Opposition Brief — Feuerer v. Adamar of New Jersey, Inc.

Supreme Court, U.S.

Bee &.

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4) NOV 4 1986

e JOSEPH F. SPANIOL, JR.

NO. 86-579 CLERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

LINDA FEUERER,

Petitioner

VSe

ADAMAR OF NEW JERSEY, INC.,

Respondent

BRIEF OF RESPONDENT ADAMAR OF NEW

JERSEY, INC. IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

MARK ALAN CORCHIN

MESIROV, GELMAN, JAFFE

CRAMER & JAMIESON

1500 FIDELITY BUILDING

PHILADELPHIA, PA. 19109

(215) 893-5000

ATTORNEYS FOR RESPONDENT

PAGE

TABLE OF Pig, « 36. ¢¢ . FP ere eee eee eS

COUNTERSTATEMENT OF THE CASE. .ccccccccccecceel

REASONS FOR NOT GRANTING THE WRIT

I.

Il.

ABSENT A CONFLICT BETWEEN THE THIRD

CIRCUIT'S RULING AFFIRMING THE

DISTRICT COURT'S ORDER DENYING

FEUERER'S MOTION FOR A NEW TRIAL

AND THE DECISIONS OF THIS COURT,

THE THIRD CIRCUIT, OTHER CIRCUITS

AND THE HIGHEST COURT OF THE STATE

OF NEW JERSEY, NO REASON EXISTS

FOR GRANT OF CERTIORARI .cccccccceveeed

THE ALLEGED PRESENT CONTROVERY

IS NOT OF SUFFICIENT MAGNITUDE

AND IMPORTANCE TO WARRANT

CONSIDERATION BY THE HIGHEST

COURT IN THE UNITED STATES...cccceeeed

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COUNTERSTATEMENT OF THE CASE

This Brief is submitted by ADAMAR OF NEW

JERSEY, INC. ("Adamar"), the Defendant in

this personal injury action, in opposition to

the Petition by the Plaintiff, LINDA FEUERER

("Feuerer"), for a Writ of Certiorari to the

United States Court of Appeals for the Third

Circuit to review the Judgment Order denying

Plaintiff's Petition for a panel rehearing

with the Third Circuit, and affirming the

final Order of the United States District

Court for the Eastern District of

Pennsylvania denying Plaintiff's Motion for a

New Trial.

This case involves a personal injury

action brought in the United States District

Court for the Eastern District of

Pennsylvania because of diversity of

-l-

citizenship, in which Feuerer sought damages

from Adamar resulting from a fall in a public

restroom on December 9, 1981.

A jury trial resulted in a verdict in

favor of Feuerer in the amount of Fifty

Thousand Dollars ($50,000.00). The verdict

was molded to Thirty-seven Thousand Five

Hundred Dollars ($37,500.00) because of the

jury's determination that Feuerer was twenty-

five percent (25%) responsible for the

damages she sustained on December 9, 1981.

The judgment was subsequently molded to

account for pre-judgment interest.

Feuerer filed a Motion for a New Trial

contending, inter alia, that the verdict was

against the weight of the evidence; that the

verdict was inadequate as a matter of law;

and that the lower court had erred in its

charge to the jury.

On September 17, 1985, the District

Court, citing Feuerer's desire for an

"opportunity to convince another jury to take

a more generous view of her claims," and the

"serious questions concerning the credibility

of the Plaintiff, her experts and her

treating physicians," denied the Motion. The

District Court further stated that the jury

Charge, which is the basis of the present

Petition for Writ of Certiorari, when read

"In context, that portion of the charge

properly informed the jury that it had the

right to determine the cause of plaintiff's

injuries."

On September 30, 1985, Feuerer appealed

to the Third Circuit from the District

Judge's Memorandum and Order denying her

Motion for a New Trial. On June ll, 1986,

the Third Circuit entered a Judgment Order,

without memorandum or opinion, affirming the

judgment of the District Court.

On June 25,1986, Feuerer filed a

Petition for a Panel Rehearing with the Third

Circuit. On July 9, 1986, the Third Circuit

entered an Order, without opinion, denying

the Petition for Rehearing.

