# Opposition Brief — TIC United Corp. v. Patton > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1785%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1996 - **Citation:** 518 U.S. 1005 ## Text Supreme Coart, U.S. 7 swe DD co MAY 14 1996 No. 95-1707 CLERK In The Supreme Court of the United States October Term, 1995 ¢ TIC UNITED CORP., Petitioner, VS. RYAN M. PATTON, and KATHY PATTON STRUNK, Respondents. ¢ On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit S RESPONDENTS’ BRIEF IN OPPOSITION - Gary D. McCaALtisTer* BRENDA L. HEAD Davis, UNREIN, HUMMER & Buck, L.L.P. Commerce Bank Building 100 S.E. 9th St., 3rd Floor P. O. Box 3575 Topeka, Kansas 66601-3575 (913) 354-1100 Counsel for Respondents *Counsel of Record COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 TABLE OF CONTENTS Page pr OB ee me hs 8 ly ||. Se ii JURISDICTION AND STATUTES INVOLVED....... 1 CORRECTION OF MISSTATEMENTS IN THE PETI- EE a ci iba lA N eer swEA ehh heise weds toon 1 REASONS FOR DENYING THE WRIT............. 4 I. THE QUESTION PRESENTED DOES NOT PRESENT A COMPELLING REASON OR BROAD CONSTITUTIONAL ISSUE OF GEN- ERAL SIGNIFICANCE THAT NEEDS TO BE ADDRESSED OR DEVELOPED BY THIS CRA a oa Fe CLS 4E bo 84 KaO ey HE ed Cid 0. «os eine 4 II. PETITIONER WAS REASONABLY AFFORDED NOTICE ITS CONDUCT MIGHT LEAD TO A POST-SALE DUTY TO WARN AND THAT AN AWARD OF PUNITIVE DAMAGES MIGHT BE IMPOSED UNDER KANSAS LAW FOR PETI- TIONER’S WANTON CONDUCT ............ 6 A. Kansas Law Clearly Recognized A Post- Sale Duty to Warn Prior to This Case... 10 B. The Court of Appeals Correctly Relied Upon Applicable Precedent to Find Notice oe ae a ee ee ee 15 C. The Court of Appeals Correctly Deter- mined that Prior Kansas Law Imposed a Post-Sale Duty to Warn Upon TIC....... 16 He wet 8” ee ears. Vere ae Pee yee 19 TABLE OF AUTHORITIES Page ' i CASES Boute v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697 (1964) . 6.345 55% es eae eect eens 4 Comstock v. Great Lakes Distributing Co., 209 Kan. 305, 496 Pad 1508 CVE? hock sinks ee es 17 Gee v. Tenneco, Inc., 615 F.2d 857 (9th Cir. 1980)..... 18 Johnson v. American Cyanamid Co., 239 Kan. 279, 718 F.2d 13539 (19GG) ococksusysdclocd cexveegp eet cs 11 Johnson v. Colt Industries Operating Corp., 797 F.2d 1590. (300s Civ.. TSRG). is coe evar eos 11, 14 Landgraf v. USI Film Prod., __U.S.__, 114 S.Ct. | BABS (U9DR) orice cs cose oie adhe dak Seen ee eS 6 Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 111 SAN. TGR CISPR. 6 casino es eh ia een Bs ie 4, 16 Patton v. Hutchinson Wil-Rich Manufacturing Com- pany, 253 Kan. 741, 861 P.2d 1299 (1993)...... passim | Patton v. TIC United Corp., 859 F. Supp. 509 (D. | Bt. WOOD ok oie cis sobs were eee 16 Southwest Forest Indus., Inc. v. Sutton, 868 F.2d 352 (20th Cie, 2008 665th iS Ge ren ghee eeeeceee 15, 16 Southwestern Tel. & Tel. Co. v. Danaher, 238 U.S. 452, 3 SAA BOG CHG is aecnsscnsse ae eens 4 State ex rel. Stephan v. GAF Corp., 242 Kan. 152, 747 P20 1526 967) 6.66 cvdveiiend pune eeerrans ahy dO Stratton v. Garvey Int'l, Inc., 9 Kan. App. 2d 254, G76 Pad 1290 (POG. o2 .aiac keene ae passim eT Na a erence ev eier ere lil TABLE OF AUTHORITIES —- Continued Page TXO Prod. Corp. v. Alliance Resources Corp., 509 Fee ee Ett ee fe. | 4 16 Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. Cal., is i cas es ige sane ERMA SIS VS 40) 5 Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 681 P.2d 1038, cert. denied, 469 U.S. 965, 105 Ne ee ica as be-u seas siz. 2 CONSTITUTIONAL PROVISIONS Fifth Amendment to the United States Constitu- a Ae a re te A ee ee ey oes 1 Fourteenth Amendment to the United States Con- ne ee ia eek ee ee hha Re ] STATUTES AND RULES ON | re ree 10 SU, SE. a 3 RESPONDENTS’ BRIEF IN OPPOSITION Respondents request the Court deny the petition for writ of certiorari seeking review of an opinion of the United States Court of Appeals for the Tenth Circuit reported at 77 F.3d 1235 (10th Cir. 1996). For convenience, Respondents will refer to the opinions of the Tenth Cir- cuit, the United States District for the District of Kansas and the Supreme Court of Kansas by referring to the pages designated in the appendix to Petitioner’s brief. (A-1-73) For clarification purposes and identity of the parties, please note the Petitioner herein was the defen- dant Hutchinson