Reply Brief — Elliott v. Mercury Marine

No. 90-814

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

ASHLEY ELLIOTT,

‘ Petitioner,

MERCURY MARINE, a Division of Brunswick Corporation,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

REPLY TO BRIEF IN OPPOSITION

BRUCE J. ENNIS, JR.*

ANN M. KAPPLER

JENNY? & BLOCK

21 Dupont Circle, N.W.

Washington, D.C. 20036

(202) 223-4400

R. BEN HOGAN, III

~ HOGAN, SMITH, ALSPAUGH, SAMPLES-

& PRATT, P.C.

2323 Second Avenue North

Birmingham, Alabama 35203

(205) 324-5635

Counsel for Petitioner

Ashley Elliott

* Counsel of Record

ae

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

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TABLE OF CONTENTS

Page

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APPENDIX A

In re: Outboard Marine Corp., No. 90-7686, Order

of the United States Court of Appeals for the

Eleventh Circuit denying Petition for Rehearing

on Petition for Writ of Mandamus, filed Novem-

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APPENDIX B

Beech v. Outboard Marine Corp., No. 89-1815

Order of the Supreme Court of Alabama lifting

stay and setting briefing schedule, filed December

ARRAS Cea a Rs Be Ppa Pea 2a

ii

TABLE OF AUTHORITIES

CASES Page

Beech v. Outboard Marine Corp., Civil Action No.

89-AT-0789-M (N.D. Ala.) ....... - passim

Beech v. Outboard Marine Corp., No. 89- 1815

Cf RReeitt ened as Se mince” A _...... passim

Erie Railroad v. Tompkins, 304 U.S. 64 (1938) . 3

Exron Corp. v. Eagerton, 462 U.S. 176 (1983) _.... 3

General Motors Corp. v. Edwards, 482 So.2d 1176

(Ala. 1985) ........... ‘sds Les oncobchabewapicanigae are Retete acc 4

Guaranty Trust Co. v. York, 326 U.S. 99 (1945)... 5

In re McLinn, 739 F.2d 1395 (9th Cir. 1984) (en

banc) ....... spicnshiaibacieiestipeleipeaiadigielos saancdnaeie eibaaademeteumameta nein 7

Lovell v. Marion Power Shov el Co. 909 F.2d 1088

2, he SE SRR SORE Ord Bula Hach. bs aN 5

Russell v. Salve Regina College, 890 F.2d 484 (ist

Cir. 1989), cert. granted, in part, 110 S.Ct. 3269

PI vsiscsossistnahis a caeetsoshnbdencieadyatacleaedaeaegiaaaset aaa 6

Salve Regina College v. Russell, No. 89-1629

IE sinisck vsicscinshelbatnentysuiasieesen eee naan ene ses ae

United States v. Hohri, 482 U.S. 64 (1987) —......... 6, 7

MISCELLANEOUS

R.Stern, E. Gressman & S. Shapiro, Supreme Court

fe BR | Re Ue 2

IN THE

Siyrenw Cert of the United States

OCTOBER TERM, 1990

No. 90-814

ASHLEY ELLIOTT,

Petitioner,

Vs

Mercury MARINE, a Division of Brunswick Corporation,

Respondent.

Petitien for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

REPLY TO BRIEF IN OPPOSITION

This case presents simple, yet extraordinary, circum-

stances. The Court of Appeals overturned a jury verdict

in favor of Elliott on the basis of the court’s view on un-

settled issues of Alabama state law. In reaching its de-

cision, the court accorded no deference to the District

Court’s ruling and did not employ the appropriate method

of analysis in discerning state law. The Supreme Court

of Alabama is about to resolve the identical issues of

Alabama law pursuant to questions drafted and certified

by the same District Court Judge who presided in this

case, and the highest state court is extremely likely to

disagree with the Eleventh Circuit’s pronouncements.

2

This Court need only direct the Eleventh Circuit to recon-

sider this case in light of the state court’s definitive state-

ment on the outcome-determinative issues of state law, in

order to vindicate well-settled concepts of fundamental

fairness and the principles of comity and cooperative

judicial federalism. None of respondent’s arguments

supports denial of certiorari.

ARGUMENT

1. Respondent’s principal argument is that granting

certiorari would force this Court to “hold the case on its

docket for the indefinite future.” Brief for the Respond-

ent in Opposition at 8, 15, 20 (hereafter “Opp.”). Ap-

parently, respondent did not read the Petition for Cer-

tiorari. Elliott specifically requested that the Court

“orant certiorari, vacate, and direct the Eleventh Cir-

cuit to reconsider its determination of [the] state law

issues once the Alabama Supreme Court has ruled.” Peti-

tion for a Writ of Certiorari at 3 (hereafter “Pet.’’). As

petitioner noted, nothing more is required of this Court:

“the Eleventh Circuit can itself correct its decision once

it is provided the necessary guidance by the Supreme

Court of Alabama.” 7d. at 22.

