee a eee ee ee 8, 17,

Rogers v. Loether,

467 F.2d 1110 (7th Cir. 1972), aff'd, 415 U.S. 189

I a ae a ea ace a a aa

Southern Ry. v. Bush,

EZe Fae. SP, DO SO. GB CIGD)... cece eneen

State Farm Mut. Auto Ins. Co. v. Robbins,

eee. en eee

xii

TABLE OF AUTHORITIES - Continued

Page

Street v. New York,

a eee ee ee ee ere ee 13

United States Cast Iron Pipe & Foundry Co. v. Sullivan,

Se ee eee eee ee ee 15

United States v. Hecht,

Fe ee ee ee Ge ED 6 ov ee et so whi oe 11

Webb v. Webb,

eS rere ee ee ere a 12

Werschkull v. United California Bank,

85 Cal. App. 3d 981, 149 Cal. Rptr. 829 (1978)....... 19

Whitfield v. Ohio,

Err ee ee eee ae 13

Wilson v. Crouse-Hinds Co.,

556 F.2d 870 (8th Cir.), cert. denied,

ees ee ae ee eae ee 10

RULES OF COURT

oe OE SS eer er a er rere 10

8 2 eee ee ee ee 10

Se a ke A Ke oc ere ee es See eres 11

xiii

TABLE OF AUTHORITIES - Continued

ee i OR i os. pv ew nie oS

STATUTES

Code of Ala. § 12-22-71 (1975)............0..

TREATISES AND BOOKS

C. Gamble, Alabama Law of Damages 490 (2d ed. 1988) . .18

C. Gamble, McElroy’s Alabama Evidence § 426.01(7)

CG See Gb ees Ob Gee hod eb eee eee

ANNOTATIONS

Annot., 40 A.L.R.4TH 12 (1985)..............-

ARTICLES

Ellis, Punitive Damages, Due Process, and the Jury,

40 Ala. L. Rev. 975 (1989) ...............0-.

More Big Bucks in Jury Verdicts—Additions

to the 1988 List, 75 A.B.A. J. 69 (July 1989) .....

Note, Can Punitive Damages Standards Be Void for

Vagueness?, 63 St. John’s L. Rev. 52 (1988) ......

xiv

TABLE OF AUTHORITIES - Continued

Page

Owen, Problems in Assessing Punitive Damages Against

Manufacturers of Defective Products,

Ge a I BRU St kc cet ecw etinues 26

Recent Developments, Constitutional Limits to Punitive

Damages Awards, 13 Harv. J.L. & Pub. Pol’y 370

ar ee ee 23, 27

Recent Verdicts, 2 Ala. Trial L.J.,

ES ee 28

The 10 Largest Jury Verdicts of 1988,

Fe Pee Be ST BP kc cee ce ees 28

No.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1990

LP ROLE LLL OE NL CET LR, ELLIE LEI OR.

BURLINGTON NORTHERN RAILROAD COMPANY;

R. H. SHALHOOP

, Petitioners,

VS.

JOAN FAYE WHITT, ADMINISTRATRIX OF THE

ESTATE OF WILLIAM CHARLES WHITT, DECEASED

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Alabama

| RESPONDENT’S BRIEF IN OPPOSITION

STATEMENT OF THE CASE

The Respondent Joan Faye Whitt [hereinafter Whitt]

accepts the statement of the case, as set forth by Burlington

Northern Railroad [hereinafter Burlington “Jorthern], with

the following crucial exceptions:

Exception #1:

The centerpiece of Burlington Northern’s petition is the

argued unconstitutional assessment of punitive damages for

homicidal conduct which it describes repeatedly as "simple

negligence."' Such a characterization, however, constitutes

a clear misreading of the trial record. There was, according

to the Supreme Court of Alabama, "without a doubt,

substantial evidence of wantonness.” The following

findings of fact paint a picture of the actual case spread

before the jury-—-one composed of willful, wanton and

knowing homicide, compounded by cover-up.

Burlington Northern’s train was traveling through a

populace crossing at which, according to the engineer’s own

testimony, there was significant traffic near both schools and

churches.” The train was operating, according to the on-

board speed tape, at a maximum of fifty to fifty-five (55)

miles per hour at the point of impact and in violation of the

railroad’s own speed limit of forty-five (45) miles per hour:

The engineer saw the deceased’s long-nosed tractor trailer

upon the tracks one-half mile from the crossing’ and

witnesses testified that, contrary to state law, he sounded no

whistle prior to the collision. Indeed, yet others testified

' Petition ("Pet.") at 10, 11, 19, 20, 22, 24, 29,30.

*Pet. at Appendix ("App.") 18a.

* Trial Transcript ("Tr.") at 1387, 1416, 1426, 1464, 1760, 1983.

Pet. at 16a, 17a.

‘ Tr. at 1937, 1526, 1511. Pet. at App. 3a, 18a.

* Pet. at App. 4a.

* Pet. at App. 4a, 18a. Tr. at 1389-90, 1397, 1408, 1443.

that he never slowed down, save at the very moment of

impact.’

Witnesses testified that no signal lights were flashing on

the deceased’s side of the crossing’ The railroad’s right-

of-way was obstructed by vegetation and overhanging

limbs.” A school bus driver testified to having had a near-

accident at the same crossing due to the defective signal

lights and the obstructed right-of-way.’°

The coal laden train was traveling at a speed sufficient

to propel the deceased’s steel loaded, eighteen wheel truck

through the next two railroad crossings and more than two-

thousand (2000) feet down the track.'' An eyewitness

reported a railroad employee’s returning to the crossing,

immediately following the collision, and activating the

crossing signal lights to make it appear that they had been

working prior to the accident.’ That same employee denied

having gone back to the crossing at all until, when con-

fronted with his inconsistent deposition statement, he

admitted having done so.” Burlington Northern sent agents

to the crossing on the day following the collision and

” Pet. at App. 18a.

* Tr. 1393, 1402, 1452, 1479-80, 1491-92, 1534. Pet. at App. 18a.

* Tr. at 1496, 1756.

Tr. at 1481, 1533. Pet. at App. 12a.

" Tr. at 1498, 1644. Pet. at App. 4a.

