Opposition Brief — Munn v. Algee

| FILED.

@ JUL 2 199)

No. 90-1844 OFFICE ane

In The

Supreme Court of the United States

_

October Term, 1990

RAY JAMES MUNN, Individually, and Ray James Munn,

Administrator of the Estate of Elaine Munn, Deceased, on Behalf

of the Heirs at Law and Wrongful Death Beneficiaries of Elaine

Munn, Deceased,

Petitioner,

LAY

TRUDY E. ALGEE,

Respondent.

On Petition for Writ of Certiorari to the United States Court

of Appeals for the Fifth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

GARY K. SMITH

ROBERT H. HARPER*

ARCHIE SANDERS, III

SHUTTLEWORTH, SMITH, WEBB

McNABB AND WILLIAMS

Attorneys for Respondent

8 South Third Street - Suite 300

Memphis, Tennessee 38103

(901) 526-7399

*Counsel of Record

610

tz *NJ (201) 257-6850¢/800) 3 APPEAL®NY (212) 840-4640eMA (617) 542-1114

Mapped

ay DC (202) 783-7288ePA (215) 925-6500°USA (800) 5 APPEAL

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QUESTIONS PRESENTED

1. Whether the petitioner’s constitutional right to free exercise

of religion requires the creation of a special religion exemption

to the application of the avoidable consequences doctrine, a

neutral, valid and generally applicable rule of law.

2. Whether cross-examination concerning the sincerity of the

Munns’ religious beliefs was proper since the petitioner injected

that issue into the trial and since the District Court allowed the

jury to consider these religious beliefs as a factor in determining

whether the refusal of medically recommended blood transfusions

was unreasonable.

ul

PARTIES TO THE PROCEEDING

In addition to the parties listed in the caption, Southern Health

Plan, Inc., d/b/a IPA Apple Plan, was an intervening plaintiff

in the District Court. Southern Health Plan did not appear in

the Court of Appeals. Michigan Mutual Insurance Company

provided a defense to the respondent under the terms of an

insurance contract between respondent and Michigan Mutual.

Michigan Mutual is affiliated with Amerisure, Inc., Amerisure

Insurance Company, Amerisure Ltd. and Amerisure Texas

Corporation.

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TABLE OF CONTENTS

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The Constitution does not require the creation of a

special religious exemption for the petitioner to the

application of the avoidable consequences doctrine,

a neutral, valid and generally applicable rule of law.

SE

B. The Avoidable Consequences Doctrine Is

Religion-Neutral And Is Generally Applied. .

C. The Application Of The Avoidable

Consequences Rule Is Not Unconstitutional

Because It Has An Incidental Effect On

Petitioner’s Free Exercise Of Religion. ......

Page

ill

iv

Contents

Page

D. Whether The Test Of The District Court Or The

Court Of Appeals Is Applied, Petitioner Has

Not Satisfied The Requirements Of The

Avoidable Consequences Doctrine. ......... 11

E. A Special Religious Exemption For Petitioner

To The Avoidable Consequences Doctrine

Violates The Establishment Clause.......... 17

F. The Court Of Appeals’ Decision Is Consistent

SR occa eile eeu veat eueee ee 17

Il. Cross-examination concerning the sincerity of the

Munns’ religious beliefs was proper since the

petitioner injected that issue into the trial and since

the District Court allowed the jury to consider these

religious beliefs as a factor in determining whether

the refusal of medically recommended blood

transfusions was unreasonable.................. 18

A. Munn’s Counsel Forced The Sincerity Of Their

Religious Beliefs Into This Trial............ 18

B. The Admission Of Evidence Concerning The

Sincerity Of The Munns’ Religious Beliefs Was,

ig rer ee 25

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Contents

Page

TABLE OF CITATIONS

Cases Cited:

Cero v. Oynesondo, 138 A. 45 (1927) ................. 14

Christiansen v. Hollings, 112 P.2d 723 (Cal. 1941) ..... 12, 13

Corlett v. Castera, 562 N.E. 2d 257 (Ill. App. Ist Dist. 1990)

ae btw abds Gib Oba au US bd Va VINE Raat a es ak 13

County of Allegheny v. American Civil Liberties Union, 109

i es SIR, feds 0.04 dpe epavnceeeendeedee ls 17

Crumpton v. Confederation Life Ins. Co., 672 F.2d 1248 (Sth

te EE Ela Sos Se WE ben Cle eetn seth dedicanes 25, 26

Dietz v. Consolidated Oil & Gas, Inc., 643 F.2d 1088 (Sth

Cir. 1980) cert. denied, ____ ~U.S. ____ (1981) ..... 25, 26

Edward v. Aguillard, 482 U.S. 578 (1987).............. 17

Employment Division, Department of Human Resources of

Oregon v. Smith, 110 S. Ct. 1595 (1990)...........

i ube Gh bas eGubeasaae ea 5, 7, 8, 9, 10, 14, 15, 16, 17, 18

Howard v. Gonzales, 658 F.2d 352 (Sth Cir. 1981)...... 27

Industrial Commission v. Vigil, 373 P.2d 308 (Col. 1962)

vi

Contents

Page

Kotteakos v. United States, 328 U.S. 750 (1946) ........ 26

Lange v. Hoyt, 159 A. 575 (Conn. 1932)............... 12

LeBoeuf v. K-Mart Corporation, 888 F.2d 330 (Sth Cir. 1989)

ieee eM AS ek als bald Web ew eateeas cae OS 26

McDonough Power Equipment, Inc. v. Greenwood, 464 U.S.

IR are CLLL bh idaidns bee Cbs kOe bebe a0 Ns 27

Minersville School District, Board of Education of Minersville

School District v. Gobitis, 310 U.S. 586 (1940) ..... 10

Montgomery v. Board of Retirement, 109 Cal. Rptr. 181 (Sth

Dist, 1973; 33 Cal. Sa: 447 (STS) sc ee ec ceees 14

Montgomery v. County of Clinton, Michigan, 743 F. Supp.

oe A a ee eee eee 18

Munn v. Algee, 730 F. Supp. 21 (N.D. Miss. 1990) ..... 2

Munn v. Algee, 924 F.2d 568 (Sth Cir. 1991)........... ]

Munn v. Southern Health Plan, Inc., 719 F. Supp. 575 (N.D.

CCI. 6S Why ik Shwe vbw s snes UN a ese ian ceens 2, 3

Pregeant v. Pan Am World Airways Inc., 762 F.2d 1245 (Sth

SSS SUES a er 26

Prince v. Massachusetts, 321 U.S. 159 (1944)........... id

Reynolds v. United States, 98 U.S. 145 (1878) .......... 10

vil

Contents

Page

Salvation Army v. Department of Community Affairs, 919

2 § 8 to Me ere Te 18

School District of Grand Rapids v. Ball, 473 U.S. 373 (1985)

he Te eerkS + kee eee aaa MKS Sik ee aera CWC Cae kee 17

Scott and Garrett v. Green River Lumber Co., 77 So. 309

EEE wun hv bd kyle b REO Lo EUs Oh dates ean ae y

Stitt Spark Plug Co. v. Champion Spark Plug Co., 840 F.2d

1253 (Sth Cir.), cert. denied, 488 U.S. 890 (1988)

Sew eth baw R VOULAT OWE wS CC OENK LF URE COE ee 26

Sherbert v. Verner, 374 U.S. 398 (1963) .............. 14, 16

Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) ...... 17

Thomas v. Review Board of Indiana Employment Security

Seeee, Gey MPcm PU CUUIEN ub k das scaccecscsens 11

United States v. Ballard, 322 U.S. 78 (1944)............ 1}

United States v. Lee, 455 U.S. 252 (1982) .............. 10

United States v. Seeger, 380 U.S. 163 (1965) ........... 11

United States v. Underwood, 588 F.2d 1073 (Sth Cir. 1979)

ee ESEL SPEYER ET Y SEO EE TE FOS YER CES Se eee 26

Wallace v. Jaffree, 472 U.S. 38 (1985)............... ee

Walter Nashert & Sons v. McCann, 460 P.2d 941 (Okla. 1969)

Pa A, ian’ PRCA A Hel NBEO any Srp ete ptd o! E nk 13

vill

Contents

Page

Yazoo and M.V.R. Company v. Fields, 195 So. 489 (Miss.

