Opposition — Hedley v. Trans World Airlines, Inc.

No. 83-40

IN THE

Supreme Court of the United States

October Term, 1983

MARY HEDLEY, HERB MCFARLAND, ASBERRY RAINEY, JR.,

FRANK SERPE and FRANK STAFFORD,

Petitioners,

vis

TRANS WORLD AIRLINES, INC.,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit.

BRIEF IN OPPOSITION FOR RESPONDENT

TRANS WORLD AIRLINES, INC.

STEPHEN P. PEPE,

400 South Hope Street,

Los Angeles, Calif. 90071-2899,

(213) 669-6000,

Attorney for Respondent

Trans World Airlines, Inc.

Of Counsel:

T. WARREN JACKSON,

O'MELVENY & MYERS,

400 South Hope Street.

Los Angeles. Calif. 90071-2899,

(213) 669-6000.

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

Questions Presented.

A. Was the district court's refusal to permit certain bur-

densome worldwide discovery by plaintiffs a proper

exercise of its discretion?

B. Is there a conflict among the Courts of Appeals re-

garding the standard for abuse of discretion by trial

judges in discovery matters?

C. Was it an abuse of discretion for the trial judge to

discredit statistical evidence derived from a sample size

of twenty?

D. Were petitioners denied due process under the United

States Constitution because the trial judge allegedly

referred during the trial to a statistics treatise not in-

troduced in evidence?

List of Trans World Airlines, Inc.’s

Parent Company and Subsidiaries.

Parent Company: TRANS WORLD CORPORATION

(‘“*TWC’’).

Subsidiaries of TWC:

Trans World Airlines, Inc. (‘‘TWA’’) (81.34%

Ownership);

Hilton International (100% Ownership);

Canteen Corporation (100% Ownership),

Century 21 (100% Ownership); and

Spartan Food Systems (100% Ownership).

Subsidiaries of TWA:

None.

TABLE OF CONTENTS

Page

IE PIII asics nics Wud deduesnckesavevsatasuceue i

EE OF St IIE sinc cc cvcnscsscucocvunenvensnssusreunixs |

Statement of Additional Facts ...........ccccssscscsceveees 2

PU ais is cain ecs icdavacccscdssdssadeantnrnn oes 6

The Petition for a Writ of Certiorari Should Be Denied

Snag inbeboke cAxeenadaneihocs Pagateekidsuaeeementendia Heer: 6

A. The District Court’s Discovery Order Was

Neither an Abuse of Discretion nor Incon-

sistent With This Court’s Decision in Hickman

v. Taylor, and There Is No Conflict Among

the Circuits With Respect to Discovery ...... 6

B. The Trial Court’s Finding That Plaintiffs’ Sta-

tistical Evidence Was Unpersuasive Was Not

an Abuse of Discretion, and Does Not Present

an Important Question of Federal Law ....... 8

C. Any Reference by the District Court to a Sta-

tistics Treatise Was Entirely Proper and In

No Way Violated Plaintiffs’ Rights to Due

POON cc ccnsicasennvucusunsapcvesdvantseretasatent 1]

SI suis ce san ncemtonesectbapuevavackemcensaueniaees 12

APPENDIX A.

Defendant’s Answers and Objections to Plaintiffs’ First

SOT OF IMISTTONMIONNE ics c eos cscivissccsesenss App. p. 1

Defendant’s Supplemental Answers and Objections to

Plaintiffs’ First Set of Interrogatories .................. 4

Declaration of James L. Kessler ................ceceeeeee 6

Civil Minutes — General ...........:scssscososescecsceveees 9

Reporter’s Transcript: Remarks from the Court ........ 10

I eM oe foci a cnndnuiis wen insiaernnibaswis 12

TABLE OF AUTHORITIES

Cases Page

Application of Hartop, 311 F.2d 249 (C.C.P.A. 1962)

jinsserdensekaabiadxsbonseserekssbaeesdsea bas tideuhadeieabe ieee i]

EEOC v. Magnetics Div. of Spang Industries, 13 F.E.P.

RUNS Fn Core Sk PD sex dchacnxsnasccavancrsatenes 7

EEOC v. Prestolite Battery Div. of Eltra Corp., 14 F.E.P.

Canes: 8654 CD. SIIe. TOT) ons vis cceccticsccdsuses 7

Hartford Accident & Indemnity Co. v. WCAB, 132 Cal.

App. 3d 796, 183 Cal. Rptr. 440 (1982) ............ 12

Hickman v. Taylor, 329 U.S. 495 (1947) ........ eS

Hinton v. Entex, Inc., 93 F.R.D. 336 (E.D. Tex. 1981)

AT RAE RAR SM WO Parana ee ITO a Ap NE A NAIA SA een 7

James v. Newspaper Agency Corp., 591 F.2d 579 (10th

Be WN onic ch cdc vatoncsespnnckansanesbnrartonsewaiaueas 7

Lynn v. Regents of the University of California, 656

oe ee PS | ee eer rr rere 12

Marshall v. Westinghouse Electric Corp., 576 F.2d 588

RI PMEE a ielten ya cs tae ccaeuieaecdasssssedinnenbenne 7

Morita v. Southern California Permanente Medical

Group, 541 F.2d 217 (9th Cir. 1976), cert. denied,

Ne eee GED. vex chvicsscanasceevacekuddiensmnntes 10

O’Brien v. Sky Chefs, Inc., 670 F.2d 864 (9th Cir.

