Opposition Brief — Remington Arms Co. v. King

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Sunreme Court, US

> | P_LED

No. 90-1296 MAR 8

199]

OFFICE OF THE CLERK |

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

REMINGTON ARMS COMPANY,

INC., . . : . Petitioner

versus

NICHOLAS N. KING, . . . . Respondent

On Petition For Writ Of Certiorari To The

. Kentucky Supreme Court

From A Decision By The

Court Of Appeals Of Kentucky

RESPONDENT’S BRIEF IN OPPOSITION

JON D. ROBINSON

Counsel of Record

HULL, CAMPBELL & ROBINSON

500 Millikin Court |

P.O. Box 1765

Decatur, [Illinois 62525

(217) 429-4296

WILLIAM M. BUTLER, JR.

1916 Kentucky Home Life Building

Louisville, Kentucky 40202

(502) 585-3030

Counsel for Respondent,

Nicholas N. King

WESTERFIELD-BONTE co., 619 W. KENTUCKY~-P.O,. BOX 3251, LOUISVILLE, KY.

TABLE OF CONTENTS

PAGE

pe ee ee ee ee i

TT eee ree ll-iv

ES SE ee eee See ree 1- 2

SID A WO ROE nnn cece nes seuwacsenss 2- 8

is I CD, a5 oa bas ns bees weeesake 2-5

i er 6- 8

Reasons for Denying Writ ........................ 8-12

Petitioner’s First Question ............0 cc... eae 12-22

Petitioner’s Second Question ................00 00 22-25

Petitioner’s Third Quéstion .................008. 25-28

ae ee wr ge eon eer cere ee 28-29

re er ee een ane la—20a

TABLE OF AUTHORITIES

—E——

Cases: PAGE

Aluminum Co. of America v. Alm, cert. denied, 111

At. BED ERS hae cetera ea aes 9, 10, 28

Bailey v. Anderson, 326 U.S. 203 (1945) .......... 21

Bankers Life and Casualtu Co. v. Crenshaw, 486

ORR. TS CRD os ices eee es 2, 12, 26

Beck v. Washington, 369 U.S. 541 (1962) ......... 20

Bingham v. Davis, Ky., 444 S.W. 2d 123 (1969).... 19

Boehm v. Hishmeh, Ky., 421 S.W.2d 836 (1967) ... 24

Browning-Ferris Indus. v. Kelco Disposal, Inc., 109

SCA. S000 (IGG)... cascviece cee 2, 24, 26, 27, 28

Brumley v. Richardson, Wy., 273 S.W.2d 54 (1954). 24

Buchanan v. Brown, Ky., 458 S.W.2d 765 (1970) ... 7,18

Burke Enterprises, Inc. v. Mitchell, Ky., 700 S.W.2d

1 (ESRD)... ccc eee as 24

Cardinale v. Lowisiana, 394 U.S. 437 (1969) ....... 2

Chicago, I. & L.R. Co. v. McGuire, 196 U.S. 128

(TSG) onda nc vesk oi wee ee ee es 21

Clark v. Clark, Ky.App., 601 S.W. 2d 614 (1980) ... = 20

Commonwealth, Dept. of Highways v. Enoch, Ky.,

525 S.W 3d Goo (LOGS). vee eee ee 18

Davis v. Graviss, Ky., 672 S.W.2d 928 (1984).... .25-26

Hall v. Arnett By Greene, Ky.App., 709 S.W.2d 850

CRBBG) wou ise sss wae oe eee eee 20

Hensley v. Paul Miller Ford, Ky., 508 S.W.2d 759

(IBGE)... ki visas pecs eee 23

Herb v. Pitcairn, 324 U.S. 117 (1945) ............. 20

Herrick v. Wills, Ky., 333 S.W.2d 275 (1960). . .20, 25, 26

Horton v. Union Light, Heat & Power Co., Ky., 690

S. W.28 368 (1988) 2. eos aoe ees 6

Johnson v. Gaines, Ky., 313 S.W. 2d 408 (1958) .... 0 28

Kennedy v. Commonwealth, Ky., 544 S.W.2d 219

Cre rrr Pee ee a 24

lil

PAGE

Koching v. International Armament Corp., Ky. 772

EO os io ek os ee se saceeeeasbane 23, 24

Mann’s Ea’r v. Leyman Motor Co., Ky., 28 S.W.2d

Se 13-14

Marcum vy. Hedger, Ky., 808 S.W.2d 558 (1957) .... 24

Michel v. Lowsiana, 350 U.S. 91 (1955) ........... 21

Pacific Mutual Life Insurance Co. v. Haslip, 553

So.2d 537 (Ala. 1989), cert. granted, 110 S.Ct.

1780 (1990) (No. 89-1279) ....... s+ say > Oy ely Be

21, 22, 25

Pennsylvania R. Co. v. Illinois Brick Co., 297 U.S.

ee ace ek sua A Wm kw de we ead ose es 21

Raley v. Ohio, 360 U.S. 423 (1959) ............... 27

Scudamore v. Horton, Ky., 426 S.W. 2d 142 (1968). = 19

Sims Motor Transportation Lines v. Foster, Ky.,

ee Be a ere 14

Stewart v. Jackson, Ky., 351 S.W.2d 58 (1961) .20, 25, 26

Sweasy v. King’s Daughters Mem. Hosp., Ky., 771

Thorp v. Bonnifield, 177 U.S. 15 (1900) . 2.2.2.0... 2

Tucker v. Ragland-Potter Co., Ky., 148 S.W.2d 691

a a Saag Ow ew 48 14

Webb v. Webb, 451 U.S. 493 (1981) ............... 20

Yakus v. United States, 321 U.S. 414 (1944) ....... 21

Young v. DeBord, Ky., 3951 S.W.2d 502 (1961) ..... 23

United States Constitution:

ee 7, 18, 26, 27, 28

Fourteenth Amendment .............. 7, 8, 14, 18, 19, 20,

24, 25, 26, 28

MOREOMNENOND oc cc issn cee see awaveees 22

Federal Statutes:

United States Supreme Court Rule 14.1(h) ....... 8- 9

Ee a a ea 1

State Statutes: PAGE

my.meev sort. § 411.184 ........... 12, 13, 14, 15, 22, 24, 26

fe eS a rr ee 15

er. Se I bo na bs habe cwuk ee ewae cs 22

Kentucky Rules of Civil Procedure, Rule 51(3) . 6

Kentucky Rules of Civil Procedure, Rule 59.01(b) .. 26

Kentucky Rules of Civil Procedure, Rule 76.12(4) . .19, 26

No. 90-1296

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

Remincton Arms Company, Inc., - - - Petitioner

NicnHoutas N. Kine, -~ - - - - - Respondent

ON PETITION FOR WRIT OF CERTIORARI TO THE

~“KENTUCKY SUPREME COURT

FROM A DECISION BY THE

COURT OF APPEALS OF KENTUCKY

RESPONDENT'S BRIEF IN OPPOSITION

JURISDICTION

Petitioner, Remington Arms Company, Ine., asserts

jurisdiction under 28 U.S.C. § 1257(A). The constitutional

claims asserted by Petitioner were never preserved by

Petitioner or passed upon by the courts below. Petitioner

never “specially set up or claimed under the Constitution

of . .. the United States” those rights which it now

seeks to have the Court enforce, contrary to the require-

ments of 28 U.S.C. 6 1257(A). Petitioner fails to identify

where in the record federal constitutional error was pre-

served. It is impossible for Petitioner to do so due to its

lack of presentation below. The Kentucky courts were never

apprised of the nature or substance of any federal claim

at the time and in the manner required by state law. This

fact is documented in the Opinion of the Kentucky Court

of Appeals. | Appendix A.] Beeause these constitutional

Claims were not properly raised below, this Court) lacks

jurisdiction to review the decision of the Kentucky appel-

late courts and the Petition should be denied. Cardinale v.

Louisiana, 394 U.S. 487, 488-39 (1969).

Even if the “not pressed or passed upon” rule is a pru-

dential restriction and not jurisdictional, the Court should

decline review of Petitioner’s claims as it has done in other

recent decisions involving punitive damage awards where

constitutional attacks were not properly preserved in the

lower courts. Browning-Ferris Indus. vy. Kelco Disposal,

Inc., 109 8.Ct. 2909 (1989); Bankers Life and Casualty Co.

v. Crenshaw, 486 U.S. 71 (1988).

Even if preserved, Petitioner’s claims have already been

determined adversely to it by this Court’s decision in Pacific

Mutual Life Insurance Co. v. Haslip, 553 So0.2d 537 (Ala.

1989) cert. granted, 110 S.Ct. 1780 (1990) (No, 89-1279)

decided March 4, 1991.

Furthermore, following the adverse decision of the Ken-

tucky Supreme Court, Petitioner voluntarily paid the judg-

ment without seeking a stay in this Court. Payment of a

judgment amounts to accord and satisfaction. Thorp v.

Bonnifield, 177 U.S. 15, 18-19 (1900). There no longer is

an actual controversy and the Petition is now moot.

STATEMENT OF THE CASE

A. Statement of Material Facts'

On October 15, 1982 Mr. King was teaching gun safety

and proper shooting technique at the Jefferson Gun Club.