EE Ar rere a ee eee Pere 9

Statutes Cited:

By errr aren 2

nee. Code Ames & Bh-FE5S CIPS) owe ccc e essences 4

United States Constitution Cited:

EE Sc VERE wee eben t eeu ven s aWes eee 8

Rules Cited:

Federal Rule of Evidence 401............00..000e000es 24

Federal Rule of Evidence 403... ... 1... ccc cece ene 2, 24

Other Authorities Cited:

I as dod ics kw ebhcabeeesabacasé™ 14

McCormick, Handbook on the Law of Damages, § 33 (1935)

APPENDIX

Appendix A — District Court Opinion Rendered on August

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No. 90-1844

In The

Supreme Court of the United States

October Term, 1990

RAY JAMES MUNN, Individually, and Ray James Munn,

Administrator of the Estate of Elaine Munn, Deceased, on Behalf

of the Heirs at Law and Wrongful Death Beneficiaries of Elaine

Munn, Deceased,

Petitioner,

vs.

TRUDY E. ALGEE,

Respondent.

On Petition for Writ of Certiorari to the United States Court

of Appeals for the Fifth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

OPINIONS BELOW

The Fifth Circuit Court of Appeals’ opinion is reported as

Munn v. Algee, 924 F.2d 568 (Sth Cir. 1991). This opinion is

included in the appendix to the petition for writ of certiorari at

Al-A39.

The District Court’s post-trial opinion after consideration

of the petitioner’s motion for a new trial is reported as Munn

v. Algee, 730 F. Supp. 21 (N.D. Miss. 1990). This opinion is

included in the appendix to the petition for writ of certiorari at

A40-A57.

A pre-trial opinion rendered by the District Court granting

the defendant’s motion for partial summary judgment is reported

as Munn v. Southern Health Plan, Inc., 719 F. Supp. 575 (N.D.

Miss. 1989). This opinion is included in the appendix to the petition

for writ of certiorari at A58-A72.

None of these decisions are included in the appendix to this

brief. The respondent has, however, included as an Appendix to

her brief an unreported decision rendered by the District Court

in chambers immediately prior to commencement of the trial. This

opinion is re-copied from pages 5 through 16 of the trial transcript,

and is included as respondent’s appendix at Ira-9ra.

STATEMENT OF THE CASE

The petitioner, Ray James Munn, brought this action against

the respondent, Trudy Algee, as a result of an automobile accident

which occurred at approximately 9:00 a.m. on December 25, 1986.

The attorneys for petitioner filed suit on September 24, 1987,

in the United States District Court for the Northern District of

Mississippi, Delta Division. He brought the action in an individual

capacity, as administrator for the estate of his deceased spouse,

Elaine Munn, as well as on behalf of the wrongful death

beneficiaries of Elaine Munn under the Mississippi Wrongful Death

Statute, Miss. Code Ann., § 11-7-13 (1972).

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The basic facts underlying the automobile accident in question

were never disputed by the parties. Elaine Munn was injured at

approximately 9:00 a.m. on December 25, 1986, when the car

in which she was riding was struck by a vehicle driven by the

respondent. The cause of the accident was stipulated to be Trudy

Algee’s negligence in attempting to pass a tractor-trailer rig just

prior to the collision.

After the accident, Elaine Munn was taken to Tunica County

Hospital in Tunica, Mississippi. After x-rays and other tests were

administered she was taken to the Regional Medical Center in

Memphis, Tennessee. Approximately eight to nine hours after the

collision, she died during surgery after she and her husband

repeatedly refused to allow medically recommended blood

transfusions. Their reason for refusing the blood transfusions was

based on their adherence to the Jehovah’s Witness religious faith.

Early in this litigation, counsel for the petitioner filed a motion

for summary judgment requesting that the court enter a judgment

in his favor that the avoidable consequences doctrine should not

apply to this case because the Munns’ refusal to accept medically

recommended blood transfusions was in accordance with the tenets

of their religious faith. The petitioner argued that the Munns’

refusal of blood on religious grounds was not unreasonable as

a matter of law. The District Court denied this motion.

Thereafter, the respondent’s counsel filed her motion for

partial summary judgment as to all post-death damages asserting,

inter alia, that should the jury decide that the Munns’ refusal

of medically recommended blood transfusions was unreasonable

and that Elaine Munn’s death would have been avoided if the

transfusion had been accepted. The District Court granted this

motion. See Munn v. Southern Health Plan, Inc., 719 F. Supp.

525 (N.D. Miss. 1989) (Pet. App. A58-A72). While the respondent

also argued that the petitioner had the burden of proving the

causation of Elaine Munn’s death, the District Court did not rule

on this issue in granting respondent’s motion. The court did

ultimately decide in its pretrial chambers conference on the first

day of trial that respondent had the burden of proof for the defense

of avoidable consequences, rejecting respondent’s argument that

the petitioner had the burden of proving Elaine Munn’s wrongful

death (Resp. App. Ira-9ra). The questions which necessitated trial

were what amount of damages should be awarded for Elaine

Munn’s pain and suffering from the time of the accident to the

time of her death, whether her death was avoidable, whether the

Munns’ refusal of blood was unreasonable under the

circumstances, and what amount of damages should be awarded

for wrongful death if the respondent did not carry her burden

of proof on avoidable consequences.

The matter was tried for five days in Oxford, Mississippi,

to a bi-racial jury during August of 1989. The jury returned a

verdict for Elaine Munn’s estate in the amount of $20,411.67 as

compensation for medical expenses incurred by her and for pain

and suffering through the time of her death. These damages were

awarded to the estate of Elaine Munn under Mississippi’s Survival

Statute, Miss. Code Ann., § 91-7-233 (1972).

The jury found that the death of Elaine Munn was 100 percent

attributable to her and her husband’s repeated refusal of blood

transfusions, that their refusal was unreasonable, and that Elaine

Munn would have survived if they would have accepted the

transfusions. Thus, the jury awarded no damages for wrongful

death.

SUMMARY OF ARGUMENT

What the petitioner seeks in this case is a special religious

exemption to a longstanding and consistently applied rule of law.

The avoidable consequences doctrine has been applied in all types

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of cases to judge whether a plaintiff failed to take all actions

reasonable under the circumstances to mitigate damages. The

decisions of this Court hold that a valid religion-neutral law of

general applicability does not infringe upon an individual’s free

exercise rights, even if it has some incidental effect on some

religious activities. Employment Division, Department of Human

Resources of Oregon v. Smith, 110 S. Ct. 1595 (1990). The

avoidable consequences doctrine is just such a rule. Indeed, the

petitioner’s position and that of the District Court would violate

the establishment clause by creating a special preference for the

Munns’ religious views (Pet. App. at Al2-A]13).

The Munns failed to mitigate their damages in this case. Even

if this Court were to hold that the District Court was right to

allow the jury to consider the Munns’ religious views in making

its decision, the jury, considering the circumstances of this case,

and taking the Munns’ religious views into consideration, found

that their actions were not reasonable. Therefore, under either

the approach of the District Court or the Court of Appeals,

petitioner has failed to mitigate damages. For petitioner to prevail,

this Court must adopt a rule saying that a religious reason for

failing to take a mitigating action is per se reasonable under all

circumstances. The decisions of this Court, expecially Smith, and

the history of the avoidable consequences rule, do not support

such a result.

The petitioner placed the Munns’ religious beliefs in issue

in this trial in response to respondent’s assertion of the defense

of avoidable consequences. This was done to offer some

explanation of their refusal to accept medically recommended

blood transfusions on the issue of whether the Munns’ actions

were unreasonable. Consequently, the petitioner, and not

respondent, forced the issue of the sincerity of their religious beliefs

into this trial.

