# Petition for Writ of Certiorari — McGee v. Brown

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 500 U.S. 918

## Text

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Supreme Court of the United States
October Term, 1990

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JOHN DAVID McGEE and HANAHAN MOTORS, INC.,

Petitioners,

CRYSTAL G. BROWN,
Respondent.

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Petition For Writ Of Certiorari To The
Supreme Court Of South Carolina

PETITION FOR WRIT OF CERTIORARI

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THomas J. KEAvENy, II
KeEaTING L. Simons, III
Hotmes & THOMSON
100 Broad Street
Charleston, SC 29402
(803) 723-2000

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

1. Does South Carolina’s procedure for awarding
punitive damages violate the Due Process Clause of the
United States Constitution?

ii

TABLE OF CONTENTS

Page
QUESTION PRESENTED ...... 2. cc cccccccnscecccees i
TABLE OF CONTENTS .......cccccscescsseccesseses ii
TABLE OF AUTHORITIES... nc ccccccccccesesecess ili
GROUNDS ON WHICH JURISDICTION iS
INVOKED ........ STITT 1
PROVISIONS AND STATUTES INVOKED.......... 2
STATEMENT OF CASE........... ou eeeeeeeweheeue 2
FEDERAL QUESTION FACTORS................55 3
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TABLE OF AUTHORITIES

Page
Cases
Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989) ..... 6
Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.
ES PEEVES UAE M Gas 402 6
Hicks v. Herring, 246 S.C. 429, 144 S.E.2d 151 (1965) ..... 4
Mylin v. Allen-White Pontiac, Inc., 281 S.C. 174, 180,
I UD ava scan ces cccaccisicsecccsas 5
Pacific Mutual Life Insurance Co. v. Haslip, 1991 WL
24587 59 U.S.L.W. 4157 (U.S. March 4, 1991)
SE ee een 4,5,7
Sample v. Gulf Refining Co., 183 S.C. 399, 191 S.E.
eee GCL LKN Ca 45 655.b5 sos bende eisca's 4
Young v. Warr, 252 S.C. 179, 165 S.E.2d 797 (1969) ..... 5
CONSTITUTIONAL PROVISIONS
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No.

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In The

Supreme Court of the United States
October Term, 1990

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JOHN DAVID McGEE and HANAHAN MOTORS, INC.,
Petitioners,

CRYSTAL G. BROWN,
Respondent.

a
4

Petition For Writ Of Certiorari To The
Supreme Court Of South Carolina

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PETITION FOR WRIT OF CERTIORARI

a.
of

GROUNDS ON WHICH THE JURISDICTION OF
THIS COURT IS INVOKED

The date of the Opinion of the South Carolina
Supreme Court is December 20, 1990 (see Appendix A).
The statutory provision believed to confer jurisdiction on
this Court is 28 U.S.C. § 1257(a):

Final judgments or decrees rendered by the
highest court of a State in which a decision
could be had, may be reviewed by the Supreme
Court by writ of certiorari where . . . any title,
right, privilege, or immunity is specifically set

p or claimed under the Constitution . . .
if. . . the United States.

A.
—_

CONSTITUTIONAL PROVISIONS INVOLVED
U.S. CONST. amend. V:

No person shall be . . . deprived of life, liberty, or prop-
erty, without due process of law... .

U.S. CONST. amend. XIV, § 1:

No state shall make or enforce any law which shall
abridge the privilege or immunities of citizens of the
United States; nor shall any state deprive any person of
life, liberty, or property, without due process of law... .

a
i

STATEMENT OF THE CASE

In February 1988, the Plaintiff filed this tort action in
Court of Common Pleas, Charleston County, South Caro-
‘ina. She sought actual and punitive damages for per-
sonal injuries she sustained in an automobile accident
which occurred in Charleston County on April 4, 1987
(see Appendix F). The Defendants filed a qualified gen-
eral denial (see Appendix E). With consent of counsel, the
case was transferred to Defendants’ home county of
Berkeley.

On March 28, 1989 the case was ce'led to trial. At that
time the Defendants moved to strike Plaintiff’s prayer for
punitive damages on the basis that South Carolina’s pro-
cedures for awarding punitive damages violated the Due
Process Ciause of the United States and South Carolina
Constitutions (see Appendix C). That motion was denied

(see Appendix C). On March 30, 1989 the jury returned a
verdict for actual damages in the amount of $67,500.00; it
_ awarded punitive damages in the amount of $100,000.00.
(see Appendix B).

Defendants unsuccessfully moved for judgment
n.O.v. aS to punitive damages (see Appendix C). A timely
appeal was then filed in the South Carolina Supreme
Court on the grounds that (1) the lower court erred in
several evidentiary rulings and, (2) the state’s common
law procedures for awarding punitive damages denied
the Defendants due process (see Appendix D). That Court
affirmed the jury verdict (see Appendix A).

a
ad

FEDERAL QUESTION FACTORS

The Defendants challenged the constitutionality of
the State’s procedures for awarding punitive damages—
before the trial of the case began (see Appendix C). The
trial court denied the Defendants’ motion to strike the
prayer for punitive damages and, in essence, held that a
“higher” court would have to determine whether or not
The State’s procedures for awarding such damages were
constitutionally infirm. The State Supreme Court declined
the challenge apparently on the basis that the Defen-
dant’s Motion to the trial court was not sufficiently spe-
cific (see Appendix A).!

' However, the trial court’s order (see Appendix C) clearly
indicates that its holding was based not on its own view of the
motion’s merit, but, instead, on its reluctance to sail into
unchartered waters. Therefore, there is no reason to believe a
more “specific” objection would have yielded a different result.

ARGUMENT AMPLIFYING REASONS
RELIED ON FOR ALLOWANCE FOR WRIT

Petitioner contends South Carolina’s procedures for
awarding punitive damages violate the Due Process
Clause of the United States Constitution in several
respects. First, the state requires only that a jury find a
defendant’s conduct to be reckless, willful, or wanton.
Sample v. Gulf Refining Co., 183 S.C. 399, 191 S.E. 209
(1937). This standard is virtually useless as juries are told
only that reckless, willful or wanton conduct is that
which evidences a conscious disregard for, or indifference
to, the rights of others. Secondly, the jury is instructed
that if it finds a defendant’s conduct to be reckless, it
must return a verdict for punitive damages. Sample, 183
S.C. at 410. (If Plaintiff proves reckless, willful and won-
ton violation of his rights, the jury has not only the right
but the duty to award punitive damages). This is contrary
to the situation recently presented to this Court in the
case of Pacific Mutual Life Insurance Co. v. Haslip, 59
U.S.L.W.-4157 (U.S. March 4, 1991) (No. 89-1279) where
the jury was instructed that a punitive award was not
compulsory.

Thirdly, South Carolina’s juries are given virtually no
limiting criteria in determining the amount of punitive
awards. Under existing law, juries are to consider three
factors in arriving at punitive awards; those factors are:
(1) the character of the tort committed; (2) the punish-
ment to be meted out; and (3) the ability of the wrong-
doer to pay. Hicks v. Herring, 246 S.C. 429, 144 S.E.2d 151
(1965). There is no limit on the amount a jury may award.
The amount awarded does not have to bear any specific
relation to actual damages; in fact, it is “peculiarly within

—

the judgment and discretion of the jury”. Mylin v. Allen-
White Pontiac, Inc., 281 S.C. 174, 180, 314 S.E.2d 354 (1984).

More importantly, the remedies available to a party
who is wronged by an excessive punitive award are
unsatisfactory and without objective standards of review
which are clearly delineated. This, too, is in contrast to
Alabama’s apparently well developed and elaborate
review procedures discussed in Haslip. Unlike the “Ham-
mond” test discussed by the Court in Haslip, South Caro-
lina‘s criteria for judicial review of punitive awards is as
vague as the standard for determining whether to make
an award and, if so, the amount of the award. South
Carolina’s trial courts may reduce punitive verdicts only
if those verdicts are found to be unduly liberal or exces-
sive. Young v. Warr, 252 S.C. 179, 165 S.E.2d 797 (1969).
The standard is not defined further. On appeal to the
State Supreme Court, the Defendant must meet an even
higher, but equally vague, standard. The Defendant must
prove that the award is so excessive as to indicate pas-
sion, prejudice, caprice, or some other improper consider-
ation. Id. Both standards of judicial review are entirely
subjective and ill-defined leaving Defendants solely to
the “gut-reaction” of the bench.