He was shooting a six month old 12 gange Remington Model

'The trial of this action was not stenographically reported but

was videotaped. Each videotape cassette has the capacity to record

approximately ten hours of proceedings. The record of proceed-

ings in this case consists of ten video cassettes. The first cassette

records the proceedings which occurred the day before trial com-

(Continued on next page.)

1100 shotgun. As he fired at a clay target, the gun ex-

ploded. A witness, standing directly behind Mr. King,

described the explosion as follows:

. . And he called for the bird (clay target) and there

was just a huge flash. It was right at the edge of

dark and it was just the most horrible thing I ever

witnessed. The flash created a strobe effect in the air

and the air was just filled with particles and every-

thing was just suspended in time. I could see pieces

of metal and drops of blood and pieces of tissue.

And I could even see one of his tendons whipping out

through the air. . . . It was just a horrible thing to

see all that blood and flesh, flying out in front of

your face.*

The explosion blew off Mr. King’s left thumb, portions

of two fingers and seriously damaged his hand, wrist and

forearm. Ile was hospitalized twice, and had fourteen

separate surgeries. Several future hospitalizaudons and

surgeries are necessary.

At trial, King presented expert testimony that Peti-

tioner’s Model 1100 shotgun was defectively designed and

manufactured. In order to maximize profits, Petitioner

manufactured its Model 1100 shoteun barrel using high

sulfur, or “resulfurized” steel. This nonstandard grade

steel contains substantial amounts of non-metallic sulfide

inclusions which erack when stressed by normal shotgun

(Continued from preceeding page.)

meneed wher the trial court ruled upon motions in limine. Each

successive videotape records a day of trial proceedings. In the

bottom right hand corner of the video picture, appears a legend

stating the date, hour, minnte and seeond. All references to the

evidence contained herein document where the matter is located

in the video record.

“Tape No. 3; 12/7/88; 13:36:14.

shells. No other gun manufacturer in the world uses this

high sulfur steel.

King presented overwhelming proof that the high sul-

fur content of the Remington barrels created a cluster of

manganese sulfide inclusions, one or more of which caused

Mr. King’s gun to explode. After the explosion a metal-

lurgical examination of the King gun revealed a rust pat-

tern which proved the inside of the barrel had been cracked

for sometime before it exploded. Having no ability to de-

tect a microscopic crack, Mr. King continued to fire the

gun and the crack grew longer to “a critical length”. It

then exploded with the firing of a normal shell.’

At least four years before Mr. King’s gun barrel failed,

Petitioner was thoroughly warned of the dangers of using

“resulfurized steel”. It was advised to make its barrels

from chrome molybdenum. Shortly after receiving this

warning and advice, but without actually changing its steel,

Petitioner’s 1980 advertisements falsely represented that

its then current Model 1100 shotguns were made from

chrome molybdenum steel!’ Compounding the danger of

using “resulfurized steel”, Remington Model 1100 shotgun

barrels were not thick enough in the chamber area consider-

ing the steel used. Some of the barrels were produced even

thinner than Petitioner’s own inadequate specifications.®

3Tape No. 5; 12/9/88; 16:05:30; and Tape No. 6; 12/12/88;

10 :26 :26.

*Trial exhibit 58 was Petitioner’s 1980 catalogue. This at-

tractive brochure displayed photographs of the Model 1100 series

shotguns and boldly announced:

From the beginning its engineered tough. Both barrel and

receiver start as solid billets of ordinance — quality chrome

molybdenum steel.

“Tape No. 6; 12/12/88; 10:11:21.

Because the concentration of sulfur inclusions signifi-

eantly varies among barrels, not all barrels explode. Be-

cause the microscopic cracks grow unnoticed in some bar-

rels, there is little chance of detecting a probable failure

in advance. The result is that the unsuspecting shooter

unknowingly plays “Remington roulette”.

Prior to the explosion of Mr. King’s gun, Petitioner

had actual knowledge of innumerable identical explosions

of the same model shotgun. Once these explosions became

commonplace, Petitioner instituted a document destruction

program which required all records of exploding guns to

be destroyed after a period of three years. Because of

of this corporate policy, it was impossible for Respondent

to determine how many other Model 1100 shotguns had

actually exploded like his. Respondent was still able to

prove at least 86 prior, similar (if not identical) explosions

where serious personal injuries were involved!® Despite

its actual knowledge, Petitioner has never warned anyone

of the dangers associated with the use of Model 1100 shot-

guns. In fact, Petitioner has never even advised the public

that the Model 1100s have been exploding, regardless of

what Petitioner claims is the cause.

For nine days the jury heard proof concerning the ob-

viousness of Petitioner’s defective product, the enormity

of Mr. King’s injuries and the callousness of Petitioner's

indifference to the numerous prior injuries suffered by

others as a result of the defective Model 1100 shotguns.

The jury unanimously decided upon a verdict of $417,-

926.47 compensatory damages and $6 million punitive

damages.

“Tape No. 3; 12/7/88; 15:50:00.

B. Procedural History

This action was filed in 1983 and tried before a jury

five years later. Petitioner did not raise any constitutional

attack on any aspect of punitive damages in its Answer,

Amended Answei, pretrial Motions or anywhere in the

volumes of other pleadings filed before trial. Additionally,

no such objection or claim was ever made during the rine

day trial.

Under Kentucky law, in order to preserve alleged er-

rors concerning the court’s jury instructions, a party must

present its position by offering an instruction, by making

a motion, or by specifically stating the objection and the

grounds for the objection. (Rule 51(3), Kentucky Rules

of Civil Procedure.) This procedure allows the trial court

an opportunity to act on any claim brought to its atten-

tion. For this reason, the day before this case was sub-

mitted to the jury, the trial court gave cach party a work-

ing draft of proposcd instructions for study and consider-

ation. At the instruction conference the following morn-

ing, each party was permitted unlimited time to state ob-

jections and to propose changes or additions. Petitioner

never raised any constitutional claims during this confer-

ence or during any other phase of the trial.

Furthermore, Petitioner never requested or tendered

an instruction secking the “standards” it now proposes.

Under the applicable Kentucky law at the time, a jury was

permitted to award punitive damages if the tortfeasor’s

failure to exercise reasonable care was accompanied by a

“wanton or reckless” disregard for the lives or safety of

the public. orton vy. Union Light, Heat d& Power Co., Ky.,

690 S.W.2d 382 (1985). The court’s instructions submit-

ted to the jury in this case properly described punitive

damages and they defined the necessary prerequisites for

such a finding.

After the trial, Petitioner filed a motion for judgment

notwithstanding the verdict, and included for the first time

a brief reference to the Kighth and Fourteenth Amend-

ments. This reference did not raise any of the arguments

now made by Remington. Under Kentucky’s well-settled

law this was too little and too late because a party cannot

raise an objection to the court’s instructions for the first

time in a motion for new trial or by motion for judgment

notwithstanding verdict. Buchanan vy. Brown, Ky., 458

S.W.2d 765 (1970). After considering the post-trial mo-

tions, the court found the jury verdict was justified under

the evidence presented.

After the post-trial motions, Petitioner appealed to the

Kentucky Court of Appeals. Even if it had raised and

preserved a federal question at the trial court, any such

Claim based upon the due process clause of the Fourteenth

Amendment was abandoned on appeal. The only federal

constitutional issue Petitioner offered on appeal was an

argument claiming that punitive damages violated the

Lighth Amendment prohibition against excessive fines,

’

Petitioner's “points and authorities” and brief to the

Kentucky Court of Appeals never addressed the Four-

teenth Amendment. On appellate review, Petitioner limited

its constitutional argument to the Eighth Amendment;

to-wit: “the award for punitive damages may violate the

constitutional prohibition against excessive fines”. [Ap-

pendix B.] The two paragraph discussion which Peti-

tioner presented in its brief to the Kentucky Court of

Appeals does not even mention the Fourteenth Amendment.

| Appendix (.]

The Kentucky Court of Appeals confirmed Petitioner’s

failure to preserve any due process constitutional claim

when it found:

Appellant now contends that this decision was an

‘obvious invitation for a due process challenge’ based

upon the arbitrary lack of standards for punitive dam-

ages, lMven if this were so, the issue was not raised in

the trial court and we cannot sua sponte address 1is-

sues Which were never raised, no matter how challeng-

ing. [Appendix A.]

The Kentucky Court of Appeals unanimously affirmed

the jury verdict. Because the appeal presented no novel

questions of law, the court’s written opinion was not pub-

lished. Petitioner sought discretionary review from the

Kentucky Supreme Court. That court found Petitioner’s

appeal unworthy of consideration and denied further re-

view. After the adverse ruling by the Kentucky Supreme

Court, Petitioner never sought to have this Court stay the

proceedings. Instead, it paid the full amount of the judg-

ment on December 29, 1990. [| Appendix D.]

REASONS FOR DENYING THE WRIT

Petitioner now presents three claims, all of which al-

legedly concern the “due process clause” of the Fourteenth

Amendment. None of these issues-was properly raised by

Petitioner in the state courts. None was passed upon by

any Kentucky court.

A. Petitioner’s Questions Are Not Preserved

For Review By This Court

Not surprisingly, Petitioner has also failed to comply

with United States Supreme Court Rule 14.1(h) which

mandates a petitioner to:

specify the stage of the proceedings, both in the

court of the first instance and in the appellate courts,

at which the federal questions sought to be reviewed

were raised; the method or manner of raising them

and the way in which they were passed upon by those

courts...