2 Pet. at App. 6a. Tr. at 1406-08, 1411.

* Pet. at App. 6a.

4

cleared the previously obstructed right-of-way."

Exception #2:

Burlington Northern emphasizes that Whitt’s counterclaim,

for the death of her husband, was in the original amount of

$3,000,000." Subsequent argument is offered that the

verdict was "$12 million more than the plaintiff requested

in her complaint. . .""* Regrettably, Burlington Northern

neglects to point out that the original Whitt demand was

withdrawn prior to submission.'’ This withdrawn ad

damnum clause was drafted early in the proceedings and

long before discovery of facts showing the depth of

Burlington Northern’s wanton conduct and resulting cover-

up.”°

SUMMARY OF THE ARGUMENT

Contrary to Burlington Northern’s continuous characteriza-

tion of this as a case of simple negligence, the Supreme

Court of Alabama declared it to be one of "wantonness."

While admittedly exceeding Burlington Northern’s own

speed limit at what he knew to be a populace crossing and

“ Tr. at 1400.

* Pet. at 2.

© Pet. at 13.

" Tr. at 2029.

* Even if this clause had never been withdrawn, however, its

presence would not have been relevant to any argued excessiveness of

a verdict which exceeded it. See Central Microfilm Serv. Corp. v.

Basic\Four Corp., 688 F.2d 1206, 1213 (8th Cir. 1982).

5

never braking save at the very moment of impact, engineer

Shalhoop hit the deceased with no horns blowing, no signals

flashing and no bells ringing. Compounding such culpability

is the fact that a railroad employee, immediately after the

collision, turned on the crossing signal lights to make it

appear that they had been flashing all along as was con-

tended by all Burlington Northern’s witnesses. The day

following the homicide, Burlington Northern returned to the

scene and removed obstructing undergrowth from its right-

of-way. These multiple acts of culpability, particularly when

resulting in death, serve as a basis from which the jury

presumably found wanton homicide with accompanying

cover-up. As such, this verdict is crucially different from

other punitive awards before this Court and, unlike them,

should be denied certiorari review.

Discretionary certiorari jurisdiction does not lie because

Burlington Northern failed to properly press the due process

issue in the trial below. The federal question was not raised

except in attack upon the trial court’s damage charges to the

jury and, even then, the objection failed to meet the state

and federal requirements of issue preservation in terms of

specificity and the offering of alternate and constitutionally

proper jury instructions. This failure to press properly the

federal question resulted in the Alabama Supreme Court’s

opinion containing no mention of constitutionality.

The due process constitutionality of Alabama’s wrongful

death statute has been upheld in this Court both expressly

by decision to the merits and impliedly by refusal to grant

it certiorari review. It is nationally unique in its allowance

of solely punitive damages; consequently, verdicts rendered

thereunder present no problem of disparity between the

amounts of compensatory and punitive damages. No due

6

process impediment exists to prevent the Alabama legisla-

ture, when attempting to prevent homicides within its

borders, from providing exclusively for punitive damages

measured by the level of the defendant’s culpability.

The following further characteristics of the Whitt verdict

reveal its inappropriateness as a vehicle for exercise of

certiorari review:

(1) It was subjected to four levels of post-verdict review

both at trial and on appeal. These judicial reassessments

were based upon a body of procedural safeguards and

standards which have been evolved by the judiciary specifie-

ally for measuring verdict excessiveness. These standards,

with their multiple levels of application, guaranteed full due

process to Burlington Northern.

(2) Burlington Northern had full notice, from any review

of past verdicts, that its heightened culpability, compounded

by cover-up, could lead to a wrongful death verdict of the

$5,000,000 magnitude. Such predictability fully complies

with due process fairness.

(3) The Supreme Court of Alabama took a $15,000,000

jury verdict and, based upon its de novo authority to remit

for amount alone, reduced the award to $5,000,000—a

$10,000,000 remittitur that is the largest in Alabama history.

Such a dramatic reduction, standing alone, distinguishes this

verdict from all othes punitive awards before this Court and

works to remove any hint of unbridled or standardless jury

discretion that arguably might otherwise have deprived

Burlington Northern of its constitutional right to due

process.

7

REASONS FOR DENYING THE WRIT

I. THIS PARTICULAR PUNITIVE VERDICT IS NOT

AN APPROPRIATE VEHICLE FOR CERTIORARI

REVIEW BECAUSE, CONTRARY TO THE FAC-

TUAL CHARACTERIZATIONS MADE THROUGH-

OUT BURLINGTON NORTHERN’S PETITION, IT

WAS LEVIED FOR WANTON HOMICIDE COM-

POUNDED BY COVER-UP AND IS THEREBY

DISSIMILAR TO THOSE VERDICTS GRANTED

REVIEW IN BROWNING-FERRIS INDUSTRIES vy.

KELCO DISPOSAL, INC. AND PACIFIC MUTUAL

LIFE INSURANCE COMPANY vy. HASLIP.

The centerpiece of Burlington Northern’s petition is the

characterization, both express and implied, of this case as

one of simple negligence. Such a mischaracterization

necessitates the respondent Whitt’s addressing this question

even before treating the threshold jurisdiction issues.

The Supreme Court of Alabama expressly recognized that

the Whitt jury had before it "without a doubt, substantial

evidence of wantonness." Pet. at App. 18a. While ap-

proaching a populace crossing, with schools and churches of

which he was aware from extensive past experience,

engineer Shalhoop was operating the train at fifty to fifty-

five (55) miles per hour in violation of Burlington

Northern’s own speed limit. This speed, according to

eyewitnesses, was never reduced except right at the point of

impact. Numerous witnesses described the view at the

crossing to be significantly obstructed by undergrowth

allowed to exist in Burlington Northern’s right-of-way.

Traveling thusly, with no horn blowing as required by

Alabama statute and no lights flashing, the Burlington

Northern train carried the deceased’s fully-loaded, eighteen

wheel truck over one-half mile down the track where an

ensuing explosion engulfed both train and truck. See herein

Statement of the Case.

