Opposition Brief — MARITIMETIME OVERSEASAS CORP. V. LINABABARY (No. 74-1079)

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LIBRARY | Supreme Court, J. $.

Lo ae es es ae

MAR 27 1975

IN THE

Supreme Court of the Unii

OCTOBER TERM, 1974

No. 74-1079

MARITIME OVERSEAS CORP., and INTERCON-

TINENTAL BULK TANK CORP.,

Petitioners,

against

HEROLD O. LINABARY,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

SHELDON TaBAK

Counsel for Respondent

Herold O. Linabary

299 Broadway

New York, New York 10007

Rounick TaBak Ezratty

AND HuTTNER

Of Counsel

INDEX

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Questions Presented for Review ...................

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The non-speculative evidence .................

Reasons for Denying the Writ ...................-.

I. Where the criteria for acceptance of certio-

Il.

rari in FELA and Jones Act cases are lack-

ing, and no basis exists upon which to argue

conflicts with a decision of this Court and be-

tween the Second and Fifth Cireuits and,

further, where the sole question presented is

the sufficiency of evidence, certiorari should

8 Fre or Peer ere

The decision of the District Court and of the

Court of Appeals creates no conflict between

the Fifth and Second Circuits and, therefore,

does not manifest inconsistent interpreta-

tions of this Court in Sentilles v. Inter-Carib-

bean Shipping Corp., 361 U.S. 107 (1959) ..

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ii TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases:

PAGE

Armstrong v. Commerce Tankers Corp., 423 F. 2d 957

2nd Cir. 1970), cert. denied, 400 U.S. 833 (1970) 14,

15, 16,17

Central Gulf Steamship v. Sambula, 405 F.2d 291 (5th

DP Sacclevetucey scastabnescetes ese. 12, 14, 15

Collins v. Penn Central Transportation Company, 497

a We Ree CO Gs BOUOD ose aces cnneccccnnces 15

Evans v. 8. J. Groves & Son, 315 F. 2d 335 (2nd Cir.

EA Cesena SU alee Ces Case adh veonkant 14, 15, 17

Fitzgerald v. A. L. Burbank & Co., 451 F. 2d 670 (2nd

SE ED osc iass duetn eh ceeue evans nes 12, 13, 16, 17

General Talking Pictures Corporation v. Western

Electric, 304 U.S. 175 (1938) ..........0ec0000- 12

Harris v. Pennsylvania R. R. Co., 361 U.S. 15 (1959) = 9

Henry & Braye v. A/S Ocean et al., Nos. 73-2153, 73-

2868 (2nd Cir., Jan. 6, 1975) ............ 12, 13, 16, 17

Inman v. Baltimore & Ohio R. R., 361 U.S. 138 (1959) 9

National.Labor Relations Board v. Waterman S. S.

Cg mee a aes ee CRUD once kis ae cdee bee 12

Rewis v. The United States, 369 F. 2nd 595 (5th Cir.

ERS IGA Sin pi ae pao Re ae ee 16

Rogers v. Missourt Pacific, 352 U.S. 500 (1957) ...9, 15, 16

Sentilles v. Inter-Caribbean Shipping Corp., 256 F.2d

156, reversed, 361 U.S. 107 (1959) ....... 2, 12, 13, 14,

15, 16, 17

Southern Power Company v. Northern Carolina Pub.

Service, 263 U.S. 508 (1924)

United States v. Johnston, 268 U.S. 220 (1925)

PO PIE LEO LAL LOGE LOE L Ee A IE ADE Pew 26.

TABLE OF CONTENTS

Other Authorities:

Comment, Federal Employees Liability Act—Certio-

rari Practice—Review of the Sufficiency of Evt-

dence, 6 VILL L. Rev. 549, 553 (1961) ..........

