Opposition Brief — Hanson v. Arrowsmith

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No. 89-383 ||. Ser 2% ws

JOSEPH F. SPANIOL, JR.

TLERRK

_, Bupreme Court, US. me |.

* FILED

In the Supreme Court of the United States

OCTOBER TERM, 1989

LARRY RAY HANSON,

Petitioner,

vs.

PETER N. ARROWSMITH, M.D.; PETER N. ARROW-

SMITH, M.D., P.C.; AND ARROWSMITH

EYE INSTITUTE,

Respondents.

On Writ oF CERTIORARI TO THE UNITED STATES

Court oF APPEALS FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

Noeu F. STAHL

(Counsel of Record)

W. GreGcory MILLER

CorNELIUS & COLLINS

Suite 2900

Third National Financial Center

Post Office Box 2808

Nashville, Tennessee 37219

615/244-1440

Attorneys for Respondents

E. L. Menpennatt, Ixc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

ee -

BEST AVAILABLE COPY.

QUESTION PRESENTED FOR REVIEW

Whether the district court committed reversible error

by submitting this case to an eight person jury when

Petitioner consented to an eight person jury prior to

trial pursuant to Fed. R. Civ. P. 48 and Petitioner failed

to object to an eight person jury when the case was

submitted for deliberation? x

II

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ................... I

TABLE OF AUTHORITIES ...200002002.0.2.2. cece III

STATUTORY PROVISIONS INVOLVED ...........W....... 1

I SI 1

STATEMENT OF THE CASE W000 3

REASONS FOR DENYING WRIT .....000 on... y

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III

TABLE OF AUTHORITIES

Cases

Ballew v. Georgia, 435 U.S. 223 (1978) —....0000..... 8,9, 13

Brown v. Louisiana, 447 U.S. 323 (1980) 2.00... 13

Colgrove v. Battin, 413 U.S. 149 (1973) _.20 ww... passim

DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d

ci weiss dmnieissteprnianioesnintibidilehe nntiatnisc 10

Hanson v. Parkside Surgery Center, 872 F.2d 745

s,s scnesemsowanpenaonsatonannal 8, 11

Kuykendall v. Southern Railway Co., 652 F.2d 391

EGS SORTIETS Cd REPLACE SENS 9-10

Latex Supply Co. v. Freuhauf Trailer, 444 F.2d 1366

(5th Cir.), cert. denied, 404 U.S. 942 (1971) ........ 10

Seese v. Volkswagenwerk, A.G., 648 F.2d 833 (3rd

Cir.), cert. denied, 454 U.S. 867 (1981) —..0 2... 10

United States v. Davis, 608 F.2d 698 (6th Cir. 1979),

cert. denied, 445 U.S. 918 (1980) 2.002. 10

United States v. Levesque, 681 F.2d 75 (ist Cir.

ia ieladcnabdinbenetennsinhsanninnsénsnenssheoxesnenins 11

United States v. Viserto, 596 F.2d 531 (2d Cir.), cert.

Genesee, 444 US. 841 (1078) ....................................... 10

Williams v. Florida, 399 U.S. 78 (1970) .......... date 8,9, 12

Constitutional Provisions

RI WIE o6dcascsccscccsccsscecsenssstensesenssscscecscscsces 10

Statutory Provisions

int cnicsoanssnerecasnaenntivaccanionsnbunenascisiasese 1,10

Rules

IIIS T,.TEID " ncssiaisntiinereeseeiiasienpssicvabasigbinaniianiniiie 2, 3, 6, 8,9

I IEE SI cs aseickcsacomastntinsennshiondasiaosmnasasslilasaeancenanai passim

| a a 1, 7, 11, 13

ST cs a ee eae 11

a 11

Locai Rules of Court for the Middle District of Ten-

| REI RO Be See © 0 NR OOM PR 7, 8,11

Secondary Authorities

Zeisel, .. . And Then There Were None: The Dimi-

nution of the Federal Jury, 38 U. Chi. L. Rev. 710 12

STATUTORY PROVISIONS INVOLVED

Petitioner has misquoted the current language of 28

U.S.C. § 2072 (Supp. 1989). The statute now provides

as follows:

(a) The Supreme Court shall have the power to

prescribe general rules of practice and procedure in

the United States district courts (including proceed-

ings before magistrates thereof) and courts of ap-

peals.

