Petition for Writ of Certiorari — Konkel v. Bob Evans Farms, Inc.

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FILED.

99 180 Jui 26 09,

OFFICE OF THE CLERK

(1 \

IN THE

Supreme Court of the United States

CAROL M. KONKEL,

Petitioner,

BOB EVANS FARMS, INCORPORATED,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT. OF APPEALS FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ROBERT T. MITCHELL, Jr.

Counsel of Record

JAMES A. KLENKAR

HALL, MONAHAN, ENGLE,

MAHAN & MITCHELL

Attorneys for Petitioner

Nine East Boscawen Street

P.O. Box 848

Winchester, Virginia 22604

(540) 662-3200

@) Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 +» (800) 359-6859

PO PCR sce

QUESTIONS PRESENTED

Did the Fourth Circuit Court of Appeals violate the

Petitioner’s Seventh Amendment right to a jury trial when it

ordered a remittitur of a federal jur_;’s compensatory damages

award from $1 million to $25,000?

Did the Fourth Circuit Court of Appeals violate the

Petitioner’s Seventh Amendment right to a jury trial when it

decided it need not even consider whether the Petitioner was

entitled to punitive damages?

PARTIES TO THE PROCEEDING

Ecolab, Inc., was originally a defendant in this case.

However, Petitioner dismissed her claims against Ecolab,

Inc. prior to trial. Ecolab, Inc. was not a party to the appeal

to the Fourth Circuit Court of Appeals, and is not a party to

this proceeding.

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TABLE OF CONTENTS

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PUTUCS OO GO PYOCCCGING 4. wee cece cceces

Table of Cited Authorities .........ccceccceces

ES oc ee Cid vides week eees coe

i rece. eee visct ye ohesteceese

Statement of Jurisdiction .....................

BE Re ere err eT reer re

B. Mrs. Konkel’s Punitive Damages Claim ...

Reasons for Granting the Writ .................

I. The Petition Should Be Granted Because The

Fourth Circuit’s Decision To Substitute Its

Judgment For That Of The Jury As To The

Amount Of Compensatory Damages

Violates The Seventh Amendment. .......

Page

ill

II.

Ill.

Contents

The Petition Should Be Granted Because In

Substituting Its Judgment For That Of The

Jury As To The Amount Of Compensatory

Damages, The Fourth Circuit Ignored The

Applicable Substantive Law As Set Forth In

The Decisions Of The Pennsylvania Supreme

WE ovdc newts reeswackeewenonaues ia

The Petition Should Be Granted Because The

Fourth Circuit Also Violated Fed. R. Civ. P.

54(c), Fed. R. Civ. P. 56, And Mrs. Konkel’s

Seventh Amendment Right To Have A Jury

Hear Her Punitive Damages Claim. .......

Rn a a ee

Page

TABLE OF CITED AUTHORITIES

Page

Cases:

Avitia v. Metropolitan Club of Chicago, Inc.,

ee Beit y, fe Ber ree 24

Botek v. Mine Safety Appliance Corp., 531 Pa. 160,

G13 A.26 19746 (1992) ..cvecccvess 15, 16, 18, 19, 20

Brown v. Paxton, 2 A.2d 729 (Pa. 1938) ......... 22

Carminati v. Philadelphia Transp. Co., 405 Pa. 500,

FS B26 OOO CISEE 0 sn eke cn cicscercsarecen 19, 20

Catalano v. Bujak, 537 Pa. 155, 642 A.2d 448 (1994)

steaboesdtvneesesécsenuuenseeuseuareee 14, 15, 16

Commercial Union Insurance Company v. Walbrook

Insurance Company, Ltd., 41 F.3d 764 (ist Cir.

WE; sci erase ae 25

Dimick v. Schiedt, 293 U.S. 474, 79 L. Ed. 603, 55

eee. tt.) re 12, 13, 23, 28

Felce v. Fiedler, 974 F.2d 1484 (7th Cir. 1992)... 24

Feldman v. Philadelphia Housing Authority, 43 F.3d

ate fy | 6 errr en 25

Feltner v. Columbia Pictures Television, Inc., 523

U.S. 340, 140 L. Ed. 2d 438 (1998) .. 4, 12, 13, 23, 28

Cited Authorities

Page

Gasperini v. Center for Humanities, Inc., 518 U.S.

4135, 035 L. Bd. 28 GSS (IGSE) «ow cc cccccscccvceces

+2 ivendee ba ereeenen 4, 11, 12, 13, 14, 15, 17, 23, 28

Gilbane Building Co. v. Federal Reserve Bank of

Richmond, 80 F.3d 895 (4th Cir. 1996) ........ 23, 24

Haines v. Raven Arms, Donn’s, Inc., 536 Pa. 452,

640 A.2d 367 (1994) ................ 15, 16, 20, 21

Hetzel v. Prince William County, 118 S. Ct. 1210

(UDUED 00o.8s000sse esse eee 4, 12, 13, 28

International Harvest Credit Corp. v. East Coast

Truck, 547 F.2d 888 (Sth Cir. 1977) .......... 25

Ivins v. Celotex Corp., 115 F.R.D. 159 (E.D. Pa.

EDO) vies civcccns dep sdben eee eeCee 8, 10

Kemp v. Philadelphia Transp. Co., 239 Pa. Super.

379, SOL AZO SEB (CIGAR) 2... ccccccvvaevess 20, 22

Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1 (1994) .. 15, 16

Meholiff v. River Transit Co.,20 A.2d 762 (Pa. 1941)

Mineo v. Tancini, 349 Pa. Super. 115, 502 A.2d 1300

GUSUED + dcses cvackenebsueeu eee 20

vii

Cited Authorities

Page

New Amsterdam Casualty Co. v. Waller, 323 F.2d

20 (4th Cir. 1963), cert. denied, 376 U.S. 963

oo ee eee eee rE errr 24

North Alamo Water Supply Corp. v. San Juan, 90

Fe OE Ce Ge SED os havc eeukteesnccena 25

Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168

be er pre Pepe 24, 25

Smith v. Coy, 460 F.2d 1226 (3rd Cir. 1992)

Pig MATEO AS, 4, 11, 13, 20

Stoughton v. Kinzey, 299 Pa. Super. 499, 455 A.2d

RED 6b. Sb cbenaubassteuusbareveun 20, 21, 22

Tulewicz v. Southeastern Pennsylvania

Transportation Authority, 529 Pa. 584, 606 A.2d

425 (1991), rev'd on other grounds 529 Pa. 588,

Geer Sua ET COOOED oc ccc anetcctcvesatawsss 22

Statutes:

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Be ae OF BE 0:5 6 6ebd0bceeshsedecsakisueee 8

I OU oie ab recta 8

vill

Cited Authorities

Page

United States Constitution:

Seventh Amendment ... i, 2, 4, 11, 12, 13, 14, 17, 27, 28

Rules:

Pe EF cd's dene bceetdexe puke a 26

Fed. R. Civ. P. 54(c) ....... 2, 10, 23, 24, 25, 26, 27, 28

oo ee es 3, 10, 23, 27, 28

POU. COW. B. FOURD nnn cccnccccnavevees 1, 6, 16, 28

Os Was COU. FH, DUE ooo vb vinvccwecevedeccvn: 2

TABLE OF APPENDICES

Appendix A — Opinion Of The United States Court

Of Appeals For The Fourth Circuit Dated And

Deeciied Fammary 4, SFP ccc cccccvcccccens

Appendix B — Order Of Judgment Of

The United States District Court For The Western

District Of Virginia, Harrisonburg Division Dated,

Entered And Filed April 24, 1997 ............

Appendix C — Final Order Of Judgment

Of The United States District Court For The

Western District Of Virginia, Harrisonburg

Division Dated, Entered And Filed May 23, 1997

@e¢aece@ewreseeeuese tw seeoe@ese~aseestewbeeeseaeceeaeeeeeseee @

Appendix D — Memorandum Opinion

Of The United States District Court For The

Western District Of Virginia, Harrisonburg

Division Dated, Entered And Filed May 23, 1997

eer eeoespeeereaeetecseeeceoeveaeweeceecee@esteees@seeoe eaeeor ee 6 @

Appendix E — Order Of The United States District

Court For The Western District Of Virginia,

Harrisonburg Division Dated, Entered And Filed

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Appendix F — Excerpts From Transcript Of Hearing

Of The United States District Court For The

Western District Of Virginia, Harrisonburg

Division On Cross-Motions For Summary

Judgment Dated February 7, 1997 ............

Page

18a

20a

22a

28a

Appendices

Page

Appendix G — Order Of The United States Court

Of Appeals For The Fourth Circuit Denying

Petition For Rehearing Dated And Filed April 26,

FO vevincnsuvedeundiaesonereelioe ee 4la

Appendix H — Relevant Rule ................. 43a

]

Petitioner, Carol M. Konkel (“Mrs. Konkel”),

respectfully requests that a writ of certiorari be issued to

review the judgment of the United States Court of Appeals

for the Fourth Circuit in this case against Bob Evans Farms,

Inc. (“Bob Evans”).