i OE ORT OIE RES EEE O TR TRAE MSO tee WR TE I 8

Ochoa v. Monsanto Co., 473 F.2d 318 (Sth Cir. 1973)

scbhiavann Loma haite Wud camatered aise) etna cmemneietitaea 7

People v. Archerd, 3 Cal. 3d 615, 91 Cal. Rptr. 397,

SEF ca CUE Fade dinnr as andinccnnniieenhanctnans 12

Purer & Co. v. Aktiebolaget Addo, 410 F.2d 871 (9th

Cir. 1969), cert. denied, 396 U.S. 834 (1970) ...... 11

Teamsters v. United States, 431 U.S. 324 (1977) ..... 10

Page

United States v. 1,078.27 Acres of Land, 446 F.2d 1030

(Sth Cir. 1971), cert. denied, 405 U.S. 936 (1972)

iin adnddineeakivaykessna ubokepeebbenarEdesseedsaaamabas 11

United States v. Smith, 625 F.2d 278 (9th Cir. 1980)

(inn cusanticanntadeaetandecantasdannmenaanen rae aaiae 8, 9

United States v. Yellow Cab Co., 338 U.S. 338 (1949)

deck. tendon noite 06 bia aaa ileal Naeem ane 8, 10

White v. City of San Diego, 605 F.2d 455 (9th Cir.

FPOE -cvciciansvicsveskcqeisseenadeeinckat tacenainee 11

Federal Statute

Age Discrimination in Employment Act, as amended,

PUSS, FEW OO. hcdccceetsss 2

BO ie. EE cincticn is de excsivnaenens 10

Federal Rules

Federal Rules of Civil Procedure, Rule 26(b)(1) ....... 6

Federal Rules of Civil Procedure, Rule 26(c) ........... 6

Federal Rules of Civil Procedure, Rule 52(a) ........... 8

Federal Rules of Evidence, Rule 803(18) ............... 11

No. 83-40

IN THE

Supreme Court of the United States

October Term, 1983

MARY HEDLEY, HERB MCFARLAND, ASBERRY RAINEY, JR.,

FRANK SERPE and FRANK STAFFORD,

Petitioners,

VS.

TRANS WORLD AIRLINES, INC.,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit.

BRIEF IN OPPOSITION FOR RESPONDENT

TRANS WORLD AIRLINES, INC.

To the Honorable Chief Justice and Associate Justices of

the Supreme Court of the United States:

Respondent, Trans World Airlines (hereinafter referred

to as ‘*TWA"’), submits the following brief in opposition

to the Petition for a Writ of Certiorari filed by Mary Hedley,

Herb McFarland, Asberry Rainey, Jr., Frank Serpe and

Frank Stafford (hereinafter referred to as ‘‘plaintiffs’’).

Statement of the Case.

On April 8, 1982, the United States District Court, Cen-

tral District of California, following an eight-day trial with-

out a jury, held that TWA did not discriminate against

a

plaintiffs in violation of the Age Discrimination in

Employment Act, 29 U.S.C. §§ 621 ef seq. (hereinafter

referred to as the ‘‘ADEA’’), by reassigning them from

management to non-management positions pursuant to a

January 1977 reorganization within TWA’s Los Angeles

reservations office, and thereafter by refusing to promote

them. Plaintiffs’ motion for a new trial was denied, and on

May 16, 1983, the United States Court of Appeals for the

Ninth Circuit unanimously affirmed the district court’s de-

cision. In the Petition for a Writ of Certiorari herein, plain-

tiffs seek review by this Court on three principal grounds.

First, plaintiffs claim that the district court’s discretionary

denial of burdensome worldwide discovery denied them an

adequate opportunity to prove their case, and was contrary

to this Court’s discovery decision in Hickman v. Taylor,

329 U.S. 495 (1947). (Pet., pp. 5-9.) Second, plaintiffs

claim that the district court improperly discredited their sta-

tistical experts’ testimony because it was derived from a

sample size of twenty. (Pet., pp. 10-12.) Finally, they argue

that the district court’s alleged reference during the trial to

a Statistics treatise not introduced in evidence denied them

due process. (Pet., pp. 13-15.)

As demonstrated below, the lower courts fully considered

and correctly decided the issues herein. In any event, the

petition does not present an important question of federal

law upon which there are conflicting decisions by the Courts

of Appeals, or which should be decided by this Court.

Accordingly, this Court should dismiss the petition and let

the lower courts’ well reasoned judgments stand.

Statement of Additional Facts.

The initial issue raised by the petition centers around

plaintiffs’ first set of interrogatories. They were served on

August 16, 1979, and contained fourteen interrogatories.

a See

TWA responded to all fourteen interrogatories, but gave

limited answers in accordance with stated objections to three

interrogatories. (ER 56, 76-80; SER 263-66.)' The contested

interrogatories sought to discover all complaints of age dis-

crimination filed against TWA since 1967 with administra-

tive agencies, in courts, and those presented to TWA by

union representatives. TWA objected because, in the con-

text of a non-class action, those interrogatories were bur-

densome, irrelevant and not likely to lead to the discovery

of relevant evidence in that they: (1) sought information

relating to complaints filed against TWA on a worldwide

basis rather than solely for the Los Angeles reservations

office where plaintiffs were employed and where the alleged

discriminatory acts occurred; (2) sought information re-

garding complaints presented by union representatives even

though plaintiffs were neither union members nor repre-

sented by a union; and (3) sought information about com-

plaints filed in a twelve year period from 1967 to 1979 even

though the alleged discriminatory acts began in 1977. TWA

answered those three interrogatories by providing the re-

quested information for its Los Angeles reservations office

only and for the four-year period prior to the January 1977

reorganization.

