Petition for Writ of Certiorari — Feuerer v. Adamar of New Jersey, Inc.

Supreme Court, US

Friis

86 - EQ OCT 7 1988

gaa JOSEPH F. SPANIOL, JR.

No. CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1986

IN THE MATTER OF:

LINDA FEUERER,

Petitioner

vs.

ADAMAR OF NEW JERSEY, INC.,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

GARY GREEN,

Counsel of Record

SIDKOFF, PINCUS & GREEN, P.C.

Attorneys for Petitioner

530 Walnut Street, Twelfth Floor

Philadelphia, Pennsylvania 19106

(215) 574-0600

ROBERT: A. DAVITCH,

On the Petition

QUESTIONS PRESENTED

1. Did the Third Circuit err and disregard

the Supreme Court's, its own and other

Circuits’ standards for review by

affirming, in a judgment order, the

District Court's ruling that an admittedly

erroneous charge given to a jury on a

substantial and contested issue,

constituted harmless and not reversible

error?

TABLE OF CONTENTS

PAGE

QUESTIONS Tihs eee we eesee6 ess i

TABLE OF i a iii

OPINIONS 0 a ee 2

CO 2

STATUTE CS 3

STATEMENT OF THE De <- 6eedhéeee 6 © 4

REASONS FOR GRANTING THE WRIT...... 16

I. The Third Circuit's Ruling

Affirming The District Court's

Order Denying Feuerer's Motion

For A New Trial Conflicts With

Decisions Of This Court, The

Third Circuit, Other Circuits

And The Highest Courts Of The

State Of New Jersey..cccccceeee 16

(jj. 22 et eee ce éaeéeoseococs 30

APPENDIX:

A -—- Memorandum and Final Order..... la

B - Judgment Deh cceeeeeeeonoesece 8a

C = Order Sur Petition for Panel

TREE LNG cc ccc ccc cece Poccceccotla

iii

TABLE -OF -AUTHORITES

PAGE

CASES

Ayoub v. Spencer, 550 F.2d 164

(3d Cir.), cert. denied, 432

0.8. 907, 97 S.Ct. £3954, $3

Le BG.2G 1079 (1977) ccccvcetssvccceclh Dg 20,

21,22

Bechtel v. Liberty National Bank,

946 FPiae L350 (3G Cifks EPPO) ccoaa 27

Brownlow v. Aman, 740 F.2d 1476

(10th mg oo [Peer rr es. ee ee ee Ye

Ciluffo v. Middlesex General

Hospital, 146 N.J. Super. 476

(A EY L977) ceecsaseeasacsccesestOsgat

Collins v. Metropolitan Life Ins.

Co., inc., (23 F.2G 1402 (1ith

Cina So Pree fe eT ees ee ee ee 27

Kirschner v. Broadhead, 671 F.2d

1034 (7th Cit. ch > ) Pee ee a7

Knutsen v. Brown, et al., 96 N.J.

Super. 229 CR oa Veh POT) vs cee wens iO, 27

Knutsen v. Brown, et al., 93 N.J.

Super. 522 (Law Div.15966) .ccecececlO,l7?

Malat v. Riddell, 383 U.S. 569,

86 S.Ct. 569, 86 S.Ct. 1030.

16 LeEd.2d 102 (1966) .cccccccceeee- 20,21,

22

McCandless v. United States,

230 UcBs 382, FSO Sethe FOSs

SO £L.88. 1205 (1956) si ccecscestcusaaeere

24,25

=

ian OFF | ote tiie Aa) 04 a ii ; aod ery ; ‘ ; : = / : ss | ? ae ly \s 5 in i “> 2 . eds

nth RS aie 8h B- = Aes ST RCRD ere een nt atti. hme On, Ce TA ee eel

iv

Nestier Corp. v. Menasha

Corporation - Lewisystems Div.,

739 F.2d 1576 (Fed.Cir. 1984)..... 27

Paluch v. Erie Lackawanna Railroad

Company, 387 F.2d 996.

(3d of SPOR! 65 bee td cee seaceos oeeee Lleive

Ratay v. Lincoln National Life

Insurance Company, 378 F.2d

209 (3d Cir.), cert. denied,

868 §.Ct. 472, 385 U.S. 973, 19

Be BG22G 865 (1967) ccccsccscccescsee 23

Sunkist Growers, Inc. v. Winckler

& Smith Citrus Products Co.,

STO Ucbe 29p BS Bete. L130,

S eB 2G 305 TEPSS) ccnccccccccvccsdO stiles

22

Ware v. Reed, 709 F.2d 345

(5th Cit. Bes? e660 60206686866 4640 27

Ybarra v. Burlington Northern, Inc.,

Ger V.a0 £67 (OER Ci£ks EPCS) ovccee 27

STATUTES

28 UeBeCs Section RoBi n6e 6eeiawns y

28 9.8.C- Section ie , | eee oe 3

Fed.R.Civ.Pro. > SEURETCERUTCTTT CTT Tt.

