Opposition Brief — Whittaker Corp. v. Jenkins

Supreme Court, U.S,

FILED

)

JUL 23 1906

No. 85-2115 JOSEPH F. SPANIOL, JR,

IN THE

Supreme Court of the United States

OcTosBer TERM, 1985

WHITTAKER CORPORATION,

Petitioner,

vs.

Perry D. JENKINS, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeais

for the Ninth Circuit

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Of Counsel: ALLAN S. HALEY

CRONIN, Friep, SEKIYA, 419 Broad Street, Suite B

KEKINA & FAIRBANKS Nevada City, Calif. 95959

1900 Davies PacifigeCenter Telephone: (916) 265-5524

Honolulu, Hawaii-968 13 (Counsel of Record)

Attorneys for Respondents

Perry D. Jenkins, Annabelle Jenkins, and Stuart Kaneko

BOWNE OF GAN FRANCISCO. INC. + 150 NINTH ST. + S.F.. CA 94103 + (415) 8664-2300

TABLE OF CONTE NTS

Respondents’ counterstatement of the case..............

Reasons for denying review .... 0.0... ccc cece ccc eee

The issue of a military contractor’s immunity from liability

for defective manufacture was not raised or passed on in

the court below, and is not an issue worthy of certiorari in

ae oc bio sneered dbNdacbabeececsceececes

A. The issue was not briefed or decided below .......

B. There is no statutory or other policy basis for granting

immunity to manufacturers of defective military

DS su ectdres ade kseentsdvesaseaneeedes:

I]

The choice of federal law is irrelevant, since the military

contractor’s defense is inapplicable and other federal law

does not differ from the state law applied in this case. .

Ill

The judgment below correctly holds that rule 59(e) does not

apply to the initial granting of relief, but only to the

EEE I eee Pee Te eer ee

EF AE aD Ee see OR, ET ALAR ee OMe NT Ee

li

TABLE OF AUTHORITIES CITED

Cases

Adams v. Lindblad Travel, Inc., 730 F.2d 89 (2d Cir. 1984)

Adickes v. S. H. Kress and Company, 398 U.S. 144 (1970)

Boyle v. United Technologies Corporation, No. 85-2264 (4th

ee eee a cek kab ee dbateeesbuccts.

Bynum v. FMC Corporation, 770 F.2d 556 (Sth Cir. 1985)

Challoner v. Day & Zimmermann, Inc., 512 F.2d 77 (Sth

Cir.), vacated on other grounds, 423 U.S. 3 (1975) ....

Cox v. Northwest Airlines, Inc., 379 F.2d 893 (7th Cir.

1967), cert. denied, 389 U.S. 1044 (1968) ............

Elias v. Ford Motor Co., 734 F.2d 463 (ist Cir. 1984) ...

Feres v. United States, 340 U.S. 135 (1950) ............

Foster v. Day & Zimmermann, Inc., 502 F.2d 867 (8th Cir.

EE a ee

Gilroy v. Erie-Lackawanna R.R. Co., 44 F.R.D. 3

RE

Glick v. White Motor Co., 458 F.2d 1287 (3d Cir. 1972)

Goodman v. Heublein, Inc., 682 F.2d 44 (2d Cir. 1982) ..

Jaffee v. United States, 663 F.2d 1226 (3d Cir. 1981) (en

banc), cert. denied, 456 U.S. 972 (1982) .............

Johnson v. United States, 333 U.S. 46 (1948)...........

Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737

RE ES a in ee

Lindsay v. McDonnell Douglas Aircraft Corporation, 460

Ea

Mallis v. Bankers Trust Co., 717 F.2d 683 (2d Cir. 1983)

McKay v. Rockwell International Corporation, 704 F.2d 444

IE SE re

Miree v. DeKalb County, 433 U.S. 25 (1977)...........

Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970)

Page

13

4

6

5, 6

iii

TABLE OF AUTHORITIES CITED

CASES

Page

Newburger, Loeb & Co. v. Gross, 611 F.2d 423 (2d Cir.

EEE a 13

Pan-Alaska Fisheries, Inc. v. Marine Construction & Design

ee ee BUD cnc cctwenseccecces 9

Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573 (1974).. 9

Shaw v. Grumman Aerospace Corporation, 778 F.2d 736

(11th Cir. 1985), application for cert. on other grounds

Se ee eee 5, 6

Spurgeon v. Delta Steamship Lines, Inc., 387 F.2d 358 (2d

EES ee ee 12

Stencel Aero Engineering Corp. v. United States, 431 U.S.

