Supplemental Brief — In Re Air Crash Disaster Near Chicago, Illinois on May 25, 1979 Inge Maria Kahl, Special Administrator of the Estate of Hans Jurgen Kahl, deceased, et al v. American Airlines, Inc. and McDonnell Douglas Corporation, 701 F.2d 1189 (1983) (No. 82-2149)

OF fies

SEP 21 1983

No. 82.- 2 14 9 ALEXANDER L. STEVAS,

aan

a=

In THE

Supreme Court of the Anited States

Ocroser Term, 1982

IN RE AIR CRASH DISASTER NEAR CHICAGO,

ILLINOIS ON MAY 25, 1979

INGE MARIA KAHL, Special Administrator of the

Estate of HANS JURGEN KAHL, deceased, et al.,

Petitioners,

VB.

AMERICAN AIRLINES, INC. and

McDONNELL DOUGLAS CORPORATION,

Respondents.

SUPPLEMENTAL BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PHILIP H. CORBOY

CORBOY & DEMETRIO, P.C.

33 North Dearborn Street

Chicago, Illinois 60602

(312) 346-3191

Attorneys for Petitioners

a ISAS

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

TABLE OF CONTENTS

SUPPLEMENT TO THE STATEMENT

GPR PRET MIMI. condsireccnccseessdertionnsovesarnopsisnintnsssseinees

ARGUMENT:

THIS COURT SHOULD CONSIDER CERTI-

FICATION TO THE ILLINOIS SUPREME

COURT OF THE ISSUES OF ILLINOIS

LAW RAISED IN THE OPINION OF THE

SEVENTH CIRCUIT UNDER A RULE

RECENTLY ADOPTED BY THE ILLINOIS

UTE MEE CIUIRE ccsscscasccssansncnecesootionsccsesoesees

SE ITER cnicintsosvécnesinatnieniincvennionmtaiisintninasicgessisnnes

APPENDIX—Illinois Supreme Court Rule 20 ....

TABLE OF AUTHORITIES

Cases

Day & Zimmerman, Inc. v. Challnor, et al., 423

Ns cs ls ceaeplanmannnideniaiiilantes

Erie Railroad Company v. Tompkins, 304 U.S.

a ecnsiniiannimanaidii

Hall v. Chicago & Northwestern Railway, 5 Ill. 2d

ae UE PEs EEE UE CUED secenccecennsensenstscreseteneees

Norfolk & Western Railway v. Liepelt, 444 U.S.

i ac aa a li ill ncade inane

Raines v. New York Central Railroad, 51 Ill. 2d

SUITED ciscinich snuathstemnaeinicscsetaiiaianntinpilgcepuntiniininicata

la

Ix Tue

Supreme Court of the United States

Ocroser Tzrm, 1982

IN BE AIR CRASH DISASTER NEAR CHICAGO,

ILLINOIS ON MAY 25, 1979

INGE MARIA KAHL, Special Administrator of the

Estate of HANS JURGEN KAHL, deceased, et al,

Petitioners,

vs.

AMERICAN AIRLINES, INC. and

McDONNELL DOUGLAS CORPORATION,

Respondents.

SUPPLEMENTAL BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

oe

SUPPLEMENT TO THE

STATEMENT OF THE CASE

The Petition for Writ of Certiorari was filed on behalf

of these petitioners on June 29, 1983. On August 30, 1983,

the Illinois Supreme Court adopted new Rule 20, pro-

viding for certification of questions of state law from cer-

tain federal courts. This rule is effective October 1, 1983.

Petitioners file this Supplemental Brief pursuant to Rule

22.6 of this Court to bring this rule to the attention of

this Court since it was not available to or known by the

petitioners at the time of the initial filing. A copy of Rule

20 of the Illinois Supreme Court is attached as an exhibit

to this Supplemental Brief.

ils

ARGUMENT

THIS COURT SHOULD CONSIDER CERTIFICATION TO

THE ILLINOIS SUPREME COURT OF THE ISSUES OF

ILLINOIS LAW RAISED IN THE OPINION OF THE

SEVENTH CIRCUIT UNDER A RULE RECENTLY

ADOPTED BY THE ILLINOIS SUPREME COURT.