Fed.R.App.P. SOUR oc cccdvtecvesccevesnsee

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1986

IN THE MATTER OF:

LINDA FEUERER,

Petitioner

vs.

ADAMAR OF NEW JERSEY, INC.,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioner, Linda Feuerer, respect-

fully prays that a writ of certiorari

issue to review the judgment order of the

United States Court of Appeals for the

Third Circuit entered in this proceeding

on June 1l, 1986, and the order of the

Third Circuit entered on July 9, 1986,

denying her petition for a panel

rehearing.

OPINIONS BELOW

Petitioner requests review of the

judgment of the United States Court of

Appeals for the Third Circuit, reproduced

in the appendix at 8a-l10a, affirming a

final order entered by the United States

District Court for the Eastern District of

Pennsylvania. The memorandum decision of

the United States District Court for the

Eastern District of Pennsylvania (McGlynn,

D.J.), has not been reported. ae

reprinted in the appendix at la-7a, infra.

On June 25, 1986, petitioner filed a

petition for a panel rehearing with the

Third Circuit pursuant to Fed.R.App.P.

40(a). On July 9, 1986, the Third Circuit

entered an order denying that petition. A

copy of that order is reproduced in the

appendix at lla, infra.

JURISDICTION

Invoking federal jurisdiction under

28 U.S.C. Section 1332, the petitioner

brought this action in the Eastern

District of Pennsylvania. On September

19, 1985, the District Court entered a

memorandum and final order denying

petitioner's motion~- for a new trial

pursuant to Fed.R.Civ.Pro. 59.

On petitioner's appeal, the Third

Circuit on June 1l, 1986, entered a

judgment order: affirming the District

Court's final order. On June 25, 1986,

petitioner filed a petition for a panel

rehearing which the Third Circuit denied

in an order entered on July 9, 1986.

The jurisdiction of this Court to

review the judgment of the Third Circuit

is invoked under 28 U.S.C. Section

1254(1).

STATUTE INVOLVED

28 G.8.C. Section 1291. Final

decisions of district courts

The courts of appeals (other than the

United States Court of Appeals for the

Federal Circuit) shall have

jurisdiction of appeals from all final

decisions of the district courts of

the United States, the United States

District Court for the District of the

Canal Zone, the District Court of

Guam, and the District Court of the

Virgin Islands, except where a direct

review may be had in the Supreme

Court. The jurisdiction of the United

States Court of Appeals for the

Federal Circuit shall be limited to

the jurisdiction described in sections

1291(c) and (d) and 1295 of this

title.

STATEMENT OF THE CASE

Petitioner, Linda Feuerer (known

herein as "“Feuerer"), commenced this

action in the Eastern District of

Pennsylvania, to recover damages’ for

personal injuries she suffered on December

9, 1981, when she slipped and fell ina

public restroom in the Tropicana Hotel and

Casino in Atlantic City, New Jersey. She

sued respondent, Adamar of New Jersey,

Inc. (known herein as "“Adamar"), a

corporation which owned and operated the

Tropicana. In her complaint, Feuerer

alleged that Adamar was negligent; that

Adamar's negligence was the _ proximate

cause of her accident; and that Adamar's

negligence was also a proximate cause of

her injuries.

Feuerer's case against Adamar

proceeded to trial before a jury on

November 7, 1984. New Jersey law was

applied to the case.

At the trial, Feuerer, who was born

in 1953, presented evidence that Adamar

was negligent in maintaining the restroom,

and that its negligence was the cause of

her fall. Evidence was also presented

that, as a result of her fall, Feuerer

severely injured both of her knees, and

that her knee injuries were progressive

and permanent. The evidence showed that

by the time of trial, Feuerer had already

incurred in excess of $35,000.00 in

medical expenses in connection with the

treatment of her knee injuries; that she

had already undergone three major knee

Operations; and that one of the surgeries

had left her with a large, disfiguring

scar on her right leg. The evidence

showed further that Feuerer had suffered

chronic, progressive knee pain since the

time of the fall; that she will probably

incur more than $100,000.00 in future

medical costs relative to the treatment of

her knee injuries; that she will probably

suffer chronic knee pain for the rest of

her life; that she had been disabled by

her knee injuries since the accident and

will probably be disabled for the rest of

her life; and that she will probably never

again be able to walk normally, or without

the aid of a supportive device such as a

cane or a walker.