EEE ee nr 6,7

Stern v. Shouldice, 706 F.2d 742 (6th Cir. 1983) ........ 12

Tennessee v. Dunlap, 426 U.S. 312 (1976) ............. 4

United States v. General Motors Corp., 323 U.S. 373 (1945) 13

Whitaker v. Harvell-Kilgore Corporation, 418 F.2d 1010

EG EE 5

White v. New Hampshire Department of Employment

Security, 455 US. 445 (1SGZ) .... 2c ccccccccces 3, 10, 11

Statutes and Rules

Federal Rules of Civil Procedure:

ee a ace ceeneenceeees 2

es ek ide ecbooveseges 3, 10, 11

Haw. Rev. Stat. § 636-16 (Supp. 1984) ................ 2

18 U.S.C:

eee 8

alia a a eG g

IV

TABLE OF AUTHORITIES CITED

STATUTES AND RULES

28 US.C.:

il: . | aa

§ 2674 ......

42 U.S.C. § 1988

46 U.S.C. § 761, et seq

No. 85-2115

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

WHITTAKER CORPORATION,

Petitioner,

VS.

Perry D. JENKINS, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

RESPONDENTS’ COUNTERSTATEMENT OF THE CASE

On May 11, 1978, while taking part in a demolitions demon-

stration at a military training ground at Pohakuloa on the Island

of Hawaii, Specialist Four Jeffrey Jenkins of the 65th Engineer

Battalion was fatally injured when an M-142 atomic simulator

that had already been detonated once exploded a second time

while he was nearby. The simulator is basically a 55-gallon steel

drum into which explosive powder charges have been packed

which, when detonated, will simulate the visual and aural effects

of a nuclear blast on the ground.

Two simulators were scheduled to be detonated as part of the

morning’s training exercis.s. The first, made by Petitioner Whit-

taker Corporation (hereinafter “Whittaker”), had detonated rou-

tinely. The second one, made by a different company, failed to

detonate on the first attempt. Some fifteen to thirty minutes had

2

elapsed from the time the first simulator had exploded when

Jenkins, together with two senior officers, approached the Whitta-

ker simulator to transfer its ignition wires, which had functioned

properly earlier, to the second simulator. Although heat waves

and flames could still be seen rising from the barrel, the officers

did not foresee any danger because they had observed a normal

detonation of that simulator, nearly half an hour had gone by, and

they expected debris in the bottom of the barrel to continue to

burn. While he was transferring the ignition wires from the first

simulator to the second, Jenkins and the two officers with him

were lifted off their feet and thrown back by the force of a blast

which numerous eyewitnesses said came from the burning barrel

of the first simulator. Jenkins, twenty years old, died from his

injuries later that evening at Tripler Army Hospital in Honolulu.

His parents and his estate brought suit against petitioner

Whittaker in Hawaii. They contended that the simulator had

been defectively designed and manufactured, and presented

claims against Whittaker based on strict liability, breach of

warranty, and negligence. Following trial in the United States

District Court, the jury returned a verdict upon special interroga-

tories, pursuant to which it found no defect in the design of the

simulator, but a defect in its manufacture. The jury also found

that Whittaker had breached warranties and had been negligent,

and awarded damages in the total amount of $300,000. Judgment

was entered on August 29, 1983. Ten days later, Whittaker moved

for judgment n. o. v. or in the alternative for a new trial. On

September 30, 1983, plaintiffs filed a motion for award of pre-

judgment interest pursuant to Haw. Rev. Stat. § 636-16 (Supp.

1984)' and Rule 7 of the Federal Rules of Civil Procedure.

The court subsequently denied all of the motions. Following

various procedural steps under which it twice reconsidered re-

' This statute reads as follows: “In awarding interest in civil cases, the

judge is authorized to designate the commencement date to conform

with the circumstances of each case, provided that the earliest com-

mencement date in cases arising in tort, may be the date when the injury

first occurred and in cases arising by breach of contract, it may be the

date when the breach first occurred.”

3

spondents’ motion for prejudgment interest, the court finally ruled

that it was unable to grant the motion because it had been filed

outside the ten-day period permitted by Rule 59(e) for alteration

or amendment of a judgment. Whittaker appealed, and respon-

dents cross-appealed.

Whittaker’s brief on appeal presented ten questions for review,

ranging from in personam jurisdiction and choice of law to rulings

on the exclusion of evidence. (See Appendix A-5 through A-7,

infra, for a copy of the Table of Contents of Whittaker’s opening

brief on appeal.) Whittaker did not argue on appeal that it was

immune from liability because of its status as a military contrac-

tor, however. (Nor had Whittaker presented this defense in the

district court. [See Appendix A-1—A-4, infra, for a copy of the

answer filed by Whittaker to the complaint.] At trial, Whittaker

had asked for and received an instruction to the jury that it could

not be liable for a design defect in the simulator if the jury found

that the government had specified and approved the design, that

Whittaker had produced the simulator in accordance with specifi-

cations, and that Whittaker had communicated fully to the

government all concerns it had about the safety of the design. As

noted earlier, the jury specially found that there was no design

defect in the simulator.)