Goodhart, The Ratio Decidendi of a Case, 40 YALE

Da. a Se ED Sn avGhsas Govess cae srsessessss

Note, Federal Employers Liability Act, Apostasy of

Sufficiency of Evidence Policy, 4 MISS L. J. 418,

ye | SR rr rer err er Sree

Supreme Court Certiorari Policy in Cases Arising

Under the FELA, 69 HARV L. REV. 1441 (1956)

PAGi:

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

vr

No. 74-1079

rx

>

Maritime Overseas Corp., and INTERCONTINENTAL BuLk

Tank Corp.,

Petitioners,

against

Herotp O. Lrxasary,

Respondent.

4

7

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

Opinions Below

The unreported memorandum opinion of the District

Court, entered June 1, 1973, appears in Petitioners’ A ppen-

dix, page 9 (a). The judgment of the Court of Appeals,

decided without opinion on October 21, 1974, affirming the

District Court, appears in Petitioners’ Appendix, page

1 (a). The orders of the Court of Appeals denying a re-

hearing and a rehearing in banc were entered on Decem-

ber 2, 1974, and appear in Petitioners’ Appendix, pages

3 (a) and 4 (a).

Jurisdiction

Respondent agrees with petitioners’ jurisdictional state-

ment. No issue is presented on this point.

2

Questions Presented for Review

1. Is the decision of the Court below, upholding the Dis-

trict Court, a precedent-setting endorsement of a possibility

standard of medical causation?

2. Does the decision of the District Court and of the

Court of Appeals create a precedent-setting conflict be-

tween the Fifth and Second Circuits and, therefore, mani-

fest inconsistent interpretations of the decision of this

Court in Sentilles y. Inter-Caribbean Shipping Corp., 361

U.S. 107 (1959) ?

Statement of the Case

Respondent does not agree with the statement of the case

as presented by the petitioners. It is argumentative and

not supported by either the evidence or the latitude given

the jury in interpreting the evidence. It is necessary, how-

ever, for respondent to discuss the merits of petitioners’

version of the case.

Our position in this Court as in the Court below is that

there was evidence from which the jury might have reason-

ably concluded that negligent aggravation rendered sur-

gery mandatory and that in the absence of such negligence,

plaintiff’s injuries would have healed spontaneously with-

out surgery. Additionally, in the test for causation as

applied in FELA and Jones Act cases, the jury only need

have found that petitioners’ negligence played a part, even

the slightest, in producing the injury.

The facts

On September 10, 1970 respondent, an oiler aboard the

s/t Overseas ALIcE, fell on the after deck sustaining serious

injuries to the left knee. Following the accident he was

3

under the care of Chief Mate Papalios until the vessel

docked some thirty-six or so hours later.

Concerning the specific events which transpired during

this period of treatment aboard the vessel, the jury heard

testimony of the respondent, Chief Mate Papalios and

Third Engineer Cadek. They also evaluated certain docu-

mentary evidence which included the vessel’s Medical Log,

Accident Report and Ship’s Medicine Chest.

On September 12, 1970, the vessel docked at Martinez.

Respondent was discharged and reported the same day to

the United States Public Health Service Hospital, San

Francisco. Following an examination, X-rays and the ap- -

plication of a soft cast, respondent, not fit for duty but fit

for travel, was advised to report to a Public Health facility

near his home, Tacoma, Washington.

On September 23, 1970, respondent reported to the

United States Public Health Service Hospital in Seattle

where surgery was performed on September 28, 1970. Fol-

lowing the surgery, a staph infection developed which both

complicated the injuries and increased disability, pain and

suffering. As a result, respondent was in a cast until De-

cember 8, 1970. Treatment in Seattle continued until

August 13, 1971. Next, respondent becaine a patient at the

United States Public Health Service Hospital Outpatient

Clinic, Manhattan, New York, and the United States Public

Health Service Hospital, Staten Island, New York. A sec-

ond surgical attempt followed on February 15, 1972, which,

as Dr. Sherman stated (A188), ‘‘involved cutting away

three tendons that come down the inside and back of the

leg and normally insert or attach to the inside upper end

of the tibia or shin bone.’’