Plaintiffs moved to compel further answers to the con-

tested interrogatories. In support of its opposition brief,

TWA presented uncontroverted declaration testimony dem-

onstrating the irrelevance and undue burden of these inter-

rogatories. Thus, TWA showed that it is a worldwide air

carrier with over 50 domestic and 100 worldwide facilities,

‘All references to ‘‘ER"’ and ‘‘SER"’ refer to portions of documents

in the Excerpt of Record and Supplemental Excerpt of Record filed

with the United States Court of Appeals for the Ninth Circuit. Similar

references are used throughout this brief, and the pages referred to are

attached hereto as Appendix A.

a

and that it employed approximately 4),000 people. It was

shown that TWA’s reservations sales office employees, in-

cluding plaintiffs, were not and had never been unionized.

TWA also established that in order to obtain the requested

information, all of its employees’ personnel files would have

to be searched, and that it would require the full-time effort

of three employees for one month to complete this task.

(ER 83-85.)

On November 19, 1979, the district court issued its order

denying plaintiffs’ motion to compel on the ground that the

interrogatories were ‘‘burdensome and that the plaintiffs

[have] made an insufficient showing that the information

requested therein is relevant or likely to lead to the discovery

of relevant evidence.’’ (ER 93.) The Ninth Circuit affirmed

this order, finding that plaintiffs ‘‘have failed to show that

the court’s decision was based on a clear error of judgment.”’

(Pet., App. A, p. 1.)

Plaintiffs’ unsuccessful attempt at trial to prove their case

through statistical evidence is the basis for the remainder

of their petition. The district court found that their two

experts’ statistical testimony was biased and ‘‘not very per-

suasive.’’ (Pet., App. B, pp. 15, 20, 24.) The district court

also concluded that their testimony *‘fell on its own weight”’

(SER 9-10), and that ‘‘there is not one shred of competent

credible evidence, direct evidence, that the defendant en-

gaged in any way toward these plaintiffs on the basis of age

discrimination motivation.’ (Pet., App. B, p. 23.)

On appeal, the Ninth Circuit rejected plaintiffs’ argument

that the district court erred in giving the testimony of their

Statistical experts little weight. The Ninth Circuit stated that:

‘*The [district] court was entitled to conclude that sta-

tistical evidence derived from an extremely small uni-

verse has little predictive value. . . . More fundamen-

tally, the trial court is in the best position to appraise

er ee

the credibility of witnesses. . . .

‘*Even if we assume the court's finding was clearly

erroneous, it was harmless error, because appellants

failed to prove that age was a ‘determining factor’ in

TWA’s actions, . . . or to demonstrate that TWA’s

articulated legitimate business reasons were pretex-

tual.’ (Footnotes and citations omitted.) (Pet., App.

A, p. 2.)

=

ARGUMENT.

THE PETITION FOR A WRIT OF CERTIORARI SHOULD BE

DENIED.

A. The District Court’s Discovery Order Was Neither

an Abuse of Discretion nor Inconsistent With This

Court’s Decision in Hickman y. Taylor, and There

Is No Conflict Among the Circuits With Respect to

Discovery.

In challenging the district court’s discovery order, plain-

tiffs strain to argue to this Court that the order is sympto-

matic of the erosion of the decision in Hickman v. Taylor,

329 U.S. 495 (1947), by allegedly conflicting lower court

decisions, and that the order denied them an adequate op-

portunity to prove age discrimination. Both of these unten-

able arguments are grounded upon a faulty premise — that

there are no limits to the scope of discovery. As illustrated

below, however, issues of relevancy and burden affect the

scope of discovery. Regarding plaintiffs’ proposition that

there exists a split in the Courts of Appeals on the standard

for abuse of discretion by trial judges in discovery matters,

the petition cites no supporting cases.’

The Federal Rules of Civil Procedure and the decision in

Hickman v. Taylor justify the limits on discovery ordered

herein. Rule 26(b)(1) limits discovery to matters ‘‘relevant

to the subject matter,’’ and Rule 26(c) provides that a court

may make a protective order ‘‘which justice requires to

protect a party from annoyance, embarrassment, oppression,

or undue burden or expense, including one or more of the

*The cases in the treatise’s footnote which plaintiffs cite as evidence

of a conflict in the circuit courts (see Pet., p. 6), merely illustrate that

faithful application of the Hickman rationale will result in either a

granting or denial of discovery depending upon the facts of each case.

None of those cases cast doubt upon the viability of the Hickman de-

cision or the consistency of its application by the circuit courts.

a os

following: (1) that the discovery not be had. . .”’ In Hick-

man, this Court stated that ‘‘discovery, like all matters of

procedure, has ultimate and necessary boundaries.’’ 329

U.S. at 507.

In the instant case, plaintiffs stipulated that TWA had

legitimate business reasons for the reorganization (see Pet.,

App. B, pp. 7-8), and they have conceded that the allegedly

discriminatory reorganization employment decisions were

made by Los Angeles reservations office managers. (Pet.,

p. 3.) It is well settled that ‘‘in the context of investigating

an individual complaint [of employment discrimination], the

most natural focus is upon the source of the complained of

discrimination — the employing unit or work unit.’’ Mar-

shall v. Westinghouse Electric Corp., 576 F.2d 588, 592

(Sth Cir. 1978). See also Hinton v. Entex, Inc., 93 F.R.D.