The Ninth Circuit, in a thorough and carefully crafted opinion,

considered and rejected each of Whittaker’s grounds for appeal,

and affirmed the jury verdict. On respondents’ cross-appeal, and

applying the holding of this Court in White v. New Hampshire

Department of Employment Security, 455 U.S. 445, 450-52

(1982), it held that Rule 59(e) did not apply to a first-time

motion for prejudgment interest following entry of judgment, and

that respondents’ motion had been timely. Because the Hawaii

statute involved called for an award of prejudgment interest in the

discretion of the court (see n. 1, supra), it reversed the order

denying respondents’ motion and remanded the case to the

district court for exercis' ~>f its discretion in deciding whether and

for what period to award prejudgment interest.

4

REASONS FOR DENYING REVIEW

I

THE ISSUE OF A MILITARY CONTRACTOR’S IMMU-

NITY FROM LIABILITY FOR DEFECTIVE MANUFAC-

TURE WAS NOT RAISED OR PASSED ON IN THE

COURT BELOW, AND IS NOT AN ISSUE WORTHY OF

CERTIORARI IN ANY EVENT

Petitioner Whittaker asks this court to grant certiorari to review

what it calls “an important question of federal law”’—whether

military contractors should be immune from suit by servicemen

injured in the course of duty. There are two significant problems

with Whittaker’s request: it did not raise or brief the immunity

issue to the Ninth Circuit, which consequently did not rule on the

question; and the issue is unworthy of certiorari in any event.

A. The Issue Was Not Briefed or Decided Below

This Court does not normally review questions raised for the

first time in a petition for certiorari. Adickes v. S. H. Kress and

Company, 398 U.S. 144, 146 n.1, and authorities cited (1970).

Whittaker did not present any defense of immunity in its answer

filed in the district court. (See Appendix A-1—A-4, infra.) It did

get a jury instruction on the military contractor defense insofar as

it applied to plaintiffs’ claim of a design defect in the simulator,

but then the jury found that there was no design defect, and

instead heid Whittaker liable for a manufacturing defect. At that

point the whole immunity issue became moot, since the military

contractor defense is not applicable to a claim of mismanufacture

(infra, at 5-6). On appeal to the Ninth Circuit, Whittaker first

sought and was refused permission to file an over-lengthy brief in

order to raise ten questions which it considered essential to

present to the Court of Appeal. When it i"bsequently shortened

its brief to the required fifty pages, Whittaker still presented ten

questions for review by the Ninth Circuit. However, the questions

so briefed and argued did not include the issue of immunity which

Whittaker now wants this Court to “review.” (See Appendix A-

5—A-7, infra.) Certiorari, therefore, should be denied for this

reason. Miree v. DeKalb County, 433 U.S. 25, 33-34 (1977);

Tennessee v. Dunlap, 426 U.S. 312, 316 n.3 (1976).

Se Se eee

B. There is No Statutory or Other Policy Basis for Granting

Immunity to Manufacturers of Defective Military Products

Whittaker’s argument for certiorari on the issue of immunity

for military contractors essentially is an argument that a manufac-

turer who fails to follow government specifications and assembles

a defective weapon or other item for use by the military should be

immunized from liability for resulting death or injury to a

serviceman.

This argument has been made before (although not by Whitta-

ker in this case). It has been rejected as wrong by each court to

consider the matter. What the courts have found is that it is the

fact that a product fails to conform to specifications that causes

problems with military procurement—the government did not

receive the product it had asked for and thought it was buying.

Consequently, Whittaker’s argument is not worthy of certic. ani in

this case.

The Eighth Circuit gave perhaps the most direct answer to the

argument when it said, in a case involving death and personal

injury from a prematurely exploding grenade:

In making the grenade and its component parts the defend-

ants knew that it was made for military personnel and that it

was to be used by them. We believe the public interest in

human life and health requires the protection of the law

against the manufacture of defective explosives, whether

they are to be used by members of the public at large or

members of the public serving in our armed forces.’

? Foster v. Day & Zimmermann, Inc, 502 F.2d 867, 871 (8th Cir.

1974). Subsequent decisions in design cases have each been careful to

distinguish Foster's rule of liability for manufacturing defects. £.g.,

Bynum v. FMC Corporation, 770 F.2d 556, 564 (Sth Cir. 1985)

(“Bynum”); Shaw v. Grumman Aerospace Corporation, 778 F.2d 736,

740, 745-46 (llth Cir. 1985), application for cert. on other grounds

pending (1986) (“Shaw”). The court in Foster also followed a prior

holding in Whitaker v. Harvell-Kilgore Corporation, 418 F.2d 1010,

1013-15 (Sth Cir. 1969), that sovereign immunity did not extend to an

independent contractor alleged to have manufactured defective weapons

for the military. 502 F.2d at 873-75. The continuing validity of Whitaker

6

Since the holding in Foster just quoted, there has evolved a

doctrine which has come to be known as the “government

contractor defense” or “military contractor defense.”’ The de-

fense provides a limited immunity to a military contractor in cases

involving defects in the design of military products whose specifi-

cations have been rigidly controlled by the government because of

a particular military need or application. The defense has no

relevance in cases involving defects in the manufacture of military

products: as an element of the defense, the contractor must prove

that he followed and complied with military specifications. E_g.,

Shaw, 778 F.2d at 740, 744-46: Bynum, 770 F.2d at 564.