Even if this Court decides, alternatively, to hold the

Petition for consideration after the Supreme Court of

Alabama has ruled, there would be nothing remarkable

about that decision. This Court routinely holds petitions

for certiorari pending resolution of another case when,

as here, the interests of justice counsel such action. See

R. Stern, E. Gressman & S. Shapiro, Supreme Court

Practice $5.9 (6th ed. 1986) (noting that a petition for

certiorari may be held, without the Court’s taking any

action, “until an imminent state court decision is ren-

dered on a controlling issue of state law’’).

There is nothing “indefinite” about the future of the

certified questions the Supreme Court of Alabama has

agreed to address in Beech v. Outboard Marine Corp.,

3

No. 89-1815. The Supreme Court will be poised to answer

those questions within the week.?

Granting certiorari would not create undesirable prece-

dent. Respondent suggests that it would support this

Court’s holding the petition of a party seeking review of

an adverse decision in one court of appeals pending the

decision of the same issue in another court of appeals.

See Opp. 16 n.7. But, of course, one court of appeals is

not required to follow the decision of another court of ap-

peals; consequently, there would be no justification for

awaiting the later decision. This case is critically differ-

ent. The Eleventh Circuit must follow the decisions of

the Supreme Court of Alabama on issues of substantive

Alabama law. See, e.g., Exxon Corp. v. Eagerton, 462

U.S. 176, 181 n.3 (1983); Erie Railroad v. Tompkins,

304 U.S. 64 (1938). And the Supreme Court of Ala-

bama, in a case containing “no legitimate, factual or

legal distinction,” will resolve ‘the identical issues of

Alabama law” that control this case. Beech v. Outboard

Marine Corp., Civil Action No. 89-AT-0789-M, Memo-

randum Opinion at 3-4 (N.D. Ala., Sept. 19, 1990); Pet.

App. 17a-18a (hereafter “Mem. Op.”). Respondent can-

not avoid the inevitable conclusion that Elliott will be

the only litigant subjected to the Eleventh Circuit’s er-

roneous prediction and misconstruction of Alabama law

if the state court ruling on state law is different from the

Eleventh Circuit’s prediction. In this narrow context,

fundamental fairness and principles of comity and co-

operative judicial federalism call for this Court to va-

cate the Court of Appeals’ decision.

2. Respondent’s assertion that Elliott has not articu-

lated an error of federal law is baffling. Petitioner

demonstrates at length that the Eleventh Circuit failed

to ‘employ the appropriate method of analysis under

1 Defendant Outboard Marine Corporation’s brief must be filed

by January 11, 1991. See Beech v. Outboard Marine Corp., No. 89-

1815, Order (Dec. 13, 1990); 2a.

4

this Court’s Erie decision in attempting to ascertain Ala-

bama law. Pet. 15-18.

Perhaps because it realizes that the Eleventh Circuit’s

analysis is indefensible and that the court’s speculation on

Alabama law is incorrect, respondent grossly mischar-

acterizes petitioner’s argument and then knocks down the

strawman it has erected. Thus, respondent unjustifiably

charges Elliott with arguing that “the Eleventh Circuit

ignored Alabama authorities and rendered its decision

solely on the basis of rulings from other jurisdictions.”

Opp. 9 n.3. This charge is plainly false. As petitioner

frankly discusses (Pet. 17 n.21), the Eleventh Circuit in-

toned Alabama precedents in beginning in analysis. But

as the District Court explained in Beech v. Outboard

Motor Corp., the case on which the court, and respondent,

rely—General Motors Corp. v. Edwards, 482 So.2d 1176

(Ala. 1985)—is not controlling. Mem. Op.; Pet. App.

16a. In General Motors, the state court did not rule upon

the legal issues presented here.

Respondent stubbornly resists recognition that the

Court of Appeals cited no Alabama authority supporting

its two narrow, outcome-determinative rulings on Alabama

state law: that an unguarded boat propeller is not danger-

ous beyond the reasonable expectations of an ordinary

consumer, see 903 F.2d at 1507; Pet. App. 6a; and that

the lack of a propeller guard on the market at the time

this motor was manufactured precluded a finding that a

safer alternative design was available, see 903 F.2d at

1509-1510; Pet. App. 8a-lla. Respondent makes no at-

tempt to defend the court’s unexplained and inexplicable

reliance on precedents from other jurisdictions on these

two issues of law. See Pet. 17-18. Respondent may ap-

prove of the federal court’s decision as to what it thought

Alabama law should be, but that cannot substitute for

proper consideration of what Alabama law is. The Su-

preme Court of Alabama will definitively articulate Ala-

bama law regarding these two specific issues in respond-

5

ing to certified questions 2 and 3 in Beech. See Pet.