336, 337 (E.D. Tex. 1981) (discovery limited to facility

where plaintiff employed); EEOC v. Prestolite Battery Div.

of Eltra Corp., 14 F.E.P. Cases 1634, 1636 (W.D. Okla.

1976) (same).

Likewise, the limitation of plaintiffs’ discovery to a four

year period prior to the alleged discriminatory acts is con-

sistent with the reasoning of Hickman and the discovery

rules. See, e.g., James v. Newspaper Agency Corp., 591

F.2d 579, 582 (10th Cir. 1979) (discovery limited to a four

year period); Ochoa v. Monsanto Co., 473 F.2d 318, 319

(Sth Cir. 1973) (per curiam) (discovery limited to six months

before and after employment interview); EEOC v. Mag-

netics Div. of Spang Industries, 13 F.E.P. Cases 191, 191-

92 (W.D. Pa. 1976) (discovery limited to 3% years prior

to the alleged discriminatory act).

Plaintiffs assert that by not obtaining and then introducing

in evidence information about other charges or lawsuits

against TWA alleging age discrimination, they were denied

an adequate opportunity to prove their case. This assertion

~—

is both wrong and patently misleading. Completely unre-

lated age discrimination charges or lawsuits against TWA

since the ADEA’s enactment arising out of employment

actions unrelated to the January 1977 reorganization in other

facilities by other managers would not have constituted com-

petent evidence in this case. Plaintiffs cannot credibly argue

that they were prejudiced by the order limiting their dis-

covery in the first instance to the facility where they were

employed and where all the employment decisions were

made, and to a period four years prior to the alleged dis-

criminatory acts. This point is underscored by the fact that

although plaintiffs’ motion to compel was denied early in

the litigation (i.e., 11 months after the filing of the complaint

and 3 months after plaintiffs began discovery), they did not

later attempt to justify a broadening of their discovery by

showing or claiming nationwide dis: “imination.

In sum, contrary to plaintiffs’ assertion (see Pet., p. 9),

this is not a case where a ‘‘full and fair opportunity”’ to

prove a violation of the ADEA was denied, and viewed

reasonably, the district court’s discovery order played an

insignificant role in this case.

B. The Trial Court’s Finding That Plaintiffs’ Statis-

tical Evidence Was Unpersuasive Was Not an Abuse

of Discretion, and Does Not Present an Important

Question of Federal Law.

It is well established under federal law that where the

credibility of witnesses, including experts, is involved and

the trial court has had an opportunity to observe and judge

that credibility, the court’s evidentiary evaluations should

not be overturned unless clearly erroneous. See Fed. R. Civ.

P. 52(a); United States v. Yellow Cab Co., 338 U.S. 338,

341 (1949); O’Brien v. Sky Chefs, Inc., 670 F.2d 864, 869

(9th Cir. 1982); United States v. Smith, 625 F.2d 278, 279-

past “ses

80 (9th Cir. 1980). Applying the ‘‘clearly erroneous’’ stan-

dard, the Ninth Circuit affirmed the district court’s findings

regarding plaintiffs’ experts’ testimony. In their attempt to

present a question of federal law for review in the face of

this case authority, plaintiffs make arguments which mis-

characterize the district court’s decision and misconstrue the

role of experts.

First, plaintiffs argue that because their two experts’ sta-

tistical testimony was not countered by an expert for TWA,

the district court was obliged to accept the experts’ opinions

(i.e. enter judgment for plaintiffs). Plaintiffs’ experts’ field

of knowledge is statistics, not the ultimate issue of whether

age discrimination occurred. Further, the mere fact that

TWA did not call an expert did not make plaintiffs’ experts

credible. Indeed, the district court after observing the tes-

timony of Drs. Pfeffer and Driver, concluded that it ‘‘fell

of its own weight.’’ (SER 9-10.)

For example, Dr. Pfeffer admitted that if the supervisors

selected for demotion were analyzed based on the criteria

of height or weight or color by applying the same statistical

test he utilized when he examined the reorganization for age

bias, virtually identical results were obtained. (ER 246-50.)

Thus, the demotions were statistically just as likely to have

been the result of the height, weight or color of the super-

visors as their age. The district court recognized this flaw

in Dr. Pfeffer’s opinion and concluded that:

‘‘First, the samples here involved are such as not to

afford a persuasive basis and, indeed, it develops that

the statistical analysis would suggest that there might

well have been numbers of other factors besides age,

but of a similar character, that might have entered into

the determinations.’’ (Pet., App. B, p. 24.)

Turning to Dr. Driver, the district court found that *‘[t}he

hypotheses and assumptions upon which [he] . . . predi-

cated his opinion were clearly erroneous.’’ (Pet., App. B,

p. 21.)

Second, plaintiffs argue that the district court rejected

their experts’ testimony because the sample size upon which

certain opinions were derived was too small. To the con-

trary, the court’s decision clearly reveals that the experts’

testimony was not rejected (see Pet., App. B, p. 25), but

simply found ‘‘not very persuasive.’ (Pet., App. B, p. 24.)

Relying upon the erroneous premise that the district court

rejected their statistical evidence because the group being

analyzed was too small, plaintiffs argue that since the ADEA

applies to employers with twenty or more employees (see

29 U.S.C. § 630(b)), a sample size of twenty cannot be

deemed too small for reliable statistical analysis. In so ar-

guing, plaintiffs fail to recognize that different consid-

erations are involved in determining a reliable sample size

for statistical purposes from those involved in establishing

jurisdictional limits. Plaintiffs fail to identify any evidence

that Congress, in establishing the jurisdictional parameters

of the ADEA, also intended to establish an inexorable rule

for trial courts in reviewing statistical evidence and thereby

overturn this Court’s mandate to such courts to evaluate the

credibility of witnesses and weigh evidence. United States

v. Yellow Cab Co., 338 U.S. 338 at 341-42.

