Opposition — Southern Pacific Transportation Co. v. Norman

Office-Supreme Court, U.S,

a <n Bs eS.

FEB 22 1983

ALEXANDER L. STEVAS,

CLERK

No. 82-1182

IN THE

Supreme Court of the United States |

October Term, 1982

SOUTHERN PACIFIC TRANSPORTATION COMPANY,

Petitioner,

vs.

JIMMY L. NORMAN,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI.

MARTIN & HARRISON,

EDWIN C. MARTIN, JR.,

GERALD H. B. KANE, JR.,

501 Shatto Place,

Suite 100,

Los Angeles, Calif. 90020,

Counsel for Plaintiff and

Respondent, Jimmy L. Norman.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

TABLE OF CONTENTS

Page

INI OE OE SAID cn ncthiccdacsabuatevesscevsuleseveutses 2

Reasons for Denying the Writ ................:.eceeeeeeees 6

A. Devitt & Blackmar Instruction 94.13 Accurately

States the Rule of Causation Applicable in FELA

Cases and There Is No conflict or Confusion in

the Courts of Appeals on This Point ............ 6

B. There Was Ample Competent Evidence to Justify

an Award of Damages for Future Pain and Suf-

fering and in Any Event Southern Pacific Failed

to Object to Submission of the Issue to the Jury

and Thus Waived the Point ................000008 12

I cst tan oe ree eg ee ee 14

ih

TABLE OF AUTHORITIES

Cases Page

Alamo v. Del Rosario (D.C. Cir., 1958) 98 F.2d 328

Jie eee ee eee eee eee ee ee ee ee

Almandarez v. Atchison, Topeka & S.F. Ry. Co.

(CASI, 1976) 426 F.20 1O0S oo cccccisesssssvoscenteses

Bertrand v. Southern Pacific Co. (CA9th, 1960) 282

Pe OE eukokcsincidadcvectcasconmsmiicteiena tie oe

FE Sxnccesasncdesvsndesvbasmeeunstnehesaakinee ten reee

Campbell v. American Foreign S.S. Corp. (CA2d,

PUES FO. Oe GU: s vcksicccbunscststesedennsteaeee

Castro v. Giacomazzi Bros. (1949) 92 Cal.App.2d 39,

PE 8 GE © cosavekcrscsrnssncsteetinstadneeaee

DeLima v. Trinidad Corp. (CA2d, 1962) 302 F.2d

IE sdunvanusdabavhs tslocnaseabacakscssQuie Geo 7,

Dutton v. Southern Pac. Trans. Co. (Tex.S.Ct., 1978)

FO is WOM FOE cn kciecadcncde s05sskevn cee ip

Ely v. Reading Co. (CA3d, 1976) 424 F.2d 758 .. 8

Funseth v. Great Northern Railway (CA9th, 1968) 399

PUM OD vxeceanvesdsceiexnvénthdunbacabebenascsaeeeanle is

Hausrath v. New York Central Ry. Co. (CA6th, 1968)

PE Be GD an cxancoksdcncenssunsadesacsieetonisemale 8,

lannocito v. Denver & Rio Grande Western Railroad

CCASGR, 3967) 300. F.28 TOTP avcincvdcssnicene

Idzojtic v. Pennsylvania Railroad Co. (CA3d, 1970) 431

idk TNE snnnscathtesginccsnsedovecbodedsiticineeaaae

Mariner v. Marsden (1980, Wyo.) 610 P.2d 6 .........

Morrison v. New York Central Railroad Co. (CA6th,

PE EO ce BOO pv cakintedceckacensethscaoumenaee 7

Page v. St. Louis Southwestern Ry. (CASth, 1963) 312

GME GP caleactasevsscshéovcdvasauestacassancssaeaeeeeee

ii

Page

Parker v. Atchison, Topeka & S.F. Ry. Co. (1968) 263

Cal.App.2d 675, 70 Cal.Rptr. 8 ................ cf ee

Rogers v. Missouri Pacific Railway Co. (1957) 352 U.S.