Whittaker’s argument seeks to expand the military contractor

defense from a limited exception in cases of liability for a

government-dictated design to a general immunity in all cases of

liability for both defective design and defective manufacture. In

support of this position, Whittaker cites the rationale offered in

McKay v. Rockwell International Corporation, 704 F.2d 444, 449

(9th Cir. 1983), another design defect case. The court in McKay,

however, expressly distinguished its rationale as follow:

We also note that the rule enunciated here does not relieve

suppliers of military equipment of liability for defects in the

manufacture of that equipment. To hold otherwise would

remove the incentive from manufacturers to use all cost-

justified means to conform to government specifications in

the manufacture of military equipment.

704 F.2d at 451. See also Foster, 502 F.2d at 874 n.5 (“The

government’s specifications did not call for the defendants to

assemble a defectively made grenade”), and cases cited

supra, n.2.

Whittaker’s reliance on Feres v. United States, 340 U.S. 135

(1950), and on Stencel Aero Engineering Corp. v. United States,

has never since been questioned. See, e.g., Bynum, 770 F.2d at 564;

Shaw, 778 F.2d at 740.

* See, e.g., Boyle v. United Technologies Corporation, No. 85-2264

(4th Cir., May 27, 1986) (Appendix to Petition for Certiorari, at G!):

Shaw, 738 F.2d at 740-46, and cases cited.

>

431 U.S. 666 (1977), is misplaced. In those cases, the Court held

that imposing liability on the government would lead to an

impairment of military discipline and to the second-guessing of

military decisions by the courts. In contrast, holding manufac-

turer responsible for his failure to follow military specifications

does not lead to such a result. The manufacturer will always try to

prove, as Whittaker did in the instant case, that it was free from

fault, and that the accident happened due to negligence on the

part of the government. The manufacturer's nght to compel

testimony may cause evidence to be given by members of the

armed forces as to each others’ actions, and the weighing of that

evidence in the context of evaluating the manufacturer’s liability,

but the judgment, if any, will be against the manufacturer, and

not against the goverment or the military. The “uniquely federal

relationship” between the government and its soldiers, which was

cited in Feres and Stencel, is not threatened where the court’s

judgment cannot bind the military, or make it change its stan-

dards or behavior. Given Feres and Stencel, the most that a

judgment can do which finds the government responsible for an

injury is absolve the manufacturer.

On the other hand, and compared with the special relationship

between a government and its soldiers, there is nothing more

uniquely federal about the relationship between a military sup-

plier and the government than there is about the relationship

between a supplier and any agency of the government. See, e.g.,

Jaffee v. United States, 663 F.2d 1226, 1233 n. 7 (3d Cir. 1981)

(en banc), cert. denied, 456 U.S. 972 (1982). It is hardly possible

for Whittaker to contend, for example, that the supply of its

simulators (which are pyrotechnic devices used in demonstra-

tions, and not in combat) is any more crucial to the country’s

defense than is the supply of encyclopedias or movies to gover-

ment libraries: both supply examples of what a nuclear explosion

looks and sounds like, and the library materials furnish a great

deal more information besides. In the final analysis, a// govern-

ment procurement policies, and not just the military’s, are ad-

versely affected by negligent manufacture. The consequences of

defective components in an FAA radar can be just as costly, if not

more, than the consequences of a negligently assembled howit-

8

zer.* There is thus no basis for affording special tort immunity just

to military suppliers for their own carelessness in manufacture.

To be sure, Whittaker claims that it does not ask that military

contractors “be absolved of responsibility for defective products”

(Petition for Certiorari, at 10). But in suggesting that existing

remedies against military contractors for false claims (18 U.S.C.

§ 287), false swearing (18 U.S.C. § 1001), and for mail and wire

fraud (18 U.S.C. §§ 1341, 1343) are adequate to cover the case

of a serviceman killed or maimed by a defectively manufactured

product, Whittaker shows the impoverishment of its argument.

The issue it raises is unworthy of certiorari, and Whittaker’s

request should be denied.