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fourth Circuit (“Fourth Circuit”) is reported at Konkel

v. Bob Evans Farms, Inc., 165 F.3d 275 (4th Cir. 1999)

(App. A.) The Order denying Mrs. Konkel’s petition for

rehearing with suggestion for rehearing en banc is not

published, but is attached as Appendix G. The opinion and

order of the federal district court in Konkel v. Bob Evans

Farms, Inc., Civ. No. CA-96-20-H, denying Bob Evans’

Fed. R. Civ. P. 59(a) motion for a new trial on the grounds

of verdict excessiveness are not published, but are attached

as Appendix C and D. The relevant hearing transcript

excerpts and order of the federal district court denying Mrs.

Konkel’s motion for summary judgment and granting Bob

Evans’ motion in limine with respect to Mrs. Konkel’s claim

for punitive damages are attached as Appendix E and F.

STATEMENT OF JURISDICTION

The judgment of a panel of the Fourth Circuit was

entered on January 4, 1999. On April 26, 1999, the Fourth

Circuit denied a timely petition for rehearing and suggestion

for rehearing en banc. The vote on the petition for rehearing

en banc was 9 to 4.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISION AND

RULES INVOLVED

The Seventh Amendment to the United States Constitution

provides:

In suits at common law, where the value in

controversy shall exceed twenty dollars, the right

of trial by jury shall be preserved, and no fact

tried by the jury shall be otherwise re-examined

in any Court of the United States, than according

to the rules of the common law.

Federal Rule of Civil Procedure 59(a)(1) provides:

A new trial may be granted to all or any of the

parties and on all or part of the issues (1) in an

action in which there has been a trial by jury, for

any of the reasons for which new trials have

heretofore been granted in actions at law in the

Courts of the United States. . . .

Federal Rule of Civil Procedure 54(c) provides:

A judgment by default shall not be different in

kind from or exceed in amount that prayed for in

the demand for judgment. Except as to a party

against whom a judgment is entered by default,

any final judgment shall grant the relief to which

the party in whose favor it is rendered is entitled,

even if the party has not demanded such relief in

the party’s pleading.

Federal Rule of Civil Procedure Rule 56 provides in pertinent

part:'

(a) A party seeking to recover upon a claim...

may ... move with or without supporting

affidavits for a summary judgment in the party’s

favor upon all or any part thereof.

forthwith if the pleadings, depositions, answers

to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter

of law....

(e) ... When a motion for summary judgment is

made and supplied as provided in this rule, an

adverse party may not rest upon the new

allegations or demands of the adverse party’s

pleading, but the adverse party’s response, by

affidavits or as otherwise provided in this rule,

must set forth specific facts showing there is a

genuine issue for trial. If the adverse party does

not so respond, summary judgment if appropriate,

shall be entered against the adverse party.

STATEMENT OF THE CASE

A. Mrs. Konkel’s Compensatory Damages Award

The fundamental issue with respect to Mrs. Konkel’s

compensatory damages award is whether the Seventh

1. The full text is set forth in Appendix H.

Amendment requires that she is entitled to have her

compensatory damages for pain and suffering determined

by a jury, or whether a Court of Appeals may substitute its

own judgment for that of the jury. By remittitur, the Fourth

Circuit reduced the federal jury’s award of $1,000,000 to

$25,000, an unheard of reduction of more than 97%. The

Fourth Circuit’s decision is in direct conflict with this Court’s

admonitions with respect to the Seventh Amendment right

to a jury trial in Gasperini v. Center for Humanities, Inc.,

518 U.S. 415, 135 L. Ed. 2d 659 (1996); Feltner v. Columbia

Pictures Television, Inc., 523 U.S. 340, 140 L. Ed. 2d 438

(1998) and Hetzel v. Prince William County, 118 S. Ct. 1210

(1998). The Fourth Circuit’s decision also conflicts with the

Third Circuit Court of Appeals’ decision in Smith v. Coy,

460 F.2d 1226 (3rd Cir. 1992). The Fourth Circuit’s decision

also conflicts with the applicable law as set forth in the

decisions of the Pennsylvania Supreme Court. Finally, the

Fourth Circuit’s decision also deviates so substantially from

the accepted and usual course of judicial proceedings as to

require that this Court exercise its supervisory power to

reverse the decision and reinstate the jury’s verdict.

On the evening of March 22, 1992, Mrs. Konkel suffered

severe, permanent injuries to her esophagus when she was

served a caustic chemical cleaner instead of hot water for

her tea at a Bob Evans restaurant in Carlisle, Pennsylvania.

Bob Evans admitted in its Answer that the product Mrs.

Konkel swallowed, known as “Finish”, is a high alkali,

caustic, industrial strength cleaner. The cleaner was used in

a highly concentrated form to remove stains from Bob Evans’

coffee pots. Mrs. Konkel was injured when a Bob Evans

waitress refilled Mrs. Konkel’s tea carafe with what appeared

to be hot water from a coffee pot sitting in the food

preparation area of the restaurant. Unfortunately for Mrs.

Konkel, the coffee pot did not contain clean hot water.

Instead, because it was in the process of being destained, it

contained a highly concentrated solution of the high alkali,

caustic chemical cleaner.

The moment she swallowed the caustic cleaner, Mrs.

Konkel’s esophagus was irreparably and permanently

damaged. She immediately felt a burning pain radiating in

her chest from her esophageal chemical burns, which

continued as Poison Control was called. The burning pain

continued as she was diagnosed and treated for her

esophageal chemical burns a short time later by a board

certified emergency room physician.

Mrs. Konkel’s treating physician, Dr. Nicholas Snow,

who is board certified in both internal medicine and

gastroenterology, testified that a battery of objective tests

ruled out reflux disease, cancer, esophagitis, and benign

tumors, and established that Mrs. Konkel’s continuing pain

is caused by heightened visceral nociception (“HVN”) of

the esophagus caused by her ingestion of the caustic cleaner.

HVN is a condition in which the pain nerves in Mrs. Konkel’s

esophagus send pain impulses to her despite receiving only

the most ordinary stimuli. Eating or drinking anything other

than the most bland foods causes Mrs. Konkel’s damaged

pain nerves to start firing, and the pain continues for hours,

days, or weeks. Once the burning sensation starts, there is

nothing she can do to stop it. Mrs. Konkel’s condition is

getting worse as the damaged nerves “recruit” surrounding

tissues, causing them to send additional pain impulses.

At the time of the trial, over three years after the event

at the Bob Evans restaurant, Mrs. Konkel’s condition had

gotten progressively worse. She has chronic burning in her

chest. If she drinks or eats she has pain. The pain is best

reduced if she does not eat anything. Mrs. Konkel’s diet is

limited to soggy cereal flakes, plain yogurt, soft bananas,

mashed potatoes, noodles, and creamy rice. She cannot drink

most beverages, including soft drinks, fruit juices, lemonade,

beer or wine.

There is no cure for Mrs. Konkel’s condition. Even Bob

Evans’ medical expert, Dr. Kalloo, admitted at trial that the

“cure” for Mrs. Konkel’s HVN condition is to avoid those

foods that cause her pain, which is virtually everything she

used to eat. Over her remaining life expectancy of almost 30

years, Mrs. Konkel will never again eat a normal meal

without experiencing pain.

For two days, seven jurors and a federal trial court judge

had the opportunity to hear and observe Mrs. Konkel, her

treating physician (Dr. Snow), and several other witnesses

testify about the devastating effects of her injuries. The jury

was instructed — without objection — that under

Pennsylvania law, Mrs. Konkel was entitled to compensation

for each of the following elements of her damages: past,

present and future physical pain, mental anguish,

embarrassment, humiliation, inconvenience, and loss of

enjoyment of life. After due deliberation, the jurors awarded

Mrs. Konkel $1 million for these damages.

The jurors’ unanimous verdict was reviewed by the trial

court judge under a Fed. R. Civ. P. 59(a) motion for excessive

verdict. In his decision, the trial court judge explained in

detail that the verdict was appropriate, noting that the jury

had properly concluded that Mrs. Konkel had suffered a

permanent, devastating physical injury and had compensated

her accordingly. Significantly, the trial court judge

specifically ruled that the award was appropriate even in the

absence of so-called special damages, stating:

Furthermore, the court does not accept the

defendant’s contention that plaintiff's election not

to present medical specials renders the jury verdict

excessive. There is no dispute that plaintiff visited

an emergency room, had follow-up treating care

and saw outside specialists for her condition. Even

the defendant's consulting physician could not tell

the jury that the emergency room diagnosis [of

esophageal chemical burns] was wrong. In fact,

he steered clear of such assertion. Moreover, there

was evidence, which the jury had the right to

accept and apparently did accept, that showed

plaintiff suffered a serious but essentially

untreatable condition whose duration was

indefinite but likely permanent.

The defendant had a right to assail the absence of

any special damages when its counsel argued the

matter before the jury and, in fact, asked the jury

to assess that in arriving at its verdict. However,

the absence of special damages does not

necessarily, and certainly does not legally,

denigrate the magnitude of the impact plaintiff's

medical condition has on her life. Obviously the

jury concluded the impact was great and

compensated her accordingly.

(App. D at 24a-25a) (emphasis added).

On January 4, 1999, a panel of the Fourth Circuit

reversed the trial court judge’s affirmation of the

compensatory damages award, and instead ordered a

reduction of the $1 million award to $25,000, an unheard of

reduction of more than 97%. On April 26, 1999, by a9to4

vote, Mrs. Konkel’s petition for rehearing with suggestion

for rehearing en banc was denied. This timely petition for

writ of certiorari follows.

