Opposition Brief — Mount v. Sumner

iUPREME COURT, U &

IN THE

Supreme Court of the United States

October Term, 1975

No. 75-54

LINDA ANN MOUNT and

JEROLD H. MOUNT, her husband,

Petitioners,

v.

HAROLD R. SUMNER,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

ROBERT 8S. GRIGSBY,

THOMSON, RHODES & GRIGSBY,

Attorneys for Respondent.

1724 Frick Building,

Pittsburgh, Pa. 15219.

BATAVIA TIMES, APPELLATE COURT PRINTERS <p

EDWARD W. SHANNON---SENIOR REPRESENTATIVE

HAROLD L. BERKOBEN, REPRESENTATIVE

1701 PARKLINE OR., PITTSBURGH, PA. 18227

412-061-7463

INDEX.

Page

I UN PEs Cacti ev a een sabe kN Adv eee bebe |

eT aan lea Ce h en cicaiecn kadon bhp ta wom ena 2

SUNOS GMS Title FAVOIVOE 6 oicie ce eelcds ceeeneteee 2

die cin unc k Abs hOak oes Rhee eae 2

SE a si ad vaw sé cewk ps ewk ea hadns 3

NS RL eee er ee ees ee ee ee eee ee eee 4

I. Petitioners’ contention that District Courts

should not be permitted to employ six-number

juries in the trial of civil actions does not raise a

question warranting review by this Court........ 4

Il. Petitioner’s contention that a Circuit Court

should be required to write an opinion when af-

firming a District Court decision on a question of

state law does not raise a question re a

RS TE ie St wii ne kK Keon dee scene eh obs 6

III. Petitioners’ assertion the District Court was

applying the Pennsylvania statutory and decisional

law governing the limitation of medical malpractice

actions does not present a question warranting

See MING os Shes atudebw vs bale hou wei 7

CIN in 0 Re oS es ays Ame Ka oi RA KS on Sed baw 9

PTT eT TCL e TTT Tere TT eee 10

CASES CITED.

Appalachian Power Co. v. American Institute of Cer-

tified Public Accountants, 4 L.Ed.2d 30, 80 S.Ct. 16

GES Ve th 55 oon Roe Rha RA cdkbAaaa ye chaos a does « 9

Colgrove v. Battin, 413 U.S. 149 (1973) .............. 5, 6

PR ROE oe TTT!

Palmer v. Hoffman, 318 U.S. 109 (1943) ............ 9

Ragan v. Steen, 229 Pa. Super. 515, 331 A.2d 724 (1974) 7, 8

Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963) 7

Stephenson v. Duriron Co., 428 F.2d 387 (6th Cir. ), cert,

Goes: GaP US. GAS (UU ws civcesin ss easvissaass> 6

Taylor v. McKeithen, 407 U.S. 119 (1972)

raat keke es 6

STATUTES.

28 U.S.C

DER 4s sons cade hanihek deed eee clea s 2

CINE = 2d a0 0's 6 eeeien edne Sloman Gis Sie kitleh > bAaOaees 2

eg oe lp sk ee. DS ee 2

Pe. Ge: ei GR He Oe bck ora ok vc uc as cess asciusr 2,4

RULES.

Federal Rules of Civil Procedure:

ARG ins G44 KAMER ARGS EER Reba T Ok Eka at , oe

SVCECAAARAA RSAC ASR SOBRE WAEKR SCE OEE DE 6 RED EDO 28

SPRERBRAROBOADSREDDAROKG KOBE OE HE 4S

IN THE

Supreme Court of the United States

October Term. 1975

No. 75-54

LINDA ANN MOUNT and

JEROLD H. MOUNT, her husband,

Petitioner,

V.

HAROLD R. SUMNER,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

Opinions Below

The opinion of the United States District Court for the

Western District of Pennsylvania is set forth on pages A2-A5

of the appendix to petitioner's petition. This opinion is un-

reported.

The affirmance by the United States Court of Appeals for

the Third Circuit is noted at 513 F.2d 626, but not fully repro-

duced there. This order is set forth on the first page of the ap-

pendix to petitioner’s petition.

a et a ve yp ae Se tt ERS < . .