II

THE CHOICE OF FEDERAL LAW IS IRRELEVANT,

SINCE THE MILITARY CONTRACTOR’S DEFENSE IS

INAPPLICABLE AND OTHER FEDERAL LAW DOES

NOT DIFFER FROM THE STATE LAW APPLIED IN

THIS CASE

The second question on which Whittaker requests certiorari is

as unworthy of review as the first. Whittaker asks that a common

federal law be declared applicabie to all suits by servicemen

against military suppliers. As will be seen, the only possible

advantage that Whittaker could gain by such a result is that the

military contractor’s defense wouid receive general recognition

*To the extent that a manufacturer of defective products is forced to

bear the costs of its negligence, the result may well be to raise the cost of

the military’s dealing with that particular manufacturer. The purpose of

competitive bidding, however, is precisely to weed out those manufac-

turers who are not cost-effective. Whittaker’s argument makes the

wholly unsupported assumption that most or all manufacturers are

negligent, so that competitive bidding wil! not be effective to screen out

costs due to liability. Even if that were the case, however, Whittaker

does not explain why a court, rather than Congress, should make the

social policy decision that soldiers (and the government via the Veterans

Benefits Act) should bear the costs of negligent manufacture rather than

the contractor

9

—in design defect cases. (See argument supra, at 5-6.) Since this

case involves a manufacturing defect, Whittaker profits nothing

by its argument.

Given that the United States itself has consented to be held

liable in tort under the respective and differing laws of the fifty

states, 28 U.S.C. § 2674, and given that as a manufacturer whose

distribution is nationwide, Whittaker is subject to varying state

standards under current law, respondents submit that there is no

reason to supplant traditional state-law concepts of tort just for

manufacturers of defective military products, like Whittaker.

Except for the military contractor defense, Whittaker cannot

show any area in which federal common law, if held applicable,

would be different from state law. This is particularly true with

respect to the issues of strict liability, negligence, res ipsa loquitur

and damages involved in this case.’ As discussed in the previous

section, there are no military policy or procurement issues at stake

> As Whittaker recognizes (Petition at 13, n. 9), any federal law in

this area would probably be drawn from the “well developed body of

federal admiralty law.” But it is precisely because admiralty law, in turn,

has drawn upon state tort law that the concepts of strict liability and res

ipsa loquitur do not differ under the respective jurisdictions. (We speak

here of the Hawaii law applied in this case; as the Ninth Circuit noted,

California’s law on es ipsa is slightly different.) See Lindsay v. McDon-

nell Douglas Aircraft Corporation, 460 F.2d 631, 635-36 (8th Cir.

1972); Pan-Alaska Fisheries, Inc. v. Marine Construction & Design Co.,

565 F.2d 1129, 1134-35 (9th Cir. 1977) (applying strict liability as

matter of general maritime law); Johnson v. United States, 333 U.S. 46,

48-49 (1948); Cox v. Northwest Airlines, Inc., 379 F.2d 893, 895 (7th

Cir. 1967), cert. denied, 389 U.S. 1044 (1968) (applying res ipsa

loquitur to cases under Jones Act and Death on the High Seas Act).

There is no federal statute of limitations which Whittaker can cite

for products liability claims, nor is there a federal statute (other than in

an admiralty context—see 46 U.S.C. § 761 et seq.) specifying damages

in the event of wrongful death. To the extent federal courts are called on

to supply rules of decisions in these areas, they quite justifiably draw on,

and in some instances are directed to, state law. (See, e.g., Moragne v.

States Marine Lines, Inc., 398 U.S. 375, 405-08 [1970]; Sea-Land

Services, Inc. v. Gaudet, 414 U.S. 573, 583-595 [1974].) Thus Whitta-

ker cannot show how resort to federal common law in this case would

10

in a case involving a defectively manufactured product. The

military is just as entitled as a civilian consumer to receive a

product that has been properly assembled and is fit for its

intended use. See argument supra, at 5-8; see also Challoner v.

Day & Zimmermann, Inc., 512 F.2d 77, 84 (Sth Cir.), vacated on

other grounds, 423 U.S. 3 (1975). In vacating and remanding

Challoner, this Court left it open to the Court of Appeals to

determine which law would apply to claims of death and personal

injury due to a defectively manufactured howitzer that exploded

prematurely in Cambodia. Each court in Challoner assumed that

under Texas choice-of-law principles, Cambodian law (the law of

the place of injury) might well apply; there was no indication that

the federal interests at stake were such as to require application of

federal common law.

Whittaker’s argument not only proceeds from a false assump-

tion (that the military contractor defense applies to cases of

manufacturing defects), it arrives at an erroneous conclusion

(that federal common law would differ significantly from Hawaii

law on traditional tort concepts of negligence, strict liability and

res ipsa loquitur). For these reasons, the petition should be

denied with respect to Whittaker’s second question presented for

review.

iil

THE JUDGMENT BELOW CORRECTLY HOLDS THAT

RULE 59(e) DOES NOT APPLY TO THE INITIAL

GRANTING OF RELIEF, BUT ONLY TO THE CORREC-

TION OF ERROR

The court below properly decided that a first-time, postjudg-

ment motion for prejudgment interest following a successful

verdict is not subject to the strict ten-day limitation of Fed. R.

Civ. Proc., Rule 59(e). In doing so, the Ninth Circuit applied the

principles which this Court declared in White v. New Hampshire

Department of Employment Security, 455 U.S. 445 (1982).

There is n6 conflict between this decision and the decisions of any

have produced a different result with respect to any of the issues it

involved.

ll

other circuit. Furthermore, the decision is correct, and so there is

no need to grant certiorari.