MEP sta Viubrustivdcameeotaksscberecsene 1, 2, 6, 7, 8,9, 10

Rothchild v. Drake Hotel, Inc. (CA7th, 1968) 397 F.2d

NEI pete esas ces tc retias naseseccoassssssacscess 10, 11

Tyree v. New York Central Railroad Co. (CA6th, 1967)

SNe ca cs bsuavsseadvanvitenesdvesdeveseser see 7, 9

Waller v. Southern Pac. (1967) 66 Cal.2d 201, 57

SS Es SD PE DOE cdsievacnscsessvecisessseccs 7

Weese v. Chesapeake & O. Ry. Co. (CA6th, 1978) 570

MUNIN SLU. ulircuduanedsedbereseseacstbistecasessevesscves 7

Rules

Federal Rules of Civil Procedure, Rule 46 .............. 10

Federal Rules of Civil Procedure, Rule 51 .............. 11

Statute

United States Code, Title 45, Sec. 51 ................... 6

Treatises

Devitt & Blackmar, Federal Jury Practice and Instruc-

tions (3d Ed., 1977) Instr. 94.13 ............... 1,4, 6

9 Wright & Miller, Federal Practice and Procedure, Sec.

EE Cie idcocciencyosnevedest constants serene 11

No. 82-1182

IN THE

Supreme Court of the United States

October Term, 1982

SOUTHERN PACIFIC TRANSPORTATION COMPANY,

Petitioner,

vs.

JIMMY L. NORMAN,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI.

Plaintiff and Respondent, Jimmy L. Norman, hereby op-

poses the Petition for Writ of Certiorari of Defendant and

Petitioner, Southern Pacific Transportation Company, seek-

ing review of the opinion herein of the United States Court

of Appeals for the Ninth Circuit. That opinion is reproduced

as Appendix A to Southern Pacific’s Petition of Certiorari.

Southern Pacific’s petition is meritless and should be

denied.

The principal issues raised by Southern Pacific are (1)

whether the standard instruction on causation given in count-

less Federal Employers Liability Act cases (Devitt & Black-

mar, Federal Jury Practice and Instructions (3 Ed., 1977),

Instruction 94.13) correctly reflects controlling statutory and

decisional law (45 U.S.C. §51; Rogers v. Missouri Pacific

Railway Co. (1957) 352 U.S. 500), and (2) whether dam-

ages for future pain and suffering may be awarded in FELA

ar,

actions without an affirmative medical showing that future

pain and suffering will occur.

Neither issue warrants the attention of this Court.

As for Southern Pacific’s contention that the standard

FELA causation instruction was incorrect, that contention

rests On a gross misreading of the decisions on the subject

and it finds conflict and confusion where absolutely none

exists. In fact, the Courts of Appeals have approached una-

nimity as to what juries should and should not be told about

causation in FELA cases and they have uniformly approved

the instruction here objected to, which is directly based on

this Court’s authoritative decision in the Rogers case.

As for Southern Pacific’s contention that damages for

future pain and suffering in FELA cases must rest on medical

testimony, that contention turns on a purported principle of

law in support of which Southern Pacific has cited no federal

law even remotely in point and it completely ignores sub-

stantial medical evidence in the record herein. Moreover,

the issue has not been properly preserved, since Southern

Pacific failed to make any objection to the jury instruction

(also drawn for Devitt & Blackmar) by which the jury was

told that it could award damages for future pain and suffering

on the evidence before it.

These contentions and others subsidiary to them will be

discussed at greater length below.

Statement of the Case.

Plaintiff was injured on May 11, 1978, when he tripped

over a shovel handle and fell to the ground as he attempted

to dismount from the bed of a ‘‘tamper,’’ a rail-mounted

utility vehicle used in the leveling of rail lines. Substantial

and credible evidence established that, while Plaintiff may

have been to some extent at fault for failing to keep an

adequate lookout for his own safety, so too were his su-

ca, ea

pervisors and the driver of the tamper, who were responsible

for seeing to it that work rules which required that all objects

transported on the tamper be secured were enforced.