Wil-Rich Manufacturing Company in the Kansas Supreme Court case and a subsequent merger resulted in substitution of the parties. + JURISDICTION AND STATUTES INVOLVED Jurisdiction is proper for this appeal. Respondents acknowledge the Fifth and Fourteenth Amendments to the United States Constitution are being asserted by the Petitioner. ¢ CORRECTION OF MISSTATEMENTS IN THE PETITION The Petitioner did not simply “purchase some of the manufacturer’s assets and/or assume its obligations and liabilities”; it purchased all of the assets, good will and identity of the product line of Wil-Rich cultivators, retained key personnel from the original manufacturer, in particular John Kehrwald, Vice President of Engineering and General Manager, who has been employed by all corporate entities involved with this model cultivator, and received financial and other benefits from the exten- sive and long established dealer organization of Wil-Rich dealers. The suggestion on page 3 of the Petition that the Kansas Supreme Court on certified questions “announced for the first time” a “post-sale duty to warn” ultimate consumers of a defect that was unforeseen at the time of sale is not an appropriate statement of the process or the holding of that court. This decision, while described by the Supreme Court as a “first impression product liability case” (A-47), noted that while the relationship between the Petitioner and the Respondents was distinguishable from well settled and established cases, those cases did not signal “rejection of a post-sale duty to warn.” (A-61) The interlocutory Supreme Court decision simply fol- lowed an established trend in its decisions to extend duties of reasonable care to the circumstances in this case and discussed the steps a manufacturer must take to locate its customers for product warnings as well as whether there was a recognized post-sale duty to retrofit and recall agricultural equipment. (A-15, A-48) The Petitioner is uncandid in the way it describes the legal successor liability claims with regard to the various corporate entities that were originally defendants. (See Petition at 3, 4) The Petitioner flatly misstates the record and the express findings of the trial court and the Tenth Circuit when it suggests the “Stratton theory disap- peared” by the end of the trial and that this “product line successor” theory of liability was essentially waived by the Respondents. (See Petition at 4) This assertion is eal incorrect considering the express rejection of the Peti- tioner’s arguments on this precise point by the Tenth Circuit (A-7), when in fact it is the Petitioner that has been found to have waived its right to complain about the failure to submit Stratton issues to the jury. (A-7, 8) The Stratton v. Garvey Int'l, Inc., 9 Kan. App. 2d 254, 676 P.2d 1290 (1984) theory of liability has been asserted in this case from the beginning to the end. (A-8) The trial court and defense trial counsel knew this, the Tenth Cir- cuit recognized this and this Honorable Court will as well from a reading of all three of the underlying opinions contained in the Petitioner’s Appendix. It is noteworthy the award of the punitive damages in this case was rendered by a trial judge, not a jury, following strict statutory standards and considerations codified in a “tort reform” era statute, K.S.A. 60-3702, adopted by the Kansas legislature which eliminated the right for a jury to award such damages and placing a limitation on the amount of punitive damages that can be recovered. The amount of the punitive damage award was slightly less than the compensatory damages awarded by the jury and paid by the Petitioner. (A-30-36) oa REASONS FOR DENYING THE WRIT THE QUESTION PRESENTED DOES NOT PRESENT A COMPELLING REASON OR BROAD CONSTITU- TIONAL ISSUE OF GENERAL SIGNIFICANCE THAT NEEDS TO BE ADDRESSED OR DEVELOPED BY THIS COURT Petitioner argues in points I and III the question presented is one of constitutional significance and one which needs further analysis and development by this Honorable Court. This is not the case considering the treatment of the due process requirements by the courts below. The Tenth Circuit, and for that matter, the trial court recognized the fundamental importance of the notice component of the Due Process Clause in the con- text of