The weight to be given statistical evidence depends on

‘‘all of the surrounding facts and circumstances.’’ Teamsters

v. United States, 431 U.S. 324, 340 (1977). Thus, although

no bottom line can be set to determine how large a sample

size must be to be reliable, sample size is clearly a relevant

factor to be evaluated by the trier of fact (such as the district

court below) when considering statistical evidence. Morita

v. Southern California Permanente Medical Group, 541

F.2d 217, 220 (9th Cir. 1976), cert. denied, 429 U.S. 1050

(1977). In any event, plaintiffs err in asserting that the

= |

‘*[rJejection of statistical evidence in employment discrim-

ination cases because the group being analyzed was too

small,’’ has not occurred with respect to groups as large as

twenty. (Pet., p. 11.) In White v. City of San Diego, 605

F.2d 455, 461 (9th Cir. 1979), for example, statistical ev-

idence based on groups of both 28 and 22 was found ‘‘too

smiall to be meaningful.”’

C. Any Reference by the District Court to a Statistics

Treatise Was Entirely Proper and in No Way

Violated Plaintiffs’ Rights to Due Process.

Although not argued below, plaintiffs now assert that the

district court’s alleged reference at trial to a statistics treatise

not in evidence violated their due process rights under the

United States Constitution.’ Plaintiffs cannot nor do they

cite any cases in support of this argument. This is because

it is well established under federal law that a trial court is

entitled to take judicial notice of such ‘‘learned treatises.’’*

United States v. 1,078.27 Acres of Land, 446 F.2d 1030,

1034 (Sth Cir. 1971), cert. denied, 405 U.S. 936 (1972)

(‘‘we are entitled to rely upon the experienced trial judge

to separate the wheat from the chaff and thus consider only

such matters as he might properly judicially notice’’); Purer

& Co. v. Aktiebolaget Addo, 410 F.2d 871, 876 (9th Cir.

1969), cert. denied, 396 U.S. 834 (1970) (‘‘[t]he pre-

sumption on appeal is that the trial judge disregarded in-

competent evidence and relied upon competent evidence.’’);

Application of Hartop, 311 F.2d 249, 253 (C.C.P.A. 1962)

‘While plaintiffs argued to the lower courts that the district court's

alleged reference to the statistics treatise was error, they did not assert

any violation of the United States Constitution.

*Plaintiffs’ argument that the statistics treatise was inadmissible hear-

| is without merit. The book is a ‘learned treatise’’ and, therefore,

falls within the exception to the hearsay rule found in Federal Rule of

Evidence 803(18).

=.

(court properly judicially noticed two standard reference

works by name and relied upon them in reaching a decision. )

None of the cases cited by plaintiffs (see Pet., p. 13) are

controlling here because they either do not stand for the

proposition asserted by plaintiffs or are inapposite. For ex-

ample, in People v. Archerd, 3 Cal. 3d 615, 638, 91 Cal.

Rptr. 397, 477 P.2d 421 (1970), the court specifically found

that *‘[i]t was proper for the [trial] court to consult textbooks

concerning the nature of the properties of insulin, as it is

entitled to take judicial notice on its own of the expertise

of the doctors testifying at the trial.’ Neither Hartford Ac-

cident & Indemnity Co. v. WCAB, 132 Cal. App. 3d 796,

183 Cal. Rptr. 440 (1982) nor Lynn v. Regents of the Uni-

versity of California, 656 F.2d 1337 (9th Cir. 1981), address

the issue of judicial notice of learned treatises.

Most importantly there is no evidence of unfairness here;

nothing in the record indicates that the district court relied

upon the statistics treatise in making its findings. On the

contrary, the court’s extensive discussion of the evidence

presented by each party (see Pet., App. B. pp. 14-27) belies

any inference that it reached its decision based on extrinsic

evidence.

Conclusion.

For the foregoing reasons, the Petition for a Writ of Cer-

tiorari should be denied.

Respectfully submitted,

STEPHEN P. PEPE,

Attorney for Respondent

Trans World Airlines, Inc.

Of Counsel:

T. WARREN JACKSON,

O’MELVENY & MYERS.

August 4, 1983.

APPENDIX A.

Defendant’s Answers and Objections to

Plaintiffs’ First Set of Interrogatories.

United States District Court, Central District of California.

Mary Hedley, Herb McFarland, Asbery Rainey, Jr., Frank

Serpe and Frank Stafford, Plaintiffs, vs. Trans World Air-

lines, Inc., Defendant. Case No. CV 79-0907 RJK (Tx).

INTERROGATORY NO. 12

With respect to all complaints of age discrimination agaist

you through an administrative body (e.g., a state employ-

ment agency of the U.S. Department of Labor) since 1967,

please furnish the following information:

a. Names of complainant and date of birth.

b. Name of agency handling the complaint and

identification of proceeding (e.g., name and number).

c. Nature of complaint, j.e., job involved, loca-

tion, date of alleged discrimination, what action by you

was complained of (e.g., termination, demotion, forced

retirement or other).

d. Is the complaint still being handled by the

agency, and if not, was it settled while with the agency,

abandoned by the complainant, completed by the agency

and followed by a lawsuit, or none of the foregoing.