Following a three month rehabilitation period respondent

was again examined by Dr. Sherman on May 8, 1972, and

on April 9, 1973. His opinion, stated with a reasonable

degree of medical certainty (A203-204), was that “he still

OR BOE PRE

4

had a severe derangement of the left knee joint fcllowing

the two operations, and first, of course, the injury. He had

a markedly lax medial collateral ligament... He had a lax

anterior cruciate ligament. He had traumatic arthritis of

the left knee and a severe atrophy of the left thigh and

left calf musculature, despite exercise. . . that the atrophy

would not improve materially with further exercise, that

the arthritis would grow worse with the passage of time

and that he was—in my opinion he would never be able to

return to work aboard ship, although he would have an

earning capacity for work on shore.”

While petitioner states that the jury might reasonably

have found some increase in pain or discomfort due to

negligent aggravation during the period September 11, to

September 28, they could also have found a great increase.

Further, no medical evidence compelled a finding that Sep-

tember 28, had to be the cut-off point. They could just as

reasonably have concluded that additional pain and dis-

comfort due to negligent aggravation continue into the

future. Considering the September 28, surgery as a time

reference, it is apparent that all pain and discomfort lead-

ing up to it was caused by the initial injury and the ag-

gravation resulting from the failure to properly treat.

_ Looking beyond, into the future, the cause of pain and dis-

ability are the initial injury, the negligent aggravation

and the unsuccessful surgery. How then can petitioner

confidently limit the causative effects of its negligence to

a two and one-half week period (September 11-September

28, 1970)?

The non-speculative evidence

Although no statement of fact appears in the memoran-

dum opinion upon which a determination as to which evi-

dence sustained the aggravation issue, petitioner is confi-

dent that the source lies in Dr. Harry Sherman. We dis-

agree. Dr. Sherman and Dr. Lodico, medical witnesses

ae

at the trial, were not aboard the ship at the time of the

accident; their opinions were the result of information

from various sources, which included actual examination

of the plaintiff, medical records, and second-hand knowl-

edge of the accident and subsequent events aboard the ves-

sel. On this latter source, the respondent, the Chief Officer

and the Third Engineer gave testimony in parts consistent,

in parts conflicting. While Dr. Lodico testified that the

damage to the knee was caused by the initial impact, the

Chief Mate, the ship’s medical officer, testified that he ob-

served only light swelling and that he had treated this

type of injury many times before.

(A233) :

Direct ExaMINATION

“Q. Did you also indicate in that report what condi-

tion you found when you examined him? A. Well it

is on the front over here. Light swelling around the

left knee.

Q. Light swelling around the left knee? A. Yes.

Q. That’s what you saw? A. Yes.

Q. That was your best judgment of what you saw

on his left knee. A. Yes.

Q. If you saw heavy swelling you wouldn’t put light

swelling, would you? A. No, sir. Well I have ao

reason to put lies on the injury report.’’

The Chief Officer had treated this type of injury many

times before.

(A252):

Cross ExaMInaTion

**Q. When he reported to you at that time, did you

go to the book to determine what treatment he should

have? A. Well, I went to the book, medical book and

I didn’t even have to look in the medical book because

that happens many times on ships and I knew the

treatment.’’

I RO PRED LA WLS ELI Y ete |

(A253-254) :

‘‘Q. You know everything in this book? A. Well,

I don’t know everything in the book but when I am

in doubt I look at the book. That happens to me many

times. I bump my knee myself, and I use the same

treatment.’’

(A257):

““Q. Did you examine and compare both knees? A.

Yes.

Q. And from your comparison of both knees, you

said it was a little swollen? A. Yes.’’

A permissible inference that the jury could have drawn

from this testimony was that the initial injuries to the

knee may not have been as severe as Dr. Lodico cate-

gorically stated had to occur immediately upon the initial

blow and, further, that healing without surgery may have

followed had proper medical treatment followed. Dr.

Sherman’s report of April 11, 1973 (plaintiff’s Ex. 22)

provided a medical basis for such an inference:

‘‘Many injuries of the knee joint involving medial

meniscus and medial collateral ligament will go on

to spontaneous healing with proper treatment. Many

doubtless require surgery despite proper treatment;

however, lack of such proper treatment almost cer-

tainly changes a potential non-surgical condition into

an absolutely surgical one.’’

