# Opposition Brief — Burlington Northern Railroad Co. v. Whitt

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 948

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1630%3A2. Public record. Not legal advice.