\

During voir dire and opening statement, petitioner’s counsel

attempted to invoke the sympathy of the jury for his clients by

discussing their faith on numerous occasions. Moreover, at the

outset of Ray Munn’s testimony on direct examination, petitioner’s

counsel elicited from him various statements about how zealously

he and Elaine Munn held their beliefs. It was in this context that

the District Court permitted defense counsel to inquire into the

sincerity of petitioner’s religious beliefs relating to his knowledge

of and adherence to other tenets of the Jehovah’s Witness faith.

The District Court gave much deliberation to the evidentiary

ruling in question. Because the objection to these questions came

at the close of the first day of trial, the court had an opportunity

to consider this matter overnight. After due deliberation, it

overruled petitioner’s objection acknowledging the emphasis which

had been placed by Munn’s counsel on the sincerity of their

religious beliefs up to that point in the trial.

While the Court of Appeals determined that the evidence

under scrutiny was irrelevant and that its admission was an abuse

of discretion, it held the error to be harmless after a thorough

review of the record. The Fifth Circuit also ruled that Ray Munn’s

testimony did not adversely influence the jury and was utterly

irrelevant in light of the substantial amount of expert medical

testimony produced by both sides on the issue of whether Elaine

Munn would have lived had she and her husband allowed the

medically recommended blood transfusions.

Additionally, the Court of Appeals decided that the petitioner

had failed to articulate any substantial right affected by the

admission of the evidence. Each jury verdict was scrutinized and

each was determined by the court to have been supported by the

evidence presented at trial. Since the petitioner did not establish

that a substantial right had been effected, the evidentiary ruling

was harmless.

For the foregoing reasons, the petitioner’s request for a writ

of certiorari should be denied.

REASONS FOR DENYING THE WRIT

THE CONSTITUTION DOES NOT REQUIRE THE

CREATION OF A SPECIAL RELIGIOUS EXEMPTION FOR

THE PETITIONER TO THE APPLICATION OF THE

AVOIDABLE CONSEQUENCES DOCTRINE, A NEUTRAL,

VALID AND GENERALLY APPLICABLE RULE OF LAW.

The petitioner in this case seeks to carve out a religious

exemption to the avoidable consequences rule, a long established

rule requiring a party that has been damaged by another to use

reasonable care and effort to minimize their injury. The issue

is whether the Constitution requires that a religious exemption

to the avoidable consequences rule be created. The answer to this

question is controlled by this Court’s recent decision in

Employment Division, Department of Human Resources of

Oregon v. Smith, 110 S. Ct. 1595 (1990). Because this Court’s

analysis in Smith clearly controls and was properly applied by

the Court of Appeals, the petition for writ of certiorari should

be denied.

A. The Smith Decision

In Smith, the petitioners were fired by a drug rehabilitation

organization because they used peyote, a substance whose knowing

Or intentional possession is a felony under Oregon law unless

prescribed by a doctor. Peyote was used by the petitioners in a

ceremony of the Native-American Church. After their dismissal,

petitioners were denied unemployment benefits because they had

been dismissed for work related misconduct. The petitioners argued

that this denial of benefits violated their free exercise rights under

the First Amendment.' This Court held that the right to free

exercise of religion did not eliminate an individual’s obligation

to comply with a valid and neutral law of general applicability

even if there was some incidental effect on the petitioner’s right

to free exercise of religion. Jd. at 1603-04.

The Court stated:

The government’s ability to enforce generally

applicable prohibitions of socially harmful

conduct, like its ability to carry out other aspects

of public policy, ‘‘cannot depend on measuring

the effects of a governmental action on a religious

objector’s spiritual development.’’ Lyng, supra,

485 U.S. at 451, 108 S.Ct. at 1326. To make an

individual’s obligation to obey such a law

contingent upon the law’s coincidence with his

religious beliefs, except where the State’s interest

is ‘compelling’? —permitting him, by virtue of his

beliefs, ‘‘to become a law unto himself,’’ Reynolds

v. United States, 98 U.S. at 167, contradicts both

constitutional tradition and common sense.

Id. at 1603.

Likewise, the avoidable consequences rule is a neutral law

of general application which this Court, following the Smith

decision, should apply to all plaintiffs even if it has some incidental

effect on the petitioner’s exercise of their religious beliefs.

1. This Court first asked the Oregon Supreme Court to determine if the

sacramental use of peyote was unlawful Department of Human Resources of

Oregon v. Smith, 485 U.S. 660 (1988) (Smith 1); the sacramental use of peyote

was found to be illega] under the Oregon sjatute. 763 P.2d 146, 148 (1988).

B. The Avoidable Consequences Doctrine Is Religion-Neutral And

Is Generally Applied.

There are numerous decisions applying the avoidable

consequences rule in Mississippi dating back to at least 1918. Scott

and Garrett v. Green River Lumber Co., 77 So. 309 (Miss. 1918).

The purpose of the rule is to discourage people who have suffered

loss from passively suffering additional loss. In this way, accident

costs are minimized and the economic welfare of all of society

is protected. C. McCormick, Handbook on the Law of Damages,

§ 33 at 127 (1935).

The rule has been applied to all types of alleged wrongs. C.

McCormack, supra, § 33 at 127 (1935) (‘‘where one person has

committed a tort, breach of contract or other legal wrong against

another, it is encumbent upon the latter to use such means as

reasonable under the circumstances to avoid or minimize the

damages. The person wronged cannot recover for any item of

damage which could thus have been avoided.’’); Yazoo and

M.V.R. Company v. Fields, 195 So. 489 (Miss. 1940) (‘‘This rule

[avoidable consequences] applies to all injuries wrongfully inflicted,

whether by means of a tort or the breach of a contract,’’. . . /d.

at 490). Therefore, the rule has a long history and has been

generally applied to all types of cases.’

C. The Application Of The Avoidable Consequences Rule Is Not

Unconstitutional Because It Has An Incidental Effect On

Petitioner’s Free Exercise Of Religion.

Petitioner objects to the use of the avoidable consequences

2. Petitioner does not even attempt to argue that the adoption of the

avoidable consequences doctrine was aimed at the regulation of religious beliefs

nor is this ‘hybrid situation’’ where in addition to an incidental effect on religion

there is a violation of another constitutional provision. /d. at 1601-02.

10

rule in this case because it incidentally affects the Munns’ free

exercise of religion. However, even prior to Smith, this Court

has held that an individual’s religious views do not relieve them

of the responsibility of obeying otherwise valid, generally

applicable laws.

Justice Frankfurter’s opinion in Minersville School District,

Board of Education of Minersville School District v. Gobitis, 310

U.S. 586 (1940), reflects the balance struck between the

applicability of general laws and individual religious beliefs:

Conscientious scruples have not, in the course of

the long struggle for religious toleration, relieved

the individual from obedience to a general law not

aimed at the promotion or restriction of religious

beliefs. The mere possession of religious

convictions which contradict the relevant concerns

of a political society does not relieve the citizen

from discharge of the political responsibilities.

Id. at 594-595; also quoted in Smith, 110 S. Ct. at 1600. See

also, Reynolds v. United States, 98 U.S. 145 (1878); Prince

v. Massachusetts, 321 U.S. 159 (1944) (mother could be prosecuted

under child labor laws even if her actions were religiously

motivated); United States v. Lee, 455 U.S. 252 (1982) (‘‘Congress

and the Courts have been sensitive to the needs flowing from the

Free Exercise Clause, but every person cannot be shielded from

all the burdens incident to exercising every aspect of the right

to practice religious beliefs’’ /d. at 261).

The clear teaching of Smith is that the government must be

free to enforce ‘‘generally applicable prohibitions’’ which are

religion-neutral even if they burden a particular religious practice.

Id. at 1603-1604.