Petitioner cannot comply with this Rule. It cannot point

to any place in the record where these issues were properly

presented or passed upon. Petitioner’s oblique reference

to “post-trial motions and . . . the tender of instructions”

is of no value because Petitioner never states where and

how in the instructions these issues were raised. (Peti-

tion, p. 9.) Petitioner’s tendered instructions actually

document the fact that it never raised any of these claims.

Finally, Petitioner also fails to state where and how it

claims these issues were raised in the Kentucky Cour’ of

Appeals.

Petitioner is not the first to attempt a constitutional

attack on punitive damages for the first time in a petition

to this Court. For example, in the case of Aluminum Co.

of America vy. Alm, cert, denied, 111 S.Ct. 135 (1990), the

Court refused to grant certiorari even though the petition

raised some of the same constitutional issues which were

preserved in the then pending /aslip case.

Alm was a products liability case where the jury found

for respondent in the sum of $15,000.00 compensatory

damages and $1 million punitive damages. The petition

‘Page 4 of the Pacific Mutual’s Petition for Writ of Certiorari

in Haslip makes it clear that:

Pacific Mutual raised its constitutional challenges to an award

of punitive damages at the answer stage, preserved such issues

at trial and vigorously advanced those issues on appeal. in its

briefs, at oral argument, in the post-trial letter briefs and in

its petition for rehearing.

for certiorari in Alm presented the following due process

arguments:

Whether an award of punitive damages imposed by a

jury without any meaningful standards and in an

amount wholly within its absolute discretion comports

with the due process clause of the Fourteenth Amend-

ment. (ALCOA’s Petition for Certiorari, p. i.)

Whether the due process clause of the Fourteenth

Amendment imposes limits on a jury’s standardless

discretion to assess punitive damages in civil cases.

(ALCOA’s Petition, p. 9.)

The Court denied certiorari and refused to hold the

case even though certiorari had been granted in /Haslip

and that case was pending. As in Alm, the Petitioner here

failed to raise and preserve any due process issues in the

state courts. Like the petition in Alm, the Petition for

Certiorari here mimics some of the issues which were pre-

served in /Haslip.® Petitioner asks this Court to grant

certiorari here because it now makes claims similar to

some of those raised in //asiip, even though Petitioner

never preserved these claims.

Petitioner now claims constitutional questions concern-

ing jury instructions and the amount of punitive damages;

but these issues are contrived by Petitioner. The Petition

for Certiorari should be denied.

B. All Of The Questions Presented By Petitioner Were

Decided Adversely To Petitioner In Haslip

In its recent opinion rendered March 4, 1991, this Court

held that the “common-law method of assessing punitive

damages” does not violate the due process clause of the

‘In Haslip, all constitutional issues were raised and preserved

in the trial and at every level of state court review,

Fourteenth Amendment (p. 14). In //aslip, the Court af-

firmed a punitive damage award and held:

1. The trial court’s jury instructions provided adequate

standards to insure the jury’s “discretion was exer-

cised within reasonable constraints” (p. 17). The

jury instructions in the instant case contained the

same safeguards as the instructions in Haslip;

2. The Court approved punitive damages where the

jury applied the “preponderance of evidence” stand-

ard. This standard (“if you are reasonably satisfied

by the evidence”, p. 3, fn. 1) is the same evidentiary

standard applied in the instant case; and

8. The post-trial procedures for serutinizing punitive

damage awards insured “meaningful and adequate

review” and insures that they will not be “grossly out

of proportion to the severity of the offense” (p. 19).

Kentucky appellate review procedures are remark-

ably similar to those used in Alabama.

3ecause the HHaslip decision addressed and decided all

of the questions belatedly presented by Petitioner in this

ease, there is no reason to grant certiorari here, even as-

suming the issues were preserved,

C. Other Reasons For Denying Certiorari

Even if Petitioner had preserved issues not already de-

cided in Iaslip, there are other significant reasons why

certiorari should be denied.

First, because no noteworthy legal issues were pre-

served in the state courts, the Kentueky appellate decision

was not published. This decision below does not consti-

tute precedent. It is important only to the parties here.

Second, there are less intrusive resolutions for these

questions in) Kentueky. The Kentucky legislature has

already enacted a series of statutes, KRS 411.184 et seq.,

which comprehensively address the subject of punitive dam-

ages. In view of this statutory change, the issues which

Petitioner belatedly raises may never be confronted in

Kentucky. However, even if confronted, Kentucky courts

should be allowed the opportunity to resolve such issues

on adequate and independent non-federal grounds; and fail-

ing that, the Kentucky Supreme Court should have the

opportunity to decide the question of federal law in the first

instance. Crenshaw, supra, at 80.

Third, Petitioner apparently realized the frailty of its

position because it did not seek a stay in this Court; and

it paid Respondent the full amount of the judgment on De-

cember 29, 1990,

Petitioner’s first two questions contend the court’s jury

instructions violated “due process” of law. Both of these

arguments were waived in the trial court by Petitioner’s

failure to present any constitutional objection to them.

Petitioner’s post-trial motion cannot cure this lack of pres-

entation. In addition, neither of these questions was raised

on appeal. Petitioner’s third question concerning exces-

siveness was briefly mentioned in a post-trial motion, but

it was completely sbandoned by Petitioner on appeal tc

the Kentucky Court of Appeals.

I. PETITIONER’S FIRST QUESTION

Petitioner now claims the jury instructions provided no

guidance on whether the jury should assess punitive dam-

ages or, if so, in what amount. Under Kentucky law Pe-

titioner waived this argument in four distinct ways. Firstf,

during five years of active pretrial litigation, Petitioner

never advanced to the trial court any constitutional argu-

ment against punitive damages, against the method by

on?

which they were to be determined, or against the standard

of proof required for awarding them. Second, Petition-

er’s failure to raise any constitutional matters continued

throughout the nine day jury trial. Petitioner never of-

fered jury instructions setting forth any proposed stand-

ards for jury guidance. Nor did it object to the instrue-

tions given by the court on the basis of the alleged lack of

constitutionality required standards. Third, under Ken-

tucky law post-trial motions cannot raise objecticns to

instructions and Petitioner’s motion did not cure the trial

waiver. Furthermore, Petitioner’s post-trial motion did

”9

not even suggest the need for any “standards”. Fourth,

Petitioner never presented a due process argument to the

Kentucky Court of Appeals. Moreover, even if Petitioner

had properly preserved the issues it now raises, this Court’s

recent decision in //aslip is determinative of all questions

the Petition presents.

A. Petitioner Failed to Raise the Issue in the Trial Court

At trial Petitioner submitted to the trial court two sets

of proposed jury instructions. The first set failed to

address any aspect of punitive damages. [Appendix E.]

The second set (supplemental instructions) did not request

the application of any standard even remotely similar to the

one Petitioner now secks. In fact, Petitioner’s supple-

mental proposed jury instructions only requested one of

the following: a definition of “malice” as defined by KRS

411.184 or, in the alternative, application of the “wanton

and reckless disregard” standard. [Appendix F.] The

trial court correctly ruled that KRS 411.184 could not be

retroactively applied and therefore it did not instruct on

“malice”. However, the court did instruct the jury that it

eould award punitive damages only if it found that Peti-

{ioner acted with a “wanton aid reckless disregard” for

the lives and safety of the public. Although it received

the very instruction is requested, Petitioner now claims

constitutional error!

Petitioner also claims the Fourteenth Amendment re-

quired the jury instructions to contain specifie standards

for jury guidance on the amount of punitive damage

awards. Petitioner never presented these issues to the trial

court; it never verbally requested any standards to be

incorporated within the court’s jury instructions; it never

submitted proposed jury instructions containing any such

standards; and it did not bring this issue to the trial court’s

attention in any other manner. Petitioner never contended

the jury instructions given were not otherwise appropriate

if KRS 411.184 did not apply. Under state practice, the

constitutional issues which “Petitioner now raises were

waived.

Under Kentucky law, if a party desires a jury instrue-

tion upon a particular point, it must offer the instruction

to the trial court. If it fails to do so, any claim to an ob-

jection or to an instruction is waived. Tucker v. Ragland-

Potter Co., Ky., 148 S.W.2d 691, 697 (1941). A party de-

siring instructions on its theory of the case has a duty to

offer the instruction to the trial court. Sims Motor Trans-

portation Lines v. Foster, Ky., 295 S.W.2d 226, 229 (1956).

It is not error to omit an instruction where the instruction

was not submitted by the complaining party. Mann’s Ea’r

v. Leyman Motor Co., Ky., 28 S.W. 2d 956, 959 (1930).

Petitioner failed to allow the trial judge any opportunity

to consider the constitutional question which it now pre-

sents. This constitutes an irrevocable waiver.

Although Petitioner contends it preserved a constitu-

tional issue, it fails to advise this Court where it submitted

or requested a more detailed instruction than what the

court submitted to the jury. Petitioner’s only objection

to the trial court’s punitive damage instructions was a gen-

eral objection alleging applicability of a state statute, KRS

411.184."