In the opinion of the United States Court of Appeals

for the Seventh Circuit from which petitioners seek a Writ

of Certiorari, the Court was forced to speculate as to just

how the Illinois Supreme Court would rule as to the ques-

tion of admissibility of evidence of a decedent’s tax liabil-

ity and also as to how that Court would rule on whether

or not the jury could be instructed that its award of

damages would not be subject to federal income taxation.

As to the first issue, the opinion of the Seventh Circuit

states that the “Illinois Supreme Court has never decided

whether evidence of the hypothetical tax liability of lost

earnings is admissible in wrongful death cases.” (App. 9)

The latter question is disposed of by the Court of Appeals

by noting that while it is ‘clear that under current Illi-

nois Practice it is proper to refuse to instruct a jury that

a damage award in a wrongful death case (by whatever

means it is computed) will not be subject to taxation”’

(App. 15), those intermediate Illinois reviewing Court deci-

sions which have so held base their decisions on the ra-

tionale and reasoning of the Illinois Supreme Court in

decisions which predate the opinion of this Court in Nor-

folk & Western Railway v. Liepelt, 444 U.S. 490 (1980)

and thus the reasoning in those decisions was “‘based on

a mistaken view of federal law.”’ (App. 19)

At the time this cause was submitted to the Court of

Appeals for decision, no procedure existed by which that

Court could certify questions of Illinois law to the Illinois

a

Supreme Court for resolution. As a result, although a

question arose during the course of oral argument as to

whether or not this issue should be submitted for cer-

tification to the Illinois Supreme Court, the Court of Ap-

peals could not do so since the Illinois Supreme Court

had no provision for such certification in its rules and had

refused to allow this procedure in the past.!

The Petition for Writ of Certiorari was filed by these

petitioners on June 29, 1988. On August 30, 1983, the IIli-

nois Supreme Court adopted new Rule 20, effective Oc-

tober 1, 1983. The rule provides in pertinent part as

follows:

“Rule 20. Certification of Questions of State Law

From Certain Federal Courts

(a) Certification. When it shall appear to the

Supreme Court of the United States, or to the

United States Court of Appeals for the Seventh Cir-

cuit, that there are involved in any proceeding before

it questions as to the law of this State, which may

be determinative of the said cause, and there are no

controlling precedents in the decisions of this court,

such court may certify such questions of the laws

of this State to this court for instructions concern-

‘ The question of certification was raised by Circuit Judge Coffey

during the course of oral argument. Judge Coffey questioned

counsel representing one of the plaintiffs before the Court as to

whether or not the issues then before the Court of Appeals could

be certified to the Illinois Supreme Court. Counsel for plaintiff

advised Judge Coffey that he was familiar with the Rules of the

Illinois Supreme Court as they existed at that time and further

advised the Court that no certification was possible under those

rules. This was confirmed by counsel for one of defendants dur-

ing his responsive argument to the Court. (See affidavit of

orb’ David A. Novoselsky, attached to this Supplemental

ef.

allione

ing such questions of State law, which certificate this

court, by written opinion, may answer.”

The Committee Comments adopted along with Rule 20

state that it was the intention of the Illinois Supreme

Court in adopting this rule to permit “the Supreme Court

of the United States or the United States Court of Ap-

peals for the Seventh Circuit to certify a question of IIli-

nois law to the Supreme Court of Illinois, which ques-

tion may be controlling in an action pending before said

court and upon which no controlling Illinois authority

exists.”” These Comments further note that the Seventh

Circuit has a rule “which encourages certification in jurisdic-

tions that have a rule similar to the one provided herein.”