1]

D. Whether The Test Of The District Court Or The Court Of

Appeals Is Applied, Petitioner Has Not Satisfied The Requirements

Of The Avoidable Consequences Doctrine.

The petitioner finds fault with both the procedure of the

District Court and the Court of Appeals. The petitioner objects

to the District Court approach because they allege it allows the

jury to decide whether adherence to a particular religious tenet

is reasonable. The petitioner and respondent agree that a jury

should not be allowed to determine the validity of an individual’s

religious beliefs based on the jury’s own judgment of their

acceptability. Allowing a jury to make such a determination is

inconsistent with the decisions of this Court. Thomas v. Review

Board of the Indiana Employment Security Division, 450 U.S. 707

(1981); Jones v. Wolf, 443 U.S. 595 (1979); United States v. Seeger,

380 U.S. 163 (1965); United States v. Ballard, 322 U.S. 78 (1944).?

While the respondent will detail why she believes the Court

of Appeals’ approach is proper, the charge given to the jury by

the District Court which the petitioner now finds constitutionally

deficient, was in fact favorable to them. Absent consideration

of the religious basis for refusing the blood transfusions, the

Munns’ conduct in refusing the transfusion after being told that

she would die without it, would certainly have been found

unreasonable under the circumstances by the jury.‘ What the

District Court was seeking to do was allow the jury to factor in

the religious views of the petitioner in making its objective

3. However, the jury may consider and evidence is admissible on the issue

of whether the religious position put forward is sincerely held. Respondent will

discuss this point more fully in part II of this memorandum.

4. As noted by the Court of Appeals’ opinion, the petitioner’s brief

conceded as much (Pet. App. Al3, n. 11). This was clearly the view of the

Court of Appeals.

12

determination of whether their actions were reasonable or not.

This approach has some support in the case law. In Lange

v. Hoyt, 159 A. 575 (Conn. 1932), on the issue whether Christian

Scientist parents who follow the tenets of their faith in the medical

treatment of their child, satisfy the requirements of the avoidable

consequences rule, the Connecticut Supreme Court held:

The jury was told that the conduct of both

plaintiffs with reference to the presence or absence

of reasonable care was to be judged in the light

of all the surrounding circumstances including

whatever belief as to methods of treatment the jury

might have found they conscientiously held. The

reference in the last clause of this charge was to

the fact that the plaintiff Minette B. Lange was

a Christian Scientist and her conduct in the effort

to promote the recovery of her daughter was in

part at least actuated by the tenents of that belief.

While the test of conduct on the part of a plaintiff

in promoting a recovery from injuries suffered is

one of reasonable care and cannot be made to

depend upon the idiosyncrasies of personal belief

no matter how honestly held, courts cannot

disregard theories as to proper curative methods

held by a large number of reasonable and

intelligent people.

159 A. at 577-578 (Conn. 1932).

In Christiansen v. Hollings, 112 P.2d 723 (Cal. 1941), the

California Court of Appeals held:

If the injured party is a believer in Christian

Science, the jury should be instructed, as it was

13

instructed in this case, that such belief is a factor

to be considered with all the other evidence in

determining whether the injured person used

reasonable diligence in caring for his injuries. If

the injuries are such that a reasonable prudent man

would seek medical care, such care must be

secured. But where the injuries are not of such

a nature, as in the present case, the jury may

properly consider the religious beliefs of the injured

person in ascertaining whether he exercised

reasonable care.

- Id. at 730.

There is also case law to support the Court of Appeals

position. In Corlett v. Castera, 562 N.E. 2d 257 (Ill. App. Ist

Dist. 1990) the court held:

Nevertheless, there is marked distinction between

a patient’s exercise of his fundamental and religious

rights to refuse a life saving medical treatment and

a patient’s attempt to impose the consequences of

his religious decision upon a physician who has

committed a tort against him. The freedom to act

upon one’s religious convictions does not

encompass the privilege of imposing tort liability

on another for injuries resulting not from another’s

tortious conduct, but rather from the voluntary

practice of one’s religious convictions. (Citations

omitted.)°

Id. at 262.

5. See also, Walter Nashert & Sons v. McCann, 460 P.2d 941 (Okla. 1969);

Industrial Commission v. Vigil, 373 P.2d 308 (Col. 1962).

14

On the other hand, petitioner cites several cases to support

his position that sincere objections to medical treatment cannot

be overridden for the benefit of the tortfeasor. Montgomery v.

Board of Retirement, 109 Cal. Rptr. 181 (Sth Dist. 1973), 33 Cal.

3d 447 (1973), cited by the petitioner, applied strict scrutiny to

an indirect burden on religion citing Sherbert v. Verner, 374 U.S.

398 (1963), as authority. Montgomery, however, is contrary to

this Court’s recent holding in Smith. Also, in Cero v. Oynesondo,

138 A. 45 (1927) after the quotation cited by petitioner saying

that whether a tort victim must undergo surgery is peculiarly

personal and that the law does not allow the jury or court to

decide it for the individual, the court stated:

Under such circumstances plantiff, having available

modern surgical science, may not be permitted to

decline to take advantage of an opportunity to be

cured or improved and charge the continuance of

blindness to defendants. In such an event an award

of damages based on the theory of permanent loss

of sight would be excessive. (Citations omitted).

Id. at 46.

The remaining cases cited by the petitioner do not involve

situations where the plaintiff refused to undergo surgery that was

essential to save his or her life. Therefore, unlike this case, it

was arguable whether the possible benefits of the surgery justified

the risks.°

6. Petitioner also contends that the widely accepted principle of American

tort law that the wrongdoer takes his victim as he finds him should be applied

in this case. Respondent agrees that it is a widely accepted principle, but the

petitioner ignores that it has only been applied in cases involving physical

conditions. Restatement (2d) § 461; Prosser, Handbood of the Law of Torts,

§ 43 (4th ed. 1971) (Pet. at AIS).

(Cont'd)

15

The petitioner claims that he seeks only to have their religious

beliefs treated the same as other strong personal reasons for failure

to take certain actions to mitigate damages (Pet. at 10). However,

they object to the District Court’s approach in allowing the jury

to consider the Munns’ religious beliefs. There are no personal

reasons under Mississippi law for failing to take actior to limit

injury which have been found to be per se justifications for

avoiding the requirement of the avoidable consequences rule

regardless of the circumstances. -

The jury in this case found, even taking the Munns’ religious

convictions into consideration, that under the circumstances they

did not take the reasonable steps necessary to mitigate their

damages. The same result must follow if the Court of Appeals’

view, which does not ailow the jury to consider her religious beliefs,

is adopted. Therefore, under either of these two tests, the plaintiff’s

conduct did not satisfy the requirements of the avoidable

consequences rule.

The result in this case would only change if this Court holds

that no matter what the Munns’ conduct, if it is done because

of a sincerely held religious conviction, it was per se reasonable

under the avoidable consequences doctrine. Despite petitioner’s

arguments to the contrary, this conclusion is not supported by

the decisions of this Court, particularly the decision in Smith.

(Cont'd)

It is the petitioner that seeks to ignore well established principles of tort

law by seeking to recover damages, if wrongful death damages are denied them,

for damage Mrs. Munn may have sustained even if she had the transfusion

and lived (Pet. at 18), as the Court of Appeals held these damages were

speculative and could not be determined in terms of reasonable probabilities

(Pet. App. Al4). Thus, there are not one but two widely accepted principles

of law petitioner seeks to ignore in this case.

16

The petitioner’s position would court the sort of social

anarchy this Court warned of in Smith:

Precisely because ‘‘we are a cosmopolitan nation

made up of people of almost every conceivable

religious preference,’’ Braunfeld v. Brown, 366

U.S. at 606, 81 S.Ct. at 1147, and precisely because

we value and protect that religious diversion, we

cannot afford the luxury of deeming presumatively

invalid, as applied to the religious objector, every

regulation of conduct that does not protect an

interest of the highest order. The rule Respondent’s

favor would open the prospect of constitutionally

required religious exemptions from civic

obligations of almost every conceivable kind

(Citations omitted).