(b) Such rules shall not abridge, enlarge or mod-

ify any substantive right. All laws in conflict with

such rules shall be of no further force or effect

after such rules have taken effect.

The prior version of 28 U.S.C. § 2072, as quoted by

Petitioner, was repealed in 1988 and replaced with the

above provisions in the Judicial Improvements and Access

to Justice Act, Pub. L. 100-702, Title IV, § 401(a), 102

Stat. 4648 (1988).

RULES INVOLVED

Rule 48 of the Federal Rules of Civil Procedure

provides as follows:

Juries of Less Than Twelve - Majority Verdict. The

parties may stipulate that the jury shall consist of

any number less than twelve or that a verdict or

a finding of a stated majority of the jurors shall

be taken as the verdict or finding of the jury.

(Emphasis added).

2

Rule 10(c) of the Federal Rules of Appellate Pro-

cedure provides as follows:

(c) Statement tke Evidence or Proceedings

When No Report Was Made or When the Transcript

is Unavailable. If no report of the evidence or pro-

ceedings at a hearing or trial was made, or if a

transcript is unavailable, the appellant may prepare

a statement of the evidence or proceedings from

the best available means, including the appellant’s

recollection. The statement shall be served on the

appellee, who may serve objections or proposed

amendments thereto within 10 days after service.

Thereupon the statement and any objections or pro-

posed amendments shall be submitted to the district

court for settlement and approval and as settled and

approved shall be included by the clerk of the dis-

trict court in the record on appeal.

Rule 10(e) of the Federal Rules of Appellate Pro-

cedure provides, in pertinent part, as follows:

(e) Correction or Modification of the Record.

If any difference arises as to whether the record

truly discloses what occurred in the district court,

the difference shall be submitted to and settled by

that court and the record made to conform to the

truth. If anything material to either party is omit-

ted from the record by error or accident or is mis-

stated therein, the parties by stipulation, or the

district court either before or after the record is

transmitted to the court of appeals, or the court of

appeals, on proper suggestion or of its own initiative,

may direct that the omission or misstatement be

corrected, and if necessary that a supplemental rec-

ord be certified and transmitted.

(Emphasis. added).

STATEMENT OF THE CASE

The jury trial in this medical malpractice case began

on January 13, i986, in the United States District Court

for the Middle District of Tennessee. On the first

morning of trial Judge John Nixon summoned counsel

to chambers to discuss and clarify various trial proce-

dures including voir dire, chalienges of jurors and the

numerical composition of the jury. The conference was

not transcribed, but the substance of the discussion in

chambers was later certified by the trial judge and made

a part of the record in accordance with Fed. R. App. P.

10(c) and (e).

The judge and all counsel discussed and agreed upon

the jury selection process. Judge Nixon explained that

twenty jurors would be brought into the courtroom. The

court would allow six peremptory challenges for plain-

tiffs and six for defendants. After the parties exercised

all twelve peremptory challenges, a jury of eight would

be sworn and seated with no designation of alternate

jurors. At the end of trial, if both sides agreed, then

each side would dismiss one juror, and the remaining

jury of six would decide the case. If both sides did

not agree to excuse two jurors, then the case would

be submitted to the full jury of eight.

All counsel were present during the conference in

chambers, and no one objected to the procedure proposed

by the trial court. To the contrary, all counsel expressed

their understanding of and agreement with the method

of jury selection and the number of jurors who would

hear the case.

When the trial began, Judge Nixon followed the exact

procedure which had been discussed and agreed upon in

4

chambers. Petitioner’s counsel did not object to the trial

court seating eight regular jurors with no alternate jurors

at that time or at any other time during the four day

trial. |

Following closing arguments and the jury charge,

the case was submitted to the eight regular jurors. After

the jury retired and began its deliberations, Petitioner’s

counsel asked about reducing the size of the jury. The

entire colloquy between court and counsel on this issue

(which occurred after the jury retired) was as follows:

PETITIONER’S COUNSEL: Excuse me, Your Honor,

are we not going to strike down to six?