These acts of heightened culpability were compounded by

additional evidence of cover-up and collusion. All railroad

employees riding back to the home office maintained

throughout the trial that they never once spoke of the

accident. Tr. at 1758, 1784, 1785. Engineer Shalhoop

steadfastly maintained that bells on the train were ringing

until he was forced to admit on cross-examination that the

train had no bells. Tr. at 1497, 1970. After on-board

railroad employees maintained that the crossing lights were

working on the deceased’s side of the track, witnesses

observed a black railroad employee approach the crossing,

after the accident, and trigger the switch on the crossing

lights. The only on-board black employee testified that he

never went back to the crossing post-accident and then was

forced to admit on cross-examination that he had admitted

doing so during deposition taking. Finally, Burlington

Northern employees cleared the undergrowth from the

crossing on the day following the collision.

The collective force of these and other facts justified a

jury verdict based upon a heightened level of culpability

constituting wantonness compounded by cover-up. Such

culpability, resulting in death, is a factor distifguishing this

verdict from all others before this Court,’® thus rendering it

an inappropriate vehicle for certiorari review.

"° See Browning-Ferris Indus. v. Kelco Disposal, Inc., 109 S. Ct.

2909 (1989); Pacific Mutual Life Ins. Co. v. Haslip, No. 89-1279,

argued October 3, 1990, cert. granted, 110 S. Ct. 710 (1990).

'

9

II. NO CERTIORARI JURISDICTION LIES BE-

CAUSE THE FEDERAL QUESTION, REGARD-

ING THE CONSTITUTIONALITY OF ALA-

BAMA’S PUNITIVE-ONLY WRONGFUL

DEATH STATUTE, WAS NOT PROPERLY

PRESSED AT TRIAL OR PASSED UPON BY

THE SUPREME COURT OF ALABAMA.

A. Burlington Northern Failed To Press The Federal

Question At Trial With The Prerequisite Specific-

ity As Required Under Both Federal And State

Standards Governing Issue Preservation.

A condition precedent to certiorari jurisdiction is issue

preservation in the trial below. A showing is required that

Burlington Northern raised the federal question at trial,

regarding any due process unconstitutionality of wrongful

death damages, by asserting it in both a timely and a proper

manner. Sup. Ct. R. 14.1(h). See Charleston Fed. Sav. &

Loan Ass’n v. Alderson, 324 U.S. 182, 185 (1944). No

objection satisfies this appellate rule unless it raises the

issue unmistakably and offers more than a mere inference.

Mutual Life Ins. Co. v. McGrew, 188 U.S. 291, 309 (1903).

The purpose of such a requirement is to enable the court

below "to take appropriate corrective action." Douglas v.

Alabama, 380 U.S. 415, 422 (1965). Such a requirement of

specificity and clarity likewise applies under longstanding

Alabama law.”

Against the backdrop of such state and federal require-

ments of specificity, the focus of Burlington Northern’s

constitutional attack at trial consisted solely of the following

” See Harper v. Gafa Transp. Co., 432 So. 2d 1234 (Ala. 1983);

Nelms v. Allied Mills Co., 387 So. 2d 152 (Ala. 1980). See C. Gamble,

McElroy’s Alabama Evidence § 426.01(7) (3d ed. 1977).

10

one sentence objection to the court’s jury charge concerning

punitive damages:

If Your Honor please, the Defendants object to the

Court’s charge in regard to punitive damages and

suggest to Your Honor that this constitutes a depriva-

tion of property for the Defendants without due

process of law in violation of the Sth and 14th

Amendments to the United States Constitution and the

Constitution of the State of Alabama.

Pet. at 6. No further elaboration was offered regarding the

constitutional defectiveness of the damage instructions.

Burlington Northern left the trial judge to his own devices

in inferring the precise nature of the federal question that

was being raised.” No further effort was made in satisfying

the requirement that the federal issue be "specially set up

and claimed." Harding v. Illinois, 196 U.S. 78, 85 (1904).

Such was not brought to the attention of the trial judge in

the prerequisite "unmistakable manner." Dewey v. Des

Moines, 173 U.S. 193, 198 (1898).

Only weeks later, at the post verdict hearing on its

motion for new trial, did Burlington Northern offer any

specific explanation as to how the argued unconstitutionality

manifested itself in the case. Pet. at 7. It was then that

Burlington first enunciated its present theory that due

process unconstitutionality lies in the wrongful death

Statute’s allowance of punitive damages for simple negli-

gence. Pet. at 7. Only then was any mention made at all

that the jury charges on damages were of such vagueness

that, even when tempered by successive levels of post-

71 See Wilson v. Crouse-Hinds Co., 556 F.2d 870, 875 (8th Cir.),

cert. denied, 434 U.S. 968 (1977). Compare Fed. R. Civ. P. 51; Ala. R.

Civ. P. 51.

IN Se Ri et ei

1l

verdict review, they permit unbridled jury discretion and,

thereby, constitute a deprivation of due process.

B. Burlington Northern Failed, In Compliance With

The Requirements of Alabama Appellate Practice,

To Offer Constitutionally Proper Jury Charges

To Be Given In Lieu Of Those Attacked As

Vague And Violative Of Due Process.

Beyond a mere lack of specificity, Burlington Northern

owed the trial court an opportunity to correct any error in

instructions. Johnson v. Houser, 704 F.2d 1049 (8th Cir.

1983). It had the responsibility to have offered its own

"constuutionally correct" jury instructions or to have

informed the trial court as to how the court’s own charges

could have been drafted to meet constitutional due process

muster.” Never was Burlington Northern specific enough to

assist the trial court in envisioning the unconstitutionally

offending language or in drafting substitute charges which

would comply with the cited constitutional provisions.

Burlington Northern did offer some, fifty-eight (58) jury

charges but not a single one dealt with damages. Tr. at

905-37.

In addition to violating the spirit of federal principles

calling for benefiting the trial court with suggested alterna-

tive charges that are not erroneous, Burlington Northern

failed to comply with what the Supreme Court of Alabama

has characterized as "fundamental concepts of issue preser-

vation under state law." Central Ala. Elec. Coop. v. Tapley,

” See Fed. R. Crim. P. 30; United States v. Hecht, 705 F.2d 976

(8th Cir. 1983) (holding that the object of Rule 30 of the Federal Rules

of Criminal Procedure "is to inform the trial judge of any possible error

in the instructions so that he may have an opportunity to correct them").