In White, this Court held that a postjudgment, first-time

motion for attorneys’ fees under 42 U.S.C. § 1988 raises “legal

issues collateral to the main cause of action—issues to which

Rule 59(e) was never intended to apply.” 455 U.S. at 451. Rule

59(e) was intended to deal with the correction of error in a

judgment before it became final. A judgment which neither

granted nor denied attorneys’ fees because the court had not yet

been asked to address the issue (and could not be asked until one

party had prevailed) incorporated no error in need of correction.

Precisely the same points that were true of the motion for

attorneys’ fees in White are true of the first-time, postjudgment

motion for prejudgment interest filed in this case. The motion

“does not imply a change in the judgment, but merely seeks what

is due because of the judgment” (id. at 452). Prejudgment

interest may be awarded

only to a “prevailing party.” Regardless of when [it is]

requested, the court’s decision of entitlement to [interest]

will therefore require an inquiry separate from the decision

on the merits—an inquiry that cannot even commence until

one party has “prevailed.” Nor can [prejudgment interest ]

fairly be characterized as an element of “relief” indistin-

guishable from other elements. Unlike other judicial relief,

[prejudgment interest is] not compensation for the injury

giving rise to an action. [Its] award is uniquely separable

from the cause of action to be proved at trial....

id. at 451-52 [substituting “interest” for “attorney’s fees” ]. As

the Ninth Circuit also noted, “Prejudgment interest compensates

not for the injury giving rise to the action, but for the delay

between injury and judgment. ... Both attorney’s fees and pre-

judgment interest seek what is due because of the judgment, the

former in terms of money expended, the latter in terms of time.”

785 F.2d at 737 (emphasis in original).

12

The cases which Whittaker cites as being in conflict with the

Ninth Circuit’s decision in this case are in reality distinguishable

on their facts.°

*In Elias v. Ford Motor Co., 734 F.2d 463 (ist Cir. 1984), the

original judgment already included an award of prejudgment interest,

and the slaintiff had declined to appeal it. The Elias court’s assertion

that prejudgment interest is not a “collateral matter” like attorney’s fees

must thus be taken in the context of the case, in which the plaintiff was

seeking to correct an alleged error in the prejudgment interest he had

been awarded.

In Stern v. Shouldice, 706 F.2d 742, 746-47 (6th Cir. 1983), the

plaintiff had actually brought a motion for prejudgment interest within

ten days of judgment, and jurisdiction on appeal depended on whether

the motion could be classified as a 59(e) motion. Ordinarily a postjudg-

ment motion will be granted or denied separately from the judgment,

and the appeal is taken from both the judgment and the postjudgment

order. But there is nothing in Rule 59 to prevent a party from seeking to

have the court actually incorporate additional relief in the body of the

judgment, provided only that he makes application to do so within ten

days—and that is what the plaintiff had done in Stern. Thus the case is

not in conflict with the decision below.

Goodman v. Heublein, Inc., 682 F.2d 44, 45-47 (2d Cir. 1982)

involved a motion that was presented only after the appeal from the

damage award had become final, and is thus to be contrasted with the

Second Circuit cases cited in the text before n. 7, infra, in which the

court corrected the judgments to allow prejudgment interest while it stil!

had jurisdiction of the appeals.

Spurgeon v. Delta Steamship Lines, Inc., 387 F.2d 358, 358-59 (2d

Cir. 1967), was a pre-White case in which the original judgment again

had included prejudgment interest, but had not been appealed; Glick v.

White Motor Co., 458 F.2d 1287, 1293-94 (3d Cir. 1972), involved a

judgment which should have included an award of prejudgment interest

mandated by statute, and thus it was subject (after the ten-day period of

Rule 59[e] had lapsed) to correction under Rule 60(a). Finally, the

court in Gilroy v. Erie-Lackawanna R.R. Co., 44 F.R.D. 3, 4 (S.D.N.Y.

1968) mentioned in dictum that a motion for discretionary prejudgment

interest is properly brought under Rule 59(e), but its principal holding

was that plaintiff would not have been entitled to prejudgment interest in

any event.

-

13

Finally, the ruling below is also proper because the Ninth

Circuit had, independently of the district court, power to correct

the denial of prejudgment interest on direct appeal from the

judgment. (See Mallis v. Bankers Trust Co., 717 F.2d 683, 692-

93 [2d Cir. 1983]; Newburger, Loeb & Co. v. Gross, 611 F.2d 423,

432-33 [2d Cir. 1979]; cf. Adams v. Lindblad Travel, Inc., 730

F.2d 89, 93 [2d Cir. 1984].) Thus a grant of certiorari on

Whittaker’s third question, even if this Court were to decide to

review what is an interlocutory decision on prejudgment interest,

would not alter the outcome below.’ For these reasons, therefore,

certiorari of Whittaker’s third question should be denied.