TRIAL JUDGE: You want to strike to six or go to

all eight?

RESPONDENTS’ COUNSEL: I prefer to let it go

to all eight.

PETITIONER’S COUNSEL: I want to strike to six.

TRIAL JUDGE: It’s up to the Court. I’m going

to let it go to all eight.

Petitioner’s counsel never objected. Petitioner’s counsel

never voiced any complaint that the trial court was de-

viating from the procedure that had been agreed upon

prior to trial. Instead—consistent with the procedure

discussed in chambers—Petitioner’s counsel merely ex-

pressed his desire to strike down to six jurors and then

sat mute when, in the absence of an agreement between

the parties, the trial judge allowed all eight regular

jurors to continue their deliberations.

The eight member jury returned a unanimous ver-

dict in favor of Respondents. The trial court entered

judgment on the verdict on January 22, 1986.

5

On February 3, 1986, Petitioner timely filed a motion

for new trial which, inter alia, contained the conclusory

assertion that the trial court erred by submitting the

case to an eight person jury. Petitioner filed no brief

in support of the motion for new trial and did not indi-

cate why the use of an eight person jury pursuant to

agreement might constitute error warranting a new trial.

In opposition to the motion for new trial, Respondents

filed a memorandum of law that fully recounted the

pretrial conference in which all counsel and the trial

court had agreed upon the procedure which produced

an eight person jury. On September 19, 1986, the trial

court denied Petitioner’s motion for new trial.

Ten days later Petitioner filed a motion to recon-

sider the denial of new trial. For the first time in the

proceedings—almost eight months after the original mo-

tion for new trial—Petitioner’s trial counsel asserted

there had been no agreement regarding the procedure

which led to an eight person jury. While the motion

to reconsider was pending, Petitioner filed a Notice of

Appeal on October 8, 1986, thereby divesting the trial

court of jurisdiction. The case was docketed in the Sixth

Circuit Court of Appeals on October 15, 1986.

Petitioner then discharged his trial counsel, and on

November 14, 1986, Steven A. Riley filed a Notice of

Appearance as substitute counsel. Petitioner’s new coun-

sel also moved the trial court to stay all proceedings

even though jurisdiction over the case was vested in

the Court of Appeals. Three days later, on November 17,

1986, Petitioner’s new counsel sent a letter to the Clerk

for the Sixth Circuit Court of Appeals in which he

argued against his own client’s Notice of Appeal and

6

further argued that Petitioner’s appeal should be dis-

missed and the case remanded to the trial court. By

letter dated December 30, 1986, the Clerk for the Sixth

Circuit advised that the Court of Appeals would not

rule on Petitioner’s challenge to his own Notice of Ap-

peal and that the appeal would proceed as previously

scheduled.

On January 23, 1987, Respondents moved the district

court, pursuant to Rule 10, Fed. R. App. P., to supple-

ment the record with a narrative statement describing

the pretrial conference in which the court and all coun-

sel had agreed upon the jury selection process. After

reviewing affidavits from all trial counsei for both Peti-

tioner and Respondents, Judge Nixon supplemented the

trial record with the following Statement on the Evi-

dence or Proceedings:

On the morning of January 13, 1986, all coun-

sel were summoned to chambers where a number

of preliminary matters were discussed, including the

procedure which would be followed in selecting a

jury to try this case. The jury selection process

which the court described to all counsel was as fol-

lows: twenty jurors would be brought to the court-

room and placed in the jury box and in a row of

seats in front of the box. During voir dire, plain-

tiffs would be allowed six peremptory challenges

and the defendants would be allowed six peremptory

challenges between them. After all twelve chal-

lenges had been exercised a jury of eight persons

would be sworn and seated and no alternate jurors

would be specifically designated. The case would

then be tried to all eight jurors. At the end of

7

the trial if both sides agreed to excuse two of the

jurors then each side would select one juror who

would be dismissed and the remaining jury of six

persons would retire to deliberate. If both sides did

not agree to excuse two jurors at the end of the

trial, then the case would be submitted to a jury

of eight. “a

All counsel were present when this procedure

was described and discussed and no one objected

to it. All counsel had the opportunity to ask the

court questions about the procedure and expressed

their understunding and agreement with the manner

of jury selection and the number of jurors who would

hear the case. This procedure was then followed

during voir dire, throughout the trial of the case,

and when the evidence was concluded and the case

submitted to the jury for its consideration.