passing upon the award of punitive damages in this case. Had this court done otherwise, then Petitioner might have a bonafide argument. The underlying courts did not and the Petitioner does not. This case involves neither the civil equivalent of an ex post facto law or the retroactive imposition of punitive damages as Petitioner argues. The question as presented to this court incorrectly presupposes the non-existence of a duty, diverting the focus away from the real issue of whether due process was violated. This case presents a well reasoned analysis, based upon established precedent from recent and older decisions, TXO Prod. Corp. v. Alli- ance Resources Corp., 509 U.S. 443, 113 S.Ct. 2711 (1993); Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032 (1991); Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697 (1964); and Southwestern Tel. & Tel. Co. v. Danaher, 238 U.S. 482, 35 S.Ct. 886 (1915), that the notice component of the Due Process Clause is satisfied if prior law fairly indi- cated that a punitive damage award might be imposed if egregious conduct occurred. Judge Lungstrum discussed the standards that were applied at the trial level, found “egregious” conduct existed and held this standard was satisfied by the jury’s finding of wanton conduct. In fact, the trial court specifically agreed with the jury’s finding of wanton conduct. (A-29-30, 32-36) The Tenth Circuit carefully analyzed the existing authority and proceeded, without difficulty, to fashion a two part test in deciding the Petitioner's due process rights were not violated. The Tenth Circuit made specific factual and legal findings in its analysis and found Peti- tioner did have sufficient notice that its conduct might be found to be tortious under established Kansas law and Petitioner did have notice punitive damages might be awarded in Kansas for wanton and reck!»ssly indifferent conduct. (A-15-16) The existing Supreme Court precedent is neither con- fusing or in need of further development with regard to the importance of the notice element of the Due Process Clause when punitive damages are imposed. This court recently denied the Petition in Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. Cal., 1992), cert. denied, 506 U.S. 1080, 113 S.Ct. 1047 (1993) which made a similar “lack of notice” due process argument. In Waits, the Ninth Circuit, while noting punitive damages are generally unavailable when an issue is one of first impression or where a right has not been clearly established, held the law was clearly established and the defendants consciously disregarded the rights of others by their conduct. As previously noted by the Tenth Circuit, Petitioner’s continued reliance on Landgraf v. USI Film Prod., __ U.S. ___, 114 S.Ct. 1483 (1994) is misplaced. (A-13) The case at bar does not involve a retroactive imposition of punitive damages, but rather a logical extension of the duty of reasonable care in a product liability post-sale warnings context. The fact the Petitioner regrettably chose to engage in wanton conduct by totally failing to take any corrective action in the face of repeated and unam- biguous field service history evidencing similar cata- strophic injury and fatality scenarios is what gave rise to what was a most predictable award of punitive damages. Il. PETITIONER WAS REASONABLY AFFORDED NOTICE ITS CONDUCT MIGHT LEAD TO A POST- SALE DUTY TO WARN AND THAT AN AWARD OF PUNITIVE DAMAGES MIGHT BE IMPOSED UNDER KANSAS LAW FOR PETITIONER’S WANTON CON- DUCT In order to evaluate the arguments presented by the Petitioner in Section II of its Petition, the court needs to be provided with an additional factual summary to see the established trend and clarity of Kansas law on the points about which Petitioner complains. After reviewing the relevant facts and Kansas cases, this court will reason- ably come to one of two conclusions: (1) the Petitioner was either guilty of wanton and recklessly indifferent conduct in failing to provide a post-sale warning relative to the latent hazards presented by the cultivator wings falling without warning under circumstances of hydraulic or other mechanical failure which were unknown to the operator (which was found by the jury, trial court and the Tenth Circuit) or (2) Petitioner was oblivious to what was transpiring in Kansas