KRS 411.184 was enacted six years after Mr. King’s

injury, and six months before trial. Petitioner claims

“it tendered instructions upon Ky.Rev.Stat. 411.184 to .186

[which] provides five factors to guide the jury in deciding

the amount of the award”, implying that it somehow pre-

served a constitutional claim. (Petition, p. 3, emphasis

added.) However, Petitioner cannot even cite where it

tendered instructions based upon KRS 411.786. A review

of the instructions offered by Petitioner proves it did not

request the trial court to instruct the jury on any of the

five factors which are set forth in KRS 471.186, Petition-

er’s sole objection was based upon KRS 411.787, and it

never raised any issue associated with KRS 411.186. Pe-

titioner did not at trial even cite that statute to the Court!

Petitioner’s reference to the five “factors” contained in

IK RS 411.186 is curious because Petitioner admits the Ken-

tucky appellate court’s determination that the statute did

not apply to this case is a “purely state law issue”. (Pe-

tition, p. 3, fn. 3.) Petitioner is apparently suggesting that

somehow these factors should have been incorporated into

the jury instructions, even though at trial Petitioner never

requested that these or any other factors be included in

the instructions.

Although Petitioner did not tender any instructions on

the five factors, evidence relevant to these factors was pre-

*Tape No. 10; 12/16/88; 11:46:03.

A ———

sented to the jury. The five factors and some of the related

proof are:

Tue Liketinoop Tiat Serious Harm Wovrup Resuur

From PETITIONER'S Misconpwuct:

Long before the Model 1100 shotgun was designed

it Was common knowledge among metallurgists that,

due to its intrinsic weakness, high sulfur, resulfur-

ized steel should not be used in gun barrels. Rem-

ington utilized this nonstandard grade of resulphur-

ized steel to reduce its manufacturing costs. No

other gun manufacturer in the world used this non-

standard steel.

Tue Decree Or Petirioner’s Awareness Tuat Its

Coxpuct Wovup Resvuit In Ixuvury:

For over twenty vears Petitioner has known its 12

gauge Model 1100 shotguns were dangerous because

they were exploding in the chamber, and in many

cases Causing traumatic injuries including amputa-

tion of thumbs and fingers. Despite Petitioner's

destruction of records, Respondent proved that Pe-

titioner had notice of 86 prior and similar oceur-

)

rences,|'

Tue PRrorirasBtuiry or PETITIONER’s Misconpuct:

The purchase price of a Remington Model 1100 shot-

gun was $900.00."' Lven if Petitioner continued

using the nonstandard grade steel, this gun could

have been made substantially safer by a $2.40 ex-

penditure.

THe Duration or Petirioner’s Misconpvuct anp Its

(CONCEALMENT:

lMoTape No. 3; 12/7/88; 15:50:00.

"Tape No. 5; 12/9/88: 11:52 20.

Petitioner had fuli knowledge that its defective

product was perilous to innocent consumers. Rather

than correct the design defect, Petitioner chose to

institute a corporate policy where evidence asso-

ciated with the shotgun explosions was destroyed.”

It designed a litigation plan to blame the consumer

for the barrel failures. Petitioner falsely claimed

it was impossible for the Model 1100 to explode un-

less the consumer used dramatically overcharged

shotgun shells. This defense was routinely used

even when there was unconcradi-ted evidence the

shooter was using new factory shells. At trial,

Remington charged Mr. King with making and fir-

ivnamite”’. Petitioner made this

ing a “stick of «

claim even though its own expert witness testified

that Mr. King’s reloader “is the finest reloader that

has ever been made”, and although not one of Peti-

tioner’s twelve expert witnesses could find anything

wrong with Mr. King’s reloader or his shells.1* Pe-

titioner’s own expert witness conducted an in-court

demonstration which conclusively proved that it is

all but impossible to even deliberately overload a

shell like the one proposed by Petitioner at trial.

None of Petitioner’s witnesses could explain why

some brand new Model 1100 shotguns did, in fact,

| explode using brand new factory shells, some of

| which shells were also made by Petitioner. Finally,

Petitioner could not explain an incident report which

documented that a Remington 1100 barrel failed

while being tested by Remington with a new Rem-

ington shell at its own manufacturing plant!

"Tape No. 3; 12/7/88; 16:26 :45.

Tape No. 4: 12/8/88: 10:01:39 and 10:55:00: and Tape No. 5;

12/9/88; 11:37 50,

Tape No. &; 12/14/88; 13:42 20.

Actions BY Remincton to Remepy Its Misconpwuct:

Despite full knowledge of the design defect and the

many resulting injuries, Petitioner has not taken

any corrective action! What would a responsible

manufact: rer have done? Realizing the great po-

tential harm which can result from a design or

manufacturing defect in a firearm, responsible man-

ufacturers immediately recall an entire line of guns

upon learning of a defect. For example, Sturm,

Ruger & Company, Ine. recalled all 200,000 guns

(P-85 pistols) and offered to eliminate the risk at

no cost to the consumer [Appendix G.] This re-

call was implemented at the first report of danger

by a customer and before anyone was injured.

B. Petitioner’s Post-Trial Motion Could Not Cure

Its Prior Waiver

Petitioner claims it preserved constitutional objections

to the trial court’s instructions by filing a post-trial motion.

Petitioner’s motion for judgment notwithstanding verdict,

which contains a vague and unsupported, one sentence ref-

erence to the Eighth and Fourteenth Amendments, was in-

sufficient to preserve any alleged error in the court’s jury

instructions.

In Kentucky, post-trial motions are designed to allow

the trial court a second opportunity to review an issue

which was fully raised at trial. Commonwealth, Dept. of

Highways v. Enoch, Ky., 523 S.W.2d 633 (1975). Objee-

tions to the court’s instructions cannot be made in post-

trial motions unless the precise objections were specifically

presented to the trial court before the instructions were

given to the jury. Buchanan v. Brown, Ky., 458 S.W.2d

765 (1970). This prohibition is strictly applied to motions

for judgments notwithstanding verdict and motions for

new trial. Kentucky courts have uniformly refused to en-

tertain alleged error in instructions presented for the first

time in post-trial motions. Bingham v. Davis, Ky., 444

S.W.2d 123 (1969); and Scudamore v. Horton, Ky., 426

S.W.2d 142 (1968). This practice insures that all alleged

errors are first properly presented to the trial court and

that claims of error which are determined valid ean be

cured.

Petitioner never raised any constitutional objections to

the trial court’s instructions; and Kentueky law prohibited

it from making any such claims for the first time in a post-

trial motion or on appeal.

| C. Petitioner Also Waived the Question(s) It Now Pre-

| sents by Failing to Present Them on Appeal to the

| Kentucky Appellate Court

Petitioner’s waiver of Fourteenth Amendment claim(s)

persisted beyond the trial court because the question(s) it

now asserts were never advanced in Petitioner's state court

appeal. This jurisdictional defect is common to all three

of the claims which Petitioner now asserts.

Rule 76.12(4) of the Kentucky Rules of Civil Procedure

requires an appellant to include in its “statement of points

and authorities” all “contentions with respect to each issue

of law on which he relies for a reversal listing under each

the authorities cited on that point ~6

In its “statement of points and authorities” for the

Kentucky Court of Appeals, Petitioner did not list any

issue involving the Fourteenth Amendment. Petitioner did

not make any claim that the Constitution required the jury

instructions to contain more specifie “standards” for jury

euidanee. | Appendix Bo] Questions not embraced in the

statement of points and authorities are waived on appeal.

—————————eOUUrrmrdrd

Stewart v. Jackson, Ky., 351 S.W.2d 53 (1961). This Court

has previously refused to review state proceedings for this

specific reason. Beck v. Washington, 369 U.S. 541, 549-54

(1962). Finally, no such claims were ever made anywhere

else in Petitioner’s original brief to the Kentucky Court of

Appeals. Petitioner’s current claims thus were waived in

the Kentucky appellate court, even if they were raised

earlier in the trial court. //errick v. Wills, Ky., 333 S.W.2d

275 (1960). The Kentucky Court of Appeals noted that

these issues were not preserved. [Appendix A.]

On appeal, Petitioner made no reference to the Four-

teenth Amendment until its reply brief to the Kentucky

Court of Appeals. However, the Fourteenth Amendment

was not in issue and the reference to it was both untimely

and insufficient to create an issue for appeal. Clark v.

Clark, Ky. App., 601 S.W.2d 614 (1980) ; and Hall v. Arnett

By Greene, Ky.App., 709 S.W.2d 850 (1986).

The requirements for preservation of a federal question

were discussed in Webb v. Webb, 451 U.S. 493, 501 (1981),

where the Court held:

At the minimum, however, there should be no doubt

from the record that a claim under a federal statute

or the Federal Constitution was presented in the state

courts and that those courts were apprised of the na-

ture or substance of the federal claim at the time and

in the manner required by state law. (emphasis added)

A federal question must be pursued in the same man-

ner, and with the same degree of specificity, required by

the state rules of practice to perfect any other issue. Fail-

ure to comply with state procedures similar to those ig-

nored by Petitioner here have resulted in waiver of claimed

federal issues in many prior cases. As examples: failure

to raise a “due process” question by answer, motion or

otherwise, constituted a waiver under state practice which

prevented review by this Court, Pennsylvania R. Co. v. Illi-

nois Brick Co., 297 U.S. 447, 462-63 (1936) ; failure to com-

ply with state law requiring timely objection forfeited a

claimed federal right, Michel v. Louisiana, 350 U.S. 91, 93

(1955) ; failure to raise a federal issue until late in the state

appellate process waived the federal right, Chicago, I. &

L.R. Co. v. McGuire, 196 U.S. 128, 131-33 (1905) ; and rais-

ing a constitutional issue for the first time on appeal is

a waiver, Bailey v. Anderson, 326 U.S. 203, 206-07 (1945).