12

546 So. 2d 371, 375 (Ala. 1989). Other Alabama litigants

have mounted similar due process challenges to punitive

damages on appeal. Some, for example, have argued that

the proper remedy for satisfying a defendant’s due process

rights is to bifurcate the trial, permitting the judge to decide

punitives or, alternatively, to allow the jury to assess them

but upon criteria not admissible during the liability phase of

the trial. See Coburn v. American Liberty Ins. Co., 341 So.

2d 717 (Ala. 1977). Yet others have urged that the jury

should be charged that punitive damages are only to be

assessed upon clear and convincing evidence. However, all

such litigants have been denied access to appellate jurisdic-

tion upon these grounds when no such corrective or remed-

ial suggestions were made to the trial court below. Instruc-

tions may not be the focus of attack on appeal, as violating

due process, if no alternative charges were offered at trial.

Central Ala. Elec. Coop., 546 So. 2d at 375. Properly

pressing the federal question in state court, as a condition

precedent to the exercise of certiorari jurisdiction,

requires—at a minimum—that the constitutional issue be

asserted "in the manner required by state law." Webb v.

Webb, 451 U.S. 493, 501 (1981). Burlington Northern failed

in this regard.

C. The Supreme Court Of Alabama, Whose Decision

Serves As The Basis For Burlington Northern’s

Certiorari Petition, Never Mentioned The Federal

Constitutional Question.

Burlington Northern failed to satisfy reasonable state and

federal -rules of issue preservation at trial. When such

occurs, and is combined with silence on the federal question

by the state’s highest court, this Court customarily declines

to exercise its certiorari jurisdiction. Mutual Life Ins. Co.

v. McGrew, 188 U.S. 291, 309 (1903). Silence by the

13

Supreme Court of Alabama is assumed to be due to

Burlington Northern’s procedural deficiency at trial in its

failure both to provide the prerequisite specificity and to

furnish the trial court with alternate jury charges regarding

damages. Street v. New York, 394 U.S. 576, 582 (1969) (if

highest state court fails to pass upon the federal question,

"it will be assumed that the omission was due to want of

proper presentation in the state courts"); Bailey v. Anderson,

326 U.S. 203, 206 (1945).

Without question, Burlington Northern’s failure to raise

the constitutional issue properly at trial could be overlooked

if the state appellate court had considered and passed upon

the federal question. Whitfield v. Ohio, 297 U.S. 431, 436

(1936). As this Court has observed:

Where it appears from the opinion of the state court

of last resort that the State statute was drawn in

question, as repugnant to the constitution, and that the

decision of the court was in favor of its validity, we

have jurisdiction on appeal.

Charleston Fed. Sav. & Loan Ass’n v. Alderson, 324 U.S.

182, 185 (1944). However, the decision of Alabama’s

highest court, to whom certiorari is requested in the present

case, is conspicuously silent regarding the constitutionality

issue now asserted. There is no indication that Burlington

Northern’s constitutional challenge was considered an.

decided by the Supreme Court of Alabama. Such silence

forecloses any overiooking of Burlington Northern’s failure

at trial to surmount procedural hurdles under both state and

federal law. See Crowell v. Randell, 10 Pet. 368, 392

(1836) (observing that the jurisdiction to review exists only

if the federal question "did arise in the court below and a

decision was actually made thereon"). Respondent Whitt

submits that such silence jurisdictionally precludes review.

14

Even if deemed only prudential, however, Whitt aiterna-

tively urges that the more prudent course in this case is to

decline the exercise of certiorari jurisdiction.”

Il, ALABAMA’S WRONGFUL DEATH STATUTE

IS NOT A COMPELLING VEHICLE FOR

EXERCISE OF CERTIORARI JURISDICTION.

A. The Due Process Constitutionality of Ala-

bama’s Wrongful Death Statute Has Been

Upheld By This Court Expressly In Louis

Pizitz Dry Goods Co. v. Yeldell And impliedly

By The 1989 Denial Of Certiorari Review In

Clardy v. Sanders.

Rejecting a due process challenge to Alabama’s wrongful

death act as early as 1927, this Honorable Court observed:

The legislation, now challenged, has been on the

Statute books of Alabama in essentially its present

form since 1872. Its constitutionality has been upheld

in both state and federal courts. We cannot say that

it is beyond the power of the legislature, in effecting

such a change in common law rules, to attempt to

preserve human life by making homicide expensive.

Louis Pizitz Dry Goods Co. v. Yeldell, 274 U.S. 112, 114-

16 (1927). Pizitz broadly affirms the due process con-

Stitutionality of Alabama’s punitive-only wrongful death act.

Burlington Northern, whose culpability in this case far

exceeded simple negligence, attempts to escape the breadth

of this affirmance by arguing that Pizitz was limited to the

issue of punitives for vicarious responsibility and not

punitives for primary negligence. Neither the letter nor

” See Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 79

(1988) (refusing to review and characterizing same as the "more prudent

course"); Illinois v. Gates, 462 U.S. 213 (1983).

15

spirit of Pizitz, however, is limited in this respect. Indeed,

Pizitz cites an earlier decision from the old Fifth Circuit

which likewise broadly upholds the due process con-

Stitutionality of the act. See United States Cast Iron Pipe

& Foundry Co. v. Sullivan, 3 F.2d 794, 795 (Sth Cir.

1925). The Sullivan court, as expressed in the following

statement, did not place primary emphasis upon either

vicarious liability or negligence—rather, the emphasis was

and is upon any conduct which results in homicide:

In the absence of statute, punitive or exemplary

damages are recoverable in civil actions for certain

kinds of wrongful conduct. It is clearly within

legislative competency to give a civil right of action

for the negligent or wrongful killing of a human

being, and to make the wrongdoer liable for punitiv

or exemplary damages.

3 F.2d at 795-96. Even if Pizitz affirmed only the con-

Sstitutionality of levying punitive damages vicariously upon

an employer not culpable at all, however, that would

logically carry the iesser included inference that punitives

may be levied constitutionally upon one who is culpable,

albeit only of negligence.