The evidence presented at the trial

showed also that two physicians had

treated Feuerer for the knee injuries she

had suffered in her fall. They were Dr.

Maria A. Limberakis, who had treated

Feuerer regularly since the day after the

in

7

accident, and Dr. Ronald B. Greene, who

had treated Feuerer since September of

1983, and had operated on Feuerer's knees

three times since then. Both of these

doctors testified on behalf of Feuerer at

the trial.

There was not a shred of competent

evidence presented at trial by either

party that either of Feuerer's treating

doctors, or both of them, were negligent

Or were guilty of malpractice in treating

Feverer for the knee injuries she _ had

suffered in her fall. The case was not

tried as a medical malpractice case by

either party. No expert was called by

Adamar to testify that either of the two

doctors, or both of them, had deviated

from the applicable standard of care in

treating Feuerer. Indeed, no expert even

testified as to what that standard is.

Nevertheless, on November 16, 1984,

after the close of all the evidence, and

upon the request for counsel for Adamar,

the District Judge charged the jury that,

You can consider whether or not the

treatment by [Feuerer's] doctors

caused or exacerbated the condition

which she now suffers...If there is

intervening negligence of the doctor

Or somebody who treats. her, which

exacerbates the condition, then, the

Tropicana would not be responsible for

that.

Counsel for Feuerer objected, timely and

promptly, to this portion of the charge,

but his objection was overruled.

On November 16, 1984, the jury

returned a verdict in favor of Feuerer and

against Adamar, in the amount of

$50,000.00. In answering special

Interrogatories, the jury found that

Adamar was negligent and that its

negligence was the proximate cause of

Feuerer's fall, as well as a_ proximate

cause of Feuerer's knee injuries. The

jury also found that Feuerer was

comparatively negligent. In apportioning

blame for the accident, the jury found

that Adamar was 75% responsible, and that

Feuerer was 25% responsible. Accordingly,

the District Judge molded the verdict, and

entered a judgment in favor of Feuerer and

against Adamar, in the amount of

$37,500.00.

On November 30, 1984, Feuerer filed a

motion for a new trial with the District

Judge, pursuant to Fed.R.Civ.Pro. 59. In

that motion, Feuerer argued, inter alia,

that the District Judge had committed

reversible error in instructing the jury

that if it found that Feuverer's doctors,

or either of them, were negligent in

treating Feuerer, and if their negligence

had caused an aggravation of Feuerer's

knee injuries, Adamar would not _ be

responsible to Feuerer to the extent that

the doctors had caused her injuries to be

exacerbated. In her motion for a new

trial and supporting briefs, Feuerer

argued that the District Judge's charge

was clearly and fundamentally erroneous,

and might have resulted in the low

verdict. Specifically, Feuerer argued

that,

(1) Under New Jersey law,

Adamar, which was found to be negligent,

was automatically responsible, as a matter

of law, for the negligence of any

physician who treated Feuerer for the

injuries she suffered due to Adamar's

negligence, and for the consequences of

the physician's negligence. The highest

appellate courts of New Jersey had

repeatedly so ruled. See, e.g., Knutsen

v. Brown, et al., 96 N.J. Super. 229, 235

(App.Div.1967); Ciluffo V. Middlesex

General Hospital, 146 N.J. Super. 476, 482

(App.Div.1977); Knutsen v. Brown, et al.,

93 N.J. Super. 522, 542 (Law Div. 1966);

(2) There was no _ evidence

offered by either party that either or

both of Feuverer's treating doctors were

negligent or guilty of malpractice in

treating Feuverer. It is reversible error

for a trial judge to charge a jury on a

matter or an issue on which no competent

evidence is presented. MThe Third Circuit

itself had so ruled. See, e.g., Paluch v.

Erie Lackawanna Railroad Company, 387 F.2d

996, 999, 1000 (3d Cir. 1968); and

(3) The District Judge, by his

erroneous charge, gave the jury the right

to find that one or both of Feuerer's

doctors were negligent in treating her,

and to limit Feuerer's damages

accordingly, even though: (a) no evidence

of malpractice was presented; (b) no

charge on what specific conduct would

constitute malpractice was given; and (c)

the charge completely misstated the law,

which holds Adamar automatically

responsible for the negligence of

Feuerer's treating doctors, and therefore,

12

it should not have been given even if

there was evidence of malpractice. 1

On September 19, 1985, the District

Judge entered a memorandum and order

denying Feuerer's motion for a new trial.