(If none, state what conclusion occurred).

OBJECTIONS TO INTERROGATORY NO. 12

See objections to Interrogatory No. |, which by this ref-

erence are incorporated herein.

Defendant further objects to Interrogatory No. 12 insofar

as it requests information for a period prior to January 1,

1973 on the following grounds:

Plaintiffs’ charges of age discrimination were filed with

the Department of Labor on January 23, 1977. Defendant

es

submits that events which occurred more than four years

prior to said charges are irrelevant to this action. Further

support of this four-year cutoff date is that plaintiffs have

not filed any charges of age discrimination with respect to

this earlier period and that the Age Discrimination in Em-

ployment Act provides for an even shorter period, namely,

two years and three years in the case of willful violations,

with regard to the statute of limitations for accrual of dam-

ages. Therefore, the interrogatory seeks information that is

not relevant to the subject matter of this lawsuit and will

not tend to lead to the discovery of admissible evidence;

and for the reasons hereinabove stated the interrogatory is

overbroad and therefore burdensome and oppressive.

Defendant for the purpose of the response to this inter-

rogatory and without waiving the foregoing objections shall

answer for the period after January 1, 1973.

ANSWER TO INTERROGATORY NO. 12

Defendant is informed and believes, at present, based on

a review of its personnel files at the Los Angeles Reser-

vations Office and its facility at Los Angeles International

Airport (‘‘LAX’’) that except for the plaintiffs herein no

complaints of age discrimination have been filed.

INTERROGATORY NO. 13

With respect to all complaints of age discrimination against

you made in a lawsuit since 1967, please furnish the fol-

lowing information:

a. Name of complainant and date of birth.

b. Court where case was filed and all other courts

in which it was pursued along with the case name and

number in each court.

c. Nature of complaint, i.e., job involved, loca-

tion, date of alleged discrimination, what action by you

—

was complained of (e.g., termination, demotion, forced

retirement or other).

d. Is the suit still pending, and if not, was it settled,

abandoned, tried, or appealed?

e. If the case was settled, tried, or appealed, state

briefly the terms of settlement, judgment of the trial

court, and result on appeal. (If appeal resulted in pub-

lished opinion, give citation.)

OBJEC NS TO INTERROGATORY NO. 13

See opjections to Interrogatory No. 12 which by this

reference are incorporated herein.

ANSWER TO INTERROGATORY NO. 13

Defendant is informed and believes, at present, based on

a review of its personnel files at the Los Angeles Reser-

vations Office and LAX that except for the plaintiffs herein

no lawsuits alleging age discrimination by defendant have

been filed.

DATED: October 8, 1979.

O’MELVENY & MYERS

T. WARREN JACKSON

By /s/ Theo. Warren Jackson

T. Warren Jackson

Attorneys for Defendant

Trans World Airlines, Inc.

ae ae

Defendant’s Supplemental Answers and Objections to

Plaintiffs’ First Set of Interrogatories.

United States District Court, Central District of California.

Mary Hedley, Herb McFarland, Asbery Rainey, Jr., Frank

Serpe and Frank Stafford, Plaintiffs, vs. Trans World Air-

lines, Inc., Defendant. Case No. CV 79-0907 RJK (Tx).

The interrogatories and responses hereto should be deemed

incorporated by this reference to Defendant’s Answers and

Objections to Plaintiffs’ First Set of Interrogatories.

INTERROGATORY NO. 14

Have you received any complaints of age discrimination

which were presented to you by a union representative since

1967?

OBJECTIONS TO INTERROGATORY NO. 14

Defendant objects to Interrogatory No. 14 on the grounds,

that it is vague insofar as it does not indicate the locational

frame of reference. Defendant for the purpose of the re-

sponse to this interrogatory and without waiving this ob-

jection shall refer to its reservations office at 1543 Shatto

Street, Los Angeles, California. In addition, defendant ob-

jects to this interrogatory on the grounds that insofar as it

seeks information regarding a union representative it is not

relevant to the subject matter of this lawsuit and does not

tend to lead to the discovery of admissible evidence since

no union is a party to this action and plaintiffs were neither

represented by nor members of any union at all times rel-

evant herein.

Defendant further objects to Interrogatory No. 14 insofar

as it requests information for a period prior to January |,

1973 on the following grounds:

Plaintiffs’ charges of age discrimination were filed with

the Department of Labor on January 23, 1977. Defendant

~~

submits that events which occurred more than four years

prior to said charges are irrelevant to this action. Further

support of this four-year cutoff date is that plaintiffs have

not filed any charges of age discrimination with respect to

this earlier period and that the Age Discrimination in Em-

ployment Act provides for an even shorter period, namely,

two years and three years in the case of willful violations,

with regard to the statute of limitations for accrual of dam-

ages. Therefore, the interrogatory seeks information that is

not relevant to the subject matter of this lawsuit and will

not tend to lead to the discovery of admissible evidence;

and for the reasons hereinabove stated the interrogatory is

overbroad and therefore burdensome and oppressive.

Defendant for the purpose of the response to this inter-

rogatory and without waiving the foregoing objections shall

answer for the period after January |, 1973.

ANSWER TO INTERROGATORY NO. 14

No.

DATED: October 16, 1979

O’MELVENY & MYERS

T. WARREN JACKSON

By /s/ Theo. Warren Jackson

T. WARREN JACKSON

Attorneys for Defendant

Trans World Airlines, Inc.

a ae

Declaration of James L. Kessler.