Plaintiff was shaken up in his fall but felt no immediate

pain. Later that day and in the following days, however,

he began to experience serious discomfort and was placed

off work by his family physician. During the next three and

one-half to four months, he remained off work and received

physical therapy and ultrasound treatments as an inpatient

and as an outpatient at a local hospital. Plaintiff returned

to light duty in September, 1978, but lasted only two weeks

on the job before his back pain sent him back to the doctor.

He was again placed off work and again received physical

therapy both on an inpatient and outpatient basis. He re-

turned to work again on October 30, 1978, was off again

with back problems from January 3 to January 22, 1979,

and from March 15 to May 7, 1979, remaining on the job

more or less continuously thereafter up to the time of trial

in August of 1980. He continued at the time of trial to

experience nearly constant aching in his back, which would

be exacerbated upon mild exercise. Also he suffered inter-

mittent numbness and tingling in his left leg. There had

been no material change in his condition in the previous six

months, and no doctor had held out any prospect of a cure

for his condition. He had never experienced back problems

prior to the accident.

In November of 1979, Plaintiff was examined by a board

certified radiologist who took a *‘thermogram””’ of Plaintiff's

back and legs. The thermogram (or ‘‘heat picture’’) dis-

closed irritation of the fifth lumbar nerve on Plaintiff's left

side, which the radiologist believed to be due to a herniated

lumbar disc pressing on the nerve root or to scarring of the

nerve root, either of which would be a consequence of the

i

accident. Thermography is an accepted and scientific

method for objectively verifying complaints like Plaintiff's.

Plaintiff brought an FELA action against Southern Pacific

in the federal District Court for the Central District of Cal-

ifornia. The case was tried to a jury. On the issue of caus-

ation, the jury was instructed as follows:

‘*For the purposes of this action injury or damage is

said to be caused or contributed to by an act or failure

to act when it appears from a preponderance of the

evidence in the case that the act or omission played

any part, no matter how small, in bringing about or

actually causing the injury or damage. So if you should

find from the evidence in the case that any negligence

of the defendant contributed in any way toward any

injury or damage suffered by the plaintiff, you may

find that such injury or damage was caused by the

defendant’s act or omission. Stated another way, an

act or omission is the cause of injury or damage if the

injury or damage would not have happened but for the

act or omission, even though the act or omission com-

bined with other causes.’’ [RT 512; CR 22, p. 29.]

This instruction was drawn verbatim from Instruction 94.13

of Devitt & Blackmar, Federal Jury Practice and Instructions

(3d Ed., 1977.) Southern Pacific objected to this instruction

and offered two alternative instructions which substituted

for the phrase ‘‘played any part, no matter how small’’ the

phrase ‘‘played any part whatever’ or the phrase ‘‘proxi-

mately contributed in whole or part or played any part.”’

These alternative instructions were refused. The jury was

also instructed that it could award damages both for Plain-

tiff’'s past pain and suffering and for any future pain and

suffering ‘‘which you find from the evidence in the case

that he is reasonably certain to suffer in the future.’’ This

instruction was drawn unchanged from Instruction 85.05 of

Do, ae

Devitt & Blackmar. This instruction was not objected to by

Southern Pacific.

The jury found Plaintiff to have been damaged to the

extent of $150,000. The jury’s finding as to damages was

not apportioned among wage loss, past pain and suffering

and future pain and suffering. The jury attributed to Plaintiff

fifty percent of the fault for the accident under the standard

comparative negligence instructions given it. This yielded

to Plaintiff a net recovery of $75,000, plus interest and

costs.

Southern Pacific appealed, raising in the Ninth Circuit

Court of Appeals essentially the same contentions it raises

in this Court. The Court of Appeals, in a brief three-page

per curiam opinion filed on November 24, 1982, rejected

those contentions.

i oa

REASONS FOR DENYING THE WRIT.