As this Court recently noted in Haslip, 59 U.S.L.W. at
4159, constitutional challenges to punitive awards have
frequently been brought to the Court. In Haslip, the Court
squarely addressed, for the first time, a due process chal-
lenge to a punitive award. There, the Court found that
Alatama’s procedures were constitutional. However, the
Court seemed to limit its holding to the facts of that case
and seemed to concentrate on critical points which
clearly distinguish it from this case. The Court found that

the jury was adequately instructed, that the trial court
conducted an adequate post-trial hearing which satisfied
the requirements of Hammond v. City of Gadsden, 493 So.
2d 1374 (1986), and finally that the Alabama Supreme
Court further ensured due process by again applying the
Hammond test, and additional factors set forth in Green
Oil Co. v. Hornsby, 539 So. 2d 218 (1989). Unfortunately,
none of those protections, or protections even closely
approximating them, exist in South Carolina to protect
John McGee and Hanahan Motors, Inc. from ruinous
deprivation and loss of property.?

a
v

CONCLUSION

The opinions of this Court relating to the constitu-
tionality of punitive damage awards clearly indicate a
concern that the procedures by which such awards are

2 This point is particularly important and highlights a
critical difference between South Carolina’s procedures and the
procedures in effect in Alabama. In Hornsby, 539 So. 2d at 222,
J. Houston, writing for the Alabama Supreme Court, recog-
nized that the effect of the punitive award on the defendant,
financially, is an important factor to be considered in the
court’s post-judicial review. (“The defendant’s financial posi-
tion is... a consideration essential to a post-judgment critique
of a punitive award.”) It was the court’s position, that punitive
awards, if they are to exist at all, “ought to sting .. .
[bJut . . . [not] be large enough to destroy.” Id. at 222. Unfor-
tunately, the punitive award against these Defendants will
destroy them. It has a already forced Hanahan Motors, Inc. into
Chapter 11 Bankruptcy; if relief is denied by this Court, the
verdict will most probably cause Mr. McGee to declare per-
sonal bankruptcy.

made must be fair. (“General concerns of reasonableness
and adequate guidance from the court . . . properly enter
into the constitutional calculus”. Haslip, 59 U.S.L.W. at
4161.) In this case, the jury was given a virtually mean-
ingless standard for determining whether to award puni-
tive damages and, if so, in determining the amount of
such an award. Moreover, the petitioners were deprived
of any meaningful post-verdict judicial review such as
that evidenced in Haslip.

This Petition should be granted for the purpose of
providing South Carolina juries with standards to con-
strain their discretion, to help them use their authority
wisely and judiciously, and to ensure that citizens of this
state such as John McGee and Hanahan Motors, Inc., are
not deprived of property without adequate due process
of law.

Respectfully submitted,

THomas J. Keaveny, II
KeaTinc L. Simons, III
Hotmes & THOMSON
106 Broad Street
Charleston, SC 29402
(803) 723-2000

Counsel for Petitioners

Attorney for Respondent:

KENNETH W. THORNTON, Jr.
THORNTON, WILE & DUNCAN
716 Prince Street
Georgetown, SC 29442
(803) 546-8461

No.

sa
=

In The

Supreme Court of the United States
October Term, 1990

>

JOHN DAVID McGEE and
HANAHAN MOTORS, INC.,

Petitioners,

CRYSTAL G. BROWN,
z Respondent.

.

APPENDIX TO PETITION FOR
WRIT OF CERTIORARI

a

INDEX TO APPENDIX

_ Page
Appendix A - Opinion of the Supreme Court of
South Carolina, Op. No. 90-MO 329 filed
December 20, 1990, affirming Final Judgment
SOR FORT De FN OF dikes sacs cunecvacuens App. 1
Appendix B - Judgment for Plaintiff in Civil Case
(88-CP-08-1056) filed March 30, 1989......... App. 3

Appendix C —- Partial Transcript of Trial Court
Proceedings containing Defendants’ Motion to
Strike Prayer for Punitive Damages and Motion

for JNOV with regard to punitive damages ..App.

Appendix D - Brief of Appellants (Case No. 88-

CP-08-1056) dated March 16, 1990 ........... App.

9

Appendix E —- Answer dated March 9, 1988....App. 36

Appendix F - Summons and Complaint dated

POY TG, FI wi ccc cnccicscvasvsenenenes App. 40

App. 1

APPENDIX A

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Crystal G. Brown,
Respondent,

John David McGee and
Hanahan Motors, Inc., Appellants.

Appeal from Berkeley County
William L. Howard, Sr., Judge

Memorandum Opinion No. 90-MO-329
Heard September 26, 1990 - Filed December 20, 1990

AFFIRMED

Thomas J. Keaveny, II, of Holmes & Thomson, of Charles-
ton, for Appellants.

Kenneth W. Thornton, Jr., of Law Offices of Kenneth W.
Thornton, Jr., of Georgetown, for Respondent.

PER CURIAM: Affirmed pursuant to Supreme
Court Rule 23. See Easler v. Hejaz Temple of Greenville, 285
S.C. 348, 329 S.E.2d 753 (1985) (amount of damages
award); Broom v. Southeastern Highway Contracting Co., 291
S.C. 93, 352 S.E.2d 302 (Ct.App. 1986) (objection must be
sufficiently specific to bring into focus precise nature of
alleged error).

App. 2

AFFIRMED.

George T. Gregory, jr. C.J.
Davi W. Harwell Al.
A. Lee Chandler A.J.

ernest A. Finney, Jr. A.J.
Jean H. Toal A.J.

App. 3

APPENDIX B
STATE OF SOUTH ) IN THE COURT OF
CAROLINA ) COMMON PLEAS

COUNTY OF BERKELEY ) CASE NUMBER 88-

CP-08-1056

(Filed 89MAR30)
JUDGMENT IN A
CIVIL CASE

Crystal G. Brown vs John David McGee

Hanahan Motors, Inc.

(Plaintiff(s) (Defendant(s)

(X) JURY VERDICT. THIS ACTION CAME BEFORE

THE COURT FOR A TRIAL BY JURY. THE ISSUES
HAVE BEEN TRIED AND THE JURY HAS REN-
DERED ITS VERDICT.

DECISION BY COURT. THIS ACTION CAME TO
TRIAL QR HEARING BEFORE THE COURT. THE
ISSUES HAVE BEEN TRIED OR HEARD AND A
DECISION HAS BEEN RENDERED.

ACTION DISMISSED: ( ) RULE 40(C)(3), ( )
RULE 12(B),( ) SETTLED ( ) VOLUNTARY NON-
SUIT ( ) OTHER

IT IS ORDERED AND ADJUDGED: (_ ) SEE ATTACHED
ORDER, ( ) STATEMENT OR JUDGMENT BY COURT.

The jury finds for the Plaintiff against the defendants

in the sum of sixty seven thousand five hundred
($67,500.00) dollars, actual damages and one hundred
thousand ($100,000.00) dollars, punitive damages.

DATED AT MONCKS CORNER, SOUTH CARO-

LINA, THIS 30th DAY OF March, 1989.

William L. Howard
JUDGE

App. 4

THIS JUDGMENT WAS ENTERED ON THE 30 DAY OF
MARCH 1989.

AND A COPY MAILED FIRST CLASS THIS 30 DAY OF
MARCH 1989.

TO ATTORNEYS OF RECORD OR TO PARTIES (WHEN
APPEARING PRO SE) AS FOLLOWS:

Ken Thornton vs Thomas J. Keaveny
John Austen

ATTORNEY(S) FOR ATTORNEY(S) FOR
PLAINTIFF(S) DEFENDANTS(S)

Annette M. Goodwin
DEPUTY CLERK OF
COURT

App. 5

APPENDIX C

THE STATE OF SOUTH CAROLINA
IN THE SUPREME COURT

HONORABLE WILLIAM L. HOWARD
NINTH JUDICIAL CIRCUIT
CASE NO. 88-CP-08-1056

CRYSTAL G. BROWN,
Plaintiff-Respondent,
VS.

JOHN DAVID McGEE and
HANAHAN MOTORS, INC.,

Defendants-Appllants [sic].

Ne eee ee eee ee ee”

PARTIAL TRANSCRIPT OF RECORD

Kenneth W. Thornton, Jr. Thomas J. Keaveny, II

LAW OFFICES OF HOLMES & THOMSON
KENNETH W. 100 Broad Street
THORNTON, JR., P.A. Post Office Box 858

716 Prince Street Charleston, S.C. 29402

Post Office Box 1480 _ (803) 723-2000

Georgetown, S.C. 29442 ATTORNEYS FOR
(803) 546-8461 DEFENDANTS-
ATTORNEYS FOR APPELLANTS
PLAINTIFF-
RESPONDENT

App. 6

MOTION OF DEFENSE COUNSEL

THE COURT: You had a couple of motions you
wanted to make?

MR. KEAVENY: Yes, sir, Your Honor. In Chambers
before we started the case I made a motion to strike
punitive damages in the case on the grounds that puni-
tive damages are unconstitutional, in violation of due
process, equal protection, and in some cases perhaps
unconstitutional on the basis that they might exceed or
violate the prohibition against excessive fines.

I understand the Court’s position on that, but I did
want to put that on the record.

THE COURT: All right, sir, we'll note your objec-
tion. I will allow that to go to the jury and if the jury
returns punitive damages I will hear you further on that.

At this point I will deny it. Anything else?

POST-TRIAL MOTIONS OF DEFENSE COUNSEL
THE COURT: All right, sir.

MR. AUSTEN: Also, I would move for JNOV on
punitive damages.

THE COURT: All right, sir. Let’s take them one at a
time.

+ * *

With regard to the Hundred Thousand Dollar puni-
tive damage figure, as late as 1984 — no, as late as last
year — the Court of Appeals has addressed punitive dam-
ages in 1984 and they again restated, although in the

App. 7

minority view, that damages or punitive damages - that
where the Plaintiff has proven reckless conduct it is the
duty of the jury to vindicate a private right and give
punitive damages.

