Opposition Brief — Burlington Northern R. Co. v. Ford

Date: December 12, 1991

_IN THE

Supreme Court of the Unitrd States

OCTOBER TERM, 1991

BURLINGTON NORTHERN RAILROAD COMPANY,

‘ Petitioner,

WILLIAM D. Forp,

Respondent,

BURLINGTON NORTHERN RAILROAD COMPANY,

. Petitioner,

THOMAS L. JOHNSON,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of the State of Montana

RESPONDENTS’ BRIEF IN OPPOSITION

Of Counsel: RoBeErt S. FAIN, JR.

GARY K. Woop (Counsel of Record)

MorRISARD & RossI, P.C. J. REUSS

12203 East Second Avenue WRIGHT, TOLLIVER &

Aurora, CO 80011-8399 GUTHALS, P.C.

(303) 366-3501 P.O. Box 1977

(809) 325-4014 Billings, MT 59103-1977

(406) 245-3071

Attorneys for Respondents

ee

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

The question presented by this case is not as broad as

suggested by petitioner. Petitioner alleges an equal pro-

tection violation between resident and non-resident corpo-

rations. However, the more accurate question is whether

the pertinent venue statute violates the Equal Protection

Clause as applied to an FELA case filed in Montana state

court.

(i)

iad» oe ——

~~ 7

=

ar

»

TABLE OF CONTENTS

ID os scccccncedscnescoessnevesseseesscencocsorese

TABLE OF AUTHORITIES .......

RESPONDENTS’ STATEMENT OF THE CASE

A. The Montana Venue System _.

B. The Proceedings Below...

REASONS WHY THE PETITION SHOULD BE

DENIED

I. BN HAS MISCONSTRUED THE REASON-

ING BEHIND THE MONTANA SUPREME

COURT'S DECISION IN THIS CASE

Il. BN’S “FORUM-SHOPPING” ARGUMENTS

HAVE NO APPLICATION TO THIS CASE

Ill. THE MONTANA SUPREME COURT'S HOLD-

ING IN THIS CASE IS LIMITED TO FELA

ACTIONS IN STATE COURT

CONCLUSION

(iii)

6

12

iv

TABLE OF AUTHORITIES

CASES Page

American Motorists Ins. Co. v. Starnes, 425 U.S.

637, 96 S.Ct. 1800, 48 L.Ed.2d 263 (1976) 5

Bain Peanut Co. v. Pinson, 282 U.S. 499, 51 S.Ct.

228, 75 L.Ed. 482 (1931). 5

Cincinnati St. Ry. v. Snell, 193 US. 30, 24 S.Ct.

319, 48 L.Ed. 604 (1904) 4

Power Mfq. Co. v. Saunders, 274 U.S. 490, 47 S.Ct.

678 (1927). 4,5

STATUTES

State

Mont. Code Ann. § 25-2-118 (1989) _. 2,9, 11

ACTS

Federal anata emianiand Act, 45 U.S.C. §§ 1-60

(1981) ... _. ) +... passim

CONSTITUTION

1972 Mont. Const., Art. I], Section16 sss. 11

U.S. Const., Amend. XIV a. | 4

MISCELLANEOUS

Sen. Rep. No. 432, 61st Cong., 2d Sess. (1910),

45 Cong. Rec. 4034-35, 4040-41 (1910)

H.R. 1639, 80th Cong., Ist Sess. (1947)...

oo

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-779

BURLINGTON NORTHERN RAILROAD COMPANY,

. Petitioner,

WILLIAM D. Forp,

Respondent,

BURLINGTON NORTHERN RAILROAD COMPANY,

. Petitioner,

THOMAS L. JOHNSON,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of the State of Montana

RESPONDENTS’ BRIEF IN OPPOSITION

The respondents, William D. Ford and Thomas L. John-

son (“injured railroaders” or “respondents” herein),

respectfully request that this Court deny the petition for

writ of certiorari, seeking review of the decision and

order of the Supreme Court of the State of Montana en-

tered in the above cases on August 12, 1991.