“No procedural principle is more familiar to this court

than that a constitutional right may be forfeited in criminal

as well as civil cases by the failure to make timely assertion

of the right . . .” Yakus v. United States, 321 U.S. 414,

444, (1944). This question is not preserved and there is

no adequate record to review, ‘y

D. The Haslip Decision Is Determinative Of This Issue

The jury instructions given by the trial court were re-

markably similar to the jury instructions approved in

Haslip. For example, both sets of instructions provided:

1. Punitive damages were not meant to compensate the

plaintiff but were to be in addition to any compen-

satory damages (instruction 5);

Punitive damages are permitted to punish the de-

fendant and deter such conduct in the future (in-

struction 6); and

3. An award of punitive damages was “discretionary”

(instruction 5).

The Court in Haslip held: “the application of these

standards, we conclude, impose a sufficiently definite and

meaningful constraint on the discretion of fact finders in

awarding punitive damages” (p. 18).

II. PETITIONER'S SECOND QUESTION

The second question now advanced by Petitioner as-

serts that “due process” requires a “clear and convincing”

evidentiary standard for punitive damages. Under Ken-

tucky law, this argument was waived in three separate

ways. First it was never advanced in the pleadings.

Second, it was not raised during trial. Petitioner never

offered instructions setting forth this proposed evidentiary

standard. Even though a post-trial motion cannot cure

trial waivers, Petitioner filed one but did not raise any

constitutional question concerning the evidentiary standard

applied by the court. Third, Petitioner never presented

this constitutional argument to any Kentucky court; and no

Kentucky court has ever passed upon this issue. Petitioner

has never claimed a “clear and convincing” evidentiary

standard was constitutionally required until the filing of

its Petition with this Court. Lasily, the preponderance of

evidence standard utilized at the trial of thfs case was ex-

pressly approved in //aslip.

At trial, Petitioner did not request an instruction seck-

ing application of a “clear and convincing” standard. Pe-

titioner’s only mention of “clear and convincing” referred

to the term as used in KRS 411.184.) The trial court cor-

rectly ruled that this statute could not be applied retro-

actively because KRS 446.080 prohibited retroactivity and

beeause retroactive application would also violate the Ken-

tucky Constitution.

The Kentucky Supreme Court has confirmed that KRS

411.184 cannot be given retroactive application without

violating the Kentucky Constitution and other Kentucky

statutes. Sweasy v. King’s Daughters Mem. Hosp., Ky.,

771 S.W.2d 812 (1989) ; and Koching v. International Arma-

ment Corp., Ky., 772 S.W.2d 634 (1989). At trial this issue

was presented solely as a state issue involving a state

statute to be construed by the state courts based upon

the state’s constitution and common law. This state law

determination is both independent and adequate to support

the ruling. .

Petitioner implies that it tendered proposed jury in-

’ evidentiary

structions requesting a “clear and convincing’

standard. The record belies this claim. Petitioner’s pro-

posed jury instructions actually requested a standard which

required the jury to “be satisfied” from the evidence that

punitive damages were warranted. [Appendix F; Tran-

seript of Pleadings, pp. 832-833.] The trial court utilized

the precise standard which Petitioner requested... Now,

for the first time, Petitioner claims the trial court com-

mitted constitutional error by utilizing the standard of

proof the Petitioner sought!

Kentucky law mandates that to be preserved all ob-

jections must include precise claims. Young v. DeBord,

Ky., 351 S.W.2d 502 (1961). To preserve alleged error in

the trial court’s instructions, the specific basis for each

objection must be stated. Johnson v. Gaines, Ky., 313

S.W.2d 408 (1958). Merely offering a general objection

MThe precise instruction Petitioner requested provided in perti-

nent part:

In order to award punitive damages against Remington, you

must be satisfied that not only it designed or manufactured

a product that was unreasonably dangerous for its intended

use and that the Plaintiff was thereby injured, but that Rem-

ington did so in such reckless and wanton disregard of the

rights and safety of persons such as the plaintiff . . . (em-

phasis added)

does not preserve error. Marcum vy. ledger, Ky., 303 S.W.

2d 558 (1957).

In Kentucky a party may not assign one reason for ob-

jecting to an instruction in the trial court and then rely

upon a different reason on appeal. Boehm v. Ilishmeh, WKy.,

421 S.W.2d 8386 (1967). “The appellants will not be per-

mitted to feed one can of worms to the trial judge and an-

other to the appellate court.” Kennedy v. Commonwealth,

Ky., 544 S.W. 2d 219, 222 (1977). Unless the stated basis

for an objection to a jury instruction is valid, the trial

court has no opportunity to correct it’s ruling and no error

is preserved. Brumley v. Richardson, Ky., 273 S.W.2d 54

(1954). Appellate review of alleged errors in instructions

is limited to reviewing the specific grounds raised at trial.

Burke Enterprises, Inc. v. Mitchell, Ky., 700 S.W.2d 789

(1985).

Petitioner at most preserved only its objections to the

state issue regarding retroactive application of KRS

411.184. The Kentucky Supreme Court has, on state

grounds, confirmed the validity of the trial court’s ruling.

Sweasy, Koching, supra.

Having failed to raise any constitutional question in

the trial court, Petitioner could not properly assert any such

claim on appeal.’"® Apparently Petitioner realized this be-

cause it did not press any Fourteenth Amendment due

6Even if Petitioner had properly presented and preserved its

argument that the trial court’s instructions violated Kentucky law

Petitioner’s present constitutional claims still would not be within

the ‘‘clear intendment’’ of the objections it made at trial. In both

the trial and appellate courts, Petitioner claimed only that KRS

411.184 should apply retroactively. VPetitioner’s failure to present

aud preserve any constitutional issues was even more pronounced

than the waiver in Browning-Ferris, supra, fn. 23, also at pp. 27-

28 below.

process claim to the Kentucky Court of Appeals. There-

fore, even if raised at trial, it was abandoned on appeal.

Stewart, llerrick, at pp. 19-20 above.

Petitioner has never before raised any constitutional

’ standard. This issue

claim for a “clear and convincing’

is not preserved and no review should be made here because

this Court lacks jurisdiction to review Petitioner's state

law claims. /[erb v. Pitcairn, 324 U.S. 117, 125-126 (1945).

At trial the jury was instructed that it could award

punitive damages if it was “further satisfied from the evi-

dence” that all the necessary prerequisites for a punitive

damage claim were proven (instruction 5). This is the

identical standard of proof approved by [aslip (p. 3, fn. 1).

III. PETITIONER’S THIRD QUESTION

Petitioner’s third issue asserts that the size of the puni-

tive damage award violates the due process clause of the

Fourteenth Amendment. Once again, Petitioner does not

even attempt to state how and when this alleged issue was

preserved. Furthermore, this claim was never advanced

as an issue in the Kentucky Court of Appeals.

Kentucky insures a meaningful and adequate review

whenever a jury assesses punitive damages. Kentucky law

provides that punitive damage awards will }e reviewed by

Kentucky courts to determine “whether there [is a] suffi-

cient relationship of the punitive damages to the injury

and the cause of it to justify the largeness of the verdict”.

Hensley v. Paul Miller Ford, Ky., 508 S.W.2d 759, 763

(1974).

The trial court reviewed the jury verdict and found it

to be proper, supported by the evidence, and not excessive.

Under Kentucky law, this action by the trial judge is pre-

sumptively correct. Davis v. Graviss, Ky., 672 S.W.2d 928

(1984). On appeal, Petitioner never challenged the trial

court’s findings and never availed itself of the appellate

review offered by Kentucky law.

Petitioner never preserved or presented to the Ken-

tucky appellate court a claim that the jury verdict was not

supported by the evidence, or that it was the product of

bias or prejudice. Nor did Petitioner argue the trial pro-

ceedings lacked elements of fundamental fairness or vio-

lated the due process clause of the Fourteenth Amendment.

Petitioner did not include any of these arguments as is-

sues in its “statement of points and authorities” as re-

quired by CR 76.12(4). In fact, Petitioner did not mention

these issues anywhere in its brief to the Kentucky Court

of Appeals. This failure is a waiver even if properly pre-

sented to the trial court. Stewart and Herrick, at pp. 19-

20 above.

The opinion of the Kentucky Court of Appeals docu-

ments Petitioner’s failure to present this issue:

On appeal, Remington does not claim that there was

insufficient evidence to support the jury verdict.

Neither does it argue that the verdict is so excessive

as to appear to have been given under the influence

of passion or prejudice. CR 59.0i(b); Davis v. Gra-

viss, Ky., 672 S.W.2d 928 (1954). Instead, the conten-

tions on appeal, in regard to the amount of the verdict,

are that punitive damage instructions should have been

based upon KRS 411.184 and that the award violates

the Eighth Amendment prohibition against excessive

fines. [Appendix A. ]

Petitioner cites the dissenting opinions in Crenshaw and

Browning-Ferris, supra. Wowever, neither case is author-

ity for accepting certiorari in this ease. To the contrary,

both cases held that federal constitutional issues must be

properly raised and presented in the courts below or this

Court will not address them.