Petitioners respectfully submit that the issues raised in

this cause are particularly appropriate for certification to

the Illinois Supreme Court. (Indeed, had certification been

possible at the time this cause was presented to the Court

of Appeals, that Court would in all likelihood have cer-

tified these questions of state law to the Illinois Supreme

Court either on motion of the parties or sua sponte.)

However, since the Illinois Supreme Court did not then

have such a provision in its rules, the Court of Appeals

could not do so.? Such certification is now possible, and

should be considered by this Court.

2 Rule 13 of the United States Court of Appeals for the Seventh

Circuit states that when the “rules of the highest court of a state

provide for certification to that court by a federal court of ques-

tions arising under the laws of that state which will control the

outcome of a case pending in the federal court, this court, sua

_— or on motion of a party, may certify such a question to

e state court in accordance with the rules of that court, and may

stay the case in this court to await the state court’s decision on

the question certified.”” (Emphasis supplied.)

ll

Without restating the matters set forth in the Petition

for Writ of Certiorari filed by these petitioners, it is

respectfully urged that questions of Illinois law pre-

dominate in the issues before this Court. This is ob-

vious from a review of the opinion of the Court of Ap-

peals as well as from the petition and the opposing briefs

filed by respondents.

The Seventh Circuit resolved the question of the ad-

missibility of evidence by determining that ‘“‘TIllinois’

substantive measure of damages is identical to the

FELA measure leaving the district court free to admit

all evidence relevant to that measure under Fed.R.Evid.

402.” (App. 8) In doing so, however, it stated that the IIli-

nois Supreme Court had never “decided whether evidence

of the hypothetical tax liability of lost earnings is admissi-

ble in wrongful death cases’’ but was forced to consider

this question by distinguishing the pre-Liepelt decision of

the Illinois Supreme Court in Hall v. Chicago & North-

western Railway, 5 Ill. 2d 185, 125 N.E. 2d 77 (1955)

which dealt with this issue, as well as the related issue

of jury instructions. (App. 9) The opinion of the Court of

Appeals devotes considerable time to reviewing the Hall

decision, and to analyzing its reasoning and rationale to

allow the Court of Appeals to predict how the Illinois

Supreme Court might rule on this issue if presented to

it in light of the Liepelt decision. (See generally App. 9-15,

and most particularly the Court’s comments at App. 12,

where it notes that “we cannot assume that the Illinois

Supreme Court would be content to follow its dictum [in

Hall) based on the then—unanimous state rule” and at

App. 14, where the Court stated that “we may predict

that this is the course the Illinois Supreme Court would

endorse or the issue presented to it.” (Emphasis sup-

plied.) ) Resolving the issue of jury instructions, the Court

~

again discussed the Hall case in detail, and rejected

several ‘‘post-Liepelt Illinois appellate decisions [which]

confirmed the vitality of Hall and Raines [Raines v. New

York Central Railroad, 51 Ill. 2d 428 (1972)] in actions

based' on state law’ as those cases dealt with the issue

of jury instructions since the Court of Appeals found that

“Tllinois practice does not bind the federal courts under

Erie because, so far as we can determine from the cases

Illinois’ concerns are either procedural or based on a

mistaken view of federal law.” (App. 16, 19. Emphasis

supplied.)

The opinion of the Court of Appeals which petitioners

now seek to bring before this Court is clearly dependent

upon that court’s view of how the Illinois Supreme Court

would rule if presented with the same issues. Since the

Court of Appeals could not certify this question to the

Illinois Supreme Court under its own rules in the absence

of any certification provision in the rules of the Illinois

Supreme Court, it was forced to speculate and conjecture

as to precisely how the Illinois Supreme Court would have

ruled if presented with these issues.* In doing so, peti-

tioners believe that the Court of Appeals reached a result

which is contrary to Illinois law and contrary to the in-

terpretation of that state’s law by its own courts. This

3 The dilemma faced by the Court of Appeals is interwoven

t the fabric of its opinion. A further example of this may

be seen in the statement contained in footnote 7 of the Court’s

opinion, where a portion of the inion is qualified b the state-

ment that “{ojur conclusion would be different if I inter-

reted its own substantive law to include a it to such a possi-

Supreme Court’s abstract formula-

wrongful death cases) that we

aillien.