product liability law while doing business in the state of Kansas as a farm product manu- facturer for three years in advance of Ryan Patton’s injury. Petitioner purchased all of the assets, the good will and identity of the Wil-Rich farm equipment division, product line and established dealer distribution organiza- tion from Lear Siegler Diversified Holding Corp. in August, 1987. With this acquisition came all of the inci- dents of this manufacturing operation including individ- ual engineers and decisionmakers that had been originally employed by Wil-Rich, Inc., the original manu- facturer and seller of the cultivator in this case in 1977.' 1 John Kehrwald is the Vice-President of Engineering and General Manager of the Wil-Rich manufacturing facility in Wahpeton, North Dakota. Mr. Kehrwald was originally employed by Wil-Rich, Inc. in 1976. He has been the decision- maker for all engineering and safety issues including the decision not to issue any post-sale warnings concerning the Wil- Rich ninety degree wing field cultivators since the date the Patton cultivator was first sold; throughout the ownership of the Wahpeton manufacturing facility by all Lear Siegler entities which ended in August, 1987, the date of Ryan Patton’s injury, April 21, 1990, and until the present time under Petitioner’s ownership which began in August, 1987. Mr. Kehrwald is the one common denominator over time that resulted in the jury and all courts reviewing the facts of this case to find there was a lack of reasonable care and wanton conduct due to Petitioner's failure to take any action with regard to post-sale warnings given the considerable adverse field service history actually known to Mr. Kehrwald, other management and the owner of the Petitioner. Beginning in the mid to late 1980's, field experience involving the Wil-Rich ninety degree wing field cultivator disclosed that repeated and similar catastrophic injuries and fatalities were occurring. These incidents involved unknown or unrecognized hydraulic or mechanical fail- ure in the linkage holding the wing in the ninety degree upright position while it was secured by a lock pin. In order for the operator to remove the wing lock pin to lower the wing before operating the cultivator, the loca- tion of the lock pin bracket required the operator to stand directly under the wing. Once the pin was removed in these situations, the wing would fall without warning and either significantly injure or kill the unsuspecting operator who had performed this same routine hundreds of times before without incident. The wing is so heavy and falls so quickly that an operator cannot run or move fast enough once the wing begins to fall to avoid being crushed or impaled by the wing and cultivator shovels. It is the combination of this scenario and the location of the wing lock pin which defines the latent defect in the cultivator that became known after the point of sale and which gives rise to the need for the post-sale warning. Mr. Kehrwald became personally aware of each of the six injury and fatality accidents that occurred before Ryan Patton was rendered paraplegic by such a similar occur- rence.2 Mr. Kehrwald participated in decisions not to 2 The other accidents preceding the Patton injury and the date Mr. Kehrwald became aware of them are as follows: Brinkman (9/29/83); Raitz (7/25/86); Langenfeld (9/2/86); Lipetsky (10/86); John (2/11/88); and Sedler (7/19/89). Mr. Kehrwald investigated all occurrences known to the Petitioner. provide warning labels or instructions on cultivators manufactured and sold in the 1970’s and made the deci- sion on behalf of the Petitioner not to provide any post- sale warnings or instructions for cultivators in the field. No corrective actions of any kind occurred until after the jury rendered its verdict in this case finding Petitioner’s failure to act as wanton conduct. Substantial evidence in this case was introduced regarding the existence, function and the day-to-day operation of the extensive Wil-Rich dealer organization. In particular, the Respondents introduced abundant evi- dence on the particular Wil-Rich dealer that sold and serviced the Patton cultivator since 1977 and about the continual and close contacts between the Wil-Rich manu- facturing facility in Wahpeton, North Dakota, the