At the trial of this action, the gravamen of Petitioner’s

objections was that the punitive damage award violated

Kentucky law. Petitioner’s appeal was based exclusively

on state grounds unrelated to the amount of the verdict,

except for an unpreserved Kighth Amendment claim. The

record of the state proceedings must affirmatively document

any preserved federal issues. Issues first raised in a Pe-

tition for Certiorari have not been entertained by this

Court. Raley v. Ohio, 360 U.S. 428, 433-436 (1959).

Petitioner’s lack of preservation and proper presenta-

tion of this issue is almost identical to the lack of presen-

tation in Browning-Ferris, supra, where the Court refused

to address “due process” arguments concerning a $6 mil-

lion punitive damage award:

Petitioners claim that the due process question is

within the ‘clear intendment’ of the objection it has

made throughout these proceedings. Our review of the

procecdings in the District Court and the Court of

Appeals shows that petitioners’ primary claim in both

of those courts was that the punitive damages award

violated Vermont state law. Petitioners also argued

that the award violated the Eighth Amendment. We

fail to see how the claim that the award violates due

process is necessarily a part of these arguments. We

shall not assume that a nonconstitutional argument also

includes a constitutional one, and shall not stretch the

specific claims made under the Eighth Amendment to

cover those that might arise under the Due Process

Clause as well, . . . Inthe absence of a developed ree-

ord on the issues relevant to this due process inquiry,

we shall not stretch the ‘clear intendment’ doctrine to

include this case, as we do not think that the due process

question is ‘only an enlargement’ of the Eighth Amend-

ment inquiry. Although the due process analysis of

an award of punitive damages may track closely the

Eighth Amendment analysis suggested by petitioners,

we shall not assume that to be the case, and shall not

attempt to decide the question im the absence of a rec-

ord on the due process point developed in the District

Court and the Court of Appeals. (p. 2921, fn. 23.)

(emphasis added)

As with Petitioner’s other questions, there is no pre-

served Fourteenth Amendment claim, and there is no record

of any such due process claim developed in either the trial

court or the Kentucky Court of Appeals. Lastly, even if

Petitioner’s questions were preserved, all of the questions

presented in the Petition were fully addressed by the Court

in Haslip and there is no need for further discussion. The

Petition should be denied.

CONCLUSION

This case involves a catastrophic injury which occurred

eight and a half years ago. As in the recent Alm petition

which the Court denied, Petitioner now raises constitutional

claims based on questions which were not preserved.

Petitioner urges this Court to accept a new constitu-

tional principal which would mandate a trial judge to in-

struct the jury concerning certain unspecified “standards”,

when neither party requested any such instruction. Peti-

tioner criticizes the trial judge for not instructing the jury

on a “clear and convincing” evidence standard, even though

it only requested that a “preponderance of evidence” stand-

ard be applied. Petitioner now claims the verdict was ex-

cessive under the Fourteenth Amendment, even though this

claim was never made on appeal. Petitioner seeks to have

this Court accept certiorari when it never properly raised

any of these issues below. If the Court adopts Petitioner’s

arguments, every unsuccessful litigant would have a plaus-

ible basis for seeking review in this Court.

Accepting jurisdiction in this case where issues were

not preserved would degrade the prominence of the trial

and the purpose of the established state practices for pre-

serving error. At trial and during the state appeal, sub-

stantive state law and procedural rules provided both par-

ties certain safeguards. Granting the Petition for Certio-

rari in this case would also destroy the purpose -of these

safeguards by suggesting that litigants need not adhere to

them.

Finally, Petitioner surely does not believe in its own

Petition. Petitioner, who has not claimed on appeal that

the jury’s verdict was unsupported by the evidence or based

on passion and prejudice, has already paid the judgment

in full.

The Petition for Certiorari should be denied.

Respectfully submitted,

Jon D. Rosprnson

Counsel of Record

Hvuui, Campsett & Ropinson

500 Millikin Court

P.O. Box 1765

Decatur, Illinois 62525

(217) 429-4296

Wittiam M. Butwer, Jr.

1916 Kentucky Home Life Building

Louisville, Kentucky 40202

(502) 585-3030

Counsel for Respondent,

Nicholas N. King

March 7, 1991

APPENDIX

LIST OF APPENDICES

Appendix A PAGE

Opinion of the Kentucky Court of Appeals ..... la- 9a

Appendix B

Remington Arms Company, Inc.’s “Points and

Authorities” to Kentueky Court of Appeals ..... 10a-lla

Appendix C

Petitioner’s argument on appeal to the Kentucky

Sk OT eee eee er er cry Tree ree 12a

Appendix D

Oe errr eee re eee eee eee l3a

Appendix E

Instructions tendered by Remington Arms Com-

ee Es OR AE ORMEE oda cece eas diiscee ences 14a-l6a

Appendix F

Supplemental instructions tendered by Reming-

ton Arms Company, Inc. to trial court .......... 17a-18a

Appendix G

Sturm, Ruger & Company, Inc. warning ........ 19a—20a

APPENDIX A

RENDERED: MARCH 30, 1990; 10:00 A.M.

NOT TO BE PUBLISHED

COMMONWEALTH OF KENTUCKY

COURT OF APPEALS

No. 89-CA-340-MR

Remincton Arms Company, | {ppellant

Nricuouas N, Kina { ppellee

Appeal Prowl ey fj } j ( iv?

[lon. edu bi A. Sc] Pocrlild, Dt ae P (aie

Ciral Action No. a PP ('] SU45

AFFIRMING

Berore: Gupcet, SrumBo, and West, Judges.

West, Jepce. This is an appeal from a judgment based

on a jury verdict which awarded $417,926.47 in compen-

satory damages and $6,000,000.00 in punitive damages to

the appellee. Air. King, a competitive skeet shooter, suf-

fered severe injury to his left hand and arm when a Reming-

ton 1100 12 gauge shoteun which he was firing exploded.

The key issue al trial was Whether this accident occurred

due to defective desien of the shotgun barrel or because

of an improperly overloaded cartridge.

On appeal, Remington does not claim that there was in-

sufficient evidence to support the jury verdict. Neither

does if areue that the verdict Is sO eXCESSIVE as lo appr ar

to have been given under the influence of passion or preju

dice. CR 59.01(d); Davis v. Graviss, Ky., 672 S.W.2d 928

(1984). Instead, the contentions on appeal, in regard to

the amount of the verdict, are that the punitive damages

instructions should have been based upon KRS 411.184

and that the award violates the Highth Amendment pro-

hibition against excessive fines.

Mr. King sustained his injuries in 1982. In 1983, this

action was filed seeking compensatory and punitive dam-

ages. In the 1988 session, the General Assembly enacted

Hiouse Bill 551 which has been codified as KRS 411.182 -

KRS 411.188. These statutes, among other things, modify

the law on punitive damages. KRS 411.184(2) requires

clear and convincing evidence that the defendant acted

toward the plaintiff with oppression, fraud or malice as a

predicate to awarding punitive damages and KRS 411.186

sets out specific criteria to be considered in assessing the

amount of punitive damages.

Remington argues that KRS 411.184 became effective

on July 15, 1988, and is applicable to ail cases tried after

that date. This trial commenced on December 6, 1988S. We

believe this issue has been resolved by recent opinions of

the Supreme Court and the trial court did not err in re-

fusing to apply these statutes retroactively. See, e.g.,

Sweasy Vv. King’s Daughters Menorial Hospital, WKy., 771

S.W.2d S12 (1989) ; Koching Vs International Armament

Corp., Ky., 772 S.W.2d 634 (1989). In both of these eases,

the Supreme Court found that application of a provision

of this same house bill in a case where the event occurred

prior to its enactment constituted impermissible retroactive

application. See, also, Floyd ve. Carlisle Const. Co. Ince..,

Ky., 79O8 S.W.2d 480 (1988): Conley v. Amer. Motors Corp.,

Ky. App., 769 S.W.2d 75 (1989). In light of these recent

rulings on the issue, we find it unnecessary to further dis-

cuss the retroactivity argument.

Following this trial and the resulting large verdict, Rem-

ington sought a judgement NOV and or new trial on the

grounds that this $6 million dolar punitive damages award

violated the constitutional prohibition against excessive

fines. Without belaboring this point, we simply hold that

the recent opinion of the United States Supreme Court in

Browning-Ferris Ind, of Vermont, Inc. vy. Kelco Disposal,

Ine., 492 U.S, —_, 109 S.Ct. 2909, 106 L.Md.2d 219 (1989),

is dispositive of this issue. Therein, it was held that the

excessive fines clause of the Eighth Amendment does not

apply to punitive damage awards in cases between private

parties. Jd. at 2921. Appellant now contends that this

decision was an “obvious invitation for a due process chal-

lenge” based upon the arbitrary lack of standards for puni-

tive damages. Even if this were so, the issue was not

raised in the trial court and we cannot sua sponte address

issues Which were never raised, no matter how challenging,

Moreover, as our country’s highest court noted in Brown-

ing-Ferris, supra, when performing the limited function of

an appellate court, considerable deference must be accorded

to the trial court’s decision not to order a new trial. Td.

at 2921 - 2922.