B. Mrs. Konkel’s Punitive Damages Claim

In the original motion for judgment filed in state court

in this case, Mrs. Konkel alleged that Bob Evans “recklessly”

served Mrs. Konkel with what Bob Evans admitted in its

answer is a “high alkali caustic industrial strength cleaner

containing numerous hazardous materials.” Mrs. Konkel

asked for compensatory damages and all other relief to which

she was entitled, but did not specifically request punitive

damages in the ad damnum of her initial pleading. The case

was removed pursuant to 28 U.S.C. §§ 1332 and 1441 to the

federal district court for the Western District of Virginia.

The parties agree that Pennsylvania law applies as to

liability and damages. “Reckless” behavior is sufficient for

an award of punitive damages under Pennsylvania law;

willful misconduct is not required. Ivins v. Celotex Corp.,

115 F.R.D. 159 (E.D. Pa. 1986.)

The packet of “Finish” served to Mrs. Konkel contained

numerous warnings that the product causes severe burns, is

harmful if swallowed, and should be kept away from skin,

eyes and mucous membranes. The “Finish” chemical cleaner

in solution has the appearance of ordinary tap water. During

his deposition and at trial, Richard Giardullo, the Bob Evans

manager in charge of the restaurant where Mrs. Konkel was

injured, testified that the “Finish” chemical cleaner was used

to destain coffee pots not back in the sink area, away from

where food was being prepared, but by placing the chemical

in the coffee maker basket and “brewing” the Finish at the

very same coffee stations where beverages were being

prepared to be served to customers. Mr. Giardullo testified

that this same “cleaning-by-brewing” procedure had been in

place since the restaurant had opened.

During pretrial discovery, Carl Kinderwater, the

chemical manufacturer’s representative in charge of servicing

the Bob Evans restaurant in Carlisle, testified in deposition

that he specifically told Bob Evans’ employees, including

restaurant manager Richard Giardullo, that if “Finish” was

to be used to destain coffee pots, the destaining should be

done in a sink in the back room of the restaurant, not in the

food service area.

In addition to Mr. Kinderwater’s deposition testimony,

documents produced in discovery established that more than

a year before Mrs. Konkel was injured, Bob Evans had a

written procedure that coffee pots were to be destained in

the back sink area, away from the food preparation area,

where they were to be soaked overnight, rinsed, and then

put through the automatic dishwashers before being brought

back to the food service area.

Shortly after discovering in Mr. Kinderwater’s

deposition that Bob Evans’ restaurant manager had been

specifically instructed to use the “Finish” chemical cleaner

in the back sink area, and before Bob Evans had taken the

deposition of Mrs. Konkel, Mrs. Konkel supplemented her

interrogatory answers to state that she was also seeking

punitive damages against Bob Evans to the maximum extent

permitted by law.

After the close of discovery, Mrs. Konkel filed a Fed.

R. Civ. P. 56 motion for summary judgment with respect to

Bob Evans, including a motion for summary judgment with

respect to punitive damages. In her motion, Mrs. Konkel

pointed out that it was undisputed that Bob Evans knew that

the “Finish” chemical solution could cause severe burns,

knew that the “Finish” chemical solution was visually

indistinguishable from plain tap water, and knew that the

coffee pots were being destained by brewing the “Finish”

solution next to other coffee pots being used to serve

customers. Mrs. Konkel argued that she was entitled to

punitive damages as a matter of Pennsylvania law for this

reckless conduct. /vins v. Celotex, supra.

In response, Bob Evans simply asserted that Mrs. Konkel

was not entitled to punitive damages because she had not

requested them in the ad damnum of her initial complaint,

and that she was not entitled to punitive damages unless she

was first awarded compensatory damages. Bob Evans offered

no other opposition to Mrs. Konkel’s motion for summary

judgment with respect to punitive damages.

At the hearing on the parties’ cross-motions for summary

judgment, the district court denied Mrs. Konkel’s summary

judgment motion on punitive damages, and held that Fed.

R. Civ. P. 54(c) did not permit Mrs. Konkel to seek punitive

damages if they had not been specifically requested in the

ad damnum of her original complaint. The district court then

denied Mrs. Konkel’s immediate oral motion at the hearing

for leave to amend her ad damnum to seek punitive damages.

(Appendix F at 37a.) !

In its January 4, 1999 Order, the Fourth Circuit declined

to address in any substantive manner Mrs. Konkel’s cross-

appeal with respect to her claim for punitive damages.

Instead, in a footnote, the Fourth Circuit stated that it need

not even consider the punitive damages issues raised because

it had decided, without the benefit of any trial on the matter,

that it was “obvious” that the “facts” would not justify an

award of punitive damages. On April 26, 1999, by a 9 to 4

vote, Mrs. Konkel’s petition for rehearing with suggestion

for rehearing en banc was denied. This timely petition for

writ of certiorari follows.

REASONS FOR GRANTING THE WRIT

THE PETITION SHOULD BE GRANTED BECAUSE

THE FOURTH CIRCUIT’S DECISION TO SUBSTITUTE

ITS JUDGMENT FOR THAT OF THE JURY AS TO THE

AMOUNT OF COMPENSATORY DAMAGES

VIOLATES THE SEVENTH AMENDMENT.

The Fourth Circuit’s 97% remittitur of the federal jury’s

compensatory damages award violates the Seventh

Amendment, prior decisions of this Court, the decision of

the Third Circuit in Smith, and the generally accepted and

usual course of judicial proceedings. If left to stand, it will

signal that Courts of Appeals, not federal juries, are free to

make their own de novo determinations of unliquidated

damages to be awarded to injured persons.

In Gasperini, this Court reaffirmed the Seventh

Amendment right to a jury trial, and expressly held that a

federal trial judge’s determination whether a jury’s

compensatory damages award is excessive is to be reviewed

by an appellate court solely for abuse of discretion, giving

“the benefit of every doubt to the judgment of the trial judge”.

135 L. Ed. 2d at 679. In Gasperini, the Court specifically

noted the special role federal trial court judges, and not

appellate courts, have in reviewing verdicts for

excessiveness: “Trial judges have the ‘unique opportunity

to consider the evidence in the living courtroom context’

... While appellate judges see only the ‘cold paper record.”

Id. at 680 (citations omitted). The Court made clear that

appellate review of the trial court’s decision on excessive

verdict claims was extremely limited; anything more would

violate the Seventh Amendment.

Just last year, this Court once again emphasized the

importance of allowing juries to make determinations of

compensatory damages under the Seventh Amendment:

It has long been recognized that “by the law the

jury are judges of the damages... .” (citations

omitted). Thus in [1935] the [Supreme] Court

stated that “the common law rule as it existed at

the time of the adoption of the Constitution” was

that “in cases where the amount of damages was

uncertain [,] their assessment was a matter so

peculiarly within the province of the jury that the

Court should not alter it.”

Feltner, supra, 140 L. Ed. 2d at 448-49, citing Dimick vy.

Schiedt, 293 U.S. 474, 79 L. Ed. 603, 55 S. Ct. 296 (1935)

(emphasis added). Neither Feltner nor Gasperini overturned

the longstanding principal stated in the 1935 decision in

Dimick that juries, not appellate courts, are to determine the

amount of compensatory damages in cases such as this.

Indeed, in Heizel, this Court specifically instructed the Fourth

Circuit that the Seventh Amendment requires jury

determinations of compensatory damages.

As the Third Circuit has noted, “it is not our privilege to

substitute our judgment for that of the trial court as to the

maximum amount which will provide fair recompense for

injuries which cannot be equated in any mathematical way

with any number of dollars. . . .” Smith, supra, 460 F.2d at

1228 (citation omitted).

In discarding the jury’s verdict and imposing its own

view of the appropriate amount of Mrs. Konkel’s

compensatory damages for her injuries, the Fourth Circuit

usurped the role of the jury and the trial court judge. The

Fourth Circuit’s decision in this case is in direct conflict

with the Seventh Amendment. It is in direct conflict with

the prior decisions of this Court in Gasperini, Feltner,

Dimick, and Hetzel. It is in conflict with the decision of the

Third Circuit in Smith. If left to stand, it will permit Courts

of Appeal to run roughshod over the Seventh Amendment.”

2. The alternative of offering Mrs. Konkel a-new trial instead

of accepting the Fourth Circuit’s remittitur does not cure the Seventh

Amendment violation. A Court of Appeals should not be permitted

under Gasperini or the Seventh Amendment to substitute its opinion

of an appropriate compensatory damage award for the decision of a

federal jury, and then insulate that decision by offering the person

whose Seventh Amendment rights have been violated the “option”

of a new trial.

II.

THE PETITION SHOULD BE GRANTED BECAUSE IN

SUBSTITUTING ITS JUDGMENT FOR THAT OF THE

JURY AS TO THE AMOUNT OF COMPENSATORY

DAMAGES, THE FOURTH CIRCUIT IGNORED THE

APPLICABLE SUBSTANTIVE LAW AS SET FORTH IN

THE DECISIONS OF THE PENNSYLVANIA

SUPREME COURT.