(Emphasis added). The district court judge expressly

certified that the foregoing narrative statement accu-

rately and truthfully set forth the in-chambers discus-

sion of the procedure which produced the eight person

jury.

On appeal, the Sixth Circuit rejected Petitioner’s

assertion that the eight person jury violated led. R.

Civ. P. 47(b) and Local Rule 12(j). The Sixth Circuit

based its decision on Fed. R. Civ. P. 48 and the pretrial

stipulation of the parties regarding the jury selection pro-

cedures.

We conclude that Fed. R. Civ. P. 48 does not pre-

clude a stipulation such as that found by the dis-

8

trict court.* Likewise, we find that the local rule

does not preclude waiver by a stipulation entered

into pursuant to Rule 48,

‘In reaching this decision we reject plaintiff's

overly restrictive reading of Fed. R. App. P. 10 and

find the district court’s statement on the evidence

or proceedings is properly before us pursuant to Fed.

R. App. P. 10(e).

Hanson v. Parkside Surgery Center, 872 F.2d 745, 748

(6th Cir. 1989) (citations omitted).

In dicta the Sixth Circuit went on to note that even

if there had been technical violations of Fed. R. Civ. P.

47(b) and Local Rule ‘12(j), the violations would be

reviewed under the harmless error standard. Relying on

this Court’s opinions in Ballew v. Georgia, 435 U.S. 223

(1978), Colgrove v. Battin, 413 U.S. 149 (1973), and

Williams v. Florida, 399 U.S. 78 (1970), the Sixth Cir-

cuit concluded “that no right was violated and therefore

that no reversible error occurred despite the departure

from authorized jury size.” Hanson, 872 F.2d at 750.

Petitioner filed a Petition for Rehearing En Banc.

When no judge of the Sixth Circuit requested a vote

for rehearing en banc, the petition was denied by Order

entered on June 6, 1989.

REASONS FOR DENYING WRIT

Petitioner asks this Court to review an issue that

is not presented by the record. The record shows not

only that Petitioner failed to object to the eight person

jury, but also that he agreed to the eight person venire

before the jury was impanelled. There were no alter-

nate jurors in the deliberations, and Fed. R. Civ. P. 47(b)

did not come into play." Moreover, even if the record

did raise the Rule 47(b) issue advanced by Petitioner,

there is no reasopsfor this Court to reconsider the well-

established principles regarding the effect of jury size

on the right to trial by jury as set forth in Ballew v.

Georgia, 435 U.S. 223 (1978), Colgrove v. Battin, 413

U.S. 149 (1973), and Williams v. Florida, 399 U.S. 78

(1970).

The principal reason for denying certiorari is that

the record squarely contradicts the assertions on which

Petitioner bases his argument. There were no alternate

jurors, and Petitioner’s attorneys did agree to the pro-

cedure which produced an eight person jury.” Since no

alternate jurors participated in the jury deliberations,

the reported cases cited by Petitioner, including the

Fourth Circuit’s decision in Kuykendall v. Southern Rail-

1. Petitioner has never identified the so-called “alternate”

or “extra” jurors, because no alternate jurors were ever desig-

nated. The case was decided by eight “regular” jurors, and

this Court should not be misled by Petitioner’s repeated refer-

ences to non-existent and unidentifiable “alternate” jurors.

2. The district court’s Statement on the Evidence or Pro-

ceedings stands unchallenged as the record on appeal regarding

the pretrial stipulation on jury selection procedures. Petitioner

does not ask this Court to review the procedure by which the

district court supplemented the record. Nor does Petitioner

challenge the Sixth Circuit’s finding that the record was prop-

erly supplemented pursuant to Fed. R. App. P. 10.