local dealer and their customers including the Pattons. The local dealer knew precisely where the Pattons and their Wil-Rich equipment were located. The local dealer also knew the names, locations and the models of Wil-Rich equipment that was owned and operated by numerous other farmers who testified at trial. The dealer was shown to be able, with relative ease, to contact these individuals with any necessary safety related information. Who was in a better position under the facts of this case to have warned the innocent users of this equipment if not the Petitioner who acquired and retained the prod- uct name identity, the manufacturing facility, the com- pany personnel, the established dealer organization, the ongoing day-to-day operation of its business and the same decisionmakers? The jury and reviewing courts must have asked themselves this same question and arrived at the same conclusion, namely, the Petitioner is 10 liable for its negligent and wanton conduct and the corre- sponding compensatory and punitive damage awards.% A. Petitioner argues the Federal Court's use of the certi- fication process to the Kansas Supreme Court in this diversity product liability action indicates Kansas cases did not recognize a post-sale duty to warn. Therefore, Petitioner argues it was denied sufficient notice that its conduct by doing nothing with regard to product warn- ings might expose it to liability under Kansas negligence law or to punitive damages if its continued omissions were judged to be wanton or recklessly indifferent under the circumstances. At first blush, this argument appears to have merit. Upon critical analysis, however, and utiliz- ing the actual record in this case as well as the reported decisions which belie the Petitioner’s stated position, the argument withers and raises a more troubling question as to good faith advocacy of this position by Petitioner given the underlying record. 3 The Kansas Supreme Court also recognized this reality when it discussed the post-sale duty to warn in the context of arguments made by the Petitioner under K.S.A. 60-3307, a statute relating to the inadmissibility of evidence under the Kansas Product Liability Act. The Kansas Supreme Court stated: “If we were to accept Hutchinson Wil-Rich’s view of 60-3307, we would endorse a situation where a manufacturer’s knowledge of frequently occurring life-threatening, post-sale hazards in a product free of known hazards at the point of sale would render evidence of those hazards inadmissible when the manufacturer has made no attempt to warn of the hazard.” (A-68) 11 The handling of this issue under pre-existing Kansas common law, first by the trial court and later by the Tenth Circuit in affirming the trial court’s ruling on the Peti- tioner’s due process argument challenging the punitive damage award, is made simple and compels the denial of this petition. Kansas courts have decided a number of cases dating back to 1984 that would “fairly indicate” to anyone read- ing them that post-sale duties to warn existed in Kansas product liability law, albeit these cases involved ethical drugs, roofing materials and handguns. A reading of these same cases, excepting Stratton, “fairly indicated” punitive damages might be imposed in response to egregiously tortious conduct. Johnson v. Colt Industries Operating Corp., 797 F.2d 1530 (10th Cir. 1986); State ex rel. Stephan v. GAF Corp., 242 Kan. 152, 747 P.2d 1326 (1987); Johnson v. American Cyanamid Co., 239 Kan. 279, 718 P.2d 1318 (1986); Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 681 P.2d 1038, cert. denied, 469 U.S. 965, 105 S.Ct. 365 (1984) and Stratton v. Garvey Int'l, Inc., 9 Kan. App. 2d 254, 676 P.2d 1290 (1984). In Wooderson, the Kansas Supreme Court outlined what was required in order to discharge known duties of reasonable care with regard to pre and post-sale warnings to doctors prescribing ethical drugs. Wooderson, 235 Kan. at 399-409. Why is this case important in terms of provid- ing notice of potential tort and punitive damage liability? The court found the drug manufacturer to be an expert (one that possesses superior or technical knowledge of the product) because it had the benefit of technical knowledge as well as the scientific and adverse reaction data related to the drugs involved on an ongoing basis. 