problem, and indeed the necessity for speculating as to

precisely how the Illinois Supreme Court would have

ruled had these issues been presented to it, could have

been avoided had the Court of Appeals been given the

opportunity to certify these questions to the Illinois

Supreme Court for resolution. However, at the time this

matter was raised by the Court itself, no provision to do

so existed. That provision now exists, and petitioners

would urge that this Court consider doing what the Court

of Appeals could not do.

Petitioners submit that there can be no question but

that this Court’s decision in Erie Railroad Company v.

Tompkins, 304 U.S. 64 (1938) established a firm policy

providing for a uniform interpretation of issues of state

law in both the federal and state court systems. As this

Court commented in Day & Zimmerman, Inc. v.

Challnor, et al., 423 U.S. 3 (1975), the “accident of diver-

sity of citizenship” should not be permitted to “disturb

equal administration of justice in coordinate state and

federal courts sitting side by side.” (423 U.S. at 4.) Peti-

tioners submit that in this cause, the opinion of the United

States Court of Appeals for the Seventh Circuit raises

the likelihood of just such disparate treatment that Erie

and its progeny were intended to eliminate, with the coor-

dinate state and federal courts in Illinois quite literally

sitting “side by side” but interpreting issues of state law

in an entirely different manner. Rather than have the “ac-

cident of diversity of citizenship” govern just how a party

seeking to recover under Illinois law is to be treated, peti-

tioners urge that this Court, as an alternative to hear-

ing argument in this cause without the benefit of the

assistance and guidance of the Illinois Supreme Court on

issues of its own substantive law, consider certifying the

question raised here to the Illinois Supreme Court under

atte

its newly enacted Rule 20. Petitioners believe that not

only the parties to this litigation will benefit from such

certification, but that such a decision will act as impor-

tant and guiding precedent to other federal courts which

are faced with a decision as to whether they should

resolve issues of state law in the absence of guiding prece-

dent from that state’s highest court or whether such a

decision should be certified to the state court system for

resolution.

CONCLUSION

The recent enactment by the Illinois Supreme Court of

Rule 20 provides a means by which this Honorable Court

can allow the Illinois Supreme Court to state its own posi-

tion on these substantial and significant issues of Illinois

law. The United States Court of Appeals for the Seventh

Circuit could not take advantage of the possibility of cer-

tification under its own rules based on the lack of a cer-

tification procedure under the rules of the Illinois Supreme

Court. As a result, the Court of Appeals was forced to

speculate as to how the Illinois Supreme Court would

have resolved these issues had they been presented to

that body. Recognizing that the rules of the Seventh Cir-

cuit encourages such certification, and recognizing the

need of the federal court system to have questions which

“may be controlling in an action pending before said court

and upon which no controlling Illinois authority exists”

reviewed and passed upon by the Illinois Supreme Court,

Rule 20 was adopted by the Illinois Supreme Court. Peti-

tioners urge that this Court consider certifying these

—

issues to that court under this rule as an alternative to

the relief requested in the Petition for Writ of Certiorari

filed by petitioners on June 29, 1983.

Respectfully submitted,

PHILIP H. CORBOY

CORBOY & DEMETRIO, P.C.

33 North Dearborn Street

Chicago, Illinois 60602

(312) 346-3191

Attorneys for Petitioners

APPENDIX CONTAINING EXHIBITS

—la—

3149

IN THE

rte COURT

THE STATE OF ILLINOIS

Order entered August 30, 1983.

(New material is underscored except where the entire rule

is new. Deleted material is struck through.)