RESPONDENTS’ STATEMENT OF THE CASE

The true scope of this case is best understood by exam-

ining what the issue actually is—and what it is not.

2

This is a case involving a foreign corporation, a non-

resident plaintiff, and a statute which on its face treats

a foreign corporation differently for venue purposes than

it would otherwise he treated if it were a domestic

corporation.

However, this is not a case involving a venue question

in a garden-variety transitory action.

This case is solely a venue question in an FELA case.

Additionally, seemingly well-intended and soporific ar-

guments aside, this case represents nothing more than a

new tack being tested by BN in its tireless efforts to chip

away at the liberal rights expressly granted injured rail-

roaders by the United States Congress. Over the past

thirty years, BN has made no less than six (6) unsuccess-

ful attempts in the Montana Supreme Court to deprive

injured railroaders of their liberal rights of forum selec-

tion through the attempted use of the doctrine of forum

non conveniens. Having been defeated on all previous oc-

casions, BN is now attempting an “end run” by attacking

the Montana venue statutes on constitutional grounds.

A. The Montana Venue System

It is questionable whether or not MCA § 25-2-118 could

pass constitutional muster for the manner in which it

distinguishes between residents and non-residents in an

ordinary transitory action. However, this is neither the

time nor the place to make such a determination. Since

this is an FELA case, the only question appropriate for

consideration is whether the Montana venue system is

constitutional as it applies to this FELA case.

B. The Proceedings Below

The recitation contained in the petition outlining the

proceedings below is fairly accurate, with two notable

exceptions.

First, the underlying actions were brought in a “se-

lected” Montana state court. Petitioner obviously is at-

tempting to attach a negative connotation to the fact that

the court was “selected.” Nevertheless, whether petitioner

likes it or not, the FELA has long afforded injured rail-

roaders, and other workers falling under the coverage of

the Act, the ability to “select” the forum in which their

action is to be heard.

Second, petitioner’s interpretation of the Montana Su-

preme Court’s ruling in this case is, at best, highly

skewed—at worst, erroneous. Particularly, and perhaps

most importantly, petitioner claims that the Montana

Supreme Court “specifically declined to address the equal

protection issue raised by BN—whether the Montana

venue statute has ‘a rational basis for treating out-of-

state corporations differently from domestic corpora-

tions. ..’” As explained below, this statement is patently

false.

REASONS WHY THE PETITION SHOULD BE DENIED

Pursuant to Rule 10, a petition for writ of certiorari

will be granted only when there are special and important

reasons therefor. BN bases their petition on a lack of

agreement between state supreme courts as to whether

discrimination in state court venue against out-of-state

corporations violates the Equal Protection Clause. How-

ever, the real issue in this case is whether the Montana

venue statutes pass constitutional muster as they apply

to non-resident defendants in FELA actions. With re

gard to this issue, no conflict exists between any of the

state supreme courts or the United States Courts of Ap-

peals. Accordingly, no special or important reasons exist

to grant BN’s petition for a writ of certiorari.

4

I. BN HAS MISCONSTRUED THE REASONING BE-

HIND THE MONTANA SUPREME COURT'S DE-

CISION IN THIS CASE

The full text of the Montana Supreme Court’s decision

in this case is set out in Appendix A in BN’s petition (BN

App. la to 15a). Nowhere in such decision does it state,

or much less imply, that the Montana venue statute is

beyond the reach of the Equal Protection Clause. How-

ever, the Montana Supreme Court found the liberal forum

policies underlying the FELA to constitute a rational

basis for the disparate treatment of BN in this case under

Montana's venue laws. See BN App. 9a-1la.