Under Gasperini, a federal trial court judge’s review of

a verdict for excessiveness is done by application of state

law. Here, because the injury occurred in Pennsylvania,

Pennsylvania law applies. The Fourth Circuit’s 97%

remittitur conflicts with the applicable substantive law as

set forth in the controlling decisions of the Pennsylvania

Supreme Court. Pennsylvania law provides that a jury’s

verdict is to be affirmed by the trial court judge unless it is

SO Outrageous as to shock the trial court’s conscience. That

is precisely the standard the federal trial court judge followed

in this case, and the Seventh Amendment and Gasperini

require that his decision be affirmed.

In Catalano v. Bujak, 537 Pa. 155, 642 A.2d 448 (1994),

the Pennsylvania Supreme Court made clear that jurors’

verdicts are to be affirmed by the trial court judge unless

they “shock the conscience” of the trial court judge:

The Court is not warranted in setting aside,

reducing, or modifying verdicts for personal

injuries unless unfairness, mistake, partiality,

prejudice, or corruption is shown, or the damages

appear to be grossly exorbitant. The verdict must

be clearly and immoderately excessive to justify

the granting of a new trial. The amount must not

only be greater than that which the Court would

have awarded, but so excessive as to offend the

conscience and judgment of the Court.

642 A.2d at 451 (emphasis added). The Pennsylvania

Supreme Court in Catalano, like this Court in Gasperini,

emphasized the deference to be given trial court judges:

It is the duty of the lower Court to control the

amount of the verdict. It is in possession of all of

the facts as well as the atmosphere of the case,

which will enable it to do more even-handed

justice between the parties than can an appellate

court.

Id. at 450 (citation omitted). Other decisions of the

Pennsylvania Supreme Court are in accord. Haines v. Raven

Arms, Donn’s, Inc., 536 Pa. 452, 455, 640 A.2d 367, 369

(1994) (“[T]he excessiveness of the verdict is peculiarly

within the discretion of the trial court... .”), and Kiser v.

Schulte, 538 Pa. 219, 225, 648 A.2d 1, 4 (1994) (“If the

verdict bears a reasonable resemblance to the proven

damages, it is not the function of the court to substitute its

judgment for the jury’s.”) (Emphasis added.)

In Botek v. Mine Safety Appliance Corp., 531 Pa. 160,

611 A.2d 1174 (1992), the Pennsylvania Supreme Court

emphasized that the trial court judge is in the best position

to determine whether the jury’s verdict is excessive:

We have held on numerous occasions that whether

to grant a new trial because of excessiveness or

inadequacy of the verdict is a matter within the

sound and peculiar discretion of the trial court,

which has observed the demeanor of the

witnesses. ...

611 A.2d at 1176. The Botek court’s admonition is

particularly instructive in the present case:

[T]he reason the [appellate court] felt free to

substitute their judgment for that of the trial court

and grant the drastic remittitur they did in this

case was that they did not regard Plaintiff-

Appellant’s emotional and psychological injuries

as serious or as entailing real pain and suffering.

We think that this was an erroneous usurpation

of the primary function of the jury and the trial

court. It is simple black letter law that a tortfea

or must take its victim as it finds him. Plaintiff-

Appellant suffered objective measurable

observable physical injuries here (although they

were relatively mild). All of the consequent

psychological and emotional pain and suffering

is compensable in that situation, and our law has

long so held under the so-called “impact rule.”

Id. at 1177 (emphasis added).

Catalano, Haines, Kiser, and Botek, all recent

Pennsylvania Supreme Court cases cited by Mrs. Konkel to

the Fourth Circuit, were neither cited nor distinguished in

the Fourth Circuit’s January 4, 1999 decision.

Here, the federal trial court judge, in reviewing the jury’s

verdict on a Fed. R. Civ. P. 59(a) motion, stated in detail the

specific reasons why the jury’s award was appropriate, not

excessive, and why he was “convinced” that the verdict was

not a miscarriage of justice. He specifically addressed the

medical evidence, the evidence of her damages, and the issue

of medical specials. His refusal to overturn or reduce the

jury’s verdict was consistent with Pennsylvania law, was well

within his discretion, and should have been affirmed. Instead,

by substituting its own view of an appropriate award, the

Fourth Circuit ignored Pennsylvania law as set forth in

controlling Pennsylvania Supreme Court decisions. In doing

so, the Fourth Circuit violated the Seventh Amendment and

Gasperini, and deviated completely from the accepted and

usual course of judicial proceedings.

The Fourth Circuit attached significance to the fact that

Mrs. Konkel chose not to seek to recover for her medical

expenses. Mrs. Konkel’s permanent injuries occurred the

instant she swallowed the chemical solution. While Mrs.

Konkel introduced evidence of the numerous medical tests

performed on her by various physicians, those tests were

diagnostic in nature and ruled out other possible causes of

her esophageal pain. She chose not to introduce in evidence

the expenses she incurred for those medical services, did

not seek to have the jury compensate her for those medical

expenses, and the damages instruction to the jury did not

list medical expenses as an item to be involved inthe jury’s

award of damages. The fact that Mrs. Konkel did not ask the

jury to compensate her for the medical expenses she incurred

does not diminish the uncontradicted evidence of her pain

and suffering, permanent injury, and the devastating impact

that the injuries have had on her life, which is the evidence

the jury relied upon in making its compensatory award. The

Fourth Circuit’s focus on so-called specials was in direct

conflict with controlling Pennsylvania Supreme Court

decisions.

In particular, the Fourth Circuit completely ignored

Botek, supra, which specifically affirmed a jury’s award of

significant compensatory damages despite the absence of any

wage loss evidence, significant medical specials, or

“objective” medical evidence. In Botek, the Pennsylvania

Supreme Court reinstated a jury’s compensatory damage

award of $350,000 for emotional distress. The plaintiff in

Botek passed out when exposed to carbon monoxide and, as

a result, was subsequently diagnosed as having post-

traumatic stress disorder. At the time of his trial, he had been

suffering from nervousness, insomnia, and emotional ills for

approximately seven years. His special damages were less

than $800. He had no wage loss claim. He did not consult a

physician until one year after the incident. There was no

evidence of organic brain dysfunction, and “no objective

scientific tests” to confirm the existence of any injury to him.

His evidence of damages was his own testimony and that of

an expert psychiatrist who testified that the plaintiff suffered

from post-traumatic stress disorder. The evidence was that

his emotional difficulties were not permanent, but could be

cured in the future with therapy. The jury awarded

compensatory damages in the amount of $350,000, and the

trial court judge denied the defendant’s motion to set aside

the verdict as excessive. An intermediate appellate court

ruled that the damages were excessive.

In reversing the intermediate appellate court and

reinstating the jury verdict, the Pennsylvania Supreme Court

in Botek held:

The jury in the instant case listened to

uncontradicted expert medical witnesses . . . They

heard Plaintiff-Appellant testify, and they

concluded that Plaintiff-Appellant suffered

substantial long-term mental and emotional ills

as a result of [the defendant’s] admitted

negligence. They decided to compensate him for

that suffering at the rate of $50,000 per year. That

was reasonable and that is where the matter

should have ended.

611 A.2d at 1177 (emphasis added).

Botek is directly on point, but was not even cited or

discussed in the Fourth Circuit’s January 4, 1999 decision.

It is simply inconceivable to suggest that the federal trial

court judge abused his discretion in this case by following

the very same analysis approved by the Pennsylvania

Supreme Court in Botek. Instead, it is clear that the Fourth

Circuit ignored Botek and simply substituted its own

judgment as to the amount of damages Mrs. Konkel should

be awarded.

Thirty years prior to Botek, the Pennsylvania Supreme

Court had expressly rejected the suggestion that the amount

of compensatory damages is somehow linked to the amount

of special damages in Carminati v. Philadelphia Transp. Co.,

405 Pa. 500, 176 A.2d 440 (1962). The Carminati court

affirmed a compensatory damages award of almost $80,000

in 1962 dollars for pain and suffering even though the

medical expenses were less than $200. The Carminati court

rejected the defendant’s attempt “to prove excessiveness [of

the verdict] by making a comparison between the medical

expense incurred and the amount of the verdict,” specifically

stating that “[]his type of comparison may be as unreliable

as an elastic ruler.” Id. (emphasis added.)

As in Carminati, the federal trial court judge here also

properly declined to make the “unreliable as an elastic ruler”

comparison between the amount of so-called specials and

Mrs. Konkel’s injuries when he correctly ruled that “the

absence of special damages does not necessarily, and

certainly does not legally, denigrate the magnitude of the

impact Plaintiff’s medical condition has on her life.”

(Appendix D at 25a.)

The Fourth Circuit’s suggestion that special damages

are a prerequisite to recovery of significant compensatory

damages conflicts with the Pennsylvania Supreme Court’s

decisions in Botek and Carminati, supra. It also conflicts

with the three Pennsylvania intermediate appeals court cases

cited by the Fourth Circuit in its January 4, 1999 decision,

Mineo v. Tancini, 349 Pa. Super. 115, 502 A.2d 1300 (1985),

Kemp v. Philadelphia Transp. Co., 239 Pa. Super. 379, 361

A.2d 362 (1976) and Stoughton v. Kinzey, 299 Pa. Super.