Smith, 110 S. Ct. at 1605.

The cases cited by the petitioner in Argument II-C of their

petition starting with Sherbert v. Verner, 374 U.S. 398, are not

applicable to this case. Even assuming that this line of cases after

Smith has validity outside of the unemployment compensation

field, Smith, 110 S. Ct. at 1603, the petitioner must show that

a system of individualized exemptions has been created. This is

not the case here. Tire avoidable consequences rule has been

applied to all plaintiffs in all cases. The respondent is aware of

no Mississippi case that holds that a particular group is per se

exempt from the requirements of this rule as a matter of law no

matter what the surrounding circumstances. The unavoidable

consequences rule no more established a system of individual

exemptions than did the statute in Smith which denied

unemployment benefits for work related misconduct.

17

E. A Special Religious Exemption For Petitioner To The

Avoidable Consequences Doctrine Violates The Establishment

Clause.

In addition to being contrary to Smith, the outcome suggested

by petitioner would be contrary to the establishment clause.

This Court has consistently held that the government may

not favor one religious belief over another or promote or affiliate

itself with any particular religious doctrine. Wallace v. Jaffree,

472 U.S. 38 (1985); School District of Grand Rapids v. Ball, 473.

U.S. 373 (1985); Edward v. Aguillard, 482 U.S. 578 (1987)

(preference for a particular religious belief over another is the

unconstitutional endorsement of religion).

Petitioner in this case asks that the Munns’ religious views

concerning blood transfusions receive preferential treatment by

the courts in the application of the avoidable consequences

doctrine. This the Constitution simply does not allow. 7Texas

Monthly, Inc. v. Bullock, 489 U.S. 1 (1989); County of

Allegheny v. American Civil Liberties Union, 109 S. Ct. 3086

(1989) (‘‘on the contrary the Constitution mandates that the

government remain secular, rather than affiliating itself with

religious beliefs or institutions, precisely in order to avoid

discriminating among citizens on the basis of their religious faiths”’

Id. at 3110).’

F. The Court Of Appeals’ Decision Is Consistent With Smith.

The petitioner argues that the Court of Appeals misconstrued

Smith. In fact, the decision by the Court of Appeals is both

consistent with Smith and with the interpretation given Smith by

other courts.

7. The petitioner now appears to agree that the District Court approach

violates the establishment clause (Pet. at 12).

18

The Court of Appeals recognized that the avoidable

consequences rule is a neutral rule of general applicability.

Therefore, the petitioner was obligated to comply with it even

if it had the incidental effect of burdening a particular religious

practice. This view is consistent with how other courts have

interpreted Smith. Salvation Army v. Department of Community

Affairs, 919 F.2d 183 (3rd Cir. 1990); Montgomery v. County

of Clinton, Michigan, 743 F. Supp. 1253 (W. Dist. Mich. 1990).

CROSS-EXAMINATION CONCERNING THE

SINCERITY OF THE MUNNS’ RELIGIOUS BELIEFS WAS

PROPER SINCE THE PETITIONER INJECTED THAT ISSUE

INTO THE TRIAL AND SINCE THE DISTRICT COURT

ALLOWED THE JURY TO CONSIDER THESE RELIGIOUS

BELIEFS AS A FACTOR IN DETERMINING WHETHER THE

REFUSAL OF MEDICALLY RECOMMENDED BLOOD

TRANSFUSIONS WAS UNREASONABLE.

A. Munn’s Counsel Forced The Sincerity Of Their Religious

Beliefs Into This Trial.

The petitioner complains that specific questions posed to him

On cross-examination were irrelevant, prejudicial, and that the

admission of these questions was not harmless error.* The opinion

8. The petitioner gleans much of his support for this proposition from

Judge Rubin’s dissenting opinion (Pet. App. A24-A39). With all due respect,

the practical effect of this view would have this Court decide this case in a

vacuum without regard to Munn’s counsel’s trial advocacy techniques, tactical

decisions, and attempts to play on the sympathy of the jury. Moreover, this

view is devoid of a consideration of defense counsel’s need to pose these questions

in light of Ray Munn’s espoused theory of the case and of his testimony on

direct examination.

19

of the Court of Appeals written by Judge Smith determined that

these questions were irrelevant, that admission of same was error,

but that the error was harmless. In a specially concurring opinion,

however, Judge Barksdale determined that the evidence was

relevant to the doctrine of avoidable consequences,’ and that the

questions were responsive to Munn’s direct testimony. '°

A careful analysis of the pre-trial rulings, the trial

developments and Ray James Munn’s direct and cross-examination

testimony is necessary, however, to place in perspective the

propriety and necessity of defense counsel’s line of questioning

and how same related to the issues that were decided by the jury.

In this regard, it is important to note that Algee’s counsel did

not inject the Jehovah’s Witness doctrine or the sincerity of their

adherence to this faith into this lawsuit. Rather, when the

respondent raised the defense of avoidable consequence, the

petitioner ‘‘came forward with the explanation that the refusal

to accept the recommended medical care was in keeping with the

Munn’s religious belief’? (Pet. App. ASS).

More specifically, after the respondent filed her answer

asserting, inter alia, the defense of avoidable consequences, the

petitioner filed a motion for summary judgment requesting the

court to enter a judgment that that doctrine should not apply

to the facts of this case because the Munns’ refusal or medically

recommended care in accordance with th: © religious beliefs was

not unreasonable as a matter of law. The District Court denied

this motion.

Thereafter, the respondent filed her motion for partial

9. Judge Barksdale also opined that petitioner’s counsel did not make the

requisite Fed. R. Evid. 103(a)(1) objection (Pet. App. A24).

10. /d.

20

summary judgment as to all post-death damages asserting the

application of the defenses of assumption of risk, contributory

negligence, and avoidable consequences. In response to this

motion, petitioner’s counsel argued that only the avoidable

consequences doctrine should be applied to the facts of this case.

The District Court granted the respondent’s motion ruling, among

other things, that avoidable consequences was the appropriate

doctrine to apply in this case (Pet. App. A58-72).

Defense counsel also argued in this motion that the petitioner

had the burden of proving that the negligence of Trudy Algee

caused Elaine Munn’s death. This issue was not decided in the

court’s ruling on the motion. However, the District Court

ultimately rejected Algee’s causation argument in a chambers’

ruling immediately before commencement of the trial by deciding

that Algee had the burden of proving avoidable consequences

(Resp. App. Ira-9ra). Thus, the burden of proving that the refusal

of blood transfusions was unreasonable and that Elaine Munn

would have lived if the Munns had allowed the transfusions was

placed on the defense (Resp. App. Ira).

However, the District Court further decided to allow the jury

to apportion responsibility for Elaine Munn’s death, even if it

decided that the Munns’ refusal of transfusion was unreasonable

in order to avoid what the court perceived might be an unfair

result. Jd. This was, without question, an extremely favorable

development for the petitioner (Resp. App. lra-7ra). Also see Pet.

App. Al4, n. 13, Al7-Al18, n. 16.

The petitioner’s argument on this evidentiary ruling fails to

acknowledge the District Court’s favorable accommodation to

Ray and Elaine Munn’s religious faith and their injection of this

issue into this trial. Indeed, from the early stages of petitioner’s

voir dire (Tr. 42-19 through 43-11), through his counsel’s lengthy

opening argument (Tr. 65, 16-17; Tr. 69, 13-22; Tr. 72, 23-24;

21

| Tr. 73, 17-22; Tr. 74-17 through 75-16), and throughout Ray

| Munn’s direct testimony (Tr. 96, 2-13; Tr. 103, 8-25; Tr. 104-19

» through 105-16; Tr. 109-1 through 114-15), a substantial portion

of time was spent by Munn’s counsel discussing, not only some

tenets of the Jehovah’s Witness faith, but also how zealously Ray

and Elaine Munn followed these teachings.