A. Devitt & Blackmar Instruction 94.13 Accurately

States the Rule of Causation Applicable in FELA

Cases and There Is No Conflict or Confusion in the

Courts of Appeals on This Point.

1. The causation instruction given the jury herein was

taken without modification from Instruction 94.13 of Devitt

& Blackmar, Federal Jury Practice and Instructions (3d Ed.,

1977), as already seen. The Devitt & Blackmar instruction

states in pertinent part that in an FELA action an injury is

deemed to be caused by an act or omission ‘‘when it appears

from a preponderance of the evidence in the case that the

act or omission played any part, no matter how small, in

bringing about or actually causing the injury... .’’ The

quoted language has its source in Rogers v. Missouri Pacific

Railway Co., supra, 352 U.S. 500, 505, where this Court

acknowledged that a standard of causation more liberal than

the traditional common law standard applies in FELA ac-

tions and held that

**. . . the test of a jury case is simply whether the

proofs justify with reason the conclusion that employer

negligence played any part, even the slightest, in pro-

ducing the injury or death for which damages are

sought.”’

Rogers is in turn bottomed upon the terms of the FELA,

which provides in pertinent part as follows:

‘*Every common carrier by railroad . . . shall be liable

for damages to any person . . . for such injury or death

resulting in whole or in part from the negligence of

. . Such carrier. . .”’ (45 U.S.C. §51.)

A comparison of the portion of the Devitt & Blackmar

instruction quoted above with the language just quoted from

Rogers will reveal that while appropriate adjustments were

= os

made in the language from Rogers by the drafters of the

instruction to reflect that a different quantum of evidence

is necessary to warrant a jury finding than to require sub-

mission of an issue to the jury, the instruction obviously

constitutes a faithful paraphrase of Rogers’ holding as to

the applicable standard of causation.

The Devitt & Blackmar instruction has existed in sub-

stantially its present form since at least 1961 (see 28 FRD

497) and there can be no question that it has been given in

this form in literally hundreds and thousands of cases, with-

out any hint or suggestion in any reported decision that it

is not a correct statement of the holding of Rogers or that

it conflicts in any way with the controlling statute. Indeed,

many cases on the subject actually approve the instruction

question and instructions substantially like it. (See, e.g.,

Weese v. Chesapeake & O. Ry. Co. (CA6th, 1978) 570

F.2d 611, 614 [use of ‘however smail’’ language ap-

proved]; Funseth v. Great Northern Railway (CA9th, 1968)

399 F.2d 918, 921-922 [use of Rogers ‘‘even the slightest’’

language and of ‘‘no matter how small’’ approved]; Tyree

v. New York Central Railroad Co. (CA6th, 1967) 382 F.2d

524, 529 [Devitt & Blackmar instruction mentioned with

approval]; /annocito v. Denver & Rio Grande Western Rail-

road (CA10th, 1967) 380 F.2d 1019 [Devitt & Blackmar

instruction approved]; Morrison v. New York Central Rail-

road Co. (CA6th, 1966) 361 F.2d 319, 320 [Devitt & Black-

mar instruction approved]; De Lima v. Trinidad Corp.

(CA2d, 1962) 302 F.2d 585, 587-588 [instruction in Rogers

language required if plaintiff requests it}; Dutton v. Southern

Pac. Trans. Co. (Tex.S.Ct., 1978) 576 §.W.2d 782 [Devitt

& Blackmar ‘‘no matter how small’’ language approved];

Waller v. Southern Pac. (1967) 66 Cal.2d 201, 213, 57

Cal.Rptr. 353, 424 P.2d 937 [use of Rogers language ap-

proved]; Parker v. Atchison, Topeka & S.F. Ry. Co. (1968)

—

263 Cal.App.2d 675, 677, 70 Cal.Rptr. 8 [Devitt & Black-

mar instruction mentioned with approval. ]

The cases just cited ought to be dispositive of the issue,

case, but Southern Pacific purports to find confusion and

uncertainty in a number of the decisions of the Courts of

Appeals. (Petition, pp. 9-10, 14.) All of this alleged con-

flict, however, is a pure figment of Southern Pacific's

imagination.