So I do not - I cannot say that based on our volumi-
nous law of punitive damages that punitive damages are
unconstitutional. That’s just an issue that is going to have
to — if that is to be addressed again in South Carolina,
that is going to have to be addressed at a higher level.

A Hundred Thousand Dollars is less than one third
of his admitted net worth. Here again, I’ve got to take the
evidence in the light most favorable to the Plaintiff in
deciding this motion.

I cannot say that to punish someone by taking away
less than one third of their net worth, where they are
going ninety-five or a hundred miles an hour down a
four lane highway at eight thirty on a Saturday Morning
under the influence of alcohol after staying up all night,
after knowledge they are under medication from a doctor
who has told them not to mix it with alcohol because to
do so would cause an inability to react properly, or that
mixing it with alcohol would — at least the symptoms of
alcohol - I just cannot say that that [sic] is an outlandish
verdiet or one that is based upon caprice, passion or
sympathy as opposed to those items which I| told them to
consider; that is, the nature of the wrong, the amount of
punishment which should be given, and the abilit|sic] of a
Defendant to pay.

I think that if you take it in light most favorable to
the Plaintiff, with that kind of speed and that kind of
condition, that that is proper.

App. 8

So I’m going to have to deny your motions on that
basis.

Sitting as a thirteenth juror, I cannot grant it.

App. 9

APPENDIX D

THE STATE OF SOUTH CAROLINA
IN THE SUPREME COURT

APPEAL FROM
HONORABLE WILLIAM L. HOWARD
NINTH JUDICIAL CIRCUIT
CASE NO. 88-CP-08-1056

CRYSTAL G. BROWN,
Plaintiff-Respondent,
vs.

JOHN DAVID McGEE and
HANAHAN MOTORS, INC.,

Defendants-Appellants.

a a oe a a a

BRIEF OF APPELLANTS

Kenneth W. Thornton, Jr. Thomas J. Keaveny, II

LAW OFFICES OF HOLMES & THOMSON
KENNETH W. 100 Broad Street
THORNTON, JR., P.A. Post Office Box 858

716 Prince Street Charleston, S.C. 29402
Post Office Box 1480 (803) 723-2000

Georgetown, S.C. 29442 .

/ ATTORNEYS FOR
(803) 546-8461 DEFENDANTS-
ATTORNEYS FOR APPELLANTS
PLAINTIFF-RESPONDENT

App. 10

INDEX

Page
TABLE OF AUTHORITIES............--:e eee eeeees ii
QUESTIONS INVOLVED ..........-.. see cence eee Vv
STATEMENT OF FACTS..........ccseecceccccccece 1

ARGUMENT:
aby ¢ ie | errrrerer rr eer etree rrr 3
Oh og). ie + ee eres eer ee 13
ES ak 6 ob sex ne ncaa sesed cis isneeneewene 23

App. 11

TABLE OF AUTHORITIES

PAGE
CASES:
Aetna Life ins. Co. v. Lavoie, 475 U.S. 813 (1986) ..... 15
Albertini v. Veal, 292 S.C. 561, 357 S.E.2d 716 (Ct.
tC a a ease eee hehe senas sce eperccsee 7, 18
Bankers Life & Cas. Co. v. Crenshaw, 100 L.Ed.2d 62
TOMES asda ath n ese pbs 00sorcecravenes 15,. $7
| ee 17
Continental Cas. Co. v. Wilson-Avery, Inc., 115 Ga.
PR. 77a, COO BBO 192 CISGZ)...w 6. cece recess 13
Crittenden v. Thompson-Walker Co., Inc., 288 S.C.
tim oe eae gee Ut. App. 1986)................ 5
Electrical Workers v. Foust, 442 U.S. 43 (1979)........ 26
Francis v. Mauldin, 215 S.C. 374, 55 S.E.2d 337
RES etka doles das hsb seh a dees nance 8, 11

Gathers v. Harris Teeter Supermarket, Inc., 282 S.C.
ge eR eee eee 13

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)....24, 26
Hicks v. Herring, 246 S.C. 429, 144 S.E.2d 151 (1965) .... 17
King v. Daniel Intern. Corp., 278 S.C. 350, 296 S.E.2d

FT 4
Linthicum v. Nationwide Life Ins. Co., 150 Ariz. 326,

ET I ND gids cece vc enivveeceeernesere 19
Lynch v. Pee Dee Express, 204 S.C. 537, 30 S.E.2d 449

TSE Sg Pre 10

M.B.A.F.B. Fed. Credit Union v. Cumis Ins. Society,
a, ee We We ee GON, PZ)... eee ee ees 11

App. 12

Madden v. Cox, 284 S.C. 574, 328 S.E.2d 108, appeal
dismissed 286 S.C. 127, 332 S.E.2d 102 (Ct. App.

NE OA Ee Ce ee ee ee cat COE EE s ays 4,5
Mathews v. Eldridge, 424 U.S. 319 (1976)...... 19, 20, 23
Mylin v. Allen-White Pontiac, Inc., 281 S.C. 174, 314,

7 & § 2. ere rere re ree 17, 18, 26
Norton v. Ewaskio, 241 S.C. 557, 129 S.E.2d 517

ee on Pees SAAS OOS Oe ENTS 23
Payne v. Bouharoun, 292 S.C. 390, 356 S.E.2d 438

i Seer eer Teer ree reece 16
Sample v. Gulf Refining Co., 183 S.C. 399, 191 S.E.

L,I EAR Se ee nee ere tare r ya 16, 26
Santosky v. Kramer, 455 U.S. 745 (1982)........... 21, 22
Smith v. Wade, 461 U.S. 30 (1983) ................ 15, 23
State v. Chasteen, 231 S.C. 141, 97 S.E.2d 517 (1975)..... )
State v. Green, 261 S.C. 366, 200 S.E.2d 74 (1973) ..... 9
State v. Hiott, 276 S.C. 72, 276 S.E.2d 163 (1981)...... 8
State v. Johnson, 293 S.C. 321, 360 S.E.2d 317 (1987)..... 9

State v. Johnson, 293 S.C. 321, 360 S.E.2d 317 (1987) .... 12

State v. Lyle, 125 S.C. 406, 118 S.E. 803 ‘o., ae 10

U.S. v. St. Michael’s Credit Union, 880 F.2d 579 (1st
ee San ee a we aka o oe 8, 9

Wolf v. McDonnell, 418 U.S. 839 (1974) .............. 19

Young v. Warr, 252 S.C. 179, 165 S.E.2d 797 (1969) ..... 4

App. 13

CONSTITUTIONS:
South Carolina Constitution:

RI i IC on Fo rans a oh ere 16

United States Constitution:

EE i ee ow CELE Oa ee nena 16

Sr I Be ae cme ewe ee eee eee os 17
STATUTES:

Cal. Civ. Code § 3294(2) (Deering Supp. 1988) .... 19

Colo. Rev. Stat. § 13-25-127(2) (1987)............ 19

Or. Rew. Stat. 6 SUGZS CISGE) wesc enececels 19
TREATISES:

Jeffries, A Comment on the Constitutionality of Puni-
tive Damages, 72 Va. L. Rev. 139 (1986)............ 16

The Imposition of Punishment By Civil Courts: A
Reappraisal of Punitive Damages, 41 N.Y.U. L.
Se Se ME Ncw ic be heMsn rer esee re CNeeurenwhns 16

Wheeler, The Constitutional Case for Reforming
Punitive Damage Procedure, 69 Va. L. Rev. 269
bi OPA EE TR Een reer eres BCT ee: 16, 24

QUESTIONS INVOLVED
Page

WAS THE VERDICT THE RESULT OF PASSION,
PREJUDICE, CAPRICE, OR OTHER IMPROPER
BO | ee eee rere rn: fos reser 3

App. 14

DOES SOUTH CAROLINA’S PROCEDURE FOR
AWARDING PUNITIVE DAMAGES VIOLATE THE
DUE PROCESS CLAUSE OF THE UNITED STATES
CONSTITUTION AND THE SOUTH CAROLINA
CONSTITUTION? .....csvccinsscuusenentepaeeanes 13

STATEMENT

At approximately 8:30 a.m. on Saturday, April 4,
1987, John McGee, owner of Co-Appellant Hanahan
Motors, Inc., was on his way home from a friend’s house
where he and other friends had spent the night playing
cards in Mount Pleasant. That house was near the inter-
section of Highway 17 and Highway 41 in Charleston
County, approximately six miles from the scene of this
accident. As he approached the intersection he was trav-
eling approximately 55 miles per hour. (Tr., p. 136). He
realized the light controlling traffic was red and a car was
stopped ahead of him. He applied his brakes but was
unable to stop before striking the Respondent's vehicle.
The collision caused the Respondent’s vehicle to come to
rest upside down in the intersection. Mr. McGee's vehicle
also came to rest in the intersection.

