# Petition for Writ of Certiorari — Feuerer v. Adamar of New Jersey, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0064%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 479 U.S. 986 ## Text 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 ——