Minally, Remington argues that the plaintiff's counsel’s

reference to the shotgun’s alleged financial profitability was

prejudicial and an improper reference to the financial con-

dition of a party. It appears from the verdict that the sug-

gestions made by plaintiffs counsel in closing argument

were indeed followed by the jury in determining the puni-

tive damages award. This contention, therefore, causes us

some concern but cannot serve as grounds for reversal.

It is true that Kentucky, through case law, has held

that the financial condition of a defendant is not admissible

In an action for punitive damages. /ensley ve Paul Miller

Ford, luec.., Ky., DUS S.W. ari 799 (1974). Other jurisdic.

tions have held that the defendant's finaneial worth is ad-

missible and relevant to the amount of a punitive damages

award, Which is meant to deter defendants from repeating

misconduct as Well as punish past behavior. See, ¢.g., Aims-

worth vo. Combined Ins. Co. of America, Nev., 7638 P.2d 673

(1988); Tolliver v. Mathas, Ind. App. 088 N.B2d 971

(1989); Birchfield v. Texarkana Mem, Hospital do boa Wad-

le u Hlosprtal, Tex., (47 S.W 2d 361 (1987). Some states

require a prima facie showing of “entitlement” to punitive

damages before evidence regarding net worth may be intro-

duced. Curtis v. Partain, 272 Ark. 400, 614 S.W. 2d 671

(1981); Campen v. Stone, Wyo., 635 P.2d 1121, 1152 (1981) ;

see also lnnot., 82 A.L.R. 4th 482 (1984). It would appear,

from reading KRS 411.186, that our legislature has also

concluded that such evidence of the “profitability of the mis-

conduct” should be provided to the jury to assist it in as-

sessing the amount of punitives, once it has been deter-

mined that punitive damages should be awarded. KRS

411.186(2)(¢). However, as we hiave previously noted, KRS

411.186, also a section of louse Bill 551 enacted by the 1988

General Assembly, is not applicable to this action.

Thus, /lensley, supra, stands as the most recent au-

thority on the issue in this Commonwealth and would pro-

hibit any showing of the respective financial conditions of

the parties. Jd. at 764. Nonetheless, we cannot reverse

the judgment herein, as appellant did not preserve this

error,

The profitability comparison made by plaintiff's counsel

in closing argument was based upon facts before the Jury

regarding the cost of the Model 1100 and the total amount

of gross sales, as well as the cost to remedy the alleged

defect.

Remington’s counsel did not object to plaintiffs coun-

sel’s “suggested method” of assessing punitives, except to

state that one $500.00 estimated value of the shotgun was

outside the evidence. That objection was properly over-

ruled beeause the letter containing that estimate had been

introduced and there was no further complaint made. At-

torneys should be granted latitude in making their argu-

ments to the jury and drawing reasonable deductions from

the facts adduced at trial. Urban v. Walker, Ky., 405

S.W.2d 11 (1966). Alihough the references herein may

have exceeded the prohibition set forth in /lensley, supra,

where there was no objection on that basis, we will not find

it grounds for reversal.

The remaining issues on appeal relate to discovery and

evidentiary rulings of the trial judge. At the outset of the

trial, counsel for the plaintiff, in his opening statement,

utilized posters to outline the facets expected to be proven

at trial. Included on one of the posters was a statement

that “only 12 gauge Model 1100's explode.” Appellant now

contends that the display of this poster, specifically the

above statement, to the jury throughout the trial was in-

flammatory and prejudicial. It is further asserted that

there was in fact no evidence to support that statement and

that Remingion was not permitted to establish its falsity.

We have reviewed at great length the numerous tapes of

this nine (9) day trial. Having done so, we cannot agree

that the statement on this Gemonstrative aid, even if false,

eaused such prejudice as to warrant reversal.

Counsel is given wide latitude in directing the atten-

tion of the jury to ajl facts he in good faith believes will

be established at trial. //ollis v. Fisk, Ky., 242 S.W.2d

1012 (1951). Even if the evidence is not thereafter pro-

duced, the conduct, though improper, does not necessarily

lead to reversible error, Idi: Bruner vy. Gordon, 309 Ky, 29,

214 S.W.2d 997 (1948). If the unproved evidence is con-

sidered prejudicial, the appropriate procedural remedy is

a motion for a mistrial. Willams v. Commonwealth, Ky.,

602 S.W.2d 148 at 149 (1980). No request was made for

a mistrial at the close of plaintiff's case. Remington’s only

objection at the conclusion of the proof was that there had

been no testimony to the effect that “only Model 1100 12

gauge guns explode.” Accordingly, the error, if any, is

not preserved.

Appellant also maintains that it was denied the right

to show that shotguns of other manufacturers also explode.

Having reviewed the record, we do not agree thai the court

improperly restricted Remington's proof on this issue. One

of Remington’s witnesses was permitted to state before the

jury that his company had received complaints of explo-

sions involving models other than the Remington 1100. The

court limited any further exploration into this area because

the witness lacked the qualifications and personal knowledge

to support that testimony. It is also apparent that Rem-

ington had previously sought to restrict this line of testi

mony when the plaintiff attempted to raise it and the court

agreed. The trial court did not abuse its discretion, but

merely exercised reasonable caution in its rulings which

limited the amount of irrelevant and misleading informa-

tion put before the jury.

Likewise, we find that the court below acted cautiously

and within its discretion in permitting the introduction of

prior similar occurrences. Remington argues that the

evidence of other explosions was inflammatory and _ that

the trial judge improperly permitted proof of other mere

complaints. The language of Vontqoie ri Ie le vator Co, v.

MeCullough, Xy., 676 S.W.2d 716 (1984), is squarely on

point it} this case. Kvidenee of similar product failures

under similar conditions is clearly relevant and admissible

in a products liability design defect case such as this. 1d.

at 783. The requirement of substantial similarity between

the earlier accidents and the one at issue is a matter of

relevance to be de cided by the trial judge and will not be

easily reversed. /d.; Lawson's, Kentircky BReidence Law

Handbook, Second edition, $2.25 (1989 Supplement). Tere,

the court carefully considered this issue prior to trial and

set strict guidelines to insure that only substantially similar

prior incidents would be admitted.

The existence of other similar complaints of explosions

was revealed to King in Remington’s responses to requests

for admissions and interrogatories. If there was any error

in that any of those complaints were not first shown to be

substantially similar, it was both harmless and waived.

McCullough, supra, at 784.

Appellant alleges two (2) violations of the civil rules

pertaining to pretrial discovery. First, Remington ob-

jected to a statement by one of the plaintiff's experts, Dr.

Ripling, on grounds that it was an opinion which should

have been diselesed in interrogatories pursuant to CR

26.02. This contention is totally without merit. Dr. Rip-

ling was deposed for three (3) days prior to trial and the

plaintiff unquestionably provided defendant with the “sub-

stance of the facts and opinions to which the expert is ex-

pected to testify.’ CR 26.02(3)(a). We held there was

adequate disclosure and find no evidence of unfair sur-

prise or “trial by ambush” as suggested by appellant. The

intent of the rule, to enable counsel to prepare for cross-

examination has been satistied. Newsome by and through

Newsome v. Lowe, Ky. App., 699 S.W.2d 748, 751 (1985).

Finally, appellant maintains that the trial court erred

in refusing it discovery of Ndward Crossman’s findings,

opinions and conclusions in this ease. Plaintiff consulted

Crossman, a firearms expert, prior to filing suit and in

anticipation of litigation. Tle was utilized as a consulting

expert, not expected to testify at trial and was never re-

vealed by the plaintiff to the defendant as an expert for

the plaintiff. When his identity was somehow discovered

by appellant, it sought to take the discovery deposition of

Crossman,

The appellee moved for a protective order relying upon

Newsome by and through Newsome v. Lowe, Ky. App., 699

SW. 2d 748 (1985), cited herein on another issue. The

trial court conducted a hearing and held that Remington

could not depose Crossman as the impressions, conclusions,

or opinions ot pre-litigation consultants are privileg d. ld.

al i] (o2. We agree because Remn Yion failed to make

any showing of substantial need or exceptional circun

stances. CR 26.02(3)(a). - Now, Remington argues that it

should have been permitted to call Crossman as a witness

at trial in order to show that he was originally consulted

by the plaintiff.

Although it does not appear that appellant even at-

tempted 10 eall Dr. { rossman as a wit less, We note that

the parties have no absolute right to know the existence

oft pre litigation consulta ts who are hot retained as @CX-

perts for trial. Indeed, the purpose for restricting dis

covery of this tvpe of material is to protect the confiden

tinlitv and eneourage the use ol such consultations in ordet

P , ” ae en ee Ba on

to reduce the number of frivolous lawsuits. Newsome,

—-. rm . : ’ » % } } }

supra, at ¢o2. This form oft evidence could be both pre

judicial al d irrele Vant to the issues ot the case and its acd-

mM] <i bility is hest left 10 the discretion ot the trial judge.

In its exercise of that discretion on this matter as well as

the various other issues raised herein, we find no abuse.

In conelusion, the size of the verdict alone cannot be

at defendant did not receive a

}

ie , it dace

fair trin] when our review of the record indicates other

ATTORNEYS FOR APPELLANT:

William A. Hoback

Wilton R. Long, Jr.