499, 455 A.2d 1240 (1982). Mineo made clear that the six

factors cited in Kemp and focused on by the Fourth Circuit

do not constitute some sort of checklist against which a

verdict must be tested. Indeed, in 1994, the Pennsylvania

Supreme Court in Haines made it quite clear that focusing

on so-called special damages and the six factors listed in

Kemp is not proper. Instead, what is required is an

explanation by the trial court judge as to the reasons the

verdict does or does not “shock the conscience”, which is

precisely what the federal trial court judge provided in this

3. The Third Circuit’s holding in Smith, supra, also applying

Pennsylvania law, is in accord. (“This case is one which ‘injuries

. .. Cannot be equated in any mathematical way with any number of

dollars. ...’ There is room for reasonable disagreement as to ...

the amount ... But this verdict is not so greatly excessive as to

shock the conscience of the court.”) 460 F.2d at 1228.

case. 640 A.2d at 369. (Haines was also not discussed in the

Fourth Circuit’s January 4, 1999 decision.)

Stoughton, supra, an intermediate appellate opinion cited

by the Fourth Circuit, actually supports the trial court judge’s

decision in the instant case:

The issue of the amount of damages that a person

is to be awarded for pain and suffering, both past

and future, is primarily a jury question . . . A jury

is justified in awarding substantial damages for

pain and suffering where the injuries are

permanent and cause pain . . . Appellant’s ability

to continue her employment is not relevant in this

case because the jury was instructed not to

consider her lost wages in arriving at a damage

figure .. . In regard to the disparity between the

amount of out of pocket expenses and the amount

of the verdict, this is only one factor to be

considered and does not, in and of itself, justify

granting a new trial on the ground that the verdict

was excessive.

455 A.2d at 1242 (emphasis added). Significantly, the

Stoughton court reinstated the jury’s verdict, expressly

rejecting the assertion that so-called “subjective” pain is not

compensable:

Appellee contends that appellant’s testimony

regarding her pain was not a proper basis for the

award of damages because there was no objective

documentation of it. In a personal injury action,

however, it is totally within the jury’s province

to disbelieve or believe all or part of the testimony

of any witness and to arrive at a verdict of

damages which it determines will compensate a

plaintiff for his loss.

Id. at 1243 (emphasis added). See also Tulewicz v.

Southeastern Pennsylvania Transportation Authority, 529

Pa. 584, 588, 606 A.2d 425, 426 (1991), rev'd on other

grounds 529 Pa. 588, 606 A.2d 427 (1992) (“Absent

unfairness or impartiality, the jury is entitled to the last

word.”)4

The three cases “surveyed” by the Fourth Circuit as the

basis for its opinion of the proper award hardly apply. The

first case, Brown v. Paxton, 2 A.2d 729 (Pa. 1938), was a

1938 Pennsylvania automobile whiplash case in which the

plaintiff sought no medical treatment at the time of her

accident, made no contemporaneous complaint of injury, and

where the plaintiff s treating physicians did not even testify.

The plaintiff in the second case, Meholiff v. River Transit

Co., 20 A.2d 762 (Pa. 1941), a 1941 case cited by the Fourth

Circuit, had a minor, curable, knee injury that had no

significant effect on his life. Kemp, the only other case cited

by the Fourth Circuit, involved a slip and fall plaintiff whose

injury consisted of a claim that “her back hurt her

occasionally when the weather was bad, damp, or cold.” 361

A.2d at 363. Not one of these cases presented facts even

remotely similar to the evidence presented to the federal jury

and trial court judge in Mrs. Konkel’s case.

In this case, the jurors, as well as the federal trial court

judge, but not the Fourth Circuit, heard virtually

4. Tulewicz was also cited by Mrs. Konkel in her post-argument

supplemental citation, but it too was not addressed in the Fourth

Circuit’s January 4, 1999 decision.

uncontroverted evidence of Mrs. Konkel’s damages. The

jurors, as well as the federal trial court judge, but not the

Fourth Circuit, had the opportunity to evaluate the evidence

of Mrs. Konkel’s permanent, painful, life-altering injury. The

decision of the jury and the federal trial court judge should

be affirmed. The Fourth Circuit’s decision to substitute its

own opinion of Mrs. Konkel’s damages, in disregard of

controlling applicable Pennsylvania law, was a violation of

Mrs. Konkel’s right to a jury trial under the Seventh

Amendment and this Court’s holdings in Gasperini, Dimick,

and Feltner, and should be reversed.

Il.

THE PETITION SHOULD BE GRANTED BECAUSE

THE FOURTH CIRCUIT ALSO VIOLATED FED. R.

CIV. P. 54(c), FED. R. CIV. P. 56, AND MRS. KONKEL’S

SEVENTH AMENDMENT RIGHT TO HAVE A JURY

HEAR HER PUNITIVE DAMAGES CLAIM.

The Fourth Circuit also erred in refusing even to consider

Mrs. Konkel’s cross-appeal with respect to punitive damages.

The district court barred Mrs. Konkel from pursing punitive

damages prior to trial simply because punitive damages had

not been specifically demanded in the ad damnum of her

original complaint. The Fourth Circuit’s decision to let that

ruling stand conflicts with Fed. R. Civ. P. 54(c), with its

own decision in Gilbane Building Co. v. Federal Reserve

Bank of Richmond, 80 F.3d 895 (4th Cir. 1996), and with

the decisions of the Courts of Appeal of the First, Third,

Fifth, and Seventh Circuits. If not overturned, litigants will

be required to request punitive damages in every case in order

to avoid being barred from seeking them should information

developed during discovery show they are appropriate.

In Gilbane, the Fourth Circuit expressly held that Rule

54(c) “authorizes recovery under any theory supported by

the facts proven at trial.” /d. at 900. The Fourth Circuit made

clear that Rule 54(c) is not an exception to the general rules

of pleading, but is merely a “clarification of the fundamental

point... that the relief to which a claimant is entitled is not

limited to the relief it requested in its original demand for

judgment.” Jd. at 901, citing New Amsterdam Casualty Co.

v. Waller, 323 F.2d 20, 24-25 (4th Cir. 1963), cert. denied,

376 U.S. 963 (1964). The Fourth Circuit noted in Gilbane

that Rule 54(c) contains a mandatory requirement that the

trial court “shall grant the relief to which the party whose

favor it is rendered is entitled, even if the party has not

demanded such relief in the party’s pleadings.” Jd. at 901

(emphasis in original.)

Gilbane makes clear that Fed. R. Civ. P. 54(c) requires

that the trial court judge give a party all relief to which she

is entitled, regardless of what is requested in the party’s

pleadings.

Decisions of the Courts of Appeal for the First, Third,

Fifth, and Seventh Circuits are in accord. In Felce v. Fiedler,

974 F.2d 1484, 1501 (7th Cir. 1992) the Seventh Circuit held

that “Rule 54(c) ‘has been liberally construed leaving no

question that it is the court’s duty to grant whatever relief is

appropriate in the case on the facts proved.’ This includes

injunctive relief when appropriate, and even when not

specifically requested.” Jd. at 1501, citations omitted.

See also Avitia v. Metropolitan Club of Chicago, Inc.,

49 F.3d 1219, 1226 (7th Cir. 1995).

The holding in Gilbane is also consistent with the First

Circuit’s decisions in Rodriguez v. Doral Mortgage Corp.,

57 F.3d 1168, 1173 (1st Cir. 1995) and Commercial Union

Insurance Company v. Walbrook Insurance Company, Ltd.,

41 F.3d 764, 773, n.15 (1st Cir. 1994), and with the Third

Circuit’s decision in Feldman v. Philadelphia Housing

Authority, 43 F.3d 823 (3rd Cir. 1994). In Feldman, the Third

Circuit held that Rule 54(c) entitled the trial court to award

front pay in a Title VII case, even where the plaintiff in her

pleadings had requested reinstatement. As the Third Circuit

noted, “Relief is determined by the merits of the case, not

by the pleadings.” /d. at 832, citing Rule 54(c).

Likewise, the Fifth Circuit Court of Appeals has also

held that Rule 54(c) “vests district courts with broad

discretion to fashion a remedy, even if the remedy awarded

is not specifically requested in the prayer for relief.” North

Alamo Water Supply Corp. v. San Juan, 90 F.3d 910, 918

(Sth Cir. 1996), citing International Harvest Credit Corp. v.

East Coast Truck, 547 F.2d 888, 891 (Sth Cir. 1977).

The foregoing authority demonstrates that Mrs. Konkel

was not required to request punitive damages in the ad

damnum of her complaint in order to be able to pursue them

at trial. Indeed, in its memorandum in support of its motion

in limine to bar any request for punitive damages, Bob Evans

expressly conceded the point:

. .. [A] failure to specifically plead and demand

exemplary damages will not bar an award of such

damages under Federal Rule of Civil Procedure

54(c)....

Because Mrs. Konkel was not required under Fed. R.

Civ. P. 54(c) to have specifically requested punitive damages

in order to be entitled to recover them, it was error for the

federal court judge to grant Bob Evans’ motion in limine

precluding Mrs. Konkel from seeking punitive damages at

trial simply because she had not requested them in the

ad damnum of her original complaint. Instead, the district

court should have denfed the motion in limine.

When the district court ruled that Mrs. Konkel was

required to seek punitive damages in the ad damnum of her

complaint, Mrs. Konkel moved orally, pursuant to Fed. R.