The Montana Supreme Court’s decision was based on

the following:

1. Cincinnati St. Ry. v. Snell, 103 U.S. 30, 24

S.Ct. 319, 48 L.Ed. 604 (1904), holds that the Four-

teenth Amendment safeguards only fundamental

rights and does not guarantee the right to have dis-

putes determined in one forum, as opposed to

another;

2. Power Mfg. Co. v. Saunders, 274 U.S. 490, 47

S.Ct. 678 (1927), is not controlling for several rea-

sons:

a. Saunders is distinguishable on its facts

since in that case, the defendant did no business

in the county where venue was established. In

this case, BN admittedly does business in Yel-

lowstone County.

b. In Saunders, plaintiff's action was brought

pursuant to the common law of the State of

Arkansas. In this case, the injured railroaders’

claims are based upon federal statutory law

which was designed to provide injured railroad

workers with as many options as possible when

choosing venue.

c. Saunders did not preclude disparate treat-

ment under a state’s venue laws where a rational

5

basis could be shown for such treatment such as

the national policy underlying the FELA which

allows railroad workers greater flexibility when

choosing a forum than other litigants.

d, Subsequent decisions by the U.S. Supreme

Court raise a question whether Saunders con-

tinues to be good law. (The Montana Supreme

Court discussed the perceived effect of Bain

Peanut Co, v, Pinson, 282 U.S. 499, 51 S.Ct.

228, 75 L.Ed. 482 (1931), and American Motor-

ists Ins. Co. v. Starnes, 425 U.S. 637, 96 S.Ct.

1800, 48 L.Ed.2d 263 (1976), and also noted that

the challenged statute in this case is non-

discriminatory in its operation. )

Although the Montana Supreme Court based its deci-

sion on “all of the above reasons,” its decision was par-

ticularly based on the “strong national policy iavoring a

plaintiff's selection of forum in actions brought under the

Federal Employers Liability Act.” BN App. at l5a. Spe-

cifically, the Montana Supreme Court stated:

Without addressing the greater issue of whether

there is a rational basis for treating al] out-of-state

corporations differently from all domestic corpora-

tions, it does appear that there is a commonly ac-

cepted historic justification for allowing railroad

workers greater flexibility when choosing a forum

than other litigants. * * * (BN App. at 9a, emphasis

added. )

Also:

It is clear then that national policy, dating back to

1910, which was intended to address the dangerous

working conditions of railroad workers and to facili-

tate recovery for families of injured workers, favors

a policy of allowing railroad workers to sue their

employer at any location where the employer does

business. That national policy presents a justification

for disparate treatment in this case, which was not

present in the Saunders case, (BN App. at lla, em-

phasis added. }

6

The statements in BN’s petition to the effect that the

Montana Supreme Court specifically declined to address

the equal protection issue are patently false. The decision

is eminently clear that the national policy underlying the

FELA provides a rational justification for disparate treat-

ment of the foreign corporation in this case.

Il. BN’S “FORUM-SHOPPING” ARGUMENTS HAVE

NO APPLICATION TO THIS CASE

Presumably as a carry-over from its attempts to utilize

the doctrine of forum non conveniens in Montana state

court FELA eases, BN’s brief is peppered with buzzwords

and phrases such as: “virulent,” “abusive,” and “ex-

treme” forum-shopping; “arbitrary” and “unwarranted”

localism; “torrent” of FELA claims; and “gross discrim-

ination” and “prejudice” experienced by BN.

By repeated use of such words and phrases, BN at-

tempts to obscure the incontrovertible fact that forum-

shopping is expressly sanctioned under the FELA.

Additionally, petitioner purports to demonstrate the

emergence of “some significant trends” regarding state

court FELA filings through certain “statistics.” (BN

App. 27a-44a) However, BN’s “statistics” are not only

irrelevant, but also misleading.

Montana is an extremely large and sparsely-populated

state. The two largest cities in Montana are Billings and

Great Falls. As reflected by BN’s “statistics,” the great

majority of the FELA cases against BN in Montana state

courts have been filed in Yellowstone and Cascade Coun-

ties, the counties in which Billings and Great Falls are lo-

cated. Notwithstanding the fact that the bulk of Mon-

tana’s lawyers are located in these two counties, equally

prevalent is the concentration of medical facilities.

In the instant case, the injured railroaders are both

residents of Sheridan, Wyoming, and were injured in or

around BN facilities in that city. Sheridan is approxi-

7

mately 100 miles southeast of Billings, Montana. The

Billings medical community provides health care services

over a four-state area through its sixteen clinics, over

200 physicians, and two modern hospitals. Following

their injuries, both injured railroaders were treated (and

continue to be treated) by Billings physicians.