Fortunately, the parties did not sustain serious inju-
ries. Mr. McGee’s head struck and broke the windshield.
The Respondent sustained a hairline fracture of the trans-
verse process of the fourth lumbar vertebrae. She stayed
in the hospital that day and the next for observation. (Tr.,
». 107). She then returned home to Georgetown. From
that point she was seen by Dr. Brilliant, a Charleston
orthopaedist, a total of six times. (Tr. p. 114). Her last visit
to Dr. Brilliant was August 20, 1987. She did not see

App. 15

another physician for neck or back problems until Janu-
ary 1988, when she was seen by Dr. Ahearn in
Georgetown. He prescribed approximately three weeks of
physical therapy which the Respondent received the fol-
lowing month. The second and last visit to Dr. Ahearn
occurred May 18, 1988. (Tr., p. 63). She did not receive
any additional treatment prior to trial.

With the exception of the physical therapy prescribed
by Dr. Ahearn, “to see if she could be helped” (Tr., p. 61),
Respondent’s physicians did nothing more than monitor
her self-healing process. She never suffered any casts,
bandages, stitches, or injections (Tr., pp. 71-74). Her medi-
cal bills were extremely limited and totaled only
$3,543.40. More than half of those charges ($1,829.50)
were from Dr. Ahearn, the Georgetown Memorial Hospi-
tal physical therapy department, and Georgetown Radiol-
ogy. Those were ali incurred almost a year after the
accident. Despite the fact he believed Respondent would
have “good days and bad days” (Tr., p. 47), Dr. Ahearn
could not provide an opinion as to the nature of fre-
quency of the future medical care Respondent would
need. (Tr., p. 50).

At trial Appellants stipulated Mr. McGee was negli-
gent in striking the Respondent's vehicle. They did not
stipulate to gross negligence or to proximate cause.

It is clear from the record and the jury’s verdict that
Respondent’s counsel preyed upon the jury’s emotions
and took advantage of every opportunity to prejudice the
jury against the Appellant; all this in an effort to “ring the
bells” with a total verdict (actual and punitive) which, if
affirmed, will cause Mr. McGee, a 56 year old business

App. 16

man who has worked hard all his life, to declare personal
bankruptcy. (It has already forced his business into bank-
ruptcy).

ARGUMENT I

THE TRIAL COURT ERRED IN NOT GRANTING
APPELLANTS A NEW TRIAL ABSOLUTE ON THE
BASIS THAT THE VERDICT WAS THE RESULT OF PAS-
SION, PREJUDICE, CAPRICE, OR OTHERWISE UNSUP-
PORTED BY THE EVIDENCE. (EXCEPTIONS I, II, IV, V,
VI AND IX).

The jury’s award of $67,50U actual damages and
$100,000 punitive damages is excessive. It is not sup-
ported by the evidence and is the result of passion, preju-
dice, caprice, or other improper considerations.

This Court’s standard of review is, admittedly, lim-
ited. If a verdict is supported by any rational view of the
evidence, it will not be disturbed. King v. Daniel Intern.
Corp, 278 S.C. 350, 296 S.E.2d 335 (1982). But if it appears
that the verdict is shockingly disproportionate to the
plaintiffs’ injuries, the Court has not only the right, but
the duty to set it aside. Young v. Warr, 252 S.C. 179, 165
S.E.2d 797 (1969).

In Madden v. Cox, 284 S.C. 574, 328 S.E.2d 108, appeal
dismissed 286 S.C. 127, 332 S.E.2d 102 (Ct. App. 1985), the
Court affirmed a verdict of $100,000 actual damages
where the plaintiff provided evidence of almost $13,500
in medical expenses. There the Plaintiff was crushed by a
tobacco bin which fell due to a defective lifting mecha-
nism. He suffered excruciating pain immediately and was

App. 17

expected to endure pain daily for the rest of his life; he
was not expected ever to walk without assistance.

In Crittenden v. Thompson-Walker Co., Inc., 288 S.C.
112, 341 S.E.2d 385 (Ct. App. 1986), the Court affirmed an
actual damage award of $75,000. As in Madden, the Plain-
tiff’s damages were severe. There, the Plaintiff was
severely beaten, suffered an orbital blow-out to one eye,
was hospitalized for six days, underwent surgery, suf-
fered multiple bruises, experienced double-vision, and
was left with numbness in one check which was expected
to be permanent. The Court acknowledged that the ver-
dict was “substantial,” but concluded it was not the result
of passion, prejudice, or caprice in light of evidence of
substantial injury.

The award of actual damages in this case is not
supported by any rational view of the evidence. While
the verdict closely approximates those of Madden and
Crittenden, the Respondent's injuries and damages pale in
comparison. Here, the Respondent was hospitalized two
days for observation. She did not undergo surgery, had
no bandages applied, no stitches sewn, no injections
administered. She was not subjected to any traction of
any kind, and did not receive any sort of physical ther-
apy. (Tr., pp. 71-72). She was reieased from the hospital
without medical appliance. (Tr., pp. 72-73). Thereafter,
she saw Dr. Brilliant only six times. (Tr., p. 30). Within
three weeks of the accident (April 14, 1987) Dr. Brilliant
recommended that she “get up and move around.” (Tr., p.
109). By May 18, 1987, a little more than thirty days after
the accident, she had good range of motion and was
instructed only to avoid “strenuous activity.” (Tr., p. 112).
She was not on any medication. (Tr., p. 113).

App. 18

Respondent continued to progress without any
apparent setbacks. On June 9, 1987, a little more than two
months after the accident, she had good, probably almost
normal, range of motion and complained only that her
back occasionally bothered her. (Tr., p. 113).

Respondent last saw Dr. Brilliant on August 20, 1987
and did not receive additional medical treatment for
problems directly relating to this accident until January
1988. At that point, she saw Dr. A. Mason Ahearn. Dr.
Ahearn saw her only once in January and once in May.
(Tr., p. 45). His treatment was limited to a recommenda-
tion of physical therapy. He did not find any objective
problems, prescribed no medical appliances, no prescrip-
tion medications, and did not refer the Respondent for a
second opinion or further evaluation.

Dr. Brilliant did not assign any permanency to the
Respondent and Dr. Ahearn, after seeing the Respondent
only twice, testified at trial in March 1989 only that
Respondent would have “good days and bad days.” (Tr.,
pp. 47-48). Nevertheless, there was no evidence of addi-
tional medical visits after those with Dr. Ahearn the year
before.

With the exception of the fourteen physical therapy
sessions Respondent received in February 1988, her medi-
cal care was limited entirely to observation. Neither Dr.
Brilliant nor Dr. Ahearn ever administered any sort of
“hands on” treatment and there was no testimony she
received any treatment after her last physical therapy
session in February 1988.

App. 19

Respondent's total medical expenses were as follows:

Emergency Medical Services

(4/4/87) $ 95.00
East Cooper Hospital

(4/4/87) 1,141.51
Diagnostic Radiology

(4/4/87) 98.00
Roper Emergency Room

(8/26/87) 73.25
Roper Radiology

(8/29/87) 50.00
Dr. Brilliant

(4/4/87 -— 8/20/87) 323.00
Dr. Ahearn

(1/27/88 - 5/18/87) 297.00
Georgetown Memorial Hospital

(2/4/88 — 2/25/88) 1,318.00
Georgetown Radiology

(2/4/88) 116.00

Prescriptions 31.14

Total $3,452.90

The actual damages award of $67,500 (almost twenty
times the medicals) is clearly not supported by the testi-
mony adduced at trial.

The punitive damage award is excessive as well. It,
too, must be set aside as the result of improper consider-
ation. In determining punitive damages, the jury is to
consider three factors: (1) the character of the tort; (2) the
punishment to be meted out; and (3) the defendant's
wealth. Albertini v. Veal, 292 S.C. 561, 357 S.E.2d 716 (Ct.
App. 1987). Taken together, the total verdict of $167,500 is
just under one-half the Appellant’s net worth and vastly
beyond his ability to pay. The punitive award alone is
nearly one-third of his wealth.

App. 20

Several events occurred during the trial which
explain these excessive awards and which support the
Appellant’s contention that throughout the trial Respon-
dent’s counsel attempted to inflame the jury and
appealed to its emotions. While none of them taken alone
may have been enough to prejudice the jury, in combina-
tion they could have no other effect.

First, the Court denied Appellants’ Motion in Limine
to exclude irrelevant evidence that Mr. McGee had played
poker the night before this accident. Evidence is not
admissible unless it establishes, or makes more or less
probable, some issue presented and bears directly or
indirectly on that issue. Francis v. Mauldin, 215 S.C. 374,
55 S.E.2d 337 (1949). Assuming the evidence is relevant, it
should nevertheless be excluded if the risk of prejudice
outweighs its probative value. State v. Hiott, 276 S.C. 72,
276 S.E.2d 163 (1981).