’The Ninth Circuit reversed the judgment of the district court and

remanded the case for a determination in the first instance of whether, in

the district court’s exercise of discretion, prejudgment interest should be

awarded to plaintiff. The judgment fails to award any relief to plaintiff

on the interest sought; it is thus not a final judgment. Liberty Mutual

Insurance Co. v. Wetzel, 424 U.S. 737 (1976). While that fact does not

preclude certiorari under 28 U.S.C. § 1254(1), this Court’s policy of

avoiding review of interlocutory orders except on important questions

“fundamental to the further conduct of the case,” United States v.

General Motors Corp., 323 U.S. 373, 377 (1945), is thus another reason

to deny certiorari.

14

IV

CONCLUSION

The petition for certiorari filed by Whittaker does not present

any issues worthy or in need of review by this Court. The issue of

military contractor immunity for manufacturing defects was

neither pleaded, briefed nor argued in either the district court or

the court of appeals. The issue of federal common law is a red

herring, given that the military contractor defense is inapplicable

to a manufacturing defect case such as this one, and given that

remaining federal law would not demonstrably have altered the

outcome of this case in any event. Last but not least, the issue of

prejudgment interest was correctly decided on at least two

grounds, and does not present any conflict with existing law.

For the reasons herein stated, respondents request that this

Court deny the petition for certiorari.

Respectfully submitted,

ALLAN S. HALEY

Of Counsel: (Counsel of Record)

CRONIN, FRIED, SEKIYA, 419 Broad Street, Suite B

KEKINA & FAIRBANKS Nevada City, Calif. 95959

1900 Davies Pacific Center Telephone: (916) 265-5524

Honolulu, Hawaii 96813

Attorneys for Respondents

Perry D. Jenkins, Annabelle Jenkins, and Stuart Kaneko

(Appendix follows)

Appendix

Of Counsel:

Carlsmith, Carlsmith, Wichman and Case

Burnham H. Greeley 519-0

Susan P. Walker 1678-0

22nd Floor

Pacific Trade Center

190 South King Street

Honolulu, Hawaii 96813

Tel. No. 523-2500

Attorneys for Defendant

Whittaker Corporation

In the United States District Court

For the District of Hawaii

Civil No. 80-0195

Perry D. Jenkins, Annabelle Jenkins, and Stuart A. Kaneko

as Special Administrator of the Estate of

Jeffrey Scott Jenkins, Deceased,

Plaintiffs,

vs.

Whittaker Corporation, dba Bermite Corporation,

a Division of Whittaker Corporation,

a California corporation, John Does 1-10,

Doe Corporations 1-10, and Doe Partnerships 1-10,

Defendants.

ANSWER TO COMPLAINT

Whittaker Corporation (hereinafter “Whittaker’), one of the

Defendants above-named, for answer to the Complaint filed

herein, alleges as follows:

FIRST DEFENSE

1. Plaintiffs’ Complaint fails to state a claim against Whitta-

ker upon which relief can be granted.

A-2

SECOND DEFENSE

COUNT I

2. Whittaker admits the allegations contained in paragraphs

2, 3 and 4 of the Complaint.

3. Whittaker denies the allegations contained in paragraphs 5,

6, 7, 8, 9 and 10 of the Complaint.

4. Whittaker is without information sufficient to form a belief

as to the truth of the allegations contained in paragraph | of the

Complaint.

COUNT II

5. In answer to paragraph 11, Whittaker realleges and reaf-

firms the responses given in answer to paragraphs | through 10 of

the Complaint.

6. Whittaker denies the allegations contained in paragraphs

12 and 13 of the Complaint.

COUNT Iil

7. In answer to paragraph 14, Whittaker realleges and reaf-

firms the responses given in answer to paragraphs | through 13 of

the Complaint.

8. Whittaker denies the allegations contained in paragraphs

15, 16 and 17 of the Complaint.

COUNT IV

9. In answer to paragraph 18, Whittaker realleges and reaf-

firms the responses given in answer to paragraphs | through 17 of

the Complaint.

10. Whittaker denies the allegations contained in paragraph

19 of the Complaint.

A-3

COUNT V

11. In answer to paragraph 20, Whittaker realleges and reaf-

firms the responses given in answer to paragraphs | through 19 of

the Complaint.

12. Whittaker denies the allegations contained in paragraph

21 of the Complaint.

COUNT VI

13. In answer to paragraph 22, Whittaker realleges and reaf-

firms the responses given in answer to paragraphs | through 21 of

the Complaint.

14. Whittaker denies the allegations contained in paragraph

23 of the Complaint.

15. Whittaker denies any and all other allegations in the

Complaint.

THIRD DEFENSE

Plaintiffs’ damages, if any, were caused by the negligence of

Plaintiffs’ decedent or others and Plaintiffs’ claim against Whitta-

ker is barred, or reduced, because of said negligence.

FOURTH DEFENSE

Plaintiffs’ decedent or others misused or altered the subject

product and Plaintiffs’ claims are barred as a result of such misuse

or alteration.