Civ. P. 15, for leave to amend the ad damnum of her

complaint to seek punitive damages. The district court denied

the motion. Although no such motion should have been

required because of Rule 54(c), it was error for the district

court to deny the motion to amend.

Moreover, Mrs. Konkel had moved for summary

judgment with respect to punitive damages. That motion for

summary judgment was opposed by Bob Evans on only two

grounds. First, Bob Evans asserted that punitive damages

were barred because Mrs. Konkel had not requested them in

the ad damnum of her complaint. Second, Bob Evans asserted

that Mrs. Konkel was only entitled to punitive damages if

she established that she was entitled to compensatory

damages. Bob Evans filed no other opposition to Mrs.

Konkel’s motion for summary judgment.

Under Rule 54(c), Bob Evans’ first ground was not

proper. Moreover, because Mrs. Konkel is entitled to

compensatory damages, Bob Evans’ only other basis for

opposing Mrs. Konkel’s summary judgment motion on

punitive damages is also without foundation. Accordingly,

because there was no legitimate opposition to Mrs. Konkel’s

motion for summary judgment, that motion should have been

granted and she should have received punitive damages in

an amount determined by a jury.

In its January 4, 1999 decision, however, the Fourth

Circuit failed to address any of these arguments. Instead, in

a footnote, the Fourth Circuit stated that it need not even

consider Mrs. Konkel’s cross-appeal of the punitive damages

issue because it had decided that it was “obvious” to the

Fourth Circuit that the “facts” in this case would not sustain

an award of punitive damages. That was a violation of the ,

Seventh Amendment right to a jury trial. The Pennsylvania

case cited in the Fourth Circuit’s footnote makes clear that

punitive damages may be awarded for “reckless” conduct

under Pennsylvania law, which is precisely v. hat Mrs. Konkel

alleged in her complaint, and which is what she argued in

her motion for summary judgment the evidence established.

In particular, the evidence obtained during discovery showed

that Bob Evans ignored specific instructions from the

manufacturer to keep the caustic cleaner (which Bob Evans

knew would cause severe burns) away from the food

preparation area, and back in the sink area. Instead, Bob

Evans personnel used this caustic cleaner in the food

preparation area, and placed it in the coffee filter basket as

they brewed the colorless caustic cleaner in the coffee pots

next to the ones being used to serve customers hot water for

tea. The Fourth Circuit’s decision that it is “obvious” that

such reckless misconduct cannot give rise to a claim for

punitive damages violated Fed. R. Civ. P. 54(c), 56, and Mrs.

Konkel’s Seventh Amendment right to a jury trial.

If the Fourth Circuit’s decision is permitted to stand,

this Court will be encouraging every personal injury plaintiff

to request punitive damages at the time suit is filed, even if

there is no real basis for doing so, simply to ensure that such

damages will not be held to have been waived.

CONCLUSION

Carol Konkel suffered a life-altering, permanent

esophageal injury which resulted in her never again being

able to eat a normal meal without pain. She exercised her

Seventh Amendment right to submit her case to a federal

jury. The jury heard extensive evidence about the injury and

its impact on Mrs. Konkel’s life. The federal trial court judge

carefully reviewed the jury’s compensatory award on a

Fed. R. Civ. P. 59(a) motion, and gave clear reasons why

the award was proper. In substituting its own opinion for the

jury’s determination, the Fourth Circuit usurped the function

of the jury and the trial court judge, ignored the admonitions

of this Court in Gasperini, Feltner, Dimick, and Hetzel of

the importance of jury determinations of compensatory

damages under the Seventh Amendment, and ignored the

applicable law as set forth in controlling Pennsylvania

Supreme Court decisions. The result was a violation of Mrs.

Konkel’s Seventh Amendment right to a jury trial. Moreover,

the decision that Mrs. Konkel was not entitled to punitive

damages because she had not requested them in the ad

damnum of her complaint was also a violation of her Seventh

Amendment right to a jury trial, as well as a violation of

Fed. R. Civ. P. 54(c) and 56.

The Court should grant this petition because failure to

do so will encourage Courts of Appeals to ignore the Seventh

Amendment and this Court’s prior decisions in Gasperini,

Feltner, Dimick, and Hetzel, and to impose their own

opinions as to compensatory damages without the benefit of

hearing a single witness. The Court should also grant the

petition with respect to punitive damages to ensure that future

litigants do not seek punitive damages simply out of fear

that such damages might be deemed to be waived if not

sought at the time the initial complaint is filed.

For each of the foregoing reasons, Mrs. Konkel

respectfully requests that her petition for writ of certiorari

be granted.

Respectfully submitted,

ROBERT T. MITCHELL, Jr.

Counsel of Record

JAMES A. KLENKAR

HALL, MONAHAN, ENGLE,

MAHAN & MITCHELL

Attorneys for Petitioner

Nine East Boscawen Street

P.O. Box 848

Winchester, Virginia 22604

(540) 662-3200

APPENDIX

‘¥

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

DATED AND DECIDED JANUARY 4, 1999

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 97-1824

CAROL M. KONKEL,

Plaintiff-Appellee,

BOB EVANS FARMS INCORPORATED,

Defendant-Appellant,

and

ECOLAB, INCORPORATED,

Defendant.

No. 97-1867

CAROL M. KONKEL,

Plaintiff-Appellant,

Appendix A

BOB EVANS FARMS INCORPORATED,

Defendant-Appellee,

and

ECOLAB, INCORPORATED,

Defendant.

Appeals from the United States District Court

for the Western District of Virginia, at Harrisonburg.

B. Waugh Crigler, Magistrate Judge.

(CA-96-20-H)

Argued: September 24, 1998

Decided: January 4, 1999

Before MURNAGHAN and HAMILTON, Circuit Judges,

and MAGILL, Senior Circuit Judge of the United States

Court of Appeals for the Eighth Circuit, Sitting by

designation.

OPINION

HAMILTON, Circuit Judge:

Bob Evans Farms, Inc. (Bob Evans), owner of a restaurant

in Carlisle, Pennsylvania, appeals from a $1,000,000

Appendix A

judgment in favor of one of its customers, Carol Konkel

(Konkel), as compensation for her physical and emotional

damages flowing from her ingestion of hot tea, contaminated

with Eco-line Finish cleaning detergent, served to her at Bob

Evans.' The principal issue presented in this appeal is

whether the magistrate judge abused his discretion in denying

Bob Evans’ motion pursuant to Federal Rule of Civil

Procedure 59(a) for a new trial based upon the alleged

excessiveness of the jury’s compensatory damage award.

Concluding that $25,000 in compensatory damages is the

outermost award that could be sustained, we reduce the award

to $25,000 or grant a new trial nisi remittitur at Konkel’s

option. With regard to the additional issues presented on

appeal, we affirm the magistrate judge’s denial of Bob Evans’

alternative motions under Federal Rule of Civil Procedure

50(b) for judgment as a matter of law or for a new trial, his

denial of Bob Evans’ motion for relief from judgment

pursuant to Federal Rule of Civil Procedure 60(b)(6), his

denial of Konkel’s motion to amend the ad damnum clause

of her complaint to add a request for punitive damages, and

his grant of Bob Evans’ motion in limine to exclude evidence

to support a claim for punitive damages.

On March 22, 1994, Konkel had dinner at Bob Evans and

ordered hot tea with her meal. The waitress brought Konkel

1. Ecolab, Inc., the manufacturer of Eco-line Finish cleaning

detergent, was originally also a defendant in this action. However,

Konkel dismissed her claims against Ecolab, Inc. prior to trial.

Ecolab, Inc. is not a party in this appeal.

Appendix A

a carafe full of hot water, a tea bag, and a mug.’ After

allowing the tea to steep in the carafe, Konkel poured herself

a full mug of hot tea and drank it. Shortly thereafter, the

waitress inquired as to whether Konkel wanted a refill of

hot water so that she could have a second mug of hot tea.

Upon Konkel’s affirmative response, the waitress poured hot

water from a coffee pot into Konkel’s carafe.

Konkel waited for the tea to steep in the carafe, poured herself

a second mug of hot tea, and then swallowed one mouthful

of it. Upon swallowing, Konkel noticed that the hot tea tasted

soapy, and she felt a burning sensation in her throat. Konkel

notified Bob Evans’ staff that her hot tea tasted soapy, and

the waitress and the manager smelled the hot tea and stated

that the hot tea smelled like the Eco-line Finish cleaning

detergent that Bob Evans used to clean its coffee pots: The

manager concluded that the waitress had accidentally served

Konkel from a coffee pot that contained a packet of Eco-

line Finish cleaning detergent.

After leaving Bob Evans, Konkel continued to suffer pain in

her chest and therefore visited the emergency room. At the

emergency room, Dr. Lawrence Boyler, an emergency room

physician, examined Konkel, diagnosed her slightly red

throat as esophageal chemical burn, and estimated that she

would recover rapidly. Almost a year after the incident at

Bob Evans, Konkel suffered chest discomfort and visited

her family physician, Dr. Edward Cullen, who performed

tests producing normal results. Thereafter, Konkel visited

2. The carafe and the mug each could hold approximately one

cup of liquid.

Appendix A

two gastroenterology specialists who performed tests also

producing normal results.