While respondent Whitt recognizes that age and judiciai

affirmance of a statute do not insure that it is constitutional,

such should be weighed in this Court’s determination of

whether a verdict rendered under Alabama’s wrongful death

statute should be granted certiorari review. See Brennan v.

United States Postal Serv., 439 U.S. 1345, 1347 (1978).

The final, and perhaps dispositive, chapter in the story of

constitutional attack upon Alabama’s wrongful death statute

came in the recent case of Clardy v. Sanders, 551 So. 2d

1057 (Ala.), cert. denied, 110 S. Ct. 376, 107 L. Ed. 2d

16

362 (1989). In Clardy, this Court had before it, on petition

for writ of certiorari, a $2,750,000 jury verdict rendered

under Alabama’s punitive-only, wrongful death act. Despite

what appeared to be a procedurally unencumbered oppor-

tunity to speak to the due process constitutionality of the

statute, this Court declined to do so.

Respondent Whitt respectfully submits that, after its

affirmance of the statute’s constitutionality in Louis Pizitz

Dry Goods and its refusal to pass on it again in Clardy,

this Court should not now speak to this issue. Such long

affirmance of the statute’s constitutionality, when combined

with its uniqueness, renders it a noncompelling vehicle for

certiorari review.

B. Alabama’s One-Of-A-Kind, Wrongful Death

Statute, Judicially Interpreted As Providing For

Punitive Damages Only, Fails Because Of Its

Uniqueness To Present The Kind Of Substantial

And Important Question Upon Which To Resolve

National Due Process Issues Regarding Punitive

Damages.

The primary due process concern regarding punitive

damages, expressed by Justices of this Court, has focused

upon the disparity between compensatory and punitive

damages. See Browning-Ferris Indus., 109 S. Ct. 2909

(1989) (compensatory damages of $51,146 and punitives of

$6,000,000). Justice O’Connor, speaking in Browning-

Ferris, bottomed her particular due process concern upon

the fact that the punitive damages were 117 times greater

than the compensatory damages. 109 S. Ct. at 2921.

Compare Cudahy Co. v. Miller, 656 F. Supp. 316 (D. Kan.

1987), aff'd in part, rev’d in part, 858 F.2d 1449 (10th Cir.

1988), cert. denied, 109 S. Ct. 3265 (1989) (in which

17

certiorari was denied in due process challenge where the

punitive award of $10,000,000 was only three and one-third

times the compensatory damages). The disparity problem is

manifest in Pacific Mutual Life Ins. Co. v. Haslip which is

now under review on writ of certiorari to test the due

process constitutionality of a non-wrongful death, punitive

damage verdict awarded in Alabama. Pacific Mutual,

crucially dissimilar to the present case, concerns a fraud

action in which the punitive damages were in astronomical

disproportion to the actual damages. Indeed, the plaintiff in

Pacific Mutual was awarded $1,040,000 in punitive damages

for defendant’s bad faith refusal to pay a $2,500 hospital

bill. Even if the Supreme Court in Pacific Mutual were to

declare unconstitutional a punitive damage award in fraud,

largely because of its disparity to actual damages, respon-

dent submits that such an infirmity would not reach a

verdict rendered under Alabama’s punitive-only, wrongful

death act.”

Alabama’s wrongful death act is unique and, thereby,

stands as an inappropriate medium through which to

* Alabama Supreme Court Justice Maddox dissented in Pacific

Mutual, as he has done consistently in punitive damage decisions, due

to. his belief that Alabama’s general method of punitive damage

assessment is constitutionally flawed. However, he joins a unanimous

Court in approving the present verdict at $5,000,000 after a $10,000,000

reduction. This shift to the majority is due, in his own words, to the

belief that Alabama’s punitive-only, wrongful death statute is unique and

not susceptible to the same constitutional analysis as that applied to

verdicts with both compensatory and punitive components. Pacific Mut.

Life Ins. Co. v. Haslip, 553 So. 24 537, 545, n.8 (Ala. 1989). See also

Clardy v. Sanders, 551 So. 2d 1057 (Ala.), cert. denied, 110 S. Ct. 376,

107 L. Ed. 2d 362 (1989) (in which two Alabama Justices emphasize

in concurrence that Alabama’s wrongful death statute must be considered

in a different light than constitutional challenges to punitive damages in

other tort actions).

18

announce nationwide principles regarding the con-

Stitutionality of punitive damages. Alabama’s statute gives

rise to the only wrongful death action in the United States

which leads exclusively to punitive damages.” All other

wrongful death verdicts possess the common thread of

allowing family survivors, if the punitive award is reduced

or struck down as violative of due process, to find recom-

pense in the remaining compensatory award. However,

Alabama survivors, like the widow Whitt, find no similar

solace.” The probable reason, for this Court’s denial of

certiorari in Clardy v. Sanders, supra, was that any result-

ing decision would have been unique to Alabama and of no

precedential value to general punitive damage law national-

ly. Respondent Whitt respectfully submits that, because of

the sui generis status of Alabama’s statute, this Court should

similarly deny certiorari in the present case.

C. Due Process Does Not Preclude Alabama, Desi-

rous of Preventing Homicides Within Her Bor-

ders, From Enacting a Wrongful Death Statute

Which Provides For:

1. The Assessment of Punitive Damages Only

The punitive-only aspect of Alabama’s wrongful death act

renders it sui generis, which customarily results in this

Court’s declination of certiorari jurisdiction. However,

Burlington Northern takes this same uniqueness and argues

* See Massachusetts Bonding & Ins. Co. v. United States, 352 U.S.

128, 130-31 (1956) (recognizing that only Alabama and Massachusetts

give their wrongful death statutes a punitive-only construction); Hoyt v.

United States, 286 F.2d 356-57 (Sth Cir. 1961) (recognizing that even

Massachusetts subsequently amended its wrongful death statute to

provide for compensatory damages).

* See C. Gamble, Alabama Law of Damages 490 (2d ed. 1988).