There are, to be sure, a number of cases which approve

language drawn from the controlling statute itself, in lieu

of or in addition to the language of Rogers. (See e.g., Ely

v. Reading Co. (CA3d, 1976) 424 F.2d 758, 762; Hausrath

v. New York Central Ry. Co. (CA6th, 1968) 401 F.2d 634,

638; Funseth v. Great Northern Railway, supra, 399 F.2d

918, 911-912; Jannacito v. Denver & Rio Grande Western

Railroad, supra, 380 F.2d 1019, 1021.) Nothing in any of

these cases, however, calls into question the authorities

approving instructions based on the language of Rogers.

These cases simply stand for the proposition that the rule

of causation applicable in FELA cases is not so esoteric that

it can be expressed only in one form of words and that so

long as the proper rule is fairly and correctly stated, that

is sufficient.

In addition, as Southern Pacific points out, various cases

involve instructions which contain both language from Rog-

ers or the statute, setting forth the more liberal rule of

causation applicable in FELA actions, and also language

describing the traditional common law standard of causa-

tion. These cases are likewise free of confusion and conflict.

These cases uniformly recognize that the FELA rule rep-

resents a departure from the common law rule and that the

FELA rule must govern. The only ostensible conflict in

those cases is that, on widely different facts, some hold that

there is no prejudicial error in using language describing

oo

common law concepts of causation so long as the FELA

standard is clearly stated (see, e.g., [dzojtic v. Pennsylvania

Railroad Co. (CA3d, 1970) 431 F.2d 1029, 1034; Ely v.

Reading Co., supra, 424 F.2d 758, 762; Funseth v. Great

Northern Railroad, supra, 39% F.2d 918, 921-922; Tyree

v. New York Central Railroad Co., supra, 382 F.2d 524,

527-529; Morrison v. New York Central Railroad Company,

supra, 361 F.2d 319, 320-321) while others find prejudicial

error where the FELA standards are not stated with sufficient

force and clarity to make it obvious to the jury that they

predominate or are not stated at all. (Almandarez v. Atchi-

son, Topeka & S. F. Ry. Co. (CASth, 1976) 426 F.2d 1095,

1097; Hausrath v. New York Central Ry. Co., supra, 401

F.2d 634, 637-638; De Lima v. Trinidad Corp., supra, 302

F.2d 585, 587-588; Page v. St. Louis Southwestern Ry.

(CASth, 1963) 312 F.2d 84, 91-92; Dutton v. Atchison,

Topeka and S.F. Ry. Co., supra, 576 S.W.2d 782; Parker

v. Atchison, Topeka and S.F . Ry. Co., supra, 263 Cal.App.2d

675, 680-681, 70 Cal.Rptr. 8.) This ostensible conflict is

of course no conflict at all, since the assessment of instruc-

tional error and resulting prejudice is a case-by-case function

which necessarily turns upon the facts of each individual

case.

The only cases which have ever expressed any disap-

proval of any instruction based on the Rogers language

quoted above merely disapproved retention of the language

concerning the test of a jury case, which, as seen above,

states a standard which is inappropriate for jury deliberations

once the issue has been submitted to the jury. (See, ¢.g.,

Page v. St. Louis Southwestern Ry., supra, 312 F.2d 84,

91-92: Bertrand v. Southern Pacific Co. (CA9th, 1960) 282

F.2d 569, 573; Parker v. Atchison, Topeka & S.F. Ry. Co.,

supra, 263 Cal.App.2d 675, 679, 70 Cal.Rptr. 8.) These

Ss

cases, of course, not only do not muddy the law, they clarify

it.

