# Opposition Brief — MARITIMETIME OVERSEASAS CORP. V. LINABABARY (No. 74-1079) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0941%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1974 ## Text : te 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 Ces: TI coin ks cerdvey hb basccaneeeneanceues PE Ss ce ddo sec cie seeker use ieeeki eee Questions Presented for Review ................... RE, OE ME EO ono cate sabwaeeenestscine rss ee UNE. ceee kc cenyeweeavelseleeuces dein 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) .. CORON "ove caw cock akan eee eek wkcec kee Sete. - PM tO 12 17 penmncnniernensninnNnnenaNl * / 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 Ba sisapHinghe Wty Span I OER A ENR SRE BER ES os OEE 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). a Sk hl " ee cl iia OS ate OLN RT ee | seen LER = eR AREY BERIT LE al ON 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 — el 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0941%3A2. Public record. Not legal advice.