19

that it, along with the corresponding absence of compen-

satory damages, vests standardless discretion in the jury

sufficient to constitute constitutional deprivation of due

process. Pet. at 15. The sole authority for this argument

lies in reference to a so-called "overwhelming majority" of

jurisdictions which, by statute or case law, opt to provide

that actual damages are a prerequisite to the assessment of

punitive damages. Pet. at 15, 16. Whitt respectfully

submits that this is a misleading categorization for several

reasons. First, it fails to recognize the very healthy number

of courts which hold to the contrary, including cases invol-

ving defamation per se.” Additionally, no mention is made

of those included jurisdictions which allow punitive dama-

ges when actual damages are no more than nominal.” Most

crucially, Burlington Northern neglects to reference those

jurisdictions holding that an exception to the "overwhelming

majority" rule arises whenever a statutory cause of action,

like Alabama’s wrongful death act, provides otherwise”

While Burlington Northern correctly documents a shift in

” See, e.g., Appleyard v. Transamerican Press, Inc., 539 F.2d 1026

(4th Cir. 1976), cert. denied, 429 US. 1041 (1977); Carson v. Allied

News Co., 529 F.2d 206 (7th Cir. 1976); see also Annot., 40 A.L.R.4th

12 (1985).

* See, e.g., Lawrence v. Risen, 598 S.W.2d 474 (1980); Werschkull

v. United California Bank, 85 Cal. App. 3d 981, 149 Cal. Rptr. 829

(1978) (nominal damages of $1 held to support award of $550,000 in

punitives); Lassitter v. International Union of Operating Engineers, 349

So. 2d 622 (Fla. 1976).

* See Nitti v. Credit Bureau of Rochester, Inc., 84 Misc. 2d 277,

375 N.Y.S.2d 817 (1975) (solely punitive damages allowed for violation

of Federal Fair Credit Reporting Act); Rogers v. Loether, 467 F.2d 110

(7th Cir. 1972), aff'd, 415 U.S. 189 (1974) (zero actual and $250

punitive damages awarded under Civil Rights Act of 1968).

— = ~ -— so es”,

20

the common law evolution of damages, such is not a matter

of constitutional imperative. Indeed, no constitutional law

is cited to support Burlington Northern’s position because

none exists. Pet. at 14-18. State movement toward

correlating punitive and compensatory damages does not

lead to the inference that those same states would deem

themselves constitutionally powerless to recognize causes of

action leading solely to punitive damages.

2. And For Computation Of Those Damages Up-

on a Sliding Scale Under Which The Punitive

Award Increases As The Defendant’s Culpability

Accelerates From Negligence To Gross Negligence

To Wantonness And, Ultimately, To Intentional

Homicide

Burlington Northern was guilty of wanton homicide, thus

rendering this not a case of simple negligence. See Pet. at

App. 18a. It is acknowledged that the jury was charged

that the amount of punitive damages assessed should be

measured by the amount of the wrongdoing of the defen-

dants and the deterrent effect upon these and other defen-

dants engaging in the same or similar conduct in the future.

Pet. at 12. The clear import was. that low punitives were

to be assessed for mere negligence and—as the level of

culpability rises to gross, wanton and then intentional—the

punitive damages were to be increased correspondingly. If

the resulting punitives were erroneously disproportionate to

the level of the defendant’s culpability, the trial and appel-

late courts could remit and, indeed, such was done in the

amount of $10,000,000.

Despite this actual state of the case, Burlington Northern

undertakes a facial challenge of Alabama’s wrongful death

Statute based upon the hypothetical possibility that a

21

punitive damages verdict could be based upon simple

negligence and thereby violate due process. Beyond this,

the more advanced position is asserted that such due

process unconstitutionality likewise would apply to the

levying of punitive damages for death resulting either from

gross negligence, Pet. at 19, or any culpability short of

intentional homicide. Pet. at 22, 25 (discussing a "mens

rea" requirement). Burlington Northern cites no supporting

constitutional law on the civil side. First, Alabama’s

wrongful death act has been characterized as both nonpenal

on its face” and in its effect.*' Secondly, even if the

statute is penal, this Court has been unwilling to apply

criminal constitutional principles simply because “punitive

damages are imposed through the aegis of courts and serve

to advance governmental interests . . . in a case between

private parties." However, by arguing that punitives

should require a mens rea, and that Alabama’s wrongful

death statute is penal, Burlington Northern is then able to

make the analogical leap to constitutional criminal cases.

Reliance thereon, however, is misplaced. Lastly, this Court

continues to emphasize the freedom that is vested in

legislatures to decide how much sentencing discretion, even

in criminal cases, should be left with the judge and jury.

See Lockett v. Ohio, 438 U.S. 586, 603 (1978). Even those

constitutional challenges to total sentencing discretion in

capital cases has been held bottomed on the Eighth Amend-

ment rather than the Due Process Clause. See McGautha

* See, e.g., Pizitz, 274, U.S. at 114; Esdale v. Baxter, 219 Ala.

256, 257 (1929); Southern Ry. v. Bush, 122 Ala. 470, 489, 26 So. 168,

174 (1899)

*' Industrial Chemical, 547 So. 2d at 818.

* Browning-Ferris, 109 S. ct. at 2920.

22

v. California, 402 U.S. 183 (1971). Compare Baldwin v.

Alabama, 472 U.S. 372 (1985) (holding constitutional

capital sentencing procedures very similar to those applied

in Alabama’s process of imposing and reviewing punitive

damage verdicts).

IV. THE WHITT VERDICT PRESENTS AN INAP-

PROPRIATE SUBJECT FOR THIS COURT’S

EXERCISE OF DISCRETIONARY CER-

TIORARI REVIEW

A. The Whitt Verdict Was Subjected To Four Levels

Of Post-Verdict Trial And Appellate Reassessment

Conducted Under An Extensive Battery of Stan-

dards And Procedural Safeguards That Were

Judicially Evolved To Preclude Unbridled Jury

Discretion And To Meet Or Exceed All Due

Process Requirements.