In sum, despite Southern Pacific’s contortions, there is

not the slightest confusion in the Courts of Appeals as to

the proper content of an FELA causation instruction. The

universal message of the cases is that an instruction in the

language of Rogers or in the language of the controlling

Statute, or both, is not just proper but mandatory, that tra-

ditional proximate cause standards are inappropriate, and

that when a mixture of traditional and FELA causation in-

structions is given, the relative prominence of the language

setting forth the FELA standards determines whether or not

reversal is required.

2. The notion that the allegedly ‘‘argumentative’’ phrase

‘*no matter how small’’ somehow gave counsel for Plaintiff

an unfair leg up in his argument to the jury (Petition, pp.

11-14) is no less erroneous than Southern Pacific's reading

of Rogers and subsequent case law. No matter what lan-

guage the trial court might adopt to express the concept of

causation applicable in FELA cases, it could be used in

similar fashion in argument to the jury. Even ‘played any

part whatever’’ and ‘‘proximately contributed in whole or

in part or played any part,’ the alternative terms offered

by Southern Pacific to replace ‘played any part, no matter

how small,’’ could be so used. Southern Pacific cites no

authority in support of this argument and, so far as counsel

for Plaintiff have been able to determine, none exists.

Southern Pacific’s contention is in actual fact more an

attack on the argument of Plaintiff's counsel than it is upon

the instruction itself, but the record reveals that absolutely

no objection was made at trial to the argument in question

{RT 437; 438; 445; 492], so that the point must be deemed

waived. (Federal Rules of Civil Procedure, Rule 46; Roth-

child v. Drake Hotel, Inc. (CA7th, 1968) 397 F.2d 419,

425; 9 Wright & Miller Federal Practice and Procedure:

Civil §2472, pp. 454-456.) In any case, even assuming the

issue had been properly preserved with appropriate objec-

tions, it would be meritless. There was simply nothing con-

fusing or improper or inflammatory about the very limited

use of the phrase ‘‘no matter how small’’ five times in the

course of a jury argument which spanned some 26 pages

of Reporter’s Transcript. [RT 435-455; 488-494.] An ex-

amination of the portions of the record cited by Southern

Pacific will reveal that counsel by no means hammered the

‘*no matter how small’’ theme into the consciousness of the

jurors, nor did he emphasize it out of proportion to its

importance in the case. This case was coolly and profes-

sionally tried and there was no attempt to obfuscation or

distortion either in argument to the jury or at any other time.

3. The contention that Instruction 41 was erroneous and

confusing because it omitted any definition of *‘proximate

cause,’’ even though various other instructions used the

term in one or another of its forms (Petition, pp. 9-11),

must fail for lack of any appropriate objection in the trial

court and is in any event meritless.

Rule 51 of the Federal Rules of Civil Procedure provides

that:

**. . . No party may assign as error the giving or the

failure to give an instruction unless he objects thereto

before the jury retires to consider its verdict, stating

distinctly the matter to which he objects and the

grounds of his objection. Opportunity shall be given

to make the objection out of the hearing of the jury.”

No objection of the sort now made was made either in

writing [CR 25] or orally in the trial court [RT 403-425;

529]. Waiver aside, there is nothing so inherently myste-

rious about the term ‘‘proximate cause’’ that it necessarily

requires its own special definition. The terms ‘‘cause’’ and

ae | oe

‘proximate cause’’ were used pretty much interchangeably

throughout the instructions and the jury must have seen that

they meant, for purposes of the lawsuit, precisely the same

thing. Indeed, the Court of Appeals expressly so found.

(Appendix A to Petition, p. 1.)

B. There Was Ample Competent Evidence to Justify

an Award of Damages for Future Pain and Suffering

and in Any Event Southern Pacific Failed to Object

to Submission of the Issue to the Jury and Thus

Waived the Point.

Southern Pacific contends that the law requires competent

proof that future pain and suffering will occur before dam-

ages can be awarded for such pain and suffering and that

such competent proof was lacking here. (Petition, pp. 15-

19.)