Evidence that Mr. McGee was returning home from
an all night poker game was not relevant to any issue in
the case. It did not tend to prove, or make more or less
probable, any issue. Furthermore, any probative value
was Clearly outweighed by its prejudicial effect. In U.S. v.
St. Michael's Credit Union, 880 F.2d 579 (1st Cir. 1989), the
Court recognized the prejudicial affect of this type of
testimony. There, the First Circuit Court of Appeals
vacated judgment for the U.S. because, among other
errors, the lower court admitted into evidence testimony
of gambling by a defendant's father. In that case, Janice
Sacharczyk was charged with a number of criminal viola-
tions connected with her employment at St. Michael's
Credit Union. The government took the position that the
father’s gambling activities were relevant to its case

App. 21

against Ms. Sacharczyk because, at times, her father used
the bank’s resources to conduct business. The prosecution
expected to show by inference that the defendant knew
or must have known of his activities and for that reason
she failed to comply with certain IRS filing requirements.
The Court of Appeals was not convinced that the evi-
dence was sufficient to support an inference that the
defendant knew of her father’s gambling. It held that
without some connection between the defendant's activ-
ities and her father’s gambling, the testimony was irrele-
vant and its probative value was substantially
outweighed by the danger of unfair prejudice. Id. at 601.

Evidence which is “unfairly prejudicial” has been
defined as evidence which “might cause a jury to base its
decision on something other than the established proposi-
tions in the case.” Id. at 601, citing J. Weinstein & M.
Berger, Weinstein’s Evidence, § 403[3] at 403-39 (1988). In
South Carolina, gambling is illegal. S.C. Code Ann.
§ 16-19-40 (1976 Law. Co-Op.) This alone may have
served as sufficient basis for some jurors to “punish” Mr.
McGee. Moreover, its admission violated a more funda-
mental prohibition against introducing evidence of other
crimes. In State v. Chasteen, 231 S.C. 141, 97 S.E.2d 517
(1957), the Supreme Court of South Carolina held that
evidence of other crimes is not admissible unless (1) the
witness has been convicted of it, and (2) it is a crime of
moral turpitude. (An exception exists if the crime is one
which must be proven to establish the crime charged. See
State v. Johnson, 293 S.C. 221, 360 S.E.2d 317 (1987); State v.
Green, 261 S.C. 366, 200 S.E.2d 74 (1973)).

The purpose behind limiting the introduction of this
type of evidence was eloquently stated by Justice Marion
in State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923):

App. 22

The objections . . . to the admission of this class
of evidence are patent. Proof that a defendant
has been guilty of another crime equally hein-
ous prompts to a ready acceptance of a belief in
the prosecution’s [in this case, the Respon-
dent’s] theory that he is guilty of the crime
charged. Its effect is to predispose the mind of
the juror to believe the prisoner [the defendant]
guilty. ...

Id., at 416.

The same is true in this case. Although Respondent’s
action is civil in nature, punitive awards are designed to
punish and deter. In that sense, actions seeking punitive
damages are quasi-criminal in nature. Admitting into evi-
dence testimony that Mr. McGee had been playing poker
the night before this accident allowed the jury to consider
a matter which was completely irrelevant to any issue in
the case and only predisposed jurors to believe he drank
liquor all night.

The prejudice was furthered by the speculative testi-
mony of Ms. Wallace. Her testimony regarding Mr.
McGee’s speed was improperly elicited through leading
questions. While it is well settled that a witness may
provide testimony as to the speed of a vehicle, that testi-
mony cannot be without basis. Lynch v. Pee Dee Express,
204 S.C. 537, 30 S.E.2d 449 (1944). A witness may not
testify to a matter unless evidence is introduced sufficient
to support a finding that the witness has personal knowl-
edge of the matter. M.B.A.F.B. Fed. Credit Union v. Cumis
Ins. Society, Inc., 681 F.2d 930 (4th Cir. 1982). The fact that
Ms. Wallace saw appellant’s vehicle in her rearview mir-
ror and only for a second indicates she had no basis for

App. 23

judging Mr. McGee’s speed. (Tr., pp. 17-18). Her testi-
mony on direct also makes it clear she had no opinion as
to the speed of Mr. McGee’s car. When asked how fast he
was traveling, she said only that he was “flying.” (Tr., pp.
14-15). But in a sequence of questions reminiscent of an
auction, Respondent’s counsel succeeded in getting Ms.
Wallace improperly to speculate Appellant was traveling
a hundred miles an hour.

In keeping with this plan to prejudice the jury,
Respondent’s counsel succeeded in admitting into evi-
dence Dr. Brilliant’s deposition testimony about pro-
cedures followed in assessing permanent impairment,
even though there was no evidence of permanent impair-
ment to Respondent. (Tr., pp. 123-127). As indicated
above, absent a showing that evidence is relevant to some
matter in issue, the Court should not admit it. Francis,
supra. The testimony of Dr. Brilliant served only to preju-
dice and confuse the jury. It allowed the jury to make its
own determination of impairment despite a complete lack
of evidence of the same.

The fourth event which was highly prejudicial to the
Appellant occurred in Respondent's closing argument. It
is there her counsel used the earlier testimony of gam-
bling most invidiously; he argued:

Mr. McGee sees this as a high stakes poker
game. He’s sitting there with a pile of money.
He’s got Three Hundred and Fifty Thousand
Dollars but he doesn’t have any cards, but he’s
[sic] sitting here, coming in here trying to
bluff... all of us, and if he expects me to
believe .. . what he purports to be the truth in

App. 24

this case he is insulting my intelligence. He
doesn’t have the cards to play.

(Tr., pp. 142-143).

This closing argument demonstrates Appellants’ ear-
lier points regarding the prejudicial nature of the evi-
dence. But it goes beyond that and derneans and belittles
Appellants’ right to a jury trial. Respondent’s counsel
should not be allowed to assail that right any more than
the solicitor was allowed to in State v. Johnson, 293 S.C.
321, 360 S.E.2d 317 (1987). There, the solicitor, in his
closing argument, referred to the defendant’s apparent
lack of remorse over the victim’s death. On appeal the
Court held the remarks constituted an improper comment
upon the defendant’s constitutional rights. It is irreconcil-
able, the Court stated, for an accused to plead not guilty
and “simultaneously express remorse for acts he denied
committing.” Id., 293 S.C. at 324. “When an accused
asserts a constitutional right, it is impermissible for the
state to comment upon or argue in favor of guilt or
punishment based upon his assertion of that right.” Id.,
293 S.C. at 323.

The same should be true in a civil context where a
party denies an allegation (here intoxication) and puts the
plaintiff to her burden of proof. In this case, Respondent’s
counsel implies Mr. McGee knows he is guilty of intoxica-
tion, and in lying to the jury tries to use the system in a
last-ditch gamble to avoid culpability.

At a minimum, the statement is intended to invoke
the passion and prejudice of the jury against the Appel-
lant for asserting their constitutional right to a trial by
jury. It violates the rule stated in Gathers v. Harris Teeter

App. 25

Supermarket, Inc., 282 S.C. 220, 231, 317 S.E.2d 748, 749
(1984) that “[i]n a closing argument to the jury an attor-
ney may not make such remarks which are unfairly calcu-
lated to arouse passion or prejudice. See also Continental
Cas. Co. v. Wilson-Avery, Inc., 115 Ga. App. 793, 156 S.E.2d
152, 156 (1967) (“remarks of counsel amount to miscon-
duct and may require corrective action or mistrial even
where the remarks are in some way related to the evi-
dence if the argument is unfairly calculated to arouse
passion or prejudice”). The remarks of Respondent’s
counsel could have had no purpose other than to arouse
the passion of the jury.

Finally, after deliberating for hours, the jury returned
with three questions. They were:

(1) Are we allowed to ask if damages we
award, if any, are going to be paid by an
insurance company.

(2) If so, are punitive damages, if any, covered
under liability.

(3) What does the Three Hundred Fifty Thou-
sand Dollars include.

(Tr. App., p. 6). The Court refused to allow the Appellant
to explain his net worth at trial, and refused to allow him
to do so after the jury’s question. Instead, the Court
merely repeated its punitive damages instruction. Within
minutes, the jury returned the verdict which is the subject
of this appeal.

While any one of the many prejudicial events taken
alone might amount only to harmless error, taken
together they deprived the Appellants of a fair trial. In
light of the prejudicial events discussed above, the

App. 26

Respondent's limited actual damages, and the enormity
of the verdict relative to the Appellants’ ability to pay, the
Court should set aside the verdicts for actual and puni-
tive damages on the basis that both were the result of
passion, prejudice, caprice or other improper consider-
ations.

ARGUMENT II

SOUTH CAROLINA’S PROCEDURE FOR AWARDING
PUNITIVE DAMAGES VIOLATES THE DUE PROCESS
CLAUSE OF THE UNITED STATES CONSTITUTION
AND THE SOUTH CAROLINA CONSTITUTION.
(EXCEPTIONS VIII AND IX).

Both the South Carolina Constitution and the United
States Constitution guarantee citizens of this state due
process of law. Specifically, Article I, Section 3 of the
South Carolina Constitution provides that no citizen of
the state shall be “deprived of life, liberty, or property
without due process of law... .” Article V of the United
States Constitution provides that “[n]o person shall . . . be
deprived of life, liberty, or property, without due process
of law. ...” Article XIV, Section 1 of the United States
Constitution reinforces Article V and makes it applicable
to the states. It provides in pertinent part that no state
shall “deprive any person of life, liberty, or property,
without due process of law... . ”

The United States Supreme Court has given increas-
ing attention to the constitutionality of state procedures
for awarding punitive damages. In Smith v. Wade, 461 U.S.
30 (1983), then Associate Judge Rehnquist, in a dissenting
opinion in which Chief Justice Burger and Justice Powell

App. 27

joined, roundly criticized the procedures by which puni-
tive damages are often awarded. He noted that although
punitive awards are “quasi-criminal, their imposition is
unaccompanied by the type of safeguard present in crimi-
nal proceedings” and went on to write that juries may
“assess punitive damages in wholly unpredictable
amounts bearing no necessary relation to the actual harm
caused.” Id. at 59 (citations omitted).