Se ae ee re

mar

we

343

We urge that the jury could have accepted this aspect

of the Chief Mate’s testimony and still found him negligent.

It was for the jury to determine what a reasonable Chief

Mate would have done under circumstances described as

‘‘light swelling’. They were not bound to accept the

custom and practice of the trade. Further, we point out

that, with the plaintiff being under the Chief Mate’s care

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4

fa. LF CREE RAL OEIC Cy Sg AME AL PEL ILIA GLA LAL LAE EAI A PORE GH LAMAN LED IRS OFM

7

for thirty-six hours following the accident, the jury could

have found negligent conduct in any number of events in

which the Chief Mate participated. Plaintiff testified that

he requested hospital privileges and complete rest, that

he was required to go up and down stairs to the mess hall,

back and forth to the bathroom, that he was denied the

use of a cane or crutch, that he was instructed to use

hot epsom salts and compresses,’ that finally he had to

make several trips without assistance in removing all

his gear from the vessel. All of the above events were

incorporated into a hypothetical question put before Dr.

Sherman upon which he was asked:

(A171-176) :

“*Q. Doctor, with a reasonable degree of medical

certainty, do you have an opinion as to whether or not

the facts as I have asked you to assume, aggravated

the condition of the left leg and left knee?’’

“‘Q. Do you have an opinion? A. My answer is yes.

I do have an opinion.

The Court: That you can express with reason-

able medical certainty?

The Witness: Yes, sir.

Q. Doctor, if I repeated the same question in per-

tinent parts, do you have an opinion whether or not

the conditions caused an increase in pain and dis-

ability? A. I have an opinion as to that, also.

1 The adverse effect of this treatment was brought out in cross-

examination of Dr. Sherman. (A215).

“Q. Let me ask you, do you agree with this statement:

‘Mild massage with a liniment is also of value though usually

less effective than heat?’ A. ... As a matter of fact, if it

it not done properly, it may make it worse.

The Court: I was going to say it may aggravate a

condition, is that right?

The Witness: It may, it frequently does, your Honor.”’

SRR coreoorenena :

Q. Will you please state your opinion with a reason-

able degree of medica] certainty? A. My opinion is

first, the facts which you gave me would increase pain

and disability. Secondly, on the facts as you gave me,

it would materially aggravate and worsen the condi-

tions in Mr. Linabary’s left knee.’’

(A192):

‘**Q. Doctor, without repeating the hypothetical ques-

tion again, in your opinion and with a reasonable de-

gree of medical certainty, were the facts I asked you

to assume earlier the competent producing cause for

necessitating the operations and treatment as you out-

lined up until this time? A. Yes, they were.’’

It is submitted that both the Court below and the District

Court were correct in their opinion that sufficient evidence

did exist to permit a finding that petitioners’ conduct was

the proximate cause of the aggravation of the respondent’s

injuries.

Reasons for Denying the Writ

I. Where the criteria for acceptance of certiorari in

FELA and Jones Act cases are lacking, and no basis

exists upon which to argue conflicts with a decision

of this Court and between the Second and Fifth Cir-

cuits and, further, where the sole question presented

is the sufficiency of evidence, certiorari should not

be granted.

The memorandum opinion of the District Court affirmed

by the Court of Appeals for the Second Circuit states only

a conclusion of law without supporting facts. No basis

exists to determine the principle of law upon which it is

founded. Therefore, a discussion of conflicts with an

opinion of the United States Supreme Court as well as

between and within circuits is inappropriate and premature.

al

9

A review of the great number of FELA and Jones Act

cases in which the Supreme Court reviewed the sufficiency

of evidence relating to an employer’s negligence as the

cause of an injury or death, examined within the guidelines

of Rule 19 (Supreme Court Rules), might very well lead

one to conclude that the Court has expended considerable

effort outside the normal scope of its business. However,

a fair reading of these cases decided indicates that a con-

sistent policy underlies the generous granting of certiorari.