Se ne a can a ea ak eee i ae san itinal

Jurisdiction

Petitioners have invoked the jurisdiction of this Court to

issue a writ of certiorari to a Court of Appeals under 28

U.S.C. § 1254(1).

The jurisdiction of the District Court in which this action

was instituted was based upon the diversity of citizenship of

the parties under 28 U.S.C. § 1332.

Statute and Rule Involved

The Pennsylvania statute limiting the time for bringing ac-

tions for personal injuries, Pa. Stat. Ann. tit. 12, § 34: Act of

June 24, 1895, P.L. 236. § 2, which reads:

“Every suit hereafter brought to recover damages for

injury wrongfully done to the person, in case where the

injury does not result in death, must be brought within

two years from the time when the injury was done and

not afterwards; in cases where the injury does result in

death the limitation of action shall remain as now

established by law.”

Rule 48 of the Federal Rules of Civil Procedure, which

reads:

“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.”

= Questions Presented

1. Should a United States District Court be permitted to

employ a six-member jury in the trial of a civil action?

2. Is a United States Circuit Court required to write an

opinion when affirming a District Court’s application of state

Statutory and decisional law in a diversity action?

PEERLESS E

PSE EEE OE LY SRS AN TEDL TE SAE APNE NES

3. Did the United States District Court tor the Western

District of Pennsylvania properly apply the Pennsylvania

statutory and decisional law governing the limitation of

medical malpractice actions?

Statement of the Case

On September 27, 1972, petitioners commenced this action to

recover for alleged acts of medical malpractice committed by

respondent on and before November 10, 1966. Respondent is

an obstetrician who treated wife petitioner during the course

of several pregnancies, the last of which terminated in the

birth of a child on September 30, 1966. He last saw her in his

professional capacity on November 10, 1966, at which time he

examined her and advised her that her condition was satisfac-

tory. Approximately six weeks later, on December 25, 1966,

wife petitioner experienced a total loss of anal continency and

other symptoms which were alleged to be due to respondent's

failure to properly repair damage done to the anal sphincter

during the course of the several child births.

On January 21, 1974, a jury of six persons and one alternate

was selected to hear this case. After the jury was selected

counsel for both parties stipulated that the six-member jury

would be used and that a verdict of five jurors would be ac-

cepted if the jury should be reduced to that number. That

stipulation is set forth in the appendix to this brief.

The case was tried before the agreed upon jury and the

Honorable Herbert P. Sorg. The question of the Statute of

Limitations was submitted to the jury as part of a special ver-

dict and answered as follows:

1. Did plaintiffs know or should they have known on

or before September 27, 1970, the physical condition of

Linda Ann Mount for which they now claim damages

existed? Answer yes.

Ben eee ee ES ee Tad

4

2. Did plaintiffs know or should they have known on

or betore September 27, 1970, the alleged cause of the in-

juries to Linda Ann Mount for which they now claim

damages’? Answer yes.

In accordance with the District Court’s understanding of

Pennsylvania’s application of Pa. Stat. Ann., tit. 12, § 34

(limiting the time for bringing actions for personal injuries

to two years) in medical malpractice actions, judgment was

entered in favor of respondent. Petitioners then filed a

motion for a new trial, attacking the use and phraseology of

the special verdict questions. Substantively, they contended

respondent’s alleged failure to repair wife petitioner’s anal

sphincter gave rise to two causes of action: one for the non-

repair itself, the other for respondent’s not knowing that he

should look for a tear in the sphincter. They further contend-

ed that the Statute of Limitations only began to run against

the second cause of action after respondent's deposition was

taken during pretrial discovery.

The District Court denied petitioner’s motion for new trial

for the reasons stated in the opinion set forth on pages A2-A5

of petitioner’s petition. The Circuit Court affirmed the

judgment in favor of the respondent without opinion and

petitioners then filed the petition now under consideration.

ARGUMENT

I. Petitioners’ contention that District Courts should not

be permitted to employ six-number juries in the trial of

civil actions does nol raise a question warranting review by

this Court.

In the petition for certiorari petitioners, for the first time,

assert it is a mistake to permit the use of a six-number jury in

the trial of a civil action.