See, Appendix A at la-7a. In rejecting

Feuverer's contention that he had committed

reversible error in charging the jury, the

District Judge acknowledged that he may

have erred, but ruled,

Finally, Plaintiff argues that’ the

court's instruction to the jury that

the defendant would not be responsible

for the intervening negligence of the

treating physician was in error....

As Feuerer argued in her post-trial

motion and supporting briefs, although

no competent evidence of malpractice was

presented, based on the District Judge's

erroneous charge, the jury could have

relied on certain remarks made by

counsel for Adamar in his’ closing

argument, as a basis for reducing the

damages award to $50,000.00. For

example, counsel for Adamar argued that

Feuverer “is no better off today that

before Dr. Greene took the knife to

her", and that Dr. Limberakis had acted

improperly in injecting Feuerer's knees

with Novocaine to temporarily relieve

her chronic pain.

13

[A]s demonstrated by the jury's note

to the court, they were not concerned

with events after December 1982 - at

least nine months before the [first]

operation. Thus, even assuming it was

error to charge on intervening

negligence, said error was harmless.

The District Judge's reference to the

"Jury's note" in his memorandum opinion

was to a written note submitted to the

Court by the jury shortly before the

verdict was returned. In the note, the

jury stated that it had decided to award

Feuerer damages to redress Adamar's

negligence from the time of the fall until

December 24, 1982, which was about one

year after the fall. The District Judge

correctly noted that Dr. Greene did not

operate on Feuerer's knee until September

of 1983, approximately nine months after

the last date on which the jury decided

Feuerer was entitled to recover damages

from Adamar.

On September 30, 1985, Feuerer

appealed to the Third Circuit from the

14

District Judge's memorandum and order

denying her motion for a new trial. In

her brief filed with the Third Circuit on

December 11, 1985, Feuerer argued, inter

alia, that the District Court had

committed reversible error in instructing

the jury that Adamar was not responsible

for any aggravation of her injuries that

were initially caused by the negligence of

Adamar, which aggravation may have

resulted from the negligence of one or

both of her treating doctors. Feuerer

argued also that the District Judge's

ruling that any error he may have made was

harmless, was clearly erroneous.

On June ll, 1986, the Third Circuit

entered a judgment order affirming the

judgment of the District Court. See,

Appendix B at 8a-1l0a. No memorandum or

Opinion was issued by the Third Circuit.

On June 25, 1986, Feuerer filed a |

timely petition for a panel rehearing with

|

15

the Third Circuit under Fed.R.App.P.

40(a). In that petition, Feuverer once

again argued that the District Court had

committed reversible and not harmless

error in charging the jury on the matter

of intervening negligence of her treating

deccors. In the petition for a rehearing,

Feuerer argued further that, in affirming

the District Judge's ruling that he had

not committed reversible error in so

charging the jury, the Third Circuit had

overlooked and misapplied its own

well-established precedents.

On July 9, 1986, the Third Circuit

panel which had considered Feuverer's

appeal, entered an order, without

explication, denying the petition for a

rehearing. See, Appendix cC at lla.

Feuverer is filing this petition within

ninety days after the date of entry of the

Third Circuit's order denying the petition

16

for a rehearing. Accordingly, this

petition is timely.

REASONS FOR GRANTING THE WRIT

I. The Third Circuit's Ruling Affirming

The District Court's Order Denying

Feuerer's Motion For A New Trial

Conflicts With Decisions Of This

Court, The Third Circuit, Other

Circuits And The Highest Courts Of

The State Of New Jersey

In affirming the District Judge's

ruling on the propriety of the charge

dealing with the intervening negligence of

Feuerer's treating doctors, the Third

Circuit overlooked, misapplied and/or

disregarded decisions of the Supreme

Court, other Circuits and the highest

courts of the State of New Jersey. The

Third Circuit's decision is also in direct

conflict with the its own well-established

precedents.

Under New Jersey law, which was

applicable to this case, the charge on

intervening negligence was clearly

erroneous and should never have been

17

given. The highest appellate courts of

New Jersey have ruled that a tortfeasor

such as Adamar is automatically

responsible, as a matter of law, for any

aggravation of injuries it caused, which

result from the negligence of a doctor who

treated the Plaintiff for those injuries.