12 Isn’t this analogous to a farm equipment manufacturer receiving adverse field service history of similar injury and fatality accidents on an ongoing basis while possess- ing all of the technical knowledge regarding the engineer- ing design of its field cultivator? The drug manufacturer was held to have a “continuous duty” to keep abreast of developments touching upon the manufacturer’s product and to notify those affected by adverse reactions discov- ered from the use of the product. See Wooderson, 235 Kan. at 400. While it might be suggested an ethical drug manu- facturer is in a different situation with regard to staying abreast of the scientific literature and adverse reactions data due to the regulatory process involving ethical drugs, it does not take a quantum leap to see the predict- able outcome of a scenario where the principles of rea- sonable care transcend different products and industries when critical safety information is known by a manufac- turer who is apprised of field service history about its product and it fails to provide this information to those individuals who are exposed to life threatening hazards that are either unknown or unappreciated by them. Obvi- ously, the farm equipment manufacturer, like the drug manufacturer, is in a position of having superior technical and field service knowledge as compared to the dealer and end user. It is, in part, this disparity in perspective and knowledge that initially brought about the “continu- ing” or “post-sale” duties to exist with regard to the providing of safety information concerning products. Wooderson also provided a comprehensive review of the state of Kansas law with regard to the types of con- duct that might give rise to the imposition of punitive damages in all contexts, not just those involving ethical 13 drugs. Wooderson, 235 Kan. at 415-416. It is not even arguable that Petitioner could read this decision and not come away with a clear understanding that punitive damages might loom on the Kansas horizon upon a total failure to act with regard to providing post-sale warnings concerning critical safety information when numerous users of its product had met with the same catastrophic fate under similar circumstances. The Petitioner knew what was necessary to discharge its responsibilities in this case and regrettably it chose not to act. If for some reason the Petitioner misunderstood the teachings of Wooderson, then it certainly must have become better informed just four months after it acquired the assets of the Wil-Rich Division and began doing busi- ness in Kansas in August, 1987. In December, 1987 State ex rel. Stephan v. GAF Corp., 242 Kan. 152, 747 P.2d 1326 (1987) was decided by the Kansas Supreme Court. GAF was primarily a fraudulent concealment case involving another type of product and industry, roofing materials. This case is clear as to what might be the result when a manufacturer fails to provide prompt warnings with regard to a product hazard that becomes known to the manufacturer after the product has been put on the mar- ket and it is known that repeated failure and causal injury is occurring in the field. The state of the law in Kansas could not have been misunderstood or misinterpreted by any reasonably informed manufacturer. One who might choose to do nothing with regard to providing necessary warnings was on notice it most probably would be sub- jected to tort liability for its negligence and to punitive damages for its wanton conduct. 14 Another product liability case in Kansas involving another type of product gave rise to a punitive damage award in the relevant time frame. Johnson v. Colt Industries Operating Corp., 797 F.2d 1530 (10th Cir. 1986). In Johnson, a punitive damage award was affirmed by the Tenth Circuit. This case involved a handgun. The court dis- cussed in detail the state of Kansas law concerning the type of tortious conduct that would give rise to a trier of fact being permitted to consider a punitive damage award. Id. at 1536. If any doubt remained as to whether a succeeding purchaser of another’s assets might be liable for failing to warn of a defect in a predecessor’s product once the defect came to the successor’s attention, such doubt was resolved under Kansas law by the 1984 decision in Strat- ton