We believe this policy is rooted in both an awareness that

the intent of the Act is to provide liberalized recovery,

consistently demonstrated by an almost unbroken string of

decisions favorable to the employee,? and a recognition by

certain members of the Court that a Seventh Amendment

Constitutional question is at issue, Rogers v. Missouri, 352

U.S. 500 (1957); Inman v. Baltimore & Ohio R. R., 361

U.S. 138, 146 (1959), dissenting opinion per J. Douglas;

Harris v. Pennsylvania R. R. Co., 361 U.S. 15 (1959). Con-

curring opinion per J. Douglas, Note, Supreme Court Cer-

tiorart Policy in Cases Arising Under the FELA, 69 HARV.

L. REV. 1441 (1956); Comment, Federal Employees Lia-

bility Act—Certiorari Practice—Review of the Sufficiency

of Evidence, 6 VILL L. REV. 549, 553 (1961); Note, Fed-

eral Employers Liability Act, Apostasy of Sufficiency of

Evidence Policy, 4 MISS L. J. 418, 421 (1971).

If the above considerations be sufficient to explain the

policy in granting certiorari, it then becomes significant

that in the instant petition, all such considerations are lack-

ing. Stated in its most simplistic elements, the matter now

before this court represents nothing more than petitioners’

dissatisfaction with a jury finding that its negligence

* During the period 1938 through 1954, 260 petitions for certio-

rari in FELA cases were filed; 149 dealt with sufficiency of evi-

dence issues; 37 petitions were granted and the Court approved

the removal of the case from the jury in only 5 cases and, in each,

the decision was 5 to 4. Note, Supreme Court Certiorari Policy in

Cases Arising Under the FELA, 69 HARV. L. REV. 1441 (1956).

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10

caused respondent’s injuries. Although petitioner has pre-

sented the matter in the form of legal conflicts between the

Second and Fifth Circuits, within the Second Cireuit and

with a decision of this Court, closer appraisal will reveal

that a proper foundation to support this contention does

not exist.

We take the position that before one can discuss the

legal principles of a case (on any level much less in a

Supreme Court forum) one must determine the underlying

principle or ratio decidendi. It is the ratio decidendi which

forms the authoritative element of the case. Lacking such

an authoritative element, the case represents no precedent.

Much has been written on the proper methed of deter-

mining this authoritative element.’ There is, however, a

common theme which involves the relationship between the

facts and the conclusions of a case as written in a judicial

opinion. We submit that there must exist a written opinion

stating not only a conclusion but also the facts. It is here

that we take issue with petitioners’ attempt to mold, shape,

or otherwise present the proceedings in the Courts below

as full-dressed legal conflicts. As correctly stated by peti-

tioner, the only pertinent opinion to result from the

barrage of legal activity below was the memorandum

opinion of District Judge Weinfeld. We point out that

this opinion contained only two sentences of significance to

the petitioners’ cause:

“Admittedly, his testimony contained contradictions, but

there was sufficient evidence, if believed to permit a finding

that defendant’s conduct was the proximate cause of the

aggravation of plaintiff’s injuries, including the surgical

procedures. (opinions omitted) The evaluation of his

testimony, in the light of its contradictions, was for jury

determination.”

*For an informative discussion of this topic see Goodhart,

The Ratio Decidendi of a Case, 40 YALE L. J. 161 (1930).

11

It is abundantly obvious that Judge Weinfeld did noth-

ing more than to state conclusions. All that can be fairly

said is that he found that contradictions existed but that

sufficient evidence also existed to submit the case to the

jury. Nowhere does he state any facts forming a basis for

his conclusion. The facts supporting petitioners’ entire

legal analysis presented here as well as in the Courts

below have been supplied by petitioner! By appending

these selected facts to the conclusions in the memorandum

opinion, petitioner has now skillfully attempted to raise it

to a precedent-setting stage, exhibiting conflicts not only

with this Court but on inter and intra circuit levels. In

effect, we have a novel situation in which the case posture

as presented has been created through the efforts of the

petitioner and the District Court Judge, the one supplying

the facts, the other the conclusions of law.