Thomas W. Speckman

Speckman & Long

Louisville, KY

ATTORNEYS FOR APPELLEE:

William M. Butler, Jr.

Louisville, KY

Jon D. Robinson

Decatur, IL

)

ral

APPENDIX B

1 (

AP.

ii,

‘is

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RITLIES

ee /

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f lhe

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he Plan

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POINTS

Laqrayd

/ ; S/ /

)

lla

Court’s Refusal To Let It Do So Or Show The

Plaintiff Previously Consulted Crossman Was

Clearly Brromeoma. «oo... noes ess nsccnsuacrcncc, 12

(Citations omitted.)

The “Clear And Convincing” Evidence OF “Malice”

Now Required To Recover Punitive Damages By

The 1958 Remedial Leaislation E rpressly Includes

Pending Cases And The Trial Court’s Failure To

Apply Or lalloned Phe Jury On The New Statutory

Standards And Definitions Or A Negative Converse

Was Clearly Erroneous. 2.0.0... .000000.00-.5... 15

(Citations omitted.)

If The New Statutory Standards For Punitive Dam-

ages id Not Apply Then Any Re ference To The

Shotquv’s Alleged Financial Profitability Was

Prejudictally Improper. ... 0... eee eee 22

(Kentucky citations omitted.)

The Award For Punitive Damages May Violate The

Constitutional Prohibition Against Excessive Fi mes. 23

Browning-Ferris Industries y. Keleo Dis-

posal, Ine., S45 F. al 404 (2d Cir. 1988), cert.

granted 109 S.Ct. » 102 L.Ed.2d 559 ...... 24

ADNAN Weis 5 hxix ona oe Pera ee 24

APPENDIX

(Omitted. )

l2a

APPENDIX C

(Remington’s constitutional argument to the

Kentucky Court of Appeals)

We remind the Court that the case of Browning-Ferris

Industries v. Keleo Disposal, Inc., 845 F.2d 404 (2d Cir.

1988), certiorari granted 109 S.Ct. 527, 102 L.Ed. 2d 559

is now pending before the United States Supreme Court

on the question of whether an award of $6,000,0000 puni-

tive damages is an antitrust case where the comp@asatory

damages were $51,146 violates the prohibition against “ex-

cessive fines” in the Mighth Amendment to the federal Con-

stitution.

We do so to reserve the point in the event that the de-

cision in Browning, which we understand is imminent, is

sufficiently broad to apply here as well.

13a

APPENDIX D

JEFFERSON CIRCUIT COURT

TWELFTH DIVISION

No. 83CI-08045

Nicuouas N. Kine - . . . - . Plaintiff

Remincton ArMs Company, Inc. and

SEABOARD Surety Company - - - - Defendants

ORDER OF SATISFACTION

The Plaintiff, Nicholas N. King, acknowledges complete

and total satisfaction of the judgments entered herein, and

the Court being sufficiently advised,

Ir Is Heresy Orperep And ADJUDGED.

(s) Martin Johnstone

Jupcr, Jefferson Cireuit Court

(s) Jon Robinson

Jon D. Robinson

Counsel for Plaintiff

(s) William M. Butler, .Jr.

William M. Butler, Jr.

Counsel for Plaintiff

(s) Nicholas King

Nicholas N. King

Plaintiff

l4a

APPENDIX E

JEFFERSON CIRCUIT COURT

TWESFTH DIVISION

No. 83-CI-08045

Nicuouas N. Kine . . . - . - Plaintiff

Remincton ArMs Company,Inc. - - - Defendant

INSTRUCTIONS TENDERED BY THE DEFENDANT,

REMINGTON ARMS COMPANY, INC.

Comes the Defendant, Remixcron Arms Company, Inc.

(hereafter called “Remixcron”), by counsel, and moves

the Court to give the Jury the following Instructions:

It was the duty of the Plaintiff in loading the ammu-

nition and using and firing the shotgun about which you

have heard evidence to exercise that degree of care for his

own safety that is usually and customarily exercised by

ordinarily careful and prudent users of shotguns like or

similar to that referred to in the evidence and under like

or similar circumstances. 7

If vou believe from the evidence that the Plaintiff failed

to observe this duty and any such failure on his part was

a substantial factor in bringing about the accident and in-

juries of which he complains, then the law is for Remine-

ron, and you shall so find.

loa

II.

If you believe from the evidence that the Plaintiff's

accident and injuries were due to some cause, condition, or

circumstance other than improper design or manufacture

of the shotgun about which you have heard evidence, then

you shall find for Remixcrox even though you may further

believe that the shotgun was not properly designed or

manufactured.

III.

If you believe from the evidence that the shotgun about

which vou have heard evidence was reasonably safe for its

intended use, then you should find for Remixcron even

though you may further believe that it differed in design

or composition from similar shotguns produced by other

manufacturers.

Av.

Any uine, ten, eleven or twelve of your number may

make a verdict in this case. If your verdict is unanimous,

only your foreperson, whom you yourselves shall choose,

shall sign it. If your verdict is agreed upon by nine, but

less thanmall of you, then each juror agreeing upon the

verdict shall sign it.

Datrep: December 6, 1988.

Judge

loa

Tendered By:

SPECKMAN & LONG

(s) Thomas W. Speckman

Thomas W. Speckman

(s) William A. Hoback

William A. Lloback

2220 Citizens Plaza

Louisville, Kentucky 40202

(502) 587-1500

ATTORNEYS FOR DEFENDANT,

Remington Arms Company, Ine.

l7a

APPENDIX F

JEFFERSON CIRCUIT COURT

TWELFTH DIVISION

No. 83-C1-08045

NicHoLas N. King Plamntiff

Remincron ArMs Company, Ine, Defendant

SUPPLEMENTAL INSTRUCTIONS TENDERED BY

THE DEFENDANT,

REMINGTON ARMS COMPANY, INC.

Comes the Defendant, Reminaron ArMs Company, Ine.

[hereinafter called “Remincron”’ |, by counsel, and moves

the Court to give the jury the following Supplemental In-

structions:

In order to award punitive damages against Reminc-

ron, you must be satisfied that not only that Remincron

designed or manufactured a product that was unreasonably

dangerous for its intended use and that the Plaintiff was

thereby injured, but that Remincron acted with malice in

designing or manufacturing the shotgun about which you

have heard evidence. Cemphasis added)

“Malice”

either conduct which was specifically intended by Remine-

yas such term is used in this Instruction, means

ron to cause tangible injury to the Plaintiff, or conduct

that was carried out by Remincron both with a flagrant in-

18a

difference to the rights of the Plaintiff and with a subjective

awareness that such conduct would result in human death

or bodily harm.

Il.

If the Court refuses to give Supplemental Instruction

No. I hereof, Reminxaron asks that the following Supple-

mental Instruction be given:

In order to award punitive damages against Reminc-

TON, you must be satisfied that not only that it designed

or manufactured a product that was reasonably dangerous

for its intended use and that the Plaintiff was thereby

injured, but that Reminarox did so in such reckless and

wanton disregard of the rights and safety of persons such

as the Plaintiff who would be using and handling and firing

the shotgun about which you have heard evidence as to

justify such an award in your discretion to deter Remine-

Ton and other manufacturers from like or similar acts or

conduct. (emphasis added)

Darep: December 16, 1988

Tendered by:

SPECKMAN & LONG

(s) Thomas W. Speckman

Thomas W. Speckman

(s) Wilham A. Hoback

William A. Hoback

2220 Citizens Piazi

Louisville, Kentucky 40202

(502) 587-1500

Attorneys For Defendant,

Remington Arms Company, Ine.

19a

APPENDIX G

IMPORTANT SAFETY WARNING

TO OWNERS OF RUGER P-85 9MM PISTOLS

We have recently learned of a broken firing pin in a

P85 automatic pistol which caused the pistol to fire as a

result of decocking. This is the first report of this nature

in over 200,000 pistols delivered to customers since 1987.

No injury occurred because the shooter kept the pistol

pointed in a safe direction during decocking.

Nevertheless, we regard this incident as important be-

cause is reveals a potential danger which we are prepared

to climinate in all P85 pistols now in use. This modification

Is very simple and does not alter the handling or appear-

ance of this pistol, but it must be installed at the factory.

Accordingly, we urgently request that all owners of P85

pistols contact us immediately to obtain any further in-

formation they may desire, and to arrange for return of

their P85 pistols to the factory for modification. Please

STURM, RUGER «& CO.,

Dept. S, Ruger Road

Prescott, AZ S630]

IN‘

Or call us for PSS inquiries only at: 1-800-424-1886,

Please have your pistol serial number available when con-

tacting us.

We will schedule your gun for factory installation of a

new safety/decockesystem free of charge. It will prevent

this type of accidental firing even in the rare event of firing

pin breakage.

This free safety modification applies only to pistols roll

marked “PSS” on the slide. Pistols whieh are rollmarked

20a

“MKII” will have these modifications as part of their orig-

inal manufacture, and are not subject to this modification.

We are also taking this opportunity to remind shooters

of the most common and basic firearms safety rule:

ALWAYS KEEP THE PISTOL POINTED

IN A SAFE DIRECTION!

This is particularly important when loading, unloading,

or decocking any pistol,

Pat

era rs

Riurde

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.