v. Garvey Int'l, Inc., 9 Kan. App. 2d 254, 676 P.2d 1290 (1984). This case will be discussed in more detail in Argument C, infra, but would any reasonable engineering manager have difficulty answering the question as to what his or her duty is with regard to warning about defects in his or her predecessor’s product if the manager knows of the defective condition of the product and there is a relationship existing between the successor entity and the customers of the predecessor entity? The answer is clearly no under the analysis provided by the court in Stratton, Id. beginning at 258. Petitioner persists in mischaracterizing the Kansas Supreme Court's decision in Patton v. Hutchinson Wil-Rich Manufacturing Company, 253 Kan. 741, 861 P.2d 1299 (1993) (Patton I) in an attempt to create the illusion there has been a retroactive application of a duty, which ulti- mately resulted in the imposition of punitive damages. 15 Judge Lungstrum rejected this precise argument when he addressed this point in his decision. (A-28-30) This same argument was later presented to the Tenth Circuit. The Tenth Circuit began its analysis de novo (A-12) and utilized precedent from this court and estab- lished Kansas case law. The Circuit Court noted: “While Patton I does state that the certified questions presented issues of first impression, 861 P.2d at 1303, the questions involved the steps a manufacturer must take to locate its customers and whether Kansas recognized post- sale duties to retrofit or recall dangerous prod- ucts. Id. at 1303-04. The opinion noted that there was “no statutory limitation nor . . . precedential authority” suggesting that Kansas would reject a manufacturer’s post-sale duty to warn. Id. at 1311. When TIC decided to forego any warning program regarding defects in the Wil-Rich culti- vator, it cannot state that its acts, based on the principles of Kansas common law, represented “no departure from any prescribed or known standard of care.” Danaher, 238 U.S. at 490. (A-15-16) It is inappropriate for Petitioner to persist in this specious argument. The Petition should be denied. Petitioner suggests the Tenth Circuit, and by implica- tion the trial court, relied upon inapplicable precedent in arriving at an erroneous decision on the due process issue. The analysis employed by the Tenth Circuit, reject- ing Petitioner’s arguments with regard to Southwest Forest Indus., Inc. v. Sutton, 868 F.2d 352 (10th Cir. 1989) is hardly 16 subject to criticism since the Court acknowledged the cases addressed by Judge Lungstrum in Patton v. TIC United Corp., 859 F. Supp. 509, 512 (D. Kan. 1994), (Patton II), and also found Southwest Forest instructive on how to determine whether Kansas common law duties were fairly indicated in the state’s case law even though South- west Forest was acknowledged to not address notice under the Due Process Clause. (A-15) The Tenth Circuit then utilized the very cases from this court the Petitioner is relying upon, TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443, 113 S.Ct. 2711 (1993) and Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032 (1991), to conduct its evaluation under a two-part test to determine if the award of punitive damages against Petitioner offended due process. Petitioner’s Due Process rights were not violated. The decision of the Tenth Circuit was well reasoned and sound on this issue. The Petition should be denied. of Petitioner’s final argument regarding the correct interpretation that should be given to Stratton v. Garvey Int'l, Inc., 9 Kan App. 2d 254, 676 P.2d 1290 (1984) is without merit. First, Stratton involved an analysis of whether an independent duty can exist for a successor corporation to warn about defects in a predecessor’s product. Stratton involved a situation where liability was being sought to be imposed for the predecessor’s lia- bilities, when under the traditional corporate law theory of liability, such liability would not exist. Second, Respondents never contended at trial Petitioner was a 17 “legal corporate successor” to the original manufacturer, Wil-Rich, Inc. Respondents always contended Petitioner was liable under the Stratton theory of liability since it was a successor entity that purchased the assets of the Wahpeton, North Dakota manufacturing facility (Wil- Rich