I, JAMES L. KESSLER, declare and testify as follows:

If called to testify, I could and would testify to the fol-

lowing facts which are within my personal knowledge:

1. I am employed by Trans World Airlines, Inc.

(‘‘TWA’’) as Regional Manager Employment and Personnel

Administration, 7001 World Way West, Los Angeles, Cal-

ifornia. My duties include maintenance of personnel rec-

ords, recruiting, placement and affirmative action for TWA’s

Western Region. In addition, I have responsibility for as-

sisting TWA’s legal counsel in the conduct of litigation in

the Western Region, including the instant litigation.

2. TWA isa worldwide air carrier with facilities in over

50 cities domestically and over 100 cites worldwide. TWA

maintains eight Reservation Sales Offices in the United

States, which are responsible for booking airplane seat res-

ervations for the travelling public, located in San Francisco,

Los Angeles, St. Louis, Chicago, Pittsburgh, Boston, New

York and Philadelphia.

3. System-wide, the area to which the plaintiff's inter-

rogatories are directed, TWA employs approximately 40,000

employees. TWA employs approximately 2,000 people in

the eight domestic reservation offices. Almost without ex-

ception, each of TWA’s different facilities particularly the

Reservation Sales Offices, involves independent and sep-

arate management and control.

4. Inor about January 1977, a reorganization at TWA’s

Los Angeles Reservation Sales Office was effected, pur-

suant to a system-wide plan. This reorganization resulted

in the reclassification of the plaintiffs herein from super-

visory to nonsupervisory positions. The foregoing reorgan-

ization was also independently implemented at TWA’s other

domestic reservation offices. Thus, the process that led to

aa,

the reclassification of plaintiffs herein was conducted solely

at the Los Angeles Reservation office.

5. Certain of TWA’s employees are represented for the

purpose of collective bargaining by one of four unions, as

follows:

International Association of Machinists and Aerospace

Workers: Fleet service helpers, mechanics, ramp ser-

vice, flight kitchen and aircraft cleaning employees;

Air Line Pilots Association: pilots;

International Federation of Flight Attendants: flight at-

tendants; and

Transport Workers Unions: flight dispatchers.

Employees in TWA’s domestic area reservation offices are

not represented by a union.

6. TWA has extensive personnel records maintained in

12 different locations throughout the United States. Almost

without exception, employee personnel records are main-

tained at the employee's current work location. TWA also

has extensive computer records regarding all of its employ-

ees, maintained in Kansas City, Missouri, however, records

such as salary, promotion, demotion and transfer infor-

mation for the period prior to 1970 are not maintained.

7. I have read plaintiffs’ first set of interrogatories,

TWA’s answers and objections to said interrogatories and

plaintiffs’ motion to compel answers to interrogatories. In -

order to compile the information requested by the plaintiffs

regarding all TWA’s facilities, employees and unions for

the requested period, a search of all TWA employees’ per-

sonnel files would have to be conducted; TWA estimates

that it will require the full-time effort of three of its regular

employees for approximately one month.

I declare under penalty of perjury that the foregoing is

true and correct.

aiaiinn

Executed in Los Angeles County, California, this 8th day

of November, 1979.

/s/ James L. Kessler

James L. Kessler

es

Civil Minutes — General.

United States District Court, Central District of California.

Case No. CV 79-907-RJK. Title Hedley et al. v. Trans-

world Airlines. Date 11/19/79

Present: Hon. Robert J. Kelleher, Judge. James H. Hag-

gard, Deputy Clerk. N/A, Court Reporter. Attorneys Present

for Plaintiffs: N/A. Attorneys Present for Defendants: N/A.

Proceedings: MINUTE ORDER

The matter having come before the Court and having been

taken under submission, and the Court having considered

the record and being fully advised, and good cause appearing

therefor, hereby DENIES Plaintiff's Motion to Compel An-

swers to Interrogatories on the ground that such interroga-

tories are burdensome and that Plaintiff has made an in-

sufficient showing that the information requested therein is

relevant or likely to lead to the discovery of relevant evidence.

The clerk shall mail a copy of this Order to counsel.

ce: Amil Roth T. Warren Jackson

Suite 1204 O’Melveny & Myers

1888 Century Park East 611 West Sixth St.

Los Angeles, CA 90067 Los Angeles, CA 90017

—_— =

Reporter’s Transcript: Remarks From the Court.

in this cause, your Honor.

THE COURT: Well, I might tell you that the Court

during the course of and at the conclusion of Dr. Driver’s

MR. ROTH: I was referring to — apologies.

THE COURT: Let me just say that during the course

of it and at the conclusion of it, the Court contemplated on

its own motion a reversal of a prior ruling, and that is

affording to the plaintiff an opportunity to call its rejected

expert on statistics and otherwise, McMenamin, or whatever

his name was, or otherwise.

One of the bafflements to the Court which has been ex-

pressed previously is the kind and character of pretrial prep-

aration of this case and the reduction thereof to documents

upon which the case could be informatively tried by the

Court. One of the areas is the expert opinion. The Court

will say, and this is prompted by your comment, Mr. Roth,

concerning Dr. Driver, it not having been controverted, that

the Court concluded that Dr. Driver’s testimony fell on its

own weight. And, therefore, i/ expressed as it did some

comments in that regard. And because it took that view, it

abandoned any thought of its own motion of saying to the

defendant it could bring in some expert testimony.