SELEPLLE LMR LO ROE TL GREE IE BE MELE EP IE IS EY

In Colgrove v. Battin, 413 U.S. 149 (1973), this Court held a

District Court may, by local rule, require six-number juries

for all civil actions. The dissent in that case was largely based

on the feeling that such a mandatory rule conflicted with

F.R.Civ.P. 48 (permitting the parties to stipulate to a jury

consisting of any number less than 12).

In the present case, petitioners, after agreeing to the use of

a six-number jury, now assert the use of such a jury should

not be allowed. Thus, on the bare assertion that a six-number

jury “does not have the internal strength and dynamics to

overcome the directions of a trial judge”', petitioners asked

the Court not only to overrule Colgrove, but also to invalidate

Rule 48.

In Colgrove the Court determined that a six-number jury is

as capable of performing its function as is one composed of

twelve, stating:

“Significantly, our determination [in Williams v.

Florida, 399 U.S. 78 (1970)] that there was ‘no discernible

difference between the results reached by the two dif-

ferent-sized juries,’ 399 US, at 101, 26 L Ed 2d 446, drew

largely upon the results of studies of the operations of

juries of six in civil cases. Since then; much has been

written about the six-member jury, but nothing that per-

suades us to depart from the conclusion reached in

Williams.” 413 U.S. at 158-59 (footnote omitted).

There is nothing in the present case which indicates the

Court should reconsider its decision in Colgrove. In the

“directions” which petitioners claim the jury should have

been able to “overcome” were, in fact, the trial Court’s ex-

planation of his understanding of the Pennsylvania law re-

garding the limitation of malpractice actions. Such ex-

planations are required by F.R.Civ.P. 49 and the jury is

obliged to follow, rather than “overcome”, then.

' Petitioner's petition at 7.

6

This case thus presents no reason to question the correct-

ness of the holding in Colgrove, and, a fortiori, no reason to

challenge the validity of F.R.Civ.P. 48. Therefore, the

question of the propriety of using a six-member jury in the

trial of a civil action does not require review by this Court.

II. Petitioner’s contention that a Circuit Court should be

required to write an opinion when affirming a District

Court decision on a question of state law does not raise a

question warranting a review by this Court.

In Taylor v. McKeithen, 407 U.S. 119 (1972), the Court,

while holding that, under the particular circumstances pre-

sented in that case, the Circuit Court should have explained

why it reversed the District Court, stated:

“We, of course, agree that the Courts of Appeals

should have wide latitude in their decisions of whether or

how to write opinions. That is especially true with respect

to summary affirmances. See Rule 21, Court of Appeals

for the Fifth Circuit Court.” /d. at 194 n.4.

It is a general practice of the Circuit Courts, and of this

Court, to affirm certain decisions of the Courts below without

opinion. The Sixth Circuit, for instance, has repeatedly

stated:

“ “It is not the policy or practice of this court in re-

viewing cases on appeal where a district court has ren-

dered a comprehensive opinion with which we find our-

selves in full agreement, to rewrite such an opinion

....’ ” Stephenson v. Duriron Co., 428 F.2d 387 (6th Cir. ),

cert. denied, 400 U.S. 943 (1970).

Petitioners advance no special circumstance requiring the

_ writing of an opinion here, but apparently contend the Circuit

Courts should be required to write opinions in all cases. In-

deed, if a Circuit Court may ever decline to write an opinion

——7E

it is in a case such as this. Here we have a diversity action in

which the only issues presented for the Circuit Court's review

were questions of state law. Thus, any opinion the Circuit

Court might have written would have been of limited

precedential value since it would have been only an attempt

to state what the Pennsylvania Courts would have done in a

similar situation. Further, the factual setting of this case is

not particularly novel and the legal issues raised have been

discussed in a number of Pennsylvania appellate Court

opinions. E.g., Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267

(1963), Ragan v. Steen, 229 Pa. Super. 515, 331 A.2d 724

(1974).

It is respectively submitted, therefore, that petitioners’

assertion that the Circuit Court should have written an

opinion presents no substantial issue for review by this Court.

III. Petitioners’ assertion the District Court was apply-

ing the Pennsylvania statutory and decisional law govern-

ing the limitation of medical malpractice actions does not

present a question warranting review by this Court.