As the Court stated in Knutsen v. Brown,

et al., 96 N.J. Super. 229, 235

(App.Div.1967),

Where a person has suffered personal

injury by reason of another's

negligence, the tortfeasor is liable

for any additional harm caused to the

injured person by the negligence,

mistake or lack of skill of the

attending physician or surgeon.

See also, Ciluffo v. Middlesex General

Hospital, 146 N.J. Super. 476, 482

(App.Div.1977); Knutsen v. Brown, et al.,

93 UJ. Super. 522, 542 (Law Div.

1966) ("Wrongdoers are liable for’ the

reasonably foreseeable consequences of the

tortious act, including the malpractice of

a doctor").

18

Accordingly, the District Judge's

charge misstated New Jersey law, which

holds Adamar automatically liable for any

aggravation of the injury it initially

caused, which aggravation was caused by

the treating doctors' subsequent

negligence. The erroneous charge might

have caused the jury to award Feuerer a

lower amount of damages than it otherwise

would have awarded her. To the extent

that the District Judge ruled that his

charge on intervening negligence was not

erroneous, (the District Judge assumed

arguendo that he had erred without

expressly admitting that he had), his

ruling was patently erroneous. fThe Third

Circuit erred in not finding that the

District Court had committed reversible

error in charging the jury on this matter;

its ruling is therefore in direct and

irreconciliable conflict with decisions of

the highest courts of New Jersey.

ET ee en

The Third Circuit's ruling affirming

the District Court is also in direct

conflict with decisions of this Court on

which the Third Circuit has relied in

ordering new trials in other cases. In

Ayoub v. Spencer, 550 F.2d 164, 168 & n.7

(3d Cir.) cert. denied, 432 U.S. 907, 97

S.Ct. 2952, 53 L.Ed.2d 1079 (1977), the

Third Circuit correctly ruled that where,

as in this case, an erroneous charge is

given to a jury, a new trial must be

allowed if the improper instructions

"might have been responsible for’ the

verdict"; an appellant need not show that

the error was i fact prejudical. The

Court in Ayoub, supra, ruled further that

in determining whether erroneous jury

instructions require the grant of a new

trial, whether the instructions actually

did bring about the verdict is not

dispositive; if the charge "may have

resulted" in the verdict appealed from, a

ESO OT

20

new trial is mandatory. Id. at 550 F.2d

164, 168 & n.7. Clearly, the improper

instruction on intervening negligence

might have contributed to, and could have

been responsible for the low verdict which

the jury returned for Feuerer. See

discussion below. Accordingly, the

District Judge's error was reversible, not

harmless, and the Third Circuit erred in

failing to so find.

In ruling as it did in Ayoub, supra,

the Third Circuit properly relied on the

Supreme Court's decisions in Malat v.

Riddell, 383 U.S. 569, 86 S.Ct. 1030, 16

L.Ed.2d 102 (1966) and Sunkist Growers,

Inc. v. Winckler & Smith Citrus Products

Co., 370 U.S. 19, 82 S.Ct. 1130, 8 L.Ed.2d

305 (1962). In failing to fin@ in

Feuerer's case that the District Judge

committed reversible error in charging the

jury on the issue of intervening

negligence of her treating doctors, the

P|

Third Circuit inexplicably disregarded

these two decisions, as well as its prior

ruling in Ayoub, supra. Its ruling in

Feuerer's case is in direct conflict with

all three of these cases. In Malat v.

Riddell, supra, this Court ruled that

where a lower court applies an incorrect

legal standard, a new trial is mandatory;

an appeals court should not consider

whether the verdict would be supportable

on the facts of the case had the correct

one been applied. 383 U.S. at 572, 86

S.Ct. 1030, 16 L.Ed.2d at 105. Similarly,

in Sunkist Growers, supra, this Court

ruled, at 370 U.S. 30, 82 S.Ct. 1130, 8

L.Ed.2d at 312,

Since we hold erroneous one theory of

liability upon which the_- general

verdict may have rested - a conspiracy

among petitioners and Exchange Lemon -

it is unnecessary for us to explore

the legality of the other theories.

As was stated of a general verdict in

Maryland use of Markley v. Baldwin,

112 US 490, 493, 28 L ed 822, 823, 5

S.Ct. 278 (1884), "[I]ts generality

prevents us from perceiving upon which

ieee

22

plea they found. If, therefore, upon

any one issue error was committed,

either in the admission of evidence,

or in the charge of the court, the

verdict cannot be upheld...."