MR. ROTH: I had thought I addressed my remarks to

the Court with respect to Dr. Pfeffer. At the opening week

of trial herein, one of the first witnesses was Dr. Irving

Pfeffer, who testified as an expert statistician.

THE COURT: Yes. Let me just say the Court well

recalls that, and the comments just made with respect to

Dr. Driver were made in contemplation of Dr. Pfeffer having

testified in substantially the same manner; that is, as an

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expert, as a statistician. And the comments made as pur-

portedly applied solely to Dr. Driver applied to Dr. Pfeffer

also.

MR. ROTH: In light of the Court’s explanation with

respect to Dr. Pfeffer and it is the position of plaintiffs’

counsel that plaintiffs accept the Court’s observation that

the Court doubts that the Court’s decision would be changed

by allowing plaintiffs further to argue their case, and unless

the Court wishes guidance in any particular matter, we are

willing to let findings and conclusions be furnished in what-

ever manner the Court chooses.

THE COURT: And that the matter stands submitted

thereupon, is that your suggestion?

MR. ROTH: Yes, your Honor.

THE COURT: Yes.

What’s the defendant’s position?

MR. JACKSON: Defendant will stand with the

es oe ee ae a

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Pfeffer — Cross.

THE COURT: Well, you cast it in terms of the urn with

the black and white balls in it so we will stay away from

any of this business of tiie process by which it’s done. The

hypothetical is as stated to you in terms of eleven black and

nine white, and it is a random selection. And the question

is what is the probability that six or more black will be

selected randomly from seven selections.

THE WITNESS: The answer to that, your Honor, is

that if we use a test which is referred to as Fisher’s true

test, we can come up with the number .0579, with the

assumptions that are built into that test.

THE COURT: All right. Put your next question.

BY MR. JACKSON:

Q Directing your attention now to Exhibit AW. From

a population of twenty, eleven of whom are over 5 feet 8

inches in height and nine of whom are under 5 feet 8 inches

in height, what is the probability that six or more individuals

under 5 foot eight inches —

A. The question is over.

Q. I'm sorry. Over 5 foot 8 inches. I’m sorry.

— are selected, given a total of seven selections, and

assuming random sampling?

MR. ROTH: Objection. He didn’t read the question as

written, your Honor.

THE COURT: Overruled.

You may answer.

MR. ROTH: Do you —I respectfully ask that the ques-

tion be re — the Court have the question reread since |

mistakeniy assumed we were going to have what is written

here, and I’m not sure what the question is, your Honor.

_

THE COURT: Do you understand the question, Dr.

Pfeffer?

THE WITNESS: I understand the question, sir. And

the question has been changed from what was presented.

THE COURT: Mr. Jackson, why do you deviate from

the written submissions of last evening?

MR. JACKSON: Your Honor, the written submission

did not include the term ‘‘random.’’ I am simply putting

that in so that — for the ease of this witness.

THE COURT: All right. Hold on.

Do you understand that what you have just been asked

is identical to that which was submitted to you last night,

marked as Exhibit AW, except that the word *‘random”’ has

been added?

THE WITNESS: That’s correct, sir. | understand that

now, sir.

THE COURT: All right.

THE WITNESS: And that —

THE COURT: All right. You proceed to answer the

question. Do you have it in mind? Do you understand it?

THE WITNESS: Yes, I do.

THE COURT: All right. You go ahead and answer it.

THE WITNESS: Given the assumptions that this is ran-

dom, and given the assumptions which I must take from

the exhibit because I have not had access to the tables since

last night, by approximation I would have to assume that

the number would be approximately .0579 as shown.

I was only able to approximate it because the Fisher table

that is probably the basis for deriving this probability is part

of a collection of statistical tables published in England to

which we would not have access except with library re-

search, your Honor.

oa a

THE COURT: All right.

Put your next question.

BY MR. JACKSON:

Q. Directing your attention to Exhibit AY. From a pop-

ulation of twenty, eight of whom weigh —

A. Is this AY?

Q. AY.

A. Yes, sir.

Q. — eight of whom weigh 155 pounds or more, and

twelve of whom weigh under 155 pounds, what is the prob-

ability that six or more individuals in the 155-and-over cat-

egory are selected, given a total of seven selections, and

assuming, I insert, random sampling without replacement?

A. Your Honor, I did not have an opportunity to work

this problem out, except in terms of laying other method-

ology for it. But I would have to estimate that again an

approximation to the Fisher table, which was not available

to me, would be of the order of .0044 as shown. Without

having access to the arithmetic, I would have difficulty in

verifying that number; but the order of magnitude appears

correct.

THE COURT: The fact that the population is described

in terms of height or weight or color doesn’t matter at all

for the purpose of coming to your statistical answer, does

it?

THE WITNESS: That's correct, sir.

Two of the illustrations are exact illustrations with just

that variable.

MR. JACKSON: That is correct.

BY MR. JACKSON:

Q. Now, directing your attention to Exhibit AX. From

a population of twenty, twelve of whom are males and eight

=

of whom are females, what is the probability that six or

more males are selected given a total of seven selections

and assuming sampling — excuse me — assuring random

sampling without replacement?

A. Again, your Honor, if we’re assuming random sam-

pling, the estimate for a Fisher true test table would be of

the order of magnitude of .1056. Again it’s only an estimate

on my part.

Q. And that is what —

A. Without access to the calculations or to the table.

It’s of that order of magnitude.

Q. And that probability is set forth on Exhibit AY?

A. That would be the order of magnitude.

Q. AY?

A. Yes.