Division), and assumed liabilities and debts related to those assets by its agreement with the transferor, because Petitioner did not have a sufficient nexus to make it a “legal successor” in order to enforce liability under Comstock v. Great Lakes Distributing Co., 209 Kan. 306, 496 P.2d 1308 (1972). Nonetheless, Respondents suc- cessfully asserted and proved the “product line suc- cessor” theory at trial to the satisfaction of the judge and jury by meeting the burden of proof required by Stratton, 9 Kan. App. 2d at 258. Petitioner ignores the specific holding of the Tenth Circuit, the abundant record contradicting its “abandon- ment” argument,‘ and the admissions of Petitioner’s trial counsel acknowledging Respondents’ assertion of lia- bility under Stratton® when it contends Respondents abandoned the Stratton theory of liability prior to verdict. (See Petition at 16). The Tenth Circuit expressly found Petitioner waived its objections to the way the trial court addressed and presented Stratton issues in its rulings and 4 This record is summarized at pp. 10-13 of Appellees’ Brief filed with the Tenth Circuit and the record evidence is contained in Aplee. Supp. App. at 1-4, 5, 17-18, 40-42, 95-98, 163-165, 423-462, 465-470, 476-478, 473-484, 493-501, 505-509, 551-552, 634, 694-704, Aplt. App. at 55-62 and TT 1236 and 1228. Also see f.n. 2 at p. 11 of Appellees’ Brief. 5 Aplee. Supp. App. at 496-500. 18 with the jury. (A-7, 8) No further comment on this point is deserved. The argument made by Petitioner that there is a significant distinction between the duty imposed by Stratton and the duty imposed by Patton I, and, therefore, Petitioner should be relieved from the punitive damage award in this case is also misplaced. Stratton anticipates warnings may be required of a successor entity when it learns of defects in its predecessor’s product. This discov- ery may not necessarily be as of the time of sale since in Stratton the successor entity did not manufacture or con- struct man-lift devices and “recently discovered” defects may result in the imposition of a duty to warn. Stratton, 9 Kan. App. 2d at 256, 258 (1984), citing Gee v. Tenneco, Inc., 615 F.2d 857, 866 (9th Cir. 1980). Stratton contemplated and recognized a duty to warn after the point of sale. It is almost unimaginable the Petitioner argues at this point in this case that its conduct cannot be the subject of punitive damage liability since all conduct must be evalu- ated as to what was known and foreseeable at the time the product was sold. The Supreme Court of Kansas in Patton v. Hutchinson Wil-Rich Manufacturing Company, 253 Kan. 741, 861 P.2d 1299 (1993), logically extended the general common law of Kansas, which had long required a manufacturer to exercise reasonable care, to a specific factual situation which had not previously been consid- ered by the Kansas Supreme Court. The notions of rea- sonable care require one to act or refrain from acting when it is reasonable to do so under the circumstances. This is true under established case law regardless if it occurs before or after the sale of a product. The decision 19 to not take action can rise above mere actionable negli- gence to wanton or recklessly indifferent conduct when one is compelled to act for safety reasons once it is learned repetitive and similar injuries and deaths are occurring due to a latent hazard discovered in a product. Petitioner took not only an unreasonable but, indeed, an unacceptable risk with the lives and well being of its customers. This was done with total indifference to estab- lished rules of tort and punitive damage liability. The jury and reviewing courts have found this to be unacceptable conduct on the part of the Petitioner as should this Hon- orable Court. The Petitioner has failed to articulate any compelling reasons for granting certiorari and the Peti- tion should be denied. CONCLUSION For the above and foregoing reasons, the writ of certiorari should be denied. Respectfully submitted, Davis, Unrein, Hummer & Buck, L.L.P. Gary D. McCa uster Brenpa L. Heap Commerce Bank Building 100 S.E. 9th St., 3rd Floor P. O. Box 3575 Topeka, Kansas 66601-3575 Telephone: (913) 354-1100 Counsel for Respondents --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1785%3A2. Public record. Not legal advice.