We suggest that this approach is an unacceptable method

of seeking certiorari, lacking in many respects the clearness

and sharpness of legal issues needed for Supreme Court

review. We further suggest that what occurred in the

Second Circuit, namely, an endorsement of the District

Court memorandum opinion, does not raise the opinion to a

precedent-setting level. The Second Circuit endorsement

can in no way be said to stand for a possibility standard

proposition. We urge that before this Court accept a

petition requesting that a “conflict” between circuits be

resolved, it first assure itself that true conflict exists as

authoritatively embodied in the opinions of the respective

cireuits and, further, that the issues at the heart of the

alleged conflict have been squarely presented to and clearly

decided by the respective circuits.

Intrinsic to our analysis of the proceedings below are

two deductions:

1. Factors supporting Supreme Court certiorari policy

in granting FELA and Jones Act petitions are lacking; and

2. Inter and intra circuit conflicts as well as a conflict

with an opinion of this Court cannot be intelligently dis-

cussed on the strength of the two sentence memorandum

opinion. =

If we are correct in our analysis, then the single issue

remaining is whether certiorari should be granted to

review a judgment where the sole issue is the sufficiency

of evidence necessary for a jury determination, and the

only persons to be affected by the outcome are the peti-

tioner and respondent. .

On this point, we are not without authority, for this

Court has addressed itself to this issue consistently ex-

pressing the opinion that the Supreme Court of the United

States will not grant a writ of certiorari merely to review

the evidence or inference drawn from it. General Talking

Pictures Corporation v. Western Electric, 304 U.S. 175

(1938); Southern Power Company v. Northern Carolina

Pub. Service, 263 U.S. 508 (1924); United States v. John-

ston, 268 U.S. 220 (1925) ; National Labor Relations Board

vy. Waterman 8S. 8S. Corp., 309 U.S. 206 (1940).

II. The decision of the District Court and of the Court

of Appeals creates no conflict between the Fifth and

Second Circuits and, therefore, does not manifest

inconsistent interpretations of this Court in Sentilles

v. Inter-Caribbean Shipping Corp.; 361 U. S. 107

(1959).

Petitioner maintains that the Court below, upholding

the District Court, endorsed a remote possibility standard

of medical causation in conflict with the decisions of this

Court and its own decision of Fitzgerald v. A. L. Burbank

& Co., 451 F. 2d 670 (2nd Cir. 1971), and Henry & Braye

v. A/S Ocean et al., Nos. 73-2153, 73-2868 (2nd Cir., Jan.

6, 1975). In addition, petitioner claims that this Court’s

decision of Sentilles y. Inter-Caribbean Shipping Co., 361

U.S. 107 (1959), needs to be clarified as to whether it

stands for a possibility standard of medical causation al-

legedly approved by the Fifth Circuit in Central Gulf

Steamship Corp. v. Sambula, 405 F. 2d 291 (5th Cir. 1968),

13

and allegedly followed by the District Court and Court of

Appeals herein, or a probability standard pursuant to

Fitzgerald and Henry & Braye. Thus, petitioner asserts

a conflict of circuits. Petitioner juxtaposes the possibility

standard with jury speculation.

Assuming that the decisions of the District Court and

Court of Appeals are precedent-setting, which they are

not, petitioner nevertheless has created a conflict between

circuits and within the Second Cireuit where no conflict

exists. Both circuits have followed a liberal standard of

causation in line with Sentilles, which is clear in its lan-

guage and intent. Emphasizing the labels “possibility’’,

“probability’’, and “speculation” is misleading and con-

trary to the meaning of Sentilles. Assuming, arguendo,

that such labels are appropriate, there is nonetheless no

conflict.

Petitioner has chosen to limit its quotation from Sentilles

to “most likely causes” and “the accident probably ag-

gravated his condition”. In Sentilles, in response to a

hypothetical question as to the effect of an accident on the

activation of a pre-existing, dormant tubercular condition,

one medical specialist stated that the condition of the peti-

tioner therein might be a consequence of the accident. An-

other specialist stated that the trauma and a pre-existing

diabetic condition were the likely causes of the activation,

but made the qualification that he was not able to state

“which of the two is more likely was responsible in this

instance”. Still another medical expert was of the opinion

that the accident “probably aggravated his condition”,

but made the qualification, “We don’t ever select one item

and say it is the cause of the particular aggravation’’. 361

U.S. at 109 (emphasis added). The Court stated that even

absence of medical testimony or lack of medical unanimity

is not controlling.