Alabama courts have shown an increasing willingness to

abandon the historic “hands off" approach to jury awards of

punitive damages. The catalyst for such a new judicial

attitude, aimed at more fully satisfying the due process

rights of defendants, was this Court’s dissatisfaction with

insufficient punitive damage standards as expressed in Aetna

Life Insurance Co. v. Lavoie, 475 U.S. 813, 828 (1986). In

reaction to Lavoie, the Supreme Court of Alabama devised

exhaustive and creative standards by which to review the

appropriateness of a punitive damage verdict. These stan-

dards are contained in what is now widely and popularly

known in Alabama as the decisions constituting "Hammond

and its progeny." The standards include, among other

factors, such considerations as the relationship between the

size of the award and the threatened harm, the degree of

reprehensibility regarding the defendant’s conduct, awareness

of danger by the defendant, cover-up by the defendant,

23

profits derived from the culpable conduct, wealth or poverty

of the defendant, criminal sanctions levied upon the defen-

dant, and similar civil actions filed against the defendant.”

These verdict considerations possess an uncanny resem-

blance to the measuring principles that some observers

predict that this Court will establish if it deems historic

punitive damage formulae to be violative of due process.

See Recent Developments, Constitutional Limits to Punitive

Damage Awards, 13 Harv. J.L. & Pub. Pol’y 367, 380

(1990). Alabama Courts have applied these factors in

regularly and dramatically reducing verdicts.”

Consistent with this new constitutional agenda for testing

verdicts, the Whitt verdict was subjected to the following

four levels of post-verdict review couducted under the

foregoing standards:

Review #1: Trial level Hammond review. The trial judge

reassessed the appropriateness of the verdict amount as

judged under the multiple factors established in Hammond

and its progeny. Such a Hammond hearing is mandatory

and requires that the trial court make on-the-record findings

* See Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986);

Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989).

™ See, e.g., Alabama Power Co. v. Turner, ___ So. 2d __ (19911)

[Ms. 89-408, Jan. 11, 1991] (reducing $5,000,000 wrongful death verdict

by $3,500,000); State Farm Mut. Auto Ins. Co. v. Robbins, 541 So. 2d

477 (Ala. 1989) (fraud verdict of $5,000,000 reduced to $500,000);

Consolidated Freightways v. Pacheo-Rivera, 524 So. 2d 346 (Ala. 1988)

(reduction of $100,000 verdict to $15,000 and $250,000 verdict to

$50,000); Harmon v. Motors Ins. Corp., 493 So. 2d 1370 (Ala. 1986)

($500,000 fraud verdict reduced to $40,000); General Motors Corp. v.

Edwards, 482 So. 2d 1176 (Ala. 1985) (wrongful death verdict of

$2,000,000 reduced by $600,000).

24

as to why the verdict should be reversed, modified or

allowed to stand. Burlington Northern had the right, at such

hearing, to offer evidence showing the inappropriateness of

the verdict amount.” Pet. at App. 19a.

Review #2: Appellate level review of Hammond findings

of trial court. The Alabama Supreme Court conducted a

review of the trial judge’s findings in level #1 to determine

whether he conducted an error-free assessment of the verdict

amount as-measured by the Hammond standards. The Court

concluded that there was no error committed by the trial

judge in this regard. Customarily, the result of such a de

novo reassessment is expressed merely by quoting verbatim

from the trial judge’s own Hammond order:* Such was done

in the present case and the quotat. occupied four full

pages of the appellate decision.

Review #3: Appellate level, de novo Hammond review.

As a matter of right, Burlington Northern received a de

novo reconsideration, as to the excessiveness measured

under the Hammond standards, from the highest appellate

court of Alabama. The Supreme Court of Alabama made its

own assessment of whether the amount of the verdict was

excessive when measured under the standards established in

* See Industrial Chem. & Fiberglass Corp. v. Chandler, 547 So.

2d 812 (Ala. 1989).

* See, e.g., Olympia Spa v. Johnson, 547 So. 2d 80 (1989)

(affirming $3,000,000 verdict by quoting trial judge’s order); Black Belt

Wood Co. v. Sessions, 514 So. 2d 1249 (Ala. 1986) (affirming

$3,500,000 wrongful death verdict by quoting extensively from trial

judge’s Hammond order).

25

Hammond and its progeny.”’ Such a review may include a

consideration of all relevant Hammond factors, including

those not necessarily considered by the trial judge.”

Level #4: Appellate level, de novo, shock-the-conscience

redetermination. The Supreme Court of Alabama found no

error and its own de novo reassessment of the verdict via

the Hammond standards revealed no excessiveness. Even

though levels of review #1, #2 and #3 thus resulted in no

basis for lowering the present verdict, the Court exercised

a fourth level, de novo jurisdiction to remit the verdict

based upon a comparative, shock-the-conscience standard.

It was this fourth level of review which resulted in the

verdict’s reduction by $10,000,000—the largest remittitur in

Alabama history. The Supreme Court of Alabama conducted

its own redetermination of damages under a historic "shock-

the-conscience" standard. Remittitur was ordered because the

Whitt award seemed, after a comparative study of other

verdicts, simply "too much."

Burlington Northern therefore was afforded repeated

opportunities to be heard as to the excessiveness of the

verdict. Successive stages of independent, post-verdict

review by the judiciary checked any potential, unbridled

jury discretion. Due process requires no more.

*” See Central Ala. Elec. Coop. v. Tapley, 546 So. 2d 371 (Ala.

1989).

** See Alabama Power Co. v. Cantrell, 507 So. 2d 1295, 1305

(Ala. 1986) (in affirming a $1,000,000 verdict the Supreme Court

indicates that it is empowered to conduct its own consideration of all

the Hammond factors).

26

B. Reduced From $15,000,000 To $5,000,000, As A

Result Of The Supreme Court Of Alabama’s De

Novo Redetermination Of Damages, This Par-

ticular Verdict Comes Before The Court Un-

tainted By Standardless Jury Discretion And In

Full Satisfaction Of Burlington Northern’s Due

Process Rights.

Leading authorities suggest that a way to avoid unbridled

jury discretion, and more nearly satisfy the due process

rights of defendants, is for judges themselves to set the

amount of punitive damages. See Ellis, Punitive Damages,

Due Process, and the Jury, 40 Ala. L. Rev. 975, 1005

(1989). Active remittitur by the judiciary, according to one

pioneering scholar, may well work to prevent jury awards

"from violating a corporation’s due process rights." Owen,

Problems in Assessing Punitive Damages Against Manufac-

turers of Defective Products, 49 Chi. L. Rev. 1, 50 (1982);

see Note, Can Punitive Damages Standards Be Void for

Vagueness?, 63 St. John’s L. Rev. 52, 67 (1988). Reduction

of the present verdict by $10,000,000, the largest remittitur

in Alabama history, constitutes the apex of such judicial

activism’ in verdict reassessment. The Supreme Court of

Alabama, utilizing its statutory power to conduct a complete

and de novo redetermination of punitive damages, ordered

remittitur under a historic "shock-the-conscience" standard

which resulted in the conclusion that the original verdict

was simply "too much." Pet. at App. 24a. See Code of Ala.