Despite the fact that all the tests on Konkel produced normal

results, one of the specialists, Dr. Nicholas Snow, diagnosed

Konkel as suffering from heightened visceral nociception

(HVN)’ of the esophagus and prescribed her anti-depressants

to numb the nerves in her esophagus. Dr. Snow concluded

that Konkel’s condition was the result of her ingestion of

the “mouthful” of hot tea containing Eco-line Finish cleaning

detergent at Bob Evans a year and a half earlier.

Thereafter, Konkel filed a complaint against Bob Evans in

the Circuit Court of Clarke County, Virginia, alleging that

Bob Evans acted negligently and in breach of its express

and implied warranties “that the food and beverages served

at [Bob Evans] were safe and fit for human consumption”

when it served Konkel hot tea containing Eco-line Finish

cleaning detergent. (J.A. 20). In her complaint, Konkel

requested $1,000,000 in compensatory damages on each of

her claims, but did not request punitive damages. Bob Evans

subsequently removed the case to the United States District

Court for the Western District of Virginia based upon

diversity jurisdiction. See 28 U.S.C. § 1332. The case

proceeded into the discovery phase, with the parties agreeing

that the law of Pennsylvania applied to all substantive issues

in the case.

3. Dorland’s Illustrated Medical Dictionary, 1141, 1831-32,

(28th ed. 1994), defines “nociception” as “pain sense” and “visceral”

as pertaining to “any large interior organ in any one of the three

great cavities of the body, especially in the abdomen.”

Appendix A

Three days before the end of discovery, in supplemental

answers to Bob Evans’ interrogatories, Konkel requested

punitive damages. In response, Bob Evans moved in limine

to exclude evidence to support a claim for punitive damages

because Konkel did not aver them in her complaint.

Following the close of discovery, Konkel moved for

summary judgment on all counts.

During a hearing on the motions, Konkel orally moved for

leave to amend her ad damnum clause to request punitive

damages, but the magistrate judge denied her motion. At the

conclusion of the hearing, the magistrate judge denied

Konkel’s motion for summary judgment as to her negligence

claim, but granted the motion as to her breach of warranties

claim with respect to liability only. The magistrate judge

granted Bob Evans’ motion in limine to exclude evidence of

punitive damages because Konkel did not allege sufficient

facts in her complaint to give Bob Evans notice of her claim

for punitive damages, and leave to amend at such a late date

would prejudice Bob Evans.

The case proceeded to trial before a jury on the issue of

damages for Bob Evans’ breach of warranties and on the

issue of whether Bob Evans’ conduct constituted negligence.

By consent of the parties, a magistrate judge presided over

the trial. See 28 U.S.C. § 636(c). At trial, Konkel’s theory of

the case was that, as evidenced by Dr. Snow’s expert

testimony, Bob Evans’ conduct caused her serious,

substantial, and permanent physical injury that had a

devastating impact on her life. Konkel testified that her HVN

caused her to severely restrict her diet, thereby affecting her

relationships with her husband, her family, and her friends.

Appendix A

In response to Konkel’s evidence, Bob Evans introduced the

testimony of Dr. Anthony Kalloo. Dr. Kalloo acknowledged

that HVN was a medical condition, but opined that the data

was insufficient to diagnose Konkel with HVN and that

Konkel’s esophagus was normal.

At the close of Konkel’s evidence, Bob Evans moved for

judgment as a matter of law under Federal Rule of Civil

Procedure 50(a) because Konkel had not submitted medical

bills or records and the only evidence of causation was Dr.

Snow’s testimony. The magistrate judge granted Bob Evans’

motion in part, excluding testimony of any medical expenses

Konkel incurred in the past or expected to incur in the future

and also excluding any instruction to the jury regarding

medical expenses.

At the close of evidence, Konkel moved for judgment as a

matter of law pursuant to Rule 50(a) on her negligence claim.

The magistrate judge granted the motion in part, concluding

that as a matter of law Bob Evans had breached its duty of

care, but the magistrate judge sent to the jury the issue of

what compensatory damages were proximately caused by

Bob Evans’ conduct. Specifically, on the issue of damages,

the magistrate judge instructed the jury to determine whether

Konkel had suffered or would suffer damages — past or

future physical pain, mental anguish, humiliation,

embarrassment, inconvenience, or loss of enjoyment of life

— and if so, the amount of those damages. Following its

deliberations, the jury found that Konkel suffered damages

in the amount of $1,000,000 as a proximate result of Bob

Evans’ conduct.

Appendix A

Subsequently, Bob Evans moved for a new trial pursuant to

Federal Rule of Civil Procedure 59(a) based upon the alleged

excessiveness of the jury’s compensatory damage award.

Specifically, Bob Evans contended that the jury’s

compensatory damage award was excessive because Konkel

had not submitted objective medical evidence of injury,

medical expenses, lost wages, lost earning capacity, or loss

of employment opportunities. Bob Evans also moved for

judgment as a matter of law or in the alternative for a new

trial pursuant to Federal Rule of Civil Procedure 50(b). The

magistrate judge issued a joint order denying the Rule 59(a)

and the Rule 50(b) alternative motions because Dr. Snow’s

testimony provided “a legally sufficient evidentiary basis

for the jury’s verdict.” (J.A. 552). Additionally, the

magistrate judge concluded that the jury’s verdict was “not

against the clear weight of the evidence,” and “the outcome

was not a miscarriage of justice.” Jd. Accordingly, the

magistrate judge entered judgment in favor of Konkel in the

amount of $1,000,000.

Thereafter, Bob Evans moved for relief from judgment

pursuant to Federal Rule of Civil Procedure 60(b)(6) based

on jury misconduct. In support of its motion, Bob Evans

attached an affidavit from Bob Evans’ counsel’s secretary.

In the affidavit, the secretary stated that she had spoken to

the foreman of the jury, who told her that the jury had

performed an experiment in the jury room “to determine the

amount of liquid that was in the coffee pot at Bob Evans”

when the waitress refilled Konkel’s carafe, and in performing

the experiment, had used a cup not admitted into evidence.

(J.A. 566). The magistrate judge denied Bob Evans’ Rule

60(b)(6) motion, concluding the jury’s experiment did not

Appendix A

constitute jury misconduct, because the experiment was

merely an examination of the admitted evidence and an

application of the admitted testimony regarding the

concentration of the detergent in the hot water served to

Konkel.

Bob Evans subsequently filed a timely notice of appeal, and

Konkel filed a timely notice of cross-appeal. On appeal, Bob

Evans contends that the magistrate judge erred in denying

its Rule 50(b) motion for judgment as a matter of law, its

alternative Rule 50(b) motion for a new trial, its Rule 59(a)

motion for a new trial, and its Rule 60(b)(6) motion for relief

from judgment. On cross-appeal, Konkel alleges that the

magistrate judge erred in denying her oral motion to amend

her ad damnum clause to add a request for punitive damages

and in granting Bob Evans’ motion in limine to exclude

evidence related to punitive damages.

First, we address Bob Evans’ argument that the evidence

was not sufficient to support the jury’s findings of causation,

including its obvious finding that Konkel suffered from HVN

as a result of Bob Evans’ conduct, and that therefore, the

magistrate judge erred in denying its alternative motions

under Rule 50(b) for judgment as a matter of law or for a

new trial. We review a district court’s denial of a Rule 50(b)

motion for judgment as a matter of law de novo. See White

v. County of Newberry, 985 F.2d 168, 172 (4th Cir. 1993).

A Rule 50(b) motion should be granted if a district court

determines, without weighing the evidence or considering

the credibility of the witnesses, that substantial evidence does

10a

Appendix A

not support the jury’s findings. See id. In reviewing a district

court’s decision on a Rule 50(b) motion, we view all the

evidence in the light most favorable to the prevailing party

and draw all reasonable inferences in his or her favor. See

Austin v. Torrington Co., 810 F.2d 416, 420 (4th Cir. 1987).

We review a denial of a motion for a new trial under Rule

50(b) for abuse of discretion. See Bristol Steel & Iron Works,

Inc. v. Bethlehem Steel Corp., 41 F.3d 182, 186 (4th Cir.

1994).

The question before us is whether Konkel presented sufficient

evidence to support the jury’s finding that she suffered

damages that were proximately caused by Bob Evans’

conduct. In order to establish proximate cause under

Pennsylvania law, the plaintiff must show by a

preponderance of the evidence that the defendant’s acts or

omissions were a substantial factor in causing the plaintiff's

harm. See First v. Zem Zem Temple, 686 A.2d 18, 21 (Pa.

Super. 1996).

Konkel presented the testimony of Dr. Snow that the likely

permanent HVN she suffered was caused by Bob Evans’

conduct. In response, Bob Evans presented the testimony of

Dr. Kalloo, who opined that the data was insufficient to

diagnose Konkel with HVN and that Konkel’s esophagus

was normal. Obviously, it was up to the jury to decide which

expert — Dr. Snow or Dr. Kalloo — was more credible.

Through its verdict, it is evident that the jury found Dr. Snow

more credible, and we are in no position to take issue with

that finding. In short, Dr. Snow’s testimony was sufficient

to support a reasonable jury’s finding that Bob Evans’

conduct was a substantial factor in causing Konkel’s HVN.

mane eee Oe

lla

Appendix A

Accordingly, we conclude that the magistrate judge’s denial

of Bob Evans’ motion for judgment as a matter of law under

Rule 50(b) was proper.‘

Ii]

Next, we address Bob Evans’ contention that the $1,000,000

compensatory damage award is excessive, and therefore, the

magistrate judge erred in denying its Rule 59(a) motion for

a new trial based upon the alleged excessiveness of the jury’s

compensatory damage award.