10

way Co., 652 F.2d 391 (4th Cir. 1981), are simply inappli-

cable. Moreover, the circuit courts of appeal that have

considered the issue are unanimous in holding that a

party cannot claim error with regard to a jury selection

procedure discussed with and agreed to by his own trial

counsel. United States v. Viserto, 596 F.2d 531, 539-40

(2d Cir.), cert. denied, 444 U.S. 841 (1979); Seese v.

Volkswagenwerk, A.G., 648 F.2d 833, 847-49 (3rd Cir.),

cert. denied, 454 U.S. 867 (1981); DeBenedetto v. Good-

year Tire & Rubber Co., 754 F.2d 512, 514-15 (4th Cir.

1985); Latex Supply Co. v. Freuhauf Trailer, 444 F.2d

1366, 1367 (5th-Cir.), cert. denied, 404 U.S. 942 (1971);

United States v. Davis, 608 F.2d 698 (6th Cir. 1979),

cert. denied, 445 U.S. 918 (1980).

Petitioner’s plea to this Court is premised not only

on a mischaracterization of the record but also on a mis-

characterization of the ruling below by the Sixth Circuit

Court of Appeals. The Sixth Circuit did not sanction .

violations of Rule 47(b); nor did it authorize the pres- .

ence of alternate jurors in jury deliberations; nor did

it apply the harmless error standard to a purported vio-

lation of the Seventh Amendment right to a trial by

jury. The only holding by the Sixth Circuit—which

Petitioner conveniently never mentions in his Petition—

was that the record supported the district court’s finding

3. It should be noted that Petitioner did not even mention

the Seventh Amendment in the district court nor in his orig-

inal arguments to the Sixth Circuit. The first time that Peti-

tioner even suggested that his Seventh Amendment rights might

be affected was in his Petition for Rehearing En Banc after

the Sixth Circuit had already issued its opinion. In any event,

this Court has already rejected Petitioner’s argument that the

Seventh Amendment guarantees a particular number of jurors

and the argument that 28 U.S.C. § 2072 supposedly prohibited

any deviation from the number of jurors used under the com-

mon law. Colgrove v. Battin, 413 U.S. 149, 158-63 (1973).

11

of a Rule 48 stipulation to the jury selection procedures

that produced an eight person jury. Hanson, 872 F.2d

at 748-49. Indeed, Petitioner identifies no issue and pre-

sents no argument that calls into question the actual

holding of the Sixth Circuit. This Court should not

grant certiorari to review fictitious rulings on a fictitious

record. The actual record from the trial court and the

actual ruling by the Sixth Circuit do not warrant review.

Even the dicta of the Sixth Circuit—which Petitioner

misrepresents as the holding—does not merit the atten-

tion of this Court. Petitioner’s arguments are directed

at the following observation of the Sixth Circuit:

Moreover, assuming that Rule 47(b) and that Local

Rule 12(j) may have been violated, we still believe

such violations are subject to the application of the

harmless error standard of Fed. R. Civ. P. 61. Cf.

United States v. Levesque, 681 F.2d 75, 80 (1st Cir.

1982) (violation of Fed. R. Crim. P. 24 warrants

reversal only where irregularity affects substantial

rights).

Hanson, 872 F.2d at 749 (emphasis added). The Sixth

Circuit’s dicta is, of course, consistent with this Court’s

conclusion that the mere size of a jury does not impinge

on any substantial right of a party so long as the jury

is “large enough to facilitate group-deliberation com-

bined with a likelihood of obtaining a representative

cross section of the community.” Colgrove v. Battin,

413 U.S. 149, 160 n.16 (1973).

In Colgrove the Petitioner challenged a local rule

of court that prescribed a jury of six instead of twelve

for trial of all civil cases. Relying heavily on its prior

12

decision in Williams v. Florida, 399 U.S. 78 (1970), this

Court stated:

[T]he question comes down to whether jury reli-

ability is a function of jury size. In Williams we

rejected the notion that “the reliability of the jury

as a factfinder .. . [is] a function of its size,” and

nothing has been suggested to lead us to alter that

conclusion.