(Emphasis Added)

In this case, since the jury could have

been misled by the erroneous charge to

believe, and to find that Feuverer was not

entitled to recover damages from Adamar

for the consequences of some or all of the

treatment that was rendered by her two

treating doctors, under the teachings of

Malat, supra and Sunkist Growers, supra,

upon which the Third Circuit correctly

relied in deciding Ayoub, supra, the Third

Circuit should have granted Feuerer a new

trial.

The Third Circuit's affirmance of the

District Judge's ruling is also in direct

contravention of other compelling Supreme

Court authority. In McCandless v. United

States, 298 U.S. 342, 347-48, 56 S.Ct.

764, 80 L.Ed. 1205 (1936), this Court

ruled,

eee

[A]n erroneous ruling which relates to

the substantial rights of a party is

ground for reversal unless it

affirmatively appears from the whole

record that it was not prejudicial.

United States v. River Rouge Co., 269

0.8+ @hhg @2h,5 TCU bs OCs SSR, 206, 66

S.Ct. 144; Fillippon v. Albion Vein

Slate Co., 250 U.S. /6, 82, 63 Le ed.

S53, 856, 39 S.Ct. 4353 Wiiliems v.

Great Southern Lumber Co., 277 U.S.

L3, 205 Fe be GG Tig FETs SE BCE.

Si 7%

In Ratay Vv. Lincoln National Life

Insurance Company, 378 F.2d 209, 212 (3d

Cir.}, cert. denied, 88 S.Ct. 472, 389

U.S. 973, 19 L.Ed.2d 465 (1967), the Third

Circuit correctly relied on McCandless,

Supra, in ordering a new trial. But in

this case, the Third Circuit inexplicably

disregarded McCandless in affirming the

ruling of the District Judge.

Clearly, it does not "affirmatively

appear" from the record in this case that

the District Judge's error in charging the

jury was harmless, and not prejudicial.

The District Judge's finding that if it

erred in charging the jury on- the

—— <x

intervening negligence of Feuerer's

treating doctors, (and it clearly did err,

for the reasons stated above), the error

was harmless, was patently wrong. The

Third Circuit clearly erred and improperly

disregarded McCandless in failing to so

find.

In concluding that its error was

harmless rather than reversible because of

the timing of Dr. Greene's first

operation, the District Court improperly

disregarded the unrebutted evidence which

showed that Feuerer's other treating

doctor, oF. Limberakis, had treated

Feuerer for her knee injuries suffered in

the fall throughout the entire period of

the jury's damages award: December 10,

1981 to December 24, 1982. The erroneous

charge on intervening negligence was broad

enough to include both Dr. Greene and Dr.

Limberakis. The District Judge stated:

"You can consider whether or not the

25

treatment by her doctors caused or

exacerbated the condition..." (Emphasis

Added). Based on the erroneous charge,

therefore, the jury might have reduced (to

$50,000.00) the damages award it otherwise

would have made but for its determination

that Dr. Limberakis was negligent in

treating Feuerer from December 10, 1981 to

December 24, 1982. Accordingly, the fact

that Dr. Greene did not operate on Feuerer

until September of 1983, in no way leads

to the conclusion that the District

Judge's error in: charging the jury was

harmless. Moreover, the jury may also

have decided not to award Feuerer damages

for the operations performed by Dr.

Greene, or for the results of those

operations, based on the erroneous charge;

the District Judge improperly speculated

on what the jury actually found.

Under the teachings of McCandless,

supra, then, the District Judge

L |

26

erroneously and improperly concluded that

its error was harmless and not reversible.

Such a finding is not supported nor

supportable by the record. The Third

Circuit erred and overlooked clear Supreme

Court precedent in affirming that ruling.

In affirming the District Judge's

ruling, the Third Circuit is also in clear

and direct conflict with the decisions of

the other Circuits. As noted above, there

was not a shred of competent evidence

presented at the trial by either party

that Feuerer's treating doctors’ were

negligent or guilty of malpractice in

treating her. The District Judge

acknowleged as much when he stated in his

opinion that he would assume that he erred

in charging the jury on the intervening

negligence of the doctors.

The other Circuits have ruled that it

is fundamental, reversible error for a

judge to charge a jury on a matter on

ll

27

which no evidence or competent proof is

presented. See, e.9g., Nestier Corp. v.

Menasha Corporation - Lewisystems Div.,

4339 2s2@ - i576 (Fed.Cir.1984); Ware v.