A more careful reading of Sentilles thus demonstrates

not only the above qualifications and the use of might but,

more importantly, suggests that such labelling itself is

14

inappropriate. “The matter does not turn on the use of

a particular form of words by physicians in giving their

testimony.” 361 U.S. st 109 (emphasis added).

Sentilles concluded that a case should not be taken away

from the jury merely because there are inconsistent and

uncertain inferences. 361 U.S. 110.

Petitioner would have us believe that the memorandum

decision (9a of Petitioners’ Appendix) of Judge Weinfeld,

affirmed by the Court of Appeals (2a of Petitioners’ Ap-

pendix), citing Central Gulf Steamship Corp. v. Sambula,

405 F. 2d 291 (2nd Cir. 1968), determines the standard of

medical causation of the Second Circuit and, thereby,

creates a conflict within the Second Circuit and between

the Fifth and Second Circuits.

However, the District Court correctly suggests the

standard for the Second Circuit by reference to Armstrong

v. Commerce Tankers Corp., 423 F. 2d 957 (2nd Cir. 1970),

cert. denied, 400 U.S. 833 (1970), and Evans v. S. J. Groves

€ Son, 315 F. 2d 335 (2nd Cir. 1968). Both Armstrong and

Evans not only posit the standard for the Second Circuit

in line with Sambula, but also demonstrate that the Second

and Fifth Circuits need no clarification of Sentilles.

In Armstrong, the Court, determining that the sole issue

upon appeal was sufficiency of evidence, in granting a mo-

tion for judgment n.o.v., viewed the evidence in the light

most favorable to the party other than the movant, and

stated that the test is ‘‘whether there is complete absence

of probative evidence to support a verdict for the movant”.

423 F. 2d at 958 (emphasis added). Again, arguendo, if

we are to think in terms of ‘‘possibility-probability”, the

Second Circuit standard herein is even more liberal than if

it were within the possibility range. It is certainly not

confined to probability. Also, it should be mentioned that

only where there is no probative evidence, does the jury

enter the realm of ‘‘sheer surmise and conjecture.’’ 423

F. 2d at 960.

PGI DN eh IEE

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LORE OPTED WA BALD WE OR IRE E —? orn ee

15

In Evans, there was medical testimony that a thrombosis

could be caused by the injury and that a resultant condi-

tion could develop. ‘‘We think the jury could infer from

this evidence, at least in the absence of proof that such an

occurrence was medically impossible, that in a given case

the two causes had cooperated to bring about the re-

sult... . It is true that no medical expert testified specifi-

cally as to the possibility of such cooperative causation,”’

315 F. 2d at 349 (emphasis added). Again, we are, at the

most, within the possibility range. See also Collins v. Penn

Central Transportation Company, 497 F. 2d 1296, 1297 (2d

Cir. 1974), reaffirming the Second Circuit position in Arm-

strong and Evans.

Sambula, in the Fifth Circuit, and Evans and Armstrong

in the Second Cireuit, do not stand for differing legal

standards of medica] causation. Sambula, while using the

‘‘possibility’’ label, even quotes Sentilles for the proposi-

tion that there are no magic words, that a particular choice

of words by the physician does not determine a case.

Again, for the sake of argument, if we are to use labels,

Evans and Armstrong stand more for ‘‘possibility’’ than

‘*probability.”’ In any case, both circuits give the jury the

widest latitude: ‘‘‘Courts are not free to reweigh the

evidence and set aside a jury verdict merely because the

jury could have drawn different inferences or conclusions

or because judges feel that other results are more reason-

able.’ Tenant v. Peoria and P.U.R. Co., 321 U.S. 29,

35...” Sambula, 405 F. 2d at 301, quoting Sentilles, 360

U.S. at 110. ‘‘A jury’s verdict is not likely to be set aside’’

unless there is no probative evidence. Armstrong, 423 F.