§ 12-22-71 (1975) (authorizing appellate courts to order

remittitur when there is no other ground of reversal save

excessiveness).

Such dramatic judicial intervention, in totally reassess-

ing punitive damages, sustains the Whitt verdict against a

due process challenge. The original $15,000,000 jury award

27

has been converted, through the exercise of de novo

appellate reduction, into a judge’s verdict of $5,000,000. It

thereby has been purged of any unbridled jury discretion by

the fact that the highest appellate court has intervened and,

even without error or abuse of discretion by either the jury

or trial judge, has conducted what one constitutional

reformer has termed a "second level of judicial review."

See Recent Developments, Constitutional Limits to Punitive

Damage Awards, 13 Harv. J.L. & Pub. Pol’y 370, 381, at

n.71 (1990). Such a significant abrogation of jury discretion

fully satisfies those due process concerns expressed in

Browning-Ferris Industries v Kelco Disposal, Inc., 109 S.

Ct. 2090, 2923-24 (1989), by several concurring members

of this Court. It likewise distinguishes this verdict from that

now before the Court in Pacific Mutual Life Ins. Co. v.

Haslip, 553 So. 2d 537, cert. granted, 110 S. Ct. 1780

(1990) (No. 89-1279, argued October 3, 1990). This demon-

stration of Alabama remittitur practice guarantees an amount

that comports fully with the due process rights of Bur-

lington Northern. A verdict so significantly reduced renders

it an inappropriate vehicle for exercise of certiorari review.

See Hodder v. Gocdyear Tire & Rubber Co., 426 N.W.2d

826 (Minn. 1988), cert. denied, 109 S. Ct. 3265 (1989)

(certiorari denied in case where the state court had reduced

the punitive damage award from $12,500,000 down to

$4,000,000).

C. A Review Of Prior Jury Verdicts Would Have

Given Burlington Northern Notice, Sufficient To

Satisfy Due Process Fairness, That Its Wanton

Homicide Could Lead To A _ Verdict Of

$5,000,000.

A part of Burlington Northern’s due process argument,

beyond that of standardless jury discretion, is lack of notice

28

regarding a verdict of this magnitude. However, Burlington

Northern is presumed to know the law of the states in

which it operates and, through that knowledge, was well

aware of the extensive standards applied in Alabama for

measuring the appropriate amount of punitive verdicts. Due

process does not require standards that lead to exact

mathematical computation. To hold otherwise would permit

railroads like Burlington Northern to plan profitable but

culpable conduct and to know, in advance, the resulting

cost. Additionally, a survey of other verdicts, within and

without Alabama, would have served clear notice upon

Burlington Northern that homicide caused by wanton

conduct, compounded by cover-up, could lead to a wrongful

death verdict of $5,000,000.”

CONCLUSION

Certiorari jurisdiction does not lie due to Burlington

Northern’s failure to properly press the due process issue

during the trial below. Such failure to preserve the issue is

confirmed by the fact that the state court’s opinion, serving

as the basis for the present petition, is silent as to the

constitutional question.

Alabama’s wrongful death statute has been expressly

* See, e.g., Black Belt Wood Co. v. Sessions, 514 So. 2d 1249

(Ala. 1986) ($3,500,000) (wrongful death verdict); Herold v. Burlington

Northern, Inc., 761 F.2d 1241 (8th Cir.), cert. denied, 474 U.S. 888

(1985) ($11,675,000) (jury verdict against Burlington Northern in

railroad crossing collision case with near duplicative issues). See also

The 10 Largest Jury Verdicts of 1988, 75 A.B.A. J. 45 (March 1989);

More Big Bucks in Jury Verdicts—Additions to the 1988 List, 75 A.B.A.

J. 69 (July 1989) (reporting wrongful death verdict of $25,000,000);

Recent Verdicts, 2 Ala. Trial L. J. 16 (Summer 1983) (Hicks v. Ireland)

($25,000,000 jury verdict in wrongful death).

29

upheld, against a due process challenge, by both this Court

and lower federal courts. Additionally, it stands unique as

the only wrongful death statute in the nation that permits

the recovery of punitive damages only; thus precluding any

problem of disparity between compensatory and punitive

damages. Both its judicial affirmance and uniqueness render

it an inappropriate medium for certiorari review regarding

national punitive damage issues. Additionally, due process

in no way precludes such a punitive-only statute, aimed at

preventing homicides, where damages are based on the level

of a defendant’s culpability.

The original $15,000,000 award was based upon wanton

homicidegg compounded by cover-up. Despite such

heightened culpability, the verdict was subjected to remit-

titur and reduced by $10,000,000. The result was a

$5,000,000 wrongful death verdict which is reasonable when

compared with other similar awards and one the likelihood

of which Burlington Northern should have been fully aware.

This dramatic judicial intervention came only after the

verdict surmounted four levels of post-verdict reassessment

in which it yrs tested under a substantial body of newly-

evolved standards for measuring excessiveness. In every

regard, Burlington Northern Railroad received all the

process that due process requires.

30

For all the foregoing reasons, the petition for certiorari

should be denied.

Respectfully submitted,

OF COUNSEL:

GARVE IVEY, JR. DAVID CROMWELL JOHNSON

Wilson & King Counsel Of Record

1816 Bankhead Byars Bldg. Johnson & Cory, P.C.

Jasper, AL 35502-0498 300 21st Street North

205-221-4640 Birmingham, AL 35203

205-328-1414

LEILA HIRAYAMA

Johnson & Cory

300 21st Street North March 11, 1991

Birmingham, AL 35203

205-328-1414

CHARLES W. GAMBLE

Attorney at Law

727 Canyon Circle N.

Tuscaloosa, AL 35406

205-758-0794