Effective October 1, 1983, new Rule 20 is adopted and

Rule 361(c) is amended as follows:

New Rule 20

Rule 20. Certification of Questions of State Law From Cer-

tain Federal Courts

(a) Certification. When it shall appear to the Supreme

Court of the United States, or to the United States Court

of Appeals for the Seventh Circuit, that there are involved

in any proceeding before it questions as to the law of

this State, which may be determinative of the said cause,

and there are no controlling precedents in the decisions

of this court, such court may certify such questions of the

laws of this State to this court for instructions concern-

ing such questions of State law, which certificate this

court, by written opinion, may answer.

(b) Contents of Certification Order. A certification order

shall contain:

(1) the questions of law to be answered; and

(2) a statement of all facts relevant to the ques-

tions certified and showing fully the nature of the

controversy in which the questions arose.

(c) Record Before Certifying Court. This court may re-

quire the original or copies of all or of any portion of the

record before the certifying court to be filed with it, if,

in the opinion of this court, the record or a portion thereof

may be necessary in answering the questions.

illien

(d) Briefs and Argument. Proceedings in this court shall

be those provided in these rules governing briefs and

oral arguments, except that the time for filing briefs

specified in Rule 343 begins to run from the day the cer-

tification order is filed with this court, and the parties

retain the same designation as they have in the certify-

ing court.

(e) Costs of Certification. Fees and costs shall be the

same as in civil! appeals docketed before this court and

shall be ey A divided between the parties unless other-

wise ordered by the certifying court.

Adopted August 30, 1983, effective October 1, 1983.

Committee Comments

This rule permits the Supreme Court of the United States

or the United States Court of Appeals for the Seventh Cir-

cuit to certify a question of Illinois law to the Supreme Court

of Illinois, which question may be controlling in an action pend-

ing before said court and upon which no controlling Illinois

authority exists.

The Court of Appeals for the Seventh Circuit has a rule

which encourages certification in jurisdictions that have a rule

similar to the one provided herein. See Rule 13 of the Rules

of the United States Court of Appeals for the Seventh Circuit.

Subparagraph (a) establishes the standard for certification and

also makes the acceptance of certification by the Supreme Court

of Illinois discretionary.

Sa (b) establishes the contents of a certification

order.

Subparagraph (c) provides that the Supreme Court of Illinois

may require the original or copies of all or any portions of the

record before the certifying court.

Subparagraph (d) provides that briefs and ents are to

be governed by the Supreme Court of Illinois rules dealing with

briefs and oral arguments.

Subparagraph (e) of the rule provides for fees and costs in

the Supreme Court of Illinois.

lliitinie

AFFIDAVIT

STATE OF ILLINOIS) gg.

COUNTY OF COOK ) °*

I, Davip A. NOVOSELSKY, being first duly sworn on

oath deposes and says:

1. That I am an attorney licensed to practice law in

the State of Illinois and before the United States Court

of Appeals for the Seventh Circuit.

2. I presented a portion of the oral argument on behalf

of certain plaintiffs-appellees before the United States

Court of Appeals for the Seventh Circuit in a case en-

titled “in Re Air Crash Disaster near Chicago, Illinois

on May 25, 1979, Nos. 81-3083, 81-3084.”

3. During the course of that argument, I was questioned

by Judge Coffey as to the possibility of certifying the

uestions then before that Court to the Illinois Supreme

ourt for resolution.

4. At that time, since I was aware of the lack of any

rovision for certification in the rules of the Illinois

upreme Court, as well as Rule 13 of the Seventh Cir-

cuit Rules, I responded to Judge Coffey’s question by

stating that certification was not possible.

5. During the rebuttal to the argument presented by

the appellees, one of the counsel representing the

defen 8 yang was also questioned on this matter

and responded that Illinois did not have a procedure by

which the Seventh Circuit could certify questions of law

to the Illinois Supreme Court.

FURTHER AFFIANT SAYETH NOT.

/s/ Davip A. NOVOSELSKY

Subscribed and sworn to

before me this 14th day

of September, 1983.

/s/) DARLENE BRANDTONIES

Notary Public