In contrast, defense counsel only posed two questions to the

jury venire on voir dire which related to religion. One was whether

any juror had any immediate family member who followed the

Jehovah’s Witness faith (Tr. 45). The other was whether any

prospective juror held the opinion that the Bible prohibited the

| transfusion of blood for appropriate medical care (Tr. 45).

Furthermore, defense counsel stated clearly and unequivocally

in his opening statement that he was not challenging the Munns’

right to free exercise of their religious beliefs or their right to

refuse blood (Tr. 84). Defense counsel did state in opening

argument, however, that he was challenging the Munns’ right to

blame Trudy Algee for the results of their choice (Tr. 84). These

were the essential comments made by defense counsel about the

Munns’ religious beliefs during his opening statement.

Ray Munn was the first witness colled at trial. The outset

of his direct testimony rightfully opened the scope of cross-

examination to a broad discussion of their faith. Ray Munn’s

direct testimony included the following question and answer:

Q. How would you describe her zeal in which she

took religion? Was she — how would you describe

it, was she very. strong, very moderate, or a weak

Jehovah’s Witness? A. No. She was very zealous

about her faith. That’s what — well, that’s what

Started and got me interested in it. She was teaching

the children and also carrying them to the meeting

alien

22

with her. I started attending meetings with her.

(Tr. 96).

Clearly, Munn’s counsel elicited this testimony at such an

early stage of the trial for some purpose. Munn’s counsel’s

questions were certainly phrased to evoke sympathy from the jury.

With this in mind, was defense counsel obliged not to review the

sincerity of this zeal? What better way to test this sincerity is there

than to inquire of the petitioner his understanding and knowledge

of his religious faith?

In any event, all of Ray Munn’s testimony, including direct,

cross, and re-direct examination took only a portion of the first

day’s trial, followed by a very brief period of time on the witness

stand the second day.'' He did not testify again. Thereafter,

Munn’s counsel called a total of seven witnesses, two of whom

provided medical opinions that Elaine Munn would have died

even if she had taken the blood transfusions. Algee’s counsel called

a total of three witnesses, two of whom provided expert medical

opinions that Elaine Munn would have lived if she had accepted

the transfusions. The trial of this case lasted five says.'?

Petitioner’s focus on the importance of the cross-examination

questions posed to Ray Munn in the context of the entire trial

is misplaced. Most of the evidence in this case was expert medical

testimony produced by counsel for both sides on the issue of

whether Elaine Munn would have lived if she had accepted the

transfusions (Pet. App. A8, A9, A19).

11. The trial transcript of this cause consists of 669 pages. Munn’s testimony

covered pages 95 to 153, which also included a Fed. R. Evid. Rule 403 jury

out hearing on the proffered evidence.

12. August 21-25, 1989.

23

Moreover, the District Court gave much deliberation to this

evidentiary ruling in the context of the Munns’ use of religious

8 beliefs as legal justification for refusing medically recommended

treatment. When presented with petitioner’s objection at the close

of the first day of trial, the court noted that it would ‘‘debate

it overnight.’’ (Tr. 143, Lines 9-23). After a full night to consider

these issues and before Munn began his testimony on the second

day of trial, the court responded to Munn’s objection by ruling:

The Court has carefully weighed this line of cross-

examination, pursuant to Rule 403 of the Federal

Rules of Evidence, and obviously it has probative

value, relevancy in this instance. And the Court

does not find that this probative value and

relevance is outweighed by the danger of unfair

prejudice, confusion of the issues, misleading the

jury or by considerations of undue delay, waste

of time or needless presentation of accumulative

evidence.

(Tr. 147).

In fact, the District Court determined that Munn had opened

I defense counsel’s line of inquiry by stating:

Indeed the plaintiff in his direct examination

r) professed his very strong feelings about his faith.

And to rule that defense counsel cannot make a

searching inquiry into that in an attempt to do as

he must as defense counsel discredit, impeach that

testimony, the Court simply cannot refuse to allow

him to do this.

a

24

The District Court clearly believed the area of cross-

examination to be relevant under Fed. R. Evid. 401 in light of

the direct examination of Ray Munn as to the sincerity of their

religious beliefs.'> Furthermore, after considering Ray Munn’s

statements about their strong feelings about his religious beliefs,

the District Court ruled, inter alia, that the probative value and

relevance was not outweighed by any danger of unfair prejudice

in accordance with Fed. R. Evid. 403.

Nothing underscores the relevancy of this line of questioning

more than the jury instruction ultimately given at trial which stated:

In determining whether or not Elaine Munn’s

decision to refuse the blood transfusion was

unreasonable, you may consider that the blood

transfusions were medically recommended. But,

you may also consider her religious beliefs and

related teachings, together with the known risks

of blood transfusions, if you find that to be a

factor in her decision.

Munn’s counsel had no objection to this instruction as

proposed by the court. (Tr. 582). More importantly, defense

counsel was the only voice heard objecting to the jury’s

consideration of religion and religious beliefs as a factor in

determining whether Elaine Munn’s decision to refuse the

medically recommended blood transfusion was unreasonable (Tr.

582). However, due to the District Court’s prior ruling on the

applicability of the doctrine of avoidable consequences and its

decision on the factors which the jury could consider in determining

whether Munn’s actions were unreasonable, Algee’s objection was

overruled. :

13. See District Court’s discussion of this issue in its ruling on petitioner's

motion for a new trial (Pet. App. ASS).

eee 3

25

Petitioner’s counsel also made a tactical decision to urge the

jury to accept their religious beliefs as legal justification for

refusing the recommended medical care during closing argument

(Tr. 589, 601-603). How is defense counsel to respond to such

an assertion during the plaintiff’s closing argument? Defense

counsel was compelled to respond to this assertion. Even then,

he did so only after emphasizing that he was not challenging the

Munns’ right to free exercise of religion or right to believe that

one cannot take a blood transfusion. Counsel did argue, however,

that Ms. Aigee did challenge the Munns’ right to place

responsibility for exercise of that belief on her (Tr. 615, 616.)

The District Court’s ruiing on the objection to defense

counsel’s line of cross examination of Ray Munn clearly

acknowledged the emphasis petitioner’s counsel was placing on

this issue. In all fairness, any other ruling on this objection except

that made by the District Court would have been extremely

prejudicial to defense counsel’s ability to appropriately scrutinize

the sincerity of the Munns’ religious beliefs vis-a-vis Algee’s liability

for wrongful death damages.

B. The Admission Of Evidence Concerning The Sincerity Of The

Munns’ Religious Beliefs Was, At Most, Harmless Error.

Assuming arguendo, the evidence elicited by defense counsel

On cross-examination was irrelevant and its admission an abuse

of discretion as decided by the Court of Appeals, the District

Court’s ruling was certainly no more than harmless error. The

Court of Appeals, in applying a case by case analysis, rightly

determined no ‘‘substantial rights’’ were affected by the evidentiary

ruling in question (Pet. App. A7). ‘‘Absent a showing that

substantial rights of the party were adversely affected, reversal

for an erroneous ruling on evidence is not warranted.’’ Crumpton

v. Confederation Life Ins. Co., 672 F.2d 1248 (Sth Cir. 1982)

citing Dietz v. Consolidated Oil & Gas, Inc., 643 F.2d 1088, 1093

26

(Sth Cir. 1980) cert. denied, 454 U.S. 968 (1981). Also see, LeBoeuf

v. K-Mart Corporation, 888 F.2d 330, 333 (Sth Cir. 1989).

’ After a thorough review of the record, the Court of Appeals

concluded that the admission of petitioner’s testimony did not

adversely influence the jury, applying Pregeant v. Pan Am World

Airways, Inc., 762 F.2d 1245, 1249 (Sth Cir. 1985) quoting United

States v. Underwood, 588 F.2d 1073, 1076 (Sth Cir. 1979). Also

see, Kotteakos v. United States, 328 U.S. 750 (1946). Absent from

the Court of Appeals’ opinion was a decision on whether the error

had ‘‘but a very slight effect on its verdict.’’ Pregeant, supra at

1249. A ruling on this issue was unnecessary. The court’s

conclusion was that it had no effect, primarily because of the

evidence’s ‘‘utter irrelevance’’ to the amount of medical testimony

presented by the parties (Pet. App. A6, A7).