Reed, 709 F.26 345 (5th Cir. S983) 5

Kirschner v. Broadhead, 671 F.2d 1034 (7th

Cir. 1982) (It is prejudicial error for a

trial court to give instructions which

find no support in the evidence unless the

record shows that the error is clearly

harmless); Ybarra v. Burlington Northern,

Inc., 689 ¥.2@ 147 (8th Cit. i1962)73

Bechtel v. Liberty National Bank, 534 F.2d

1335 (9th Cir. 1976); Brownlow v. Aman,

740 F.2d 1476 (10th Cir. 1984); Collins v.

Metropolitan Life Ins. Co., Inc., 729 F.2d

1402 (llth Cir. 1984).

In Paluch v. Erie Lackawanna Railroad

Company, 387 F.2d 996, 999, 1000 (3d Cir.

1968), the Third Circuit itself ruled that

it is reversible error for a judge to

charge a jury on a matter on which no

evidence is presented. But inexplicably,

the Third Circuit disregarded Paluch,

supra, and the rulings of the other

Circuits, in affirming the District Judge

in this case. As the Court noted in

Paluch, at 387 F.2d 1000,

The charge to the jury in this case

on an issue on which no evidence had

been offered was such fundamental

error. Allowing the jury to speculate

on contributory negligence and thereby

possibly to diminish the compensation

recoverable, under the circumstances

of this case, was a miscarriage of

justice.

This fundamental error compels a new

trial.

In this case, based on the District

Judge's erroneous charge, and the complete

lack of any competent evidence of

malpractice, the jury was allowed to

"speculate" on the issue of malpractice,

and it may have awarded Feuerer less than

it otherwise would have awarded her but

for its determination that one or both of

the doctors were negligent. This is more

29

than enough to require a new trial.

Accordingly, the District Judge's error

was not harmless, but reversible, and the

Third Circuit's ruling affirming the

District Judge on that issue is in direct

conflict with Paluch, supra, and with the

decisions of the other Circuits.

30

CONCLUSION

For all of the foregoing reasons,

petitioner respectfully prays that this

Honorable Court issue a writ of certiorari

to review the judgment of the Third

Circuit, and the order of the Third

Circuit denying the petition for a

rehearing.

Respectfully submitted,

tar LEO

GARY GREEN (€ ~~.

Counsel of Record

OF COUNSEL:

SIDKOFF, PINCUS & GREEN, P.C.

530 Walnut Street, 12th Floor

Philadelphia, PA 19106

(215) 574-0600

ROBERT A. DAVITCH

On the Petition

DATED: October 7, 1986

APPENDIX

| anaes aes eames,

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LINDA A. FEUERER CIVIL ACTION

Ve

ADAMAR OF NEW

JERSEY, INC.

NO. 83-5931

MEMORANOD UM

MCGLYNN, J. SEPTEMBER 17, 1985

Before the court is a motion for a

new trial by plaintiff who was injured

when she slipped and fell in a public

restroom at the Tropicana Hotel and Casino

in Atlantic City, New Jersey. At trial,

the jury assessed damages in the amount of

$50,000 and found that defendant was 75%

negligent and the plaintiff 25%.

In a ninety page opening brief and a

26 page reply brief, plaintiff has

collected an array of arguments based upon

"unrefuted", "unrebutted" and "over-

whelming" evidence in support of the

proposition that the jury's award was

inadequate, arbitrary and contrary to the

a

2a

APPENDIX A

law and the evidence. Consequently, she

would like an opportunity to convince

another jury to take a more generous view

of her claims.

The nature and the extent of the

injuries suffered by plaintiff as a result

of the fall was the primary issue in the

case.

Plaintiff contended that as a result

of the fall, she developed a painful,

progressive and permanent condition in

both knees known as "“Chondromalacia"™ which

is character zed by a degeneration of the

cartilage under the kneecaps. The

defendant, on the other hand, argued that

plaintiff's fall resulted in only minor

injuries, that the chondromalacia was

congenital or that it was triggered or

exacerbated by trauma to her knee suffered

in two subsequent automobile accidents.

No citation is necessary for the

basic principle of law that plaintiff has

a

APPENDIX A

the burden of proof as to damages as well

as liability, and as the court instructed

the jury, they “are not to award damages

for any injury or condition from which the

plaintiff may have suffered unless it can

be established by a preponderance of the

evidence in the case that such injury or

condition was proximately caused by the

accident in question." (Tr. 11/16/84 at

100).

Given the state of the record in this

case which, at the very least, raised

serious questions concerning the credi-

bility of the plaintiff, her experts and

her treating physicians, I cannot find any

basis for overturning or ignoring .the

verdict of the jury.