From the standpoint of personal injury litigation,

facilitating the attendance of diagnostic, treating and

consulting physicians, not only for consulting and dis-

covery purposes, but also for purposes of testimony at

trial, is of paramount importance. As a result, it is obvi-

ously preferable for the litigation to take place in a locale

where the attendance of physicians, therapists, counselors,

etc., can be facilitated.

There are two principal east-west railroad routes tra-

versing the State of Montana, the “north route” and the

“south route.” The “north route” hugs the Canadian

border in the northern part of the state, running through

the City of Havre, the present base of BN’s operations

in Montana. From the standpoint of medical care, facili-

ties in Great Falls (Cascade County) and Kalispell (Flat-

head County) provide advanced medical care for the

“north route.” For the “south route” (as well as various

trackage located in the northern part of Wyoming) the

Billings (Yellowstone County) medical community pro-

vides advanced medical care. Viewed within this frame-

work, the “statistics” as to FELA state court filings

obviously reflect practical considerations as opposed to

“virulent forum-shopping.” It is an unfounded leap of

abstraction for BN to suggest that the Yellowstone and

Cascade County courts and their juries have become

“powerful magnets” for FELA claims. First, there is no

evidence that Yellowstone and Cascade County juries

render “enhanced verdicts” against FELA defendants.

Second, and perhaps more importantly, very few FELA

8

eases filed in Montana state courts every reach a jury—

all but a scintilla are settled prior to trial.’

In conclusion, BN’s suggestion that “litigants are skill-

fully exploiting the discriminatory provisions of the Mon-

tana venue statute” is utterly belied by the common sense

practicalities associated with conducting personal injury

litigation in a sparsely-populated state where advanced

medical facilities are highly concentrated.

Last, BN alleges that the great majority of FELA

cases against BN in Montana state courts present “no

connection whatever” to the county of venue. First, this

statement is erroneous from the standpoint that an obvi-

ous and legitimate connection exists vis-a-vis the location

of medical and rehabilitation personnel. Second, BN’s

statement is irrelevant from the standpoint that the

FELA expressly sanctions the broad availability of forums

for an injured railroader. In this regard, the legislative

history of the FELA is illustrative:

In reporting the FELA bill out of committee, Sena-

tor Borah stated his objection to the pre-FELA law as

follows:

Plaintiff may sometimes be compelled to go a great

distance in order to have his cause of action against

the defendant by reason of the fact that now the

action must be brought in the district in which the

defendant is an inhabitant...

.. . If this bill should be passed the law will be rem-

edied in that respect, enabling the plaintiff to bring

his action where the cause of action arose or where

the defendant may be doing business. The bill enables -

‘he plaintiff to find the corporation at any point or

nlace where it is actually carrying on business and

there lodge his action, if he chooses to do so. 45

Cong.Rec. 4034-4035 (1910).

1 Conspicuously absent in BN’s “statistics” is any data to reflect

the ratio between cases settled versus tried before a jury.

9

In 1947, a bill known as the “Jennings Bill” was pro-

posed which would have repealed most of Section 6 and

limited the forum choices of injured railroad workers to

the district where the cause of action arose or where the

plaintiff resided. H.R. 1639, 80th Cont., 1st Sess. (1947).

However, the bill did not pass. Accordingly, the strength

of the policy behind Section 6 can further be gleaned from

Congress’s refusal to pass the Jennings Bill.

Under the FELA, Congress has given the injured

worker broad discretion in his choice of forum in which

to have his claim tried. It cannot be seriously disputed that

the forum provisions of the FELA resulted from a recog-

nition of the enormous disparity between the respective

positions of the injured railroaders and powerful inter-

state railroads. Additionally, the liberal venue provisions

were obviously designed to enable an injured railroader

to have his case heard in a more “neutral” setting where

most of the jury panel was not likely to be railroad em-

ployees or relatives or dependents of railroad employees.

By seeking to require injured railroaders to file suit in

Hill County, BN is attempting to do exactly what the

FELA was designed to avoid, i.e., forcing the injured

railroader to file suit in a “railroad town.”