In any event, petitioner ‘‘failed to articulate any substantial

right affected by the evidence’s admission’’ (Pet App. A7, A8)

and that erroneous evidentiary ruling was not reversible because

he did not show how the error caused prejudice (Pet App. A7,

n. 7). Stitt Spark Plug Co. v. Champion Spark Plug Co., 840

F.2d 1253, 1258-59 (Sth Cir.) cert. denied, 488 U.S. 890 (1988).

A party asserting error has the burden of proving that ‘‘substantial

rights’’ were affected by an erroneous evidentiary ruling. Diefz,

supra, at 1093. The Munns did not articulate any substantial right

affected by the evidence to the Court of Appeals and,

consequently, did not carry their burden. Crumpion, supra, at

1253.

The Court of Appeals, nevertheless, examined the jury

verdicts for any prejudice and found none (Pet. App. A§8). First,

the court determined that the $10,000 awarded to Elaine Munn’s

estate for eight hours of pain and suffering was an amount ‘‘not

as small] as to arouse suspicion as to the jury’s motives.’’ (Pet.

App. A8). This is not odd since the petitioner did not complain

27

of this verdict to the Fifth Circuit and arguably waived review

of same. However, the petitioner now complains of that pain and

suffering verdict to Elaine Munn’s estate.

Second, the Court of Appeals determined that the jury’s

failure to award pain and suffering to Ray Munn most likely

reflected the minor nature of his injuries (Pet. App. A8). Ray

Munn testified that since Algee’s car struck the passenger side

of his vehicle while he was operating same, he was not injured

to any significant degree and that his injury was quite uneventful

as far as pain and suffering was concerned. This was substantiated

by his minimal medical expenses. Indeed, there were no objective

medicai findings or evidence presented related to any discomfort

Ray Munn might have experienced.

Last, the Court of Appeals determined that the jury’s failure

to award any wrongfui death damages was most likely a result

of its belief that Elaine Munn would have lived had she taken

the blood transfusions (Pet. App. A8). As discussed above, most

of the five days of trial was consumed with expert medical

testimony from various physicians on the issue of whether Mrs.

Munn wouid have lived had she accepted the medically

recommended transfusions.

The petitioner clearly has the burden of establishing that a

substantial right had been affected by the evidence in question.

Petitioner not only failed carrying this burden with the Court

of Appeals, but failed even articulating a substantial right that

had been affected (Pet. App. A8-A9). Consequently, the erroneous

evidentiary ruling is harmless. McDonough Power Equipment,

Inc. v. Greenwood, 464 U.S. 548, 554 (1984). Also see, Howard

v. Gonzales, 658 F.2d 352, 357 (Sth Cir. 1981).

28

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

GARY K. SMITH

ROBERT H. HARPER*

ARCHIE SANDERS, III

SHUTTLEWORTH, SMITH,

WEBB, McNABB AND

WILLIAMS

Attorneys for Respondents

8 South Third Street,

Suite 300

Memphis, Tennessee 39103

(901) 526-7399

*Counsel of Record

July 2, 1991.

lra

APPENDIX A — DISTRICT COURT OPINION RENDERED

ON AUGUST 21, 1989

THE COURT:

The one thing — at least one thing — left unanswered in

our opinion, which we avoided — I mean which we adopted, the

doctrine of avoidable consequences was the burden of proof. I’ve

read both of your briefs. As I hinted earlier, I’m of the opinion

that the burden of proot to prove, No. 1, the likelihood of her

having survived had she taken it or the fact that she would have

survived, and the unreasonabieness of her refusing to take the

blood transfusion. That’s an affirmative defense which the burden

is on the defendant in the case.

We started projecting how we’re going to handle this

| situation. In order to avoid what I was beginning to perceive to

be a somewhat possible unjust result, Gary, the unjust result he

| pointed would be for perhaps the tort feasor in this case, Mrs.

Algee, to escape any liability for damages other than the point

| of death, we have read, read and reread, nothing in Mississippi

is clearly and explicitly on point. ;

However, in rereading an opinion by Justice Robertson of

oa our Misissippi Supreme Court, a very scholarly justice, in Hill

v. Dunaway, 487 S.2d 807, a 1986 opinion, it was an instance

were the plaintiff had purchased several six packs of beer with

the defendant, knew the defendant driver, and he was a guest

passenger in the car, the defendant driver was inebriated and

perhaps sieepy, what have you, Justice Robertson, in effect,

applied contributory negligence — of course, as such in Mississippi,

it’s truly comparative negligence, since contributory implies a bar,

in Mississippi there is no such thing. He negated the assumption

|

2ra

Appendix A

of risk doctrine. But I think that he — a reading of the opinion

convinces me that perhaps this is the forerunner of the way the

courts would handle this, an appellant court.

‘**‘Undaunted, Hill, the plaintiff, struggles mightily to convince

us that he did nothing which caused or contributed to the accicent.

To be sure there is no evidence that Hill took control of the car

or interfered with Dunaway’s driving in any way, Hill’s error on

this point is his failure to understand that the question is whether

his acts or omissions contributed to his injury and resulting

damages, not whether they caused the car to run off the road.

It is both common sense and common law one who rides with

a driver who has been drinking extensively and who has become

sleepy may be found acting without reasonable care.’’

Truly, I guess this goes back to the very reason we rejected

comparative negligence in our opinion. That is, that the actors

didn’t act at the same time. The negligent act that brought about

the car wreck occurred many hours before the alleged comparable

act of the plaintiff in refusing the blood transfusion.

We read some Florida law on the seat belt defense. Came

up with one right off the press, McCoy v. Hollywood Quarries.

And, of course, seat belt, that omission by a plaintiff to use one,

assuming the validity of that defense that it would in fact prevent

injury, likewise applies at the time the accident took place. But

it says here that, ‘‘In this case, thus the nonuse of a seat belt

caused some or even all of the injuries, the damages should be

reduced accordingly. This application of the defense does not

permit a defendant to escape liability, but simply does not require

the defendant to compensate the decedent’s survivors for injuries

which were attributable to the decendent’s failure to use a seat

belt. To accept McCoy’s contention that the seat belt defense is

3ra

Appendix A

inapplicable in a wrongful death situation would created an

anomalous situation by imposing liability for injuries which would

have been compensable had the decedent survived. In the instant

case, Hollywood Quarries presented evidence to show that if

Donald McCoy had been wearing a seat belt he would have

survived the accident and suffered no injuries.’

Translating that to our situation, your evidence will be had

she accepted the blood transfusion she would not have died. Death

would not be present here. The ultimate injury. ‘‘Therefore, the

trial court permitted the jury to consider whether McCoy’s failure

to use a seat belt produced or contributed substantially to his

injuries. The jury found that 25 percent of Donald McCoy’s total

damages were caused by his failure to use a seat belt. And the

trial court in entering final judgment reduced the damages

accordingly.’’

This case jumps over the federal district judge in Florida who

didn’t buy the seat belt defense there, but an earlier Florida

decision in Insurance Company of North America, state court

Florida decision, /nsurance Company of North America versus

Richard Pasakarnis, a 1984 Supreme Court of Florida decision,

found in 451 S.2d 447.

They, of course, discussed at length the pros and cons of

the seat belt defense and the fact that they weren’t going to adopt

— that Florida had not adopted a per se rule or statute. And

it said, ‘‘We reject the rule that failure to wear a seat belt is

negligence per se. We also reject the second approach because

contributory negligence is applicable only if plaintiff’s failure to

exercise due care causes in whole or in part the accident rather

than enhancing the severity of the injuries.’’