As the Supreme Court stated in

Tennant v. Peoria & P. & U. Railway

Company, 321 U.S. 29 (1944):

The focal point of judicial review is

the reasonableness of a particular

inference or conclusions drawn by the

jury. It is the jury, not the court,

a

4a

APPENDIX A

which is the fact finding body. It

weighs the contradictory evidence and

inferences, judges the credibility of

witnesses, receives expert

instructions, and draws the ultimate

conclusion as to the facts. fThe very

essence of its function is to select

from among conflicting inferences and

conclusions that which it considers

most reasonable. (citations omitted)

That conclusion, whether it relates to

negligence, causation or any other

factual matter, cannot be _ ignored.

Courts are not free to reweigh the

evidence and set aside the jury

verdict merely because the jury could

have drawn different inferences or

conclusions or because judges feel

that other results are more reason-

able. 321 U.S. at 35.

Plaintiff also challenges the jury's

determination that she was 25% negligent.

On the basis of the evidence, the jury

could have found that she was walking

quickly and not looking where she was

going in a dimly lit area where it is

foreseeable that water would be in her

path. This is sufficient to find a lack

of care on her part.

Finally, plaintiff argues that the

court's instruction to the jury that the

defendant would not be responsible for the

TT

5a

APPENDIX A

intervening negligence of the treating

physician was error. In context, that

portion of the charge properly informed

the jury that it had the right’ to

determine the cause of plaintiff's

injuries. There was evidence from which

the jury could infer that her injuries

from the fall had been cured as of July

1982. There was also evidence from which

the jury could conclude that the

chondromalacia was due to a congenital

malalignment of her knees for which she

was Operated on. Thus, these instructions

were simply an extension of prior

instructions that the defendant should not

be held liable for any injuries unless

they proximately resulted from the fall in

question.

Moreover, as demonstrated by _the

jury's note to the court, they were not

concerned with events after December 1982

6a

APPENDIX A

- at least nine months’ before’ the

operation. Thus, even assuming it was

error to charge on intervening negligence,

such error was harmless.

Plaintiff's motion for a new trial

will be denied.

SG lin 8 | Ie

—

;

#

7a

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LINDA A. FEUERER CIVIL ACTION

Ve

ADAMAR OF NEW

JERSEY, INC.

NO. 83-5931

ORDER

AND NOW, this 17th day of SEPTEMBER,

1985, upon consideration of plaintiff's

motion for a new trial and the defendant's

response thereto, it is hereby

ORDERED that the motion be and the

same is hereby DENIED.

BY THE COURT:

Joseph L. McGlynn, J. /s/

JOSEPH L. MC GLYNN, JR., J.

————————————errererrre

8a

APPENDIX B

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

NO. 85-1600

LINDA FEUERER,

Appellant

Vv.

ADAMAR OF NEW JERSEY, INC.

On Appeal from the United States

District Court for the Eastern District

of Pennsylvania

Civil No. 83-5931

(Honorable Joseph L. McGlynn, Jr.)

Submitted Under Third Circuit Rule

12 (b)

June 4, 1986

Before: ADAMS, WEISS, and HIGGINBOTHAM,

Circuit Judges

JUDGMENT ORDER

After consideration of all

contentions raised by appellant, it is

9a

APPENDIX B

ADJUDGED AND ORDERED that the

judgment of the district court be and is

hereby affirmed.

Costs taxed against appellant.

BY THE COURT,

Arlin M. Adams /s/

Circuit Judge

ATTEST:

Sally Mrvos /s/

Sally Mrvos, Clerk

DATED: June ll, 1986

10a

APPENDIX B

Page 2

85-1600

July 18, 1986

Certified as a true copy

and issued in lieu of a

formal mandate on July 18,

1986

Test: M. Elizabeth Ferguson

Chief Deputy Clerk, United

States Court of Appeals for

the Third Circuit

lla

APPENDIX C

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

NO. 85-1600

LINDA FEUERER,

Appellant

Vv.

ADAMAR OF NEW JERSEY, INC.

(Civil No. 83-5931)

SUR PETITION FOR PANEL REHEARING

Present: ADAMS, WEIS, and HIGGINBOTHAM,

Circuit Judges

The petition for panel rehearing

filed by appellant in the above-entitled

case having been submitted to the judges

who participated in the decision of this

court, and no judge who concurred in the

decision having asked for rehearing, the

petition for panel rehearing is denied.

BY THE COURT: |

Arlin M. Adams /s/

Circuit Judge

DATED: Jul 9 1986

SS