Ill. THE MONTANA SUPREME COURT'S HOLDING

IN THIS CASE IS LIMITED TO FELA ACTIONS

IN STATE COURT

Assuming, arguendo, that MCA § 25-2-118 has the effect

of unfairly discriminating against foreign corporations

in non-FELA cases, the policy favoring the injured rail-

roader’s choice of forum under the FELA, and the “open

court policy” of the State of Montana, mandate that the

injured railroaders’ choice of forum should be left undis-

turbed in the present case.

As indicated above, under the FELA, Congress has

expressly given the injured railroader broad discretion in

his choice of forum in which to have his claim tried.

10

It is beyond dispute that with the enactment of the

FELA, Congress consciously decided to give an injured

railroader greater rights in terms of venue selection than

other injured parties. As a result, corporations that are

subject to the FELA are treated different from corpora-

tions that are not subject to the FELA. By definition,

railroad employers were therefore denied equal protection

under the law. However, in enacting the FELA as an

attempt to remedy the historical practices of the nation’s

railroads in refusing to compensate injured workmen, a

rational basis exists to justify the different treatment

given interstate railroads. It is similarly obvious that

Congress was intimately aware of the disparity between

large interstate railroad companies and injured railroad-

ers. As a result, Congress chose to shift the burden of the

loss from “those least able to bear it” and place it on

those who can “measurably control their losses.”

Notwithstanding the clear legislative and judicial man-

dates that the FELA be given a liberal construction in

favor of injured railroad employees, BN has continually

attempted to curtail the injured railroader’s rights under

the FELA. This case represents another example of BN’s

long string of attempts to chip away at the foundation of

the liberal pro-worker policies of the FELA. Although

the FELA continues to be a bitter pill for the railroads

to swallow, why it is that they refuse to take their medi-

cine and learn to live with it? Since otherwise identical

procedural and substantive law would apply to this case

whether it was tried in Yellowstone County or Hill

County, one is forced to a conclusion that the BN is

engaging in obstructionist tactics intending to deter and

frustrate present and future plaintiffs. However, these

are the types of tactics that promoted Congress to enact

the FELA in the first place.

It is respectfully submitted that in deference to the

congressional and judicial mandates of the FELA, the

Montana Supreme Court properly construed the Montana

venue statutes. Such a construction was consistent with

11

the liberal policies underlying the FELA, which undeni-

ably were intended to provide an advantage to the injured

railroaders when forced to do battle against railroad

“Goliaths.”

A liberal construction of the venue statutes in favor of

injured railroad employees also comports with Montana’s

“open court policy.” Article II, section 16 of the Montana

State Constitution provides that “courts of justice shall be

oper to every person, and speedy remedy afforded for

every injured person, property or character.”’

Statutes can also be saved from constitutional infirmity

by showing that in actual practice discriminatory results

do not occur. In theory, MCA § 25-2-118 appears to sanc-

tion venue in a county far removed from where BN con-

ducts business. However, in practice, BN is not sued in

a county where they cannot “be found” doing business.

Accordingly, any discriminatory effect is nothing more

than theoretical and insufficient to invalidate the statute.

Last, BN is without standing to challenge the constitu-

tionality of the venue statutes in non-FELA situations.

The inquiry in this case must be limited to whether the

venue statutes are appropriate in an FELA action.

Pursuant to the foregoing argument and authority, it is

the injured railroaders’ position that the Mentana Su-

preme Court’s decision was correct and well supported.

12

CONCLUSION

For these reasons, the petition for writ of certiorari

should be denied.

Respectfully submitted,

Of Counsel: RoBErT S. FAIN, JR.

GARY K. Woop (Counsel of Record)

Morrisarp & Rossi, P.C. J. REUSS

12203 East Second Avenue WRIGHT, TOLLIVER &

Aurora, CO 80011-8399 GUTHALS, P.C.

(303) 366-3501 P.O. Box 1977

(800) 325-4014 Billings, MT 59103-1977

(406) 245-3071

Date: December 12, 1991 Attorneys for Respondents