Although petitioners’ complaint alleging respondent's

negligence was filed on September 27, 1972, they assert the

Statute of Limitations did not begin to run against them until

January 3, 1973. Petitioners’ petition at 6. This assertion is

based on the claim that, on January 3, 1973, they first learned

“that the defendant was negligent because he did not have the

requisite knowledge of a medical doctor specializing in ob-

stetrics.”” Jd. Neither here nor in the Courts below have

petitioners cited any authority for the proposition that the

reason for a person’s negligence gives rise to a cause of action

separate from the action for the negligence itself and, indeed,

none exists.

The correctness of the decisions below is demonstrated by

the opinion of the Superior Court of Pennsylvania’ in Ragan

v. Steen, 229 Pa. Super. 515, 331 A.2d 724 (1974), which was

decided after the District Court wrote its opinion but in time

to be cited in respondent's brief in the Circuit Court. In

Ragan, the plaintiff consulted his family physician concerning

a colony of plantar warts in September of 1968 and was re-

ferred to a local hospital for x-ray treatment. Soon after

treatment a blister developed but then healed in an apparent-

ly normal manner. In November of 1970, however, the tissue

in the area treated began to decompose. In March of 1971 the

plaintiff filed suit against the radiologist and the hospital. In

reviewing the submission of Statute of Limitations issue to the

jury, the Superior Court stated:

“The two year period on actions such as this begins to

run when the injury is done. It is undisputed in Penn-

sylvania that the injury is considered done ‘when the act

heralding a possible tort inflicts a damage which is

physically objective and ascertainable.’ Ayers v. Morgan,

397 Pa. 282, 290, 154 A.2d 788, 792 (1959). Appellants

contend that this point was reached when the blister on

the affected area appeared in October 1968 warning the

appellee of his damaged condition and that an act of

negligence had been committed. Appellee maintains that

since the blister healed, the warts were gone and the foot

appeared normal, he had no reason to know of the in-

jurious effects of the x-ray until November 1970 when the

area began to decompose. Which of these two positions is

substantiated by the evidence is a question which the jury

must decide. Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d

267 (1963), Ayers v. Morgan, supra.” Id. at 519-20, 331

A. 2d at 727.

a nce teen

* The highest court to which an appeal as of right can be taken in a

negligence action.

ES LAE IE TIS

9

From the above it is apparent that the special verdict

questions submitted to the jury were framed to elicit the facts

relevant under Pennsylvania law.

More to the point, this is solely a question of state law and

its resolution in this case is of no importance to anyone but

the parties. As such, it is not a question calling for review by

this Court. Supreme Court Rule 19: Appalachian Power Co. v.

American Institute of Certified Public Accountants, 4 |..E.d.2d

30, 80 S.Ct. 16 (1959) (opinion of Mr. Justice Brennan, in

chambers). Cf. Palmer v. Hoffman, 318 U.S. 109, 118 (1943).

Conclusion

The only issue of any substance in this case was submitted

to the jury agreed to by petitioners, and was decided by it.

For the reasons set forth above, the arguments presented by

petitioners are without merit and certainly not of sufficient

moment to warrant granting of a writ of certiorari. It is re-

spectfully submitted, therefore, that petitioners’ petition

should be denied.

Respectfully submitted,

ROBERT S. GRIGSBY,

THOMSON, RHODES & GRIGSBY,

Attorneys for Respondent.

ome

10

APPENDIX

Stipulation

IN THE UNITED STATES DISTRICT COURT

For the Western District of Pennsylvania

LINDA ANN MOUNT and JEROLD H. MOUNT,

her husband,

vs.

HAROLD R. SUMNER.

Civil Action No. 72-802.

AND NOW, January 21, 1974, it is stipulated and agreed

that a jury of six (6) persons will be used; that one (1) alter-

nate juror be called in the above entitled case. It is further

agreed that if the number of jurors is reduced to five (5), that

the verdict of the jury will be accepted.

It is further stipulated and agreed that any right to have the

jury selected in the presence of a member of the Court and the

recording by a Court Reporter of the voir dire in the selection

of the jury is waived, and I am agreeable to the manner in

which the jury was selected.

KENNETH W. BEHREND,

Attorney for Plaintiff.

Jerold H. Mount,

Plaintiff.

Linda Ann Mount,

Plaintiff.

H. GRIGSBY,

Attorney for Defendant.

Harold R. Sumner,

Defendant.