4ra

Appendix A

' You know, I think part of the problem, I believe as Justice

Robertson perhaps points out in the Mississippi Supreme Court,

is in fact that we tend to hang names or descriptions, such as

contributory negligence, on something, and in coming up with

my opinion, I said, Oh, there’s no way this can be applicable

because you’ve got to have the — you’ve got to have the negligence

of both parties acting at the time of the accident in question.

The Florida court goes on to say, ‘‘Rather, we adopt the

third approach, which is similar to that taken by the Court of

Appeals of New York. Nonuse of the seat belt may or may not

amount to a failure to use reasonable care on the part of the

plaintiff. Whether it does depends on the particular circumstances

of the case. Defendant has the burden of pleading and proving

that the plaintiff did not use an available and operational seat

belt; that the plaintiff’s failures to use the seat belt was

unreasonable under the circumstances; and that there was a casual

relationship between the injuries sustained by the plaintiff and

plaintiff’s failure to buckle up. If there is competent evidence

to prove that the failure to use an available and operational seat

belt produced or contributed substantially to producing at least

a portion of plaintiff’s damages, then the jury should be permitted

to consider this factor, along with all other facts in evidence, in

deciding whether the damages for which defendant may otherwise

be liable should be reduced. Nonuse of any available seat belt,

however, should not be considered by the triers of fact in resolving

the issue of liability unless it has been alleged and proved that

such nonuse was the proximate cause of the accident.’’ We’re

past that stage.——

**To avoid confusion on the part of the jury in arriving at

its verdict where the seat belt defense has been introduced and

in order to clearly define the distinction between one’s negligent

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Appendix A

contribution to the accident, on the one hand, and to his damages

on the other, we agree with Judge Swartz’s statement in his

dissenting opinion’’ in whatever, a New York case, ‘‘but the

obvious solution is simply to add interrogatories to the special

verdict form to elicit this information. For this reason we authorize

the trial courts in appropriate cases to add the following

interrogatories to the typical verdict form in automobile cases.’’

And I’m going through this long dissertation because I think

this is the way I’m going to conclude that the matter ought to

be handled with the jury. These can be modified and adapted

accordingly.

But here’s what they said in the interrogatory: ‘‘Did defendant

prove that the plaintiff failed to use reasonable care under the

circumstances by failing to use an available and operational seat

belt? Yes or no. If your answer to question A is no, do not proceed

further except to date and sign the verdict form. If your answer

is yes, proceed on. B. Did defendant prove that plaintiff’s failure

to use an available and fully operational seat belt produced or

contributed substantially to producing at least a portion of

plaintiff’s damages? Yes or no. If no, quit. If yes, see what

percentage of plaintiff’s total damages were caused by his or her

failure to use an available and fully operational seat belt. These

additional interrogatories should follow the interrogatory in the

verdict which asks the jury to give the total amount of any damages

sustained by the plaintiff and caused by the incident in question.

If the jury returns a verdict for the plaintiff and finds that

plaintiff’s negligence was a contributing cause of the accident,

finds that plaintiff’s failure to wear an available and fully

operational seat belt produced or contributed substantially to

producing at least a portion of plaintiff’s damages, then the trial

court in its final judgment should first reduce the total amount

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Appendix A

of damages by the percentage of plaintiff’s contributory negligence,

and then reduce this amount by the percentage attributable to

plaintiff’s failure to wear the seat belt.’’

Let’s see. Well, it dawned on me that even though I have

excluded, in my opinion, contributory negligence, I had hung the

titie, the name, the description, on contributory negligence. I think

to avoid an injustice it’s going to have to be adapted to this case.

If they find that — she may be barred totally from any death

damages still — I’m not ruling — that her survivors, may be I

should say, according to how these interrogatories are answered.

Am I clear as muddy water?

MR. SMITH: Yes, sir. The case that you read the sample

interrogatories from is which case?

THE COURT: JNA vs. Pasakarnis.

MR. HARPER: Do we have a cite to the New York case?

THE COURT: We have got the Southern Reporter in there.

But I’ll — yes, I’m sure they do.

MR. SMITH: Judge, if I can, for the sake of the record,

reiterate that, which is probably obvious, because we’re having

this discussion, that the issue of upon whom the burden of proof

rests has been raised in the case. The defendant taking the position

that the burden of proof as to the result of death in the wrongful

death count of the complaint would require the plaintiff to prove

that by the preponderance of the evidence either under a theory

of sole causation or under a theory of contributing

causation/substantial factor. Just so the record’s clear that we

pled that, because I do want to protect that for the Record.

, "

Tra

Appendix A

THE COURT: Absolutely, I’ll be quite honest with you, I’m

plowing totally new ground. I really don’t like to sit in anticipatory

judgment of what the Mississippi Supreme Court would do. But

I think from reading what Justice Robertson says, and he may

later say that I’m totally wrong, but I think I have gleaned from

it the direction the Court would go in order to prevent what could

be perhaps described as an injustice under the circumstances. At

the same time, giving you your clear opportunity to present this

affirmative defense. It may all become moot in the end. Your

objection should be of record.

I’ve carefully read here and I’ve iead your brief six times.

You know, it’s very novel. And I understand, I think, I’m not

being critical, but I think perhaps what we’re doing is confusing

liability and damages. I think it’s important that we distinguish

between the two. And I think by putting comparative fault, the

comparative fault standard on damages, giving you the opportunity

to show that she could have avoided the consequence of death

and still, still giving the plaintiff the opportunity to show, well,

even though she could have done that, some percentage of her

death must be attributable to these initial injuries.

Now Spear v. Barker, | don’t know where you’|l find this,

may have to call it up on the computer for you, I guess, 35 New

York 2d 444, 323 Northeast 2d, 164. We can pull that up up or

get it out of the University. Those are the only two cites. A 1974

opinion. But, you know, he’s citing a dissenting opinion in that

one. So, I didn’t want to get in any deeper. | think I’m in deep

enough now.

MR. SMITH: Judge, I learned long time ago to not to argue

with the Court after a ruling has been made. I’ve heard the ruling

and I understand and we have noted our exception. Might I inquire

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initially if that ruling at this early stage of proceeding is chiseled

in stone or subject to further consideration?

THE COURT: No. Other than I thought y’all needed a ruling

on the front end about the burden.

MR. SMITH: Yes, sir, we certainly do.

THE COURT: So I’m giving you my ruling on the front

end of the burden. I’m telling you on the second part that I think

the Florida procedure in these cases is the preferable way. At this

juncture I intend to use it.

MR. SMITH: If I can just lead the Court, and then I’ll be

through with the point, something to consider as you move toward

making your mind up on how to handle that, the problem that

it creates, even assuming that I’m wrong about the plaintiff’s

burden of proof to prove the result, which in this case is death,

I believe the fallacy of trying to do this is because it is a death

case. And your seat belt case that you’re talking about, if someone

has a bruised leg with a seat belt that becomes a broken leg without

a seat belt then there is obvious — obviously a mechanism within

which the jury can determine the worsening of the condition. But

in a death case it is all one thing, it’s either death or it’s not.

It’s going to be difficult to prorate how much her death was made

because of failure to take blood. I think that’s going to be the

problem.

THE COURT: I think what he would do is put on his

damages just based on — I mean assuming that you’re going to

have a medical witness say, and I think that you are, that death

most likely would have ensued anyway.

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Appendix A

MR. ZERILLA: They all say the death was caused by the

injuries. Even Gary’s experts.

THE COURT: Now, the distinguishing factor, Gary, JNA

vs. Pasakarnis was a surviving situation. Richard, am I not right?

McCoy v. Quarries, coming along five years later, was applied

in a wrongful death situation. They applied that same rationale

reasoning, the Florida Supreme Court did. That’s what convinced

me.

I’ll keep my mind open. But at the outset, and y’all need

not worry about telling the jury yet how this thing is going to

be handled as a matter of law.