App. 24a. And the state court is most likely to disagree

with the Eleventh Circuit’s views.?

Had this litigation proceeded in the Alabama courts,

Elliott’s lawsuit would have been resolved under the cor-

rect and controlling statement of Alabama law, which the

Supreme Court of Alabama will articulate imminently;

instead, petitioner was subjected to the Eleventh Circuit’s

faulty analysis and almost certainly incorrect prediction.

This discrimination, which occurred only because of the

“fortuitous circumstances of residence out of [the] State

of one of the parties to the litigatien,”’ Guaranty Trust

Co. v. York, 326 U.S. 99, 112 (1945), should not be sanc-

tioned by this Court.

3. Respondent seeks to avoid the patent injustice evi-

dent here by denying that the questions certified in Beech

are “identical” to the outcome-determinative issues of

Alabama law decided by the Eleventh Circuit below. See

Opp. 17-19.* Respondent’s denial is unavailing. The Dis-

trict Court Judge who censidered numerous motions in

this case, presided over the trial on the merits, and up-

held the jury’s verdict, and who has presided over the

Beech case for over one and one-half years, ruled

* Respondent spends most of its energy defending the Eleventh

Cireuit’s decision. But it fails to explain why the Supreme Court

of Alabama accepted the certified questions if it thought the

Eleventh Circuit had ruled correctly. In any event, respondent is

wrong. Respondent, for example, makes no attempt to reconcile the

court of appeals’ decision with the Alabama precedent demonstrat-

ing that the “open and obvious” complete defense is not recognized

in Alabama. See Pet. 19. Compare Lovell v. Marion Power Shovel

Co., 909 F.2d 1088 (7th Cir. 1990) (discerning that Indiana law

recognizes no such defense).

3 Strangely, respondent recites at length the Beech plaintiff’s un-

successful arguments regarding the alleged factual differences be-

tween the two cases. Opp. 18-19 & n.8. In deciding to certify

questions, the District Court flatly rejected these arguments, ex-

plicitly holding that there is “no legitimate, factual . . . distinction

between [the two cases].” Mem. Op. at 4; Pet. App. 18a.

6

that there is no legitimate distinction, either factual or

legal, between tlie two cases. Beech, Mem. Op. at 3-4;

Pet. App. 17a-18a. That same judge drafted the certi-

fied questions of Alabama law that the Supreme Court of

Alabama will soon resolve. The judge carefully explained

that the questions were based on the factual and legal

issues presented in Elliott. See id.‘ Thus, the certified

questions in Beech, if answered favorably to Elliott, will

mandate a different outcome here.

4. As discussed in the Petition for Certiorari and

above, petitioner has demonstrated ample reason for

granting certiorari in this case, but there is more. This

case presents the precise issue this Court will resolve in

Salve Regina College v. Russell, No. 89-1629—the proper

standard of review regarding a district court’s resolution

of state law issues in a diversity case.°

In Salve Regina College, the court of appeals deferred

to the district court’s ruling on state law issues of first

impression. See Russell v. Salve Regina College, 890 F.2d

484 (1st Cir. 1989). In this regard, the court followed

the traditional, accepted practice, which recognizes that

the district court judge has greater familiarity with the

law of the State in which he or she sits. See, e.g., United

States v. Hohri, 482 U.S. 64, 74 n.6 (1987). Petitioner

in Salve Regina College argues that every party is en-

titled to de novo appellate review of a district court de-

4 Thus, respondent is simply wrong in asserting that the certified

questions in Beech do not present the same issues decided in this

case. Contrary to respondent’s contention, questions 1, 2, 4 and 5

do not assume the existence of a feasible propeller guard. Opp. 19.

That is the very issue those questions seek to resolve.

5 This Court’s grant of certiorari in Salve Regina College refutes

respondent’s suggestion that cases controlled by state law do not

warrant this Court’s attention. Like Salve Regina College, this case

“involv[es| fundamental questions of fairness and the allocation of

power between the federal and state judiciaries.” Salve Regina

College v. Russell, No. 89-1629, Petitioner’s Brief on the Merits at

13. See Pet. 3, 12.

7

cision on issues of state law.° See In re McLinn, 739

F.2d 1395, 1397 (9th Cir. 1984) (en bane) (rejecting

the rule of deference and replacing it with an “independ-

ent de novo standard” of review).