More recently, the Court recognized that due process
challenges to state punitive damages awards “raise
important issues which, in an appropriate setting, must
be resolved.” Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813,
828-29 (1986). In Bankers Life & Cas. Co. v. Crenshaw, 100
L.Ed.2d 62, 78 (1988) (O’Connor & Scalia, J.J., concur-
ring), two members of the Court recognized that state
laws which allow juries “to award any amount of puni-
tive damages in any tort case in which a defendant acts
with a certain mental state ‘may’ violate the Due Process
Clause of the United States Constitution.” See generally,
Jeffries, A Comment on the Constitutionality of Punitive
Damages, 72 Va. L. Rev. 139 (1986); 37 Vanderbilt L. Rev.
1117 (1984); Wheeler, The Constitutional Case for Reforming
Punitive Damage Procedure, 69 Va. L. Rev. 269 (1983); The
Imposition of Punishment By Civil Courts: A Reappraisal of
Punitive Damages, 41 N.Y.U. L. Rev. 1158 (1966).

South Carolina’s procedures for awarding punitive
damages violate the procedural due process guarantees
of the South Carolina Constitution and United States
Constitution in several respects. First, juries are left with
complete discretion whet>er to award punitive damages.
They are instructed simply that if they find the Appel-
lant’s conduct was grossly negligent, reckless, willful or

App. 28

wanton, they may award punitive damages. Sample v.
Gulf Refining Co., 183 S.C. 399, 191 S.E. 209 (1937). The
standard is so vague that members of the judiciary them-
selves may not recognize behavior that subjects a party to
punitive exposure. In Payne v. Bouharoun, 292 S.C. 390,
356 S.E.2d 438 (Ct. App. 1987), for example, the trial
judge, sitting without a jury, awarded only actual dam-
ages to a plaintiff who had been physically thrown out of
the defendant’s bar. The lower court did not address the
plaintiff’s prayer for punitive damages and the plaintiff
appealed. Reviewing the matter, the Court of Appeals
found the defendant’s actions gave rise to a possible
punitive award and remanded the case for hearing on
punitive damages.

Second, South Carolina common law does not specify
with sufficient detail the manner in which juries are to
determine the amount of punitive awards. Under existing
law, the jury is to consider three factors: (1) the character
of the tort committed; (2) the punishment to be meted
out; and (3) the ability of the wrongdoer to pay. Picks v.
Herring, 246 S.C. 429, 144 S.E.2d 151 (1965). Virtually no
limitations are imposed upon the jury. The punitive
award does not have to bear any specific relation to
actual damages. In fact, in Mylin v. Allen-White Pontiac,
Inc., 281 S.C. 174, 180, 314 S.E.2d 354, __ (1984), the
Court of Appeals held that the amount awarded “is pecu-
liarly within the judgment and discretion of the jury.” The
Hicks standard is virtually identical to the standard crit-
icized by the Supreme Court in BFI v. Kelco, 109 S.Ct.
2909, 2923 (1989) (Brennan, J. and Marshall, J. concur-
ring). In Bankers Life, supra, the Supreme Court criticized
a Mississippi standard similar to Mylin. After noting that

ve

App. 29

the State Supreme Court affirmed the punitive award by
recognizing that the amount of the award was committed
solely to the authority and discretion of the jury, the
Court wrote “[{t]his grant of wholly standardless discre-
tion to determine the severity of punishment appears
inconsistent with due process.” Id. at 78 (O’Connor, J. and
Scalia, J. concurring).

Third, left to its own discretion, the jury could return
a verdict which would prove ruinous to a defendant. This
is precisely what occurred in Albertini v. Veal, 292 S.C.
561, 357 S.E.2d 716 (Ct. App. 1987). There the jury
returned a punitive award which exceeded the defen-
dant’s net worth. Virtually the same consequences appear
in this appeal. Although the Appellant stipulated to his
net worth, he sought to explain the composition of that
net worth for the jury. In fact, the jury sought that infor-
mation but the Court refused to permit testimony regard-
ing it. While the Appellant had some insurance, it was
very limited (approximately $39,000 in coverage
remained at the time of trial). If the verdict in this case is
permitted to stand, Mr. McGee will be personally respon-
sible for more the 75% of the verdict.

Under existing law, the only limitation on the jury’s
unbridled discretion to award punitives rests with the
trial judge and the appellate court. The trial judge may
reduce a punitive verdict if it is unduly liberal or exces-
sive. The appellate court may reduce a punitive verdict
only if the award is so excessive as to indicate it is the
result of passion, prejudice, caprice, or some other
improper consideration. Mylin, supra. Even then, no
objective criteria for review exists.

App. 30

Fourth, despite the fact that punitive awards cause
the Appellant substantial property deprivation (in this
case, approximately one-third of his stipulated net
worth), the state does not require proof beyond a reason-
able doubt or even by clear and convincing evidence as
required in other states. Compare, Colo. Rev. Stat.
§ 13-25-127(2) (1987) (beyond a reasonable doubt); Cal.
Civ. Code § 3294(2) (Deering Supp. 1988) (clear and con-
vincing); Or. Rev. Stat. § 30925 (1988) (same); Linthicum v.
Nationwide Life Ins. Co., 150 Ariz. 326, 332, 723 P.2d 675,
681 (1986) (same).

“Procedural due process imposes constraints on gov-
ernmental decisions which deprive individuals of ‘lib-
erty’ or ‘property’ interests within the meaning of the
Due Process Clause of the Fifth and Fourteenth Amend-
ments.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). The
right to a hearing prior to suffering loss of property is
well recognized. Id. at 333; Wolf v. McDonnell, 418 U.S. 839
(1974). The Appellants in this case ask the Court to
review South Carolina’s current procedures for determin-
ing whether punitive damages should be awarded and, if
so, in what amount.

In Mathews, supra, the Supreme Court set forth the
factors which should be reviewed in determining the
constitutional adequacy of a challenged procedure. These
factors are:

First, the private interest that will be affected by
the official action; second, the risk of an erro-
neous deprivation of such interest through the
procedures used, and the probable value, if any,
of additional or substitute procedural safe-
guards; and finally, the government's interest,
including the function involved and the fiscal

App. 31

and administrative burdens that the additional
or substitute procedural requirement would
entail.

Id. at 335 (citation omitted). South Carolina’s current
procedure for awarding punitive damages is constitu-
tionally infirm given the seriousness of the private inter-
est that can be affected, the risk of erroneous and
sometimes ruinous deprivation, the probable value of
additional or substitute procedural safeguards, and the
limited burden upon the government of additional or
substitute requirements.

The private interest which is affected in this case is
obvious: Mr. McGee’s estate. The jury is specifically
instructed to take into consideration the defendant’s
wealth, the fruits of a lifetime of hard work. If this verdict
is allowed to stand Mr. McGee will lose, in punitive
damages alone, nearly one-third of the estate which he
has accumulated during his life. This is a very substantial
interest made even more significant by the fact that he is
at that point in life when people begin to slow down and
prepare for retirement.

The second factor to be considered under Mathews is
the risk of erroneous deprivation under existing pro-
cedures and the probable value of additional or substitute
safeguards. The procedures for awarding punitive dam-
ages to be imposed unnecessarily and unfairly increases
the risk of erroneous punitive awards. First, the present
evidentiary standard (preponderance of evidence) con-
tributes to the risk of an erroneous result. Because the
evidence need only preponderate in favor of a prevailing
party, the jury is free to resolve substantial doubts regard-
ing the Appellants’ conduct and intent in favor of the

App. 32

Respondent. This discretion combined with the impreci-
sion in the substantive standard for awarding punitive
damages maximizes the risk that jurors will apply their
prejudices and subjective values to the decision and pun-
ish a defendant when no punishment is appropriate. The
Supreme Court has held that “imprecise substantive stan-
dards that leave determinations unusually open to the
subjective values of the judge” mitigate strongly in favor
of an evidentiary standard that is stricter than mere pre-
ponderance of the evidence. Santosky v. Kramer, 455 U.S.
745, 762 (1982).

Second, as earlier noted, the risk of error is com-
pounded by the law’s failure to state clearly when and
under what circumstances a jury may inflict punishment.
The law does not tell juries what factors may or must, or
what factors must not, be considered in deciding whether
to inflict punishment. The law gives no guidance con-
cerning any limiting principles dictated by the purposes
of punitive damages. If the jury were to divine that the
purpose is to deter similar future conduct, the lay jurors,
with none of the sentencing expertise or experience of
judges, would have to speculate as to the manner in
which proper deterrence should be achieved. If the jury
were to divine that the purpose is to punish, the lay
jurors would have to speculate as to retributive princi-
ples. And, of course, the jury being unguided, would
most likely simply vent its spleen with no principled
theory of punitive damages in mind.