2d 959, 960.

In Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500,

506 (1957), the Supreme Court, in a case involving suf-

ficiency of evidence, held that the test of causation is

‘‘whether the proof justified with reason the conclusion that

employer negligence played any part, even the slightest,

in producing injury or death for which damages are

16

sought” (emphasis added). In addition, the Court ob-

served that the right to a jury determination is paramount,

and that special important reasons for a review are present

when litigants have been deprived of their right to a jury

determination. 352 U.S. at 510.

Petitioner, surprisingly, has placed extraordinary em-

phasis on Fitzgerald v. A. L. Burbank & Co., 451 F.2d

670 (2nd Cir. 1971), and Henry & Braye v. A/S Ocean,

Nos. 73-2153, 73-2868 (2nd Cir. Jan. 6, 1975).

Fitzgerald cites Rogers and Sentilles for the same

propositions which respondent has mentioned herein:

Proof of negligence may be based upon an employer play-

ing any part, even the slightest, in producing the injury or

death. The jury may decide whether there is proximate

cause even in the absence of medical testimony. Also,

Fitzgerald as does Armstrong, states that the jury is not

permitted to speculate on proximate cause in the absence

of reasonably persuasive proof, but Fitzgerald indicates

that the jury iin ts aaltnie oni dodae ta @ase_even

counter to medical testimony or causation. 451 F. 2d at

681. Respondent takes no issue with these positions.

On the other hand, petitioner quotes from 451 F. 2d

681 wherein the label ‘“‘probability’’ appears. Respondent

feels that here petitioner is grasping at straws. Fitzgerald

is not determinative of the Second Circuit on this point.

Fitzgerald used the label ‘‘probability” in a paragraph

discussing a prima facie case. 451 F. 2d at 681. It should

be noted that Fitzgerald does not rely upon nor interpret

Sentilles, but cites a Fifth Circuit case, Rewis v. The

United States, 369 F. 2nd 595 (5th Cir. 1966), indicating

the inappropriateness and futility of petitioners’ attempt to

create a disparity between the Second and Fifth Circuits

based upon the magic words ‘‘possibility’’ and ‘‘proba-

bility’’, unless petitioner wishes to concede that Fitzgerald

misinterpreted the Fifth Circuit and should have adopted

a possibility standard in line with Sambula. Since Fitz-

gerald is not relying upon nor interpreting Sentilles, but is

, Biles oe pesierer ee

— PROPS EEL OO AOL ITE Ly LE senaiaditeh demidimiaditinms PPT ERL APO OP

17

looking to the Fifth Circuit, wherein petitioner claims the

possibility standard exists, petitioner should re-examine its

improper emphasis on ‘‘possibility-probabality’’ labels and

should look to Sentilles for clarity on the use of particular

words.

Petitioner maintains that Henry & Braye, Nos. 73-2153,

73-2868 (2nd Cir. Jan. 6, 1975), reaffirms petitioners’ in-

terpretation of Fitzgerald. In Henry & Braye, the Court

stated that Braye was obligated to offer some reasonable

proof that his injuries were proximately caused by the

defendant. Here, the Court cited Fitzgerald, on the issue

of speculation. As in Armstrong, in Henry, “the jury was

left with no competent proof of causation.’”? Henry, slip

opinion, page 1153 (emphasis added). Nowhere in the

decision does the question of ‘‘probability-possibility”’

arise. Sentilles is mentioned for the proposition that

that the medical testimony need not be introduced in every

case. The liberal Second Circuit standard of Armstrong

and Evans is reaffirmed. _

ae CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petition for writ of certiorari be denied.

Dated: New York, New York

March 26, 1975.

Respectfully submitted,

SHELDON TABAK

Counsel for Respondent

Herold O. Linabary

299 Broadway

New York, New York 10007

Rouyick TaBak Ezratry

AND HutTTNER

Of Counsel