As in In re McLinn, the Eleventh Circuit utilized a de

novo standard in reviewing the outcome-determinative

issues of state law in this case; the court accorded no

deference whatsoever to the District Court’s decision de-

spite the fact that the state law questions arise under the

law of the District Court’s home jurisdiction.’ Elliott

notes in her Petition that, in this regard, the Court of

Appeals departed from generally accepted practice among

the federal courts of appeals. Pet. 15 n.19. If this Court

holds in Salve Regina College that a district court’s rul-

ing on state law issues (at least regarding the law of

the State in which the district judge sits) is entitled to

any level of deference, the Eleventh Circuit’s decision

should be vacated and remanded for reconsideration un-

der the proper standard of review. Thus, at the very

least, this case should be held pending this Court’s de-

cision in Salve Regina College.

® Petitioner has requested this Court either to reverse and re-

mand for an independent de novo review of the controlling issues

of state law, or to reverse and certify those issues to the state

supreme court for resolution.

* Furthermore, the court of appeals’ opinion was written by a

senior judge from the Federal Circuit sitting in the Eleventh Cir-

cuit by designation. See 908 F.2d at 1505 n.**; Pet. App. la. See

also United States v. Hohri, 482 U.S. at 74 n.6 (noting that the

“problem” of “Federal Circuit judges ... not be{ing] familiar with

questions of state tort law ... is mitigated considerably by the fact

that those cases are tried before local federal district judges, who

are likely to be familiar with the applicable state law, [and] a dis-

trict judge’s determination of a state-law question usually is re-

viewed with great deference”).

8

CONCLUSION

For all the foregoing reasons, as well as the reasons set

forth in the Petition for Certiorari, this Court should

grant the Petition for Certiorari, vacate the Eleventh

Circuit’s decision below and direct the court to reconsider

its decision once the Supreme Court of Alabama has an-

swered the state law questions certified in Beech v. Out-

board Marine Corp., No. 89-1815. Alternatively, the

Court should (1) defer consideration of the Petition for

Certiorari pending the Supreme Court of Alabama’s de-

cision in Beech, and, if the Supreme Court of Alabama

rules differently than the Eleventh Circuit, thereafter

grant the Petition, vacate the Eleventh Circuit’s deci-

sion, and remand for reconsideration, or (2) hold the

Petition pending this Court’s decision in Salve Regina

College v. Russell, No. 89-1629.

Respectfully submitted,

BRUCE J. ENNIS, JR.*

ANN M. KAPPLER

JENNER & BLOCK

21 Dupont Circle, N.W.

Washington, D.C. 20036

(202) 223-4400

R. BEN HOGAN, III

HOGAN, SMITH, ALSPAUGH, SAMPLES

& PRATT, P.C.

2323 Second Avenue North

Birmingham, Alabama 35203

(205) 324-5635

Counsel for Petitioner

Ashley Elliott

JANUARY 1991 * Counsel of Record

APPENDICES

la

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 90-7686

IN RE: OUTBOARD MARINE CORPORATION,

Petitioner.

On Petition for Writ of Mandamus to the

United States District Court for the

Northern District of Alabama

ON PETITION(S) FOR REHEARING

(Nov. 28, 1990)

BEFORE: FAY, COX and BIRCH, Circuit Judges.

PER CURIAM:

The petition(s) for rehearing filed by Outboard Ma-

rine Corporation is denied.

ENTERED FOR THE COURT:

/s/ Emmett R. Cox

United States Circuit Judge

2a

APPENDIX B

IN THE SUPREME COURT OF ALABAMA

December 13, 1990

89-1815

Ex parte Matthew Beech, a minor, who sues through his

father and next friend, Thomas L. Beech v. Outboard

Marine Corporation

CERTIFIED QUESTION FROM THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN DISTRICT

OF ALABAMA, MIDDLE DIVISION

(89-AR-0789-M }

ORDER

The United States Court of Appeals for the Eleventh

Circuit denied the petition for rehearing on the petition

for writ of mandamus filed by the defendant, Outboard

Marine Corporation, it is, therefore, ordered that the

stay entered by this Court on October 23, 1990, is lifted.

The brief of the defendant, Outboard Marine Corpora-

tion, is due to be filed in this Court within 21 days from

the date of this order.

I, Robert G. Esdale, as Clerk of the Supreme Court

of Alabama, do hereby certify that the foregoing is a

full, true and correct copy of the instrument(s) here-

within set out as same appear(s) of record in said

Court.

Witness-my-hand this 13th day of Dec., 1990.

/s/ Robert G. Esdale

Clerk

Supreme Court of Alabama