The punitive award also far exceeds any monetary
fine the state could have imposed upon Mr. McGee had
he been convicted of DUI in a criminal court. S.C. Code

App. 33

Ann. § 56-5-2940 (1988 Supp.) sets forth the current pen-
alties for driving while intoxicated. These fines range
from a possible fine of two hundred dollars for a first
offense, which this would have been had Mr. McGee been
convicted criminally, to a maximum fine of six thousand
dollars for a third offense. Accordingly, in this case the
punitive award is approximately seventeen times greater
than the maximum fine the state could have imposed if
Mr. McGee had been charged and convicted of DUI, third.
It is five hundred times larger than the fine any South
Carolina court can currently impose for DUI, first.

Because the process by which a jury decides whether,
and in what amount, to award punitive damages substan-
tially increases the risk of erroneous fact finding as com-
pared with other civil proceedings, enhanced procedural
protection is required. See Santoksy v. Kramer, supra (due
process requires enhanced protections against erroneous
fact-findings in proceedings to terminate parental rights).
Furthermore, because the law fails to set standards for
when and in what amount punitive awards may be inflic-
ted, and because these omissions expose defendants to
each jury’s subjective values and individuous discrimina-
tion, procedural safeguards are needed to protect against
errors resulting from the virtually unrestrained discretion
of the jury. See Santosky, [sic] at 762, 763 (proceedings in
which the fact finder has “unusual discretion” to weigh
facts are “often vulnerable to judgments based on cul-
tural or class bias”); Smith, 461 U.S. at 60 (the absence of
procedural safeguards in punitive damages cases exposes
defendants to the “caprice and prejudice” of the jury)
(Rehnquist, J. dissenting).

App. 34

The third and final consideration articulated by the
Mathews Court is the state’s interest, which should
include the function involved and the fiscal and adminis-
trative burdens that additional or substitute procedural
requirements would entail. Modifying the existing pro-
cedures by which punitive damages are awarded under
South Carolina law would not increase fiscal or adminis-
trative burdens on the state or the court system because
these changes focus primarily on the rules under which
punitive damages are determined. Increasing the plain-
tiff’s burden of proof and more clearly defining the stan-
dard for punitive awards will expedite trials and promote
settlement by replacing vague and uncertain standards
with more concrete guidelines and procedures which par-
ties can use in evaluating cases. These procedures may
also reduce the number of appeals and simplify appellate
review because they will provide more meaningful stan-
dards. The Court will no longer be required to resort to
vague standards such as whether or not the punitive
award shocks the conscience. Norton v. Ewaskio, 241 S.C.
557, 129 S.E.2d 517 (1963).

Moreover, no significant governmental interest
weighs heavily against reform. Punitive damage awards
that exceed the proper levels of punishment and deter-
rence cannot be justified. In Gertz v. Robert Welch, Inc., 418
U.S. 323, 349 (1974), the Supreme Court held that “states
have no substantial interest in securing for plain-
tiffs . . . gratuitous awards of money damages far in
excess of any actual injury.” A properly structured pro-
cedure for imposing punitive damages would advance
the state interest in punitive damages awards because it
would guard against over deterrence and excessive

App. 35

punishment. The risk of over deterrence is great under
the current procedure because plaintiffs and their attor-
neys possess strong incentives to seek excessive awards.
See, Wheeler, 69 Va. L. Rev. at 307. Moreover, excessive
verdicts receive apparent sanction from a system that
encourages juries to consider the wealth of the defendant
in determining the proper measure of punitive damages.

CONCLUSION

The Appellants have demonstrated that the enormity
of the actual damage award relative to the Respondent’s
injuries were the result of improper considerations. They
have also demonstrated that the magnitude of the puni-
tive award relative to Mr. McGee’s net worth is
unjustified, ruinous, and the result of improper consider-
ations. Finally, it is evident, given the recent opinions of
the United States Supreme Court, that South Carolina’s
current procedures for assessing punitive damages are
unconstitutional. For these reasons the jury’s verdict
must be set aside.

/s/ Keating L. Simons, III
Keating L. Simons, III
Thomas J. Keaveny, II
HOLMES & THOMSON
100 Broad Street
Post Office Box 858
Charleston, SC 29402-0858
(803) 723-2000

ATTORNEYS FOR APPELLANTS
CHARLESTON, S.C.
March 16, 1990

App. 36

APPENDIX E
STATE OF SOUTH CAROLINA )
COUNTY OF CHARLESTON ) IN THE COURT
CRYSTAL G. BROWN, ) OF COMMON
Plaintiff, ‘ PLEAS
ws ) Case No.
ne : P : } 88-CP-10-730
AVID McGEE an
HANAHAN MOTORS, INC., ‘ ANSWER
Defendants. )
)

The Defendants, above-named, answering the Com-
plaint of the Plaintiff herein, allege and say that:

FIRST: They deny each and every allegation of the Com-
plaint not hereinafter specifically admitted, modified, or
explained.

AS TO THE FIRST CAUSE OF ACTION

SECOND: The Defendant McGee admits so much of
Paragraph 1 as alleges he is a resident of Berkeley
County, State of South Carolina; they admit, upon infor-
mation and belief, that the Plaintiff is a citizen and resi-
dent of Georgetown County.

THIRD: They admit the allegations of Paragraphs 2 and
3.

FOURTH: They admit so much of Paragraph 4 as alleges
on or about April 4, 1987, at approximately 8:30 a.m. a
collision occurred between the vehicles driven by the
Plaintiff and the Defendant McGee on U.S. Highway 17
North By-Pass; they deny the remaining allegations of
said Paragraph and demand strict proof thereof.

App. 37

FIFTH: They deny the allegations of Paragraphs 5 and 6
and demand strict proof thereof.

SIXTH: They admit so much of Paragraph 7 as alleges
that following the accident the Plaintiff was transported
away from the accident by an ambulance; they lack infor-
mation sufficient to form a belief as to the remaining
allegations of said Paragraph and therefore deny the
same and demand strict proof thereof.

SEVENTH: They lack information sufficient to form a
belief as to the allegations of Paragraphs 8 and 9 and
therefore deny the same and demand strict proof thereof.

EIGHTH: They deny the allegations of Paragraph 10 and
demand strict proof thereof.

AS TO THE SECOND CAUSE OF ACTION

NINTH: Responding io Paragraph 11, the Defendants
reaffirm and reallege their responses to the Paragraphs
referred to in said Paragraph.

TENTH: They admit so much of Paragraph 12 as alleges
the Defendant, Hanahan Motors, Inc., is a corporation
incorporated under the laws of this state; they deny the
remaining allegations of said Paragraph and demand
strict proof thereof.

ELEVENTH: They admit the allegations of Paragraphs
13 and 14.

TWELFTH: They deny the allegations of Paragraph 15
and demand strict proof thereof.

App. 38

THIRTEENTH: They are informed and believe Para-
graph 16 alleges conclusions of law to which they are
required neither to admit nor to deny.

FOURTEENTH: They deny the allegations of Paragraph
17 and demand strict proof thereof.

WHEREFORE, having fully responded to the Plain-
tiff’s Complaint, the Defendants pray the same be dis-
missed with costs.

/s/ Thomas j. Keaveny
Thomas J. Keaveny, II
HOLMES & THOMSON
100 Broad Street
P.O. Box 1090
Charleston, SC 29402-1090
803/722-1634

ATTORNEYS FOR DEFENDANTS

CHARLESTON, SC
March 9th, 1988

STATE OF SOUTH CAROLINA

COUNTY OF CHARLESTON IN THE COURT

Defendants.

)
)
CRYSTAL G. BROWN, ) OF COMMON
Plaintiff, PLEAS
- ) Case No.

} 88-CP-10-730
JOHN DAVID McGEE and , gahlelaeieaes
HANAHAN MOTORS, INC., , Bea ee

)
)

The undersigned, Attorneys for Defendants, hereby
certify that on the 9th day of March, 1°38, a copy of the
attached Answer was placed in an envelope with first-

App. 39

class postage, prepaid, and mailed to Kenneth W. Thorn-
ton, Jr., Esquire, Law Offices of Kenneth W. Thornton, Jr.,
P.A., Attorneys for Plaintiff, at their last known address,
P.O. Box 1480, Georgetown, SC 29442.

/s/ Thomas J. Keaveny II
Thomas J. Keaveny, II
HOLMES & THOMSON
100 Broad Street
P.O. Box 1090
Charleston, SC 29402-1090
803/722-1634

ATTORNEYS FOR DEFENDANTS

CHARLESTON, SC
March 9th, 1988

App. 40

APPENDIX F

STATE OF SOUTH CAROLINA ) IN THE COURT
COUNTY OF CHARLESTON )OF COMMON PLEAS
) NINTH JUDICIAL

Crystal G. Brown, ) CIRCUIT
Plaintiff, ) CASE NO.::
ve ) 88-CP-10-730
_ ; )
John David McGee and ) TURY Shiai.
Hanahan Motors, Inc., DEMANDED
Defendants. ) SUMMONS
) FOR RELIEF

TO THE DEFENDANTS ABOVE NAMED:

YOU ARE HEREBY SUMMONED, and required to
answer the Complaint in this action, a copy of which is
herewith served upon you, and to serve a copy of your
Answer to the Complaint on the Plaintiffs’ attorney, Ken-
neth W. Thornton, Jr., 716 Prince Street, Post Office Box
1480, Georgetown, South Carolina 29442, within thirty
(30) days after the service hereof, exclusive of the day of
such service, and if you fail to answer the Complaint
within the time aforesaid, the Plaintiff in this action will
apply to the Court for the relief demanded in the Com-
plaint.