FIFTH DEFENSE

The subject product met all applicable safety standards and

Plaintiffs’ claims are barred as a result.

SIXTH DEFENSE

The Court lacks jurisdiction over Whittaker.

SEVENTH DEFENSE

Plaintiffs are barred from maintaining this action by reason of

Plaintiffs’ decedent’s voluntary assumption of a known risk.

A-4

EIGHTH DEFENSE

Plaintiffs’ claims are barred by the statute of limitations.

NINTH DEFENSE

Plaintiffs’ claims are barred by Plaintiffs’ failure to provide

timely notice of the breach of any warranties as they now allege in

their Complaint.

WHEREFORE, Whittaker prays that:

1. Plaintiffs’ Complaint against it be dismissed;

2. The Court award Whittaker its reasonable costs and attor-

ney’s fees; and

3. The Court order such other relief as it deems equitable and

proper.

Dated: Honolulu, Hawaii, May 30, 1980.

/s/ .SUSAN P. WALKER

Burnham H. Greeley

Susan P. Walker

Attorneys for Defendant

WHITTAKER CORPORATION

A-5

TABLE OF CONTENTS

Lo oe ee ceeeaeseseenss es

To i ewes Adanwehdedeses ene 6eséeeene

Counterstatement Of Issue Presented For Review........

II

Counterstatement Of The Case ...................056.

II]

PI bbe 460 6b Keck neers wetecacaeneencseconss

ge IS EE

B. The Trial Court Properly Denied Plaintiffs’ Motion

For Prejudgment Interest On The Grounds That It

Was Not Timely Filed Pursuant To Fed. R. Civ. P.

A age eli epee a rg ree Sy eee

[IV

hee ee aa ewe

EEE dvcncaccncesteccestebevednsssenececces

I

Statement Of Issues Presented For Review .............

II

ce eeseebetenceesees

A. District Court Jurisdiction......................

B. Court Of Appeals Jurisdiction...................

ees cae eb chse ere eeedeseceuerees

se et eee bh eeeeeee

B. Sentememt OF Facts ..... ccc cece ccc cc ccees

III

CO ere Tarr rr rrr Tr err Tee reer

A. Opinions And Conclusions Contained In Two Duly

Authorized Government Investigative Reports

Should Have Been Admitted In Evidence ........

B. Louis LoFiego, Vice President And Technical Direc-

tor Of Whittaker’s Bermite Division, Should Have

Been Allowed To Express His Opinion Concerning

Plaintiffs’ Two Explosion Theory ................

Page

Nm NM

oS i i ie i |

A-6

TABLE OF CONTENTS

The Trial Court Erred In Precluding Evidence Of All

Facts Surrounding The Accident And In Restricting

Whittaker’s Argument To The Jury..............

The Trial Court Erred In Instructing The Jury On

abt ie tec ekseekanenees

1. Expert Testimony On Behalf Of Plaintiffs Was

Required To Support A Res Ipsa Loquitur

Instruction And None Was Presented ........

2. The Atomic Simulator Was Not In The Control

And Management Of Whittaker At The Time

Of The Accident And Whittaker Had No Right

To Such Control And Management..........

3. Evidence In The Record Permitted An Infer-

ence That The Second Explosion Did Not Occur

As A Result Of Whittake1’s Negligence ......

4. Res Ipsa Loquitur Is Inapplicable To Strict

Fee rrr errs re ort Peer

The Court Erred In Instructing The Jury On Implied

WS 5 60 cd bieboateT hi baeeeh seis seseae

1. The Nature Of The Sales Transaction Between

Whittaker And The Army Precludes The Exis-

tence Of Any Implied Warranties ...........

2. Members Of The Military Who Are Injured

While On Active Duty Are Not Governed By

Ordinary Consumer Standards ..............

3. Plaintiffs’ Warranty Claims Are Barred By The

Applicable Statute Of Limitations ...... <a

Captain Fitzgerald’s Order That Jenkins Proceed

Towards The Whittaker Simulator Despite Jenkins’

Expressions Of Danger Constitutes A Superseding

CD P00 Fe Tee We I oo crc evccccctwscess

The Jury’s Verdict Is Speculative And Inconsistent

|. Certain Jury Conclusions Can Only Be Based

I Ware eho cuwleWe sens «ceees

2. The Jury’s Verdict Is Inconsistent ......

Page

25

28

28

30

37

38

A-7

TABLE OF CONTENTS

Page

H. Plaintiffs Were Required To Introduce Expert Testi-

mony In Evidence In Order To Prevail........... 45

I. The Trial Court Erred In Ruling It Had Personal

Jurisdiction Over Whittaker .................... 47

J. The Trial Court Erred In Applying Hawaii Law ... 48

V

ee ind dh ede h Oba ha sad eeedeanens 50

Certification Required By Ninth Circuit Court Of Appeals

Rule 13(b) (3)

Statement Of Related Cases