Colgrove, 413 U.S. at 157 (citation omitted).

Petitioner is actually claiming error on the anom-

alous ground that he received more of a “representative

cross section” and more of an opportunity to avoid de-

feat than he deserved under the rules. One dissenting

juror would have prevented a victory for Respondents,

and Petitioner had a higher probability of one dissenting

view with a group of eight than with a group of six.‘

See, Zeisel, .. . And Then There Were None: The

Diminution of the Federal Jury, 38 U. Chi. L. Rev. 710,

717-18. :

If this case involved outside influences on the jury’s

deliberations, or if this case involved unqualified jurors,

Petitioner might legitimately claim a violation of sub-

stantial rights. Petitioner, however, does not contend

that the jury was manipulated or wrongfully infiuenced

in any way. Nor does he claim that any two of the eight

jurors were incompetent or unqualified. Faced with a

unanimous verdict for Respondents, Petitioner simply

4. Petitioner claims he was prejudiced because he “faced

the burden of convincing eight, not six, people.” Petition for

Writ of Certiorari at 12 n.3. A litigant who cannot convince

one juror has little reason to complain about the extra “burden”

of convincing eight rather than six.

13

asserts a baseless preference for six jurors rather than

eight. Petitioner never explains why a jury of eight

should be per se reversible error when juries of six or

juries of twelve are conclusively valid.

In fact, given the historical ideal of a twelve person

jury, it is hard to find any reasoned basis for Petitioner’s

adamant insistence on a panel of six instead of eight.

As Justice Marshall observed, “All one can say is that

a jury of six functions less like a jury of 12 than would

a jury of, say eight .. .” Colgrove, 413 U.S. at 180-81

(Marshall, J., dissenting). Moreover, the exhaustive em-

pirical studies reviewed by this Court in Ballew v. Geor-

gia, 435 U.S. 223, 231-40 (1978), support the conclusions

that a jury of eight would, if anything, be more reliable,

more representative, and more likely to foster effective

deliberation than a jury of six. See also, Brown v. Lou-

isiana, 447 U.S. 323, 332 (1980); Colgrove, 413 U.S. at

158-60.

In summary, the submission of this case to an eight

person jury did not violate or even implicate any sub-

stantial rights of Petitioner. To the contrary, Petitioner’s

claim was unanimously rejected by a more representa-

tive and more reliable jury than he was entitled to under

the law. Most importantly, however, the record in this

case simply does not raise the issue presented by Peti-

tioner. There were no alternate jurors in the jury de-

liberations, and Petitioner agreed to the procedure that

produced the eight person jury. The Sixth Circuit did

not authorize deviations from Fed. R. Civ. P. 47(b); it

merely enforced the Petitioner’s stipulation under Fed.

R. Civ. P. 48.

14

CONCLUSION

For the foregoing reasons, this Court should deny

the Petition for Writ of Certiorari.

Respectfully submitted,

Noe. F. STAHL

W. Grecory MILLER

CorNELIUS & COLLINS

Suite 2900

Third National Financial Center

Post Office Box 2808

Nashville, Tennessee 37219

615/244-1440

Attorneys for Respondents

15

CERTIFICATE OF SERVICE

I, Noel F. Stahl, a member of the Bar of the Su-

preme Court of the United States and counsel of record

for Peter N. Arrowsmith, M.D., Peter N. Arrowsmith,

M.D., P.C., and Arrowsmith Eye Institute, Respondents

herein, hereby certify that on this 28th day of September,

1989, the requisite number of copies of the foregoing

brief were served upon Steven A. Riley, BASS, BERRY

& SIMS, 2700 First American Center, Nashville, Tennes-

see 37238, attorneys for Petitioner, by United States mail,

postage prepaid.

-Noet F. Srann

CorNELIUS & COLLINS

Suite 2900

Third National Financial Center

Post Office Box 2808

Nashville, Tennessee 37219

615/244-1440