DATED at Georgetown, South Carolina, on this the
16th day of February, 1988.

LAW OFFICES OF KENNETH W. THORNTON, JR.,
P.A.
Attorneys for Plaintiffs

BY: /s/ Kenneth W. Thornton
Kenneth W. Thornton, Jr.

App. 41

STATE OF SOUTH CAROLINA )
COUNTY OF CHARLESTON +) IN THE COURT
JOF COMMON PLEAS

Crystal G. Brown, ) NINTH JUDICIAL

Plaintiff, ) CIRCUIT
ve ) CASE NO.:
)
John David McGee and ) NEGLIGENCE
Hanahan Motors, Inc ) JURY TRIAL
ecelich DEMANDED
Defendants. ) COMPLAINT
)

The Plaintiff, complaining of the Defendants, would
respectfully show unto this Court, and hereby alleges as
follows:

FOR A FIRST CAUSE OF ACTION

1. That Plaintiff is a citizen and resident of George-
town County, State of South Carolina, and the Defendant,
John David McGee, is a citizen and resident of Berkele;
County, State of South Carolina.

2. That the accident which gave rise to this cause of
action occurred in the County of Charleston, State of
South Carolina.

3. That at the time of the occurrence herein
described, the Plaintiff was the driver of a 1985 Volks-
wagon Quantum, 4-door GL, bearing South Carolina
License Tag No. JCL 816, which is owned by Crystal G.
Brown, and the Defendant, John David McGee, was the
driver of a 1982 2-door Buick sedan, bearing South Caro-
lina License Tag No. XX43681, which is owned by Hana-
han Motors, Inc.

App. 42

4. That on or about April 4, 1987, at approximately
8:30 o’clock a.m., the Plaintiff was stopped in the left side
through-lane on Route U.S. 17 North Bypass waiting for
the red light to change when the Defendant, John David
McGee, approached from the rear of Plaintiff’s vehicle
and struck Platntiff’s vehicle, which flipped end-over-end
coming to rest on its roof. Defendant’s vehicle was esti-
mated in Uniform Traffic Collision Report as traveling at
the rate of speed of 95 m.p.h.

5. That the time of the collision described above, the
Defendant, John David McGee, was negligent, willful,
wanton, careless, reckless, and grossly negligent in the
following particulars; that at the time of the occurrence
described above, the Defendant, John David McGee, was
negligent, willful, wanton, careless, and grossly negligent
in each of the following particulars:

a. In traveling along a public highway at an
excessive rate of speed;

b. In traveling along a public highway at a rate
of speed too fast for conditions;

c. In traveling along a public highway while
under the influence of alcohol;

d. In failing to maintain a proper lookout for
vehicles on the road ahead;

e. In failing to maintain a proper lookout for
other vehicles, including the vehicle Plaintiff
was driving;

f. In failing to have the vehicle in which the
Defendant was driving under control and to
reduce the speed of the vehicle to a reason-
able and proper rate when approaching
other vehicles;

App. 43

g. In failing to have the vehicle which the
Defendant was driving equipped with
proper brakes, or, if so equipped, in failing
to apply properly the brakes so as to avoid
colliding with Plaintiff’s vehicle;

h. In failing to maneuver the vehicle which
Defendant was driving so as to avoid strik-
ing that of the Plaintiff;

i. In failing to sound his horn or otherwise
warn the Plaintiff of the impending danger;

j. In driving in a grossly reckless manner with-
out regard for the safety of others, including
the Plaintiff;

k. In failing to use even a modicum of care or
caution that a reasonably prudent person
would have used under the circumstances
then and there prevailing;

l. In failing to use the degree of care and cau-
tion that a reasonably prudent person would
have used under the circumstances then and
there prevailing;

m. In acting in reckless disregard for the lives
and safety of other persons using the high-
way, including the Plaintiff;

All of which were the direct and proximate cause of the
injuries and damages suffered by the Plaintiff as are set
forth more particularly below, said acts being in violation
of the statute laws of the State of South Carolina.

6. That the Defendant, John David McGee, is
responsible for the actions as heretofore set forth, which
are the direct and proximate cause of the injuries and
damages suffered by the Plaintiff.

7. That, as a result of the negligence, willfulness,
carelessness, and gross negligence of the Defendant as set

ial

App. 44

forth above, the Plaintiff was transported to East Cooper
Hospital by ambulance where Plaintiff underwent medi-
cal treatment and was hospitalized. Plaintiff suffered
severe and painful injuries which were caused and, based
on information and belief, will in the future cause Piain-
tiff to undergo additional and extensive medical care and
treatment and which have caused, and, based on informa-
tion and belief, will in the future cause Plaintiff to expend
large sums of money for such medical treatment and
related expenses, and which have caused and, based on
information and belief, will in the future cause Plaintiff to
sufter severe pain and suffering, mental anguish and
emotional trauma, and which have caused and, based on
information and belief, will in the future cause Plaintiff to
lose money in the nature of wages and other income.

8. That, as a result of the negligence, willfulness,
wantonness, carelessness, and gross negligence of the
Defendant as set forth above, the Plaintiff was trans-
ported to East Cooper Hospital by ambulance, has been
forced to receive medical care after returning home and
has sustained severe, painful and permanent injuries
which have caused and, upon information and belief, will
in the future cause Plaintiff to expend substantial sums of
money for medical treatment and related expenses and
which have caused and, upon information and belief, will
in the future cause Plaintiff severe pain and suffering,
emotional stress and strain, and Plaintiff will suffer dis-
figurement as a result of these injuries.

9. That, Plaintiff, as a result of said injuries, has lost
time from her employment and will, upon information
and belief, miss time and work in the future, thereby
losing income in the past and future.

App. 45

10. That, because of the facts and circumstances set
forth in the injuries and damages sustained by the Plain-
tiff, the Plaintiff is informed and believes that she is
entitled to a judgment against Defendant for compensa-
tory and exeinplary damages, for costs in this action, and
for such other and future relief as this Court may deem
just and proper.

FOR A SECOND CAUSE OF ACTION

11. The Plaintiff reaffirms and realleges all of the
allegations centained hereinabove as set forth in the First
Cause of Action.

12. That the Defendant, Hanahan Motors, Inc., is a
corporation incorporated under the laws of the State of
South Carolina, and doing substantial business in the
County of Charleston, South Carolina.

13. That, upon information and belief, at the time of
the occurrence herein mentioned, the Defendant, John
David McGee, was operating the aforesaid 1982 2-door
Buick sedan by, and with the permission, of the Defen-
dant, Hanahan Motors, Inc.

14. That, upon information and belief, the aforesaid
1982 2-door Buick sedan is owned, furnished and main-
tained by the Defendant, Hanahan Motors, Inc., for the
general use, pleasure and convenience of John David
McGee, and that, at the time of the occurrence herein
mentioned, the said vehicle is being used for such a
purpose by the Defendant, John David McGee, who has
general authority to do so.

App. 46

15. That at the time of the collision described above,
the Defendant, Hanahan Motors, Inc., was negligent,
willful, wanton, careless, reckless, and grossly negligent
in the following particulars; that at the time of the occur-
rence described above, the Defendant, John David
McGee, the agent, servant, and/or employee of the
Defendant, Hanahan Motors, Inc., was negligent, willful,
wanton, careless, and grossly negligent in allowing the
Defendant, John David McGee, to operate its vehicle in
the aforementioned manner.

16. That the Defendant, Hanahan Motors, Inc.,, by
and through its agents, servants and employees is
responsible for the actions of the Defendant, John David
McGee, as heretofore set forth, which are the direct and
proximate cause of the injuries and damages sustained by
the Plaintiff.

17. That, because of the facts and circumstances set
forth in the injuries and damages sustained by the Plain-
tiff, the Plaintiff is informed and believes that she is
entitled to judgment against the Defendant, Hanahan
Motors, Inc., for compensatory and exemplary damages,
for the costs of this action, and for such other and further
relief as this Court may deem just and proper.

WHEREFORE, the Plaintiff prays for judgment
against both Defendants for compensatory and exemp-
lary damages, for the costs of this action, and in such
other and further relief as this Court may deem just and

proper.

App. 47

LAW OFFICES OF KENNETH W. THORNTON, JR.,
PA.
Attorneys for Plaintiff

BY: /s/ Kenneth W. Thornton

Kenneth W. Thornton, Jr.
Post Office Box 1480
Georgetown, South Carolina 29442

Georgetown, South Carolina,

February 16, 1988.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1828%3A1. Public record. Not legal advice.