The record, however, contains ample evidence from

which the jury could properly have found that Plaintiff

would continue to suffer significant back pain for the rest

of his life. For one thing, as documented in the Statement

of the Case above, Plaintiff had suffered back pain contin-

uously from the time of the injury to the time of trial, a

period of over two years, and had enjoyed no improvement

of his condition in the six month period preceding the trial.

[RT 304.] Moreover, the radiologist who performed the

thermogram on Plaintiff over a year after the accident tes-

tified that the thermogram objectively established a contin-

uing irritation of the fifth lumbar nerve on Plaintiff's left

side, for which the most likely cause was either a herniated

lumbar disc or a scarring of the nerve root. [RT 161; 165-

171.] It is an elementary fact of life, of which any ordinary

juror may be assumed to be aware, that herniated discs and

scarred nerve tissue are extremely unlikely to regenerate or

=~

improve with time. Quite the contrary, such conditions al-

most always get worse.

All that the law requires by way of proof of future pain

and suffering is that it be shown to be reasonably probable

or reasonably certain to occur (Stein, Damages and Recov-

ery — Personal Injury and Death Actions (1972), $15, pp.

24-25), and the jury was so instructed here. [RT 521.] The

evidence just summarized more than satisfied that require-

ment.

Southern Pacific attempts to invoke the rule, observed

in some jurisdictions but never applied in an FELA case,

so far as we are aware’, that an award of damages for future

pain and suffering for an injury whose symptoms are sub-

jective in nature is appropriate only when supported by

medical testimony. (Petition, pp. 16-18.) This so-called

rule, however, would be unavailing here for at least three

reasons, even if it were applicable. First, the injury herein

was not merely ‘‘subjective’’ but was objectively verified

by means of highly reliable and accurate thermography tech-

nology. [RT 156; 161-167.] Second, medical testimony is

not required even in cases of ‘‘subjective’’ injury where

there is sufficient evidence of continuing pain and suffering

between the time of the original injury and the time of trial

to warrant the conclusion that such pain and suffering will

persist in the future. (Mariner v. Marsden (1980, Wyo.)

610 P.2d 6; Bitzan v. Parisi (1977) 88 Wash.2d 116, 558

P.2d 775; Castro v. Giacomazzi Bros. (1949) 92 Cal.App.2d

39, 46, 206 P.2d 688; Alamo v. Del Rosario (D.C. Cir.,

1958) 98 F.2d 328, 329-330.) Here there is plenty of such

evidence, as already seen. Finally, there was medical tes-

timony which would support a finding of significant per-

'Not even Campbell vy. American Foreign SS Corp. (CA2d, 1941)

116 F.2d 926, a Jones Act case cited by Southern Pacific, so holds.

ex

manent injury and consequent permanent pain and suffering,

as also noted above.

If Southern Pacific in truth believed that there was no

substantial evidence of the reasonable certainty of future

pain and suffering, as it now appears to contend, it should

have objected to the giving of any instruction whatsoever

on future pain and suffering, or perhaps it should have

offered instructions setting forth the limitations upon re-

covery for such future pain and suffering which it now urges

are applicable. It did neither of these things. [RT 403-425;

CR 25.] Having permitted, through its own inaction, the

submission of the issue of future pain and suffering to the

jury under instructions which are not claimed to be in any

way an incorrect statement of the law, Southern Pacific

should be deemed to have waived the point for purposes of

its appeal. Indeed, the Court of Appeals so ruled (Appendix

A to Petition, p. 2.)

Conclusion.

The arguments advanced by Southern Pacific are merit-

less and trivial and do not warrant review by this Court.

The law as declared and applied by this Court and by the

Courts of Appeals is clear and without conflict and it was

correctly applied by the courts below in this case. For these

reasons and the reasons stated above, the Petition for Writ

of Certiorari should be denied.

Respectfully submitted,

MARTIN & HARRISON,

Epwin C. MARTIN, JR.,

GERALD H. B. KANE, JR.,

Attorneys for Plaintiff and

Respondent, Jimmy L. Norman.