Feuerer filed this Petition for Writ of

Certiorari to the United States Court of

Appeals for the Third Circuit on October 7,

1986.

REASONS FOR NOT GRANTING THE WRIT

I. ABSENT A CONFLICT BETWEEN THE THIRD

CIRCUIT'S RULING AFFIRMING THE |

DISTRICT COU::T'S ORDER DENYING FEUERER'S

MOTION FOR A NEW TRIAL AND THE DECISIONS

OF THIS COURT, THE THIRD CIRCUIT, OTHER

CIRCUITS AND THE HIGHEST COURT OF THE

STATE OF NEW JERSEY, NO REASON EXISTS

FOR THE GRANT OF CERTIORARI.

The Third Circuit did not overlook,

misapply and/or disregard the decisions of

the Supreme Court, other Circuit Courts and

the highest Court of the State of New Jersey

in affirming the District Judge's ruling on

the propriety of the charge dealing with

intervening negligence. The Third Circuit's

decision is also not in direct conflict with

its own well-established precedents.

The District Judge did not commit

reversible error in instructing the jury on

the issue of intervening negligence.

Petitioners take a portion of the jury charge

=~

completely out of context and argue that it

was a misstatement of the law. As the

District Judge stated in his Memorandum and

Opinion of September 17, 1985,

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 congential 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.

The District Judge's charge was proper

and not erroneous; therefore, the cases which

Petitioner cites in her Petition, which state

that where a lower court applies an incorrect

legal standard, a new trial is mandatory,

Simply do not apply. It follows that the

~B-

Claimed conflict does not and cannot exist.

The Third Circuit did not disagree with the

decisions of the United States Supreme Court,

other circuit courts, the Third Circuit

itself, and the New Jersey Supreme Court

decisions which Petitioner cites, as these

decisions are totally inapplicable.

II. THE ALLEGED PRESENT CONTROVERSY IS NOT

OF SUFFICIENT MAGNITUDE AND IMPORTANCE

TO WARRANT CONSIDERATION BY THE HIGHEST

COURT IN THE UNITED STATES.

The United States District Court for the

Eastern District of Pennsylvania and the

Third Circuit Court of Appeals have fully

considered and correctly decided the issues

presented by this case. In fact, the Third

Circuit affirmed the District Court's

decision without opinion. The present case

is a standard personal injury action, which

is in Federal Court because of a diversity of

~

a

citizenship. There exist no conflict, no

Federal question and no issue of sufficient

magnitude and importance to warrant the

attention of this Court.

The decision below turns on its own

facts and will affect few others than the

litigants. As a unanimous Supreme Court

stated in Layne and Bowler Corp. v. Western

Well Works, 261 U.S. 387, 393, 43 S.Ct. 422,

423, 67 L.Ed. 712 (1923):

[I]t is very important that we be

consistent in not granting the writ of

certiorari except in cases involving

principles the settlement of which is of

importance to the public, as

distinguished from that of the parties,

and in cases where there is-a real and

embarrassing conflict of opinion and

authority between the Circuit Courts of

Appeals.

Given the workload of the Supreme Court

and the lack of importance of the issues

-§-

which Petitioner presents, the Petition for

Writ of Certiorari should be denied.

CONCLUSION

Respondent respectfully submits that

Petitioner failed to establish any reason

justifying the issuance of a Writ of

Certiorari to the United States Court of

Appeals for the Third Circuit. Specifically,

Petitioner has failed to show that the Third

Circuit is in conflict with this Court, other

Circuit Courts, itself, or the New Jersey

Supreme Court, or that the issues which

Petitioner presents are of sufficient

magnitude and importance to warrant

consideration by this Court.

Rgspectfully submitted,

bee

MA ALAN CORCHIN

Attorneys for Respondent,

Adamar of New Jersey, Inc.

=10=

ROLE 28.1] STATEMENT

Pursuant to Rule 28.1 of the Rules of

the Supreme Court, Respondent makes the

following statement disclosing parents, non-

wholly owned subsidiaries and affiliates:

ADAMAR_ OF NEW JERSEY, INC,.:

Ramada, Inc. (Parent corporation)

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