We review a district court’s denial of a Rule 59(a) motion

for a new trial based upon the alleged excessiveness of the

jury’s compensatory damage award for abuse of discretion,

giving “the benefit of every doubt to the judgment of the

trial judge.” Gasperini v. Center for Humanities, Inc., 518

U.S. 415, 438-39 (1996). Whether a jury award is excessive

is a question of law. See id. at 436-38. If we find a jury’s

damage award excessive, we may “grant a new trial nisi

remittitur, which gives the plaintiff the option of accepting

the remittitur or of submitting to a new trial.” Cline v. Wal-

Mart Stores, Inc., 144 F.3d 294, 305 n.2 (4th Cir. 1998).

The Supreme Court in Gasperini addressed the appropriate

standard under which a district court must evaluate a Rule

59(a) motion for a new trial based upon the alleged

4. For the reasons stated above, we conclude that the magistrate

judge’s denial of Bob Evans’ alternative Rule 50(b) motion for a

new trial was not an abuse of discretion. See James v. Jacobson,

6 F.3d 233, 239 (4th Cir. 1993).

12a

Appendix A

excessiveness of the jury’s compensatory damage award. See

Gasperini, 518 U.S. at 438-39. The Supreme Court

determined that because the doctrine of Erie R.R. Co. v.

Tompkins, 304 U.S. 64 (1938), “precludes a recovery in

federal court significantly larger than the recovery that would

have been tolerated in state court,” Gasperini, 518 U.S. at

430-31, a district court sitting in diversity must apply state

law standards when it considers a Rule 59(a) motion for a

new trial based upon the alleged excessiveness of the jury’s

compensatory damage award. See id. at 438-39.

Gasperini overruled our circuit precedent that called for

district courts sitting in diversity to apply federal law in

determining the merits of a motion pursuant to Rule 59(a)

for a new trial based upon the alleged excessiveness of the

jury’s verdict. See Johnson v. Parrish, 827 F.2d 988, 991

(4th Cir. 1987). Specifically, in our circuit prior to Gasperini,

a district court was required to set aside a jury’s verdict as

excessive “even when such a verdict is supported by

substantial evidence ‘if [it] is of the opinion that the verdict

is against the clear weight of the evidence, or is based upon

evidence which is false, or will result in a miscarriage of

justice.” ” Johnson, 827 F.2d at 991 (quoting Aetna Cas. &

Sur. Co. v. Yeatts, 122 F.2d 350, 352 (4th Cir. 1941)).

Under the Supreme Court’s mandate in Gasperini, the

magistrate judge was required to apply Pennsylvania law in

determining whether the jury’s $1,000,000 compensatory

damage award in favor of Konkel was excessive. Under

Pennsylvania law, a jury’s damage award is considered

excessive if it does not fall “within the necessarily uncertain

limits of fair and reasonable compensation in the particular

13a

Appendix A

case” or if the award “so shocks the sense of justice as to

compel the conclusion that the jury [was] influenced by

partiality, prejudice, mistake, or corruption.” Carminati v.

Philadelphia Transp. Co., 176 A.2d 440, 445 (Pa. 1962).

Here, the magistrate judge applied federal law in testing the

jury’s compensatory damage award for excessiveness,

concluding that it was not against the clear weight of the

evidence and was not a miscarriage of justice. Such

application was erroneous in light of Gasperini. Because the

magistrate judge applied the wrong standard in testing the

jury’s compensatory damage award for excessiveness, a

remand is required unless we conclude that the magistrate

judge would have reached the same result applying

Pennsylvania law as he did applying federal law.

Applying federal law, the magistrate judge concluded that

the jury’s compensatory damage award was not against the

clear weight of the evidence and was not so excessive as to

be a miscarriageof justice. Because the federal excessiveness

standard is analogous to the Pennsylvania excessiveness

standard, to say that the magistrate judge would not have

concluded that the jury’s compensatory damage award was

“within the necessarily uncertain limits of fair and reasonable

compensation in the particular case” and was not so

extravagant that it “so shocks the sense of justice as to compel

the conclusion that the jury [was] influenced by partiality,

prejudice, mistake, or corruption,” Carminati, 176 A.2d at

445, would strain credulity. Therefore, because the magistrate

judge would have reached the same result applying

Pennsylvania law as he did applying federal law, a remand

is not only unwarranted but would be a waste of judicial

14a

Appendix A

resources. Accordingly, we turn to consider whether the

magistrate judge’s denial of Bob Evans’ motion for a new

trial based upon the alleged excessiveness of the jury’s

compensatory damage award was an abuse of discretion.

The Pennsylvania courts apply the following factors when

determining whether a jury’s damage award is excessive:

“(1) the severity of the injury; (2) whether the injury is

demonstrated by objective physical evidence or subjective

evidence; (3) whether the injury is permanent; (4) the

plaintiff's ability to continue employment; (5) disparity

between the out of pocket expenses and the amount of the

verdict; and (6) damages plaintiff requested in his

complaint.” Stoughton v. Kinzey, 445 A.2d 1240, 1242 (Pa.

Super. 1982). As Pennsylvania courts have recognized,

because the circumstances of each case are unique, only those

factors relevant to the particular case at issue should be

considered. See Mineo v. Tancini, 502 A.2d 1300, 1305 (Pa.

Super. 1986).

In this case, we believe the jury’s compensatory damage

award is not “within the necessarily uncertain limits of fair

and reasonable compensation.” Carminati, 176 A.2d at 445.

Although the testimony of Dr. Snow indicates that Konkel’s

likely permanent HVN was caused by Bob Evans’ conduct,

Konkel produced no objective physical evidence concerning

her injury, no evidence of lost wages, no evidence of lost

future earning capacity, no evidence of loss of future

employment, and no evidence of out-of-pocket expenses.

When the lack of this evidence is viewed in connection with

Konkel’s evidence concerning the severity and permanency

of her injury, it becomes evident that Pennsylvania courts

15a

Appendix A

would view this compensatory damage award as excessive.

See also Kemp v. Philadelphia Transp. Co., 361 A.2d 362,

364-66 (Pa. Super. 1976) (finding damage award of $15,000

excessive where woman complained of knee and back pain

but there was no objective medical evidence, no evidence of

permanency, no evidence of lost earning capacity, and whose

out-of-pocket expense were only $535) (citing Meholiff v.

River Transit Co., 20 A.2d 762, 764-65 (Pa. 1941) (reducing

verdict when prediction of permanency was based upon

plaintiff's subjective claims of pain); Brown v. Paxton,

2 A.2d 729, 730-31 (Pa. 1938) (reducing verdict when

evidence showed that plaintiff continued at same

employment with no lost earning capacity)). In our view,

taking into account the relevant factors under Pennsylvania

law, an award of $25,000 is the outermost award that could

be sustained. We, therefore, reduce the jury’s compensatory

damage award to $25,000 or grant a new trial nisi remittitur

at Konkel’s option.

Next, we turn to Bob Evans’ allegation that the magistrate

judge erred in denying its motion for relief from judgment

under Federal Rule of Civil Procedure 60(b)(6) based upon

jury misconduct. According to Bob Evans, the jury’s

experiment using a cup not admitted into evidence

constituted jury misconduct.

This Court will not disturb a district court’s denial of a Rule

60(b)(6) motion absent an abuse of discretion. See National

Org. for Women v. Operation Rescue, 47 F.3d 667, 669 (4th

Cir. 1995). We conclude that the magistrate judge did not

l6a

Appendix A

abuse his discretion in denying Bob Evans’ Rule 60(b)(6)

motion. Accordingly, we affirm on this issue.

Experiments performed by juries, “which have the effect of

putting them in possession of evidence not offered at trial,”

constitute jury misconduct requiring a new trial, unless no

prejudice results. See United States v. Beach, 296 F.2d 153,

158 (4th Cir. 1961). However, jury experiments that are

merely more critical examinations of exhibits than the

examinations made during the trial are not objectionable.

See id. at 158-59.

The affidavit submitted by Bob Evans indicates that the jury

performed an experiment “to determine the amount of liquid

that was in the coffee pot” containing the packet of Eco-line

Finish cleaning detergent. (J.A. 566). In performing this

experiment, the jury, according to the affidavit, used the

coffee pot and carafe, which were both exhibits, and a cup,

which had not been admitted into evidence. The jury then

“read the directions off the packet of detergent that was an

exhibit and found that the liquid solution swallowed by

[Konkel] was twelve times stronger than it was supposed to

be.” Id.

We conclude that the jury’s experiment did not constitute

jury misconduct. The jury simply examined the coffee pot,

carafe, and packet of detergent that were admitted into

evidence and applied the testimony that coffee pots at Bob

Evans were cleaned with one packet of detergent, the

testimony that the carafe was practically empty when the

waitress refilled it with water from the coffee pot, and the

testimony that the mug from which Konkel drank the soapy

solution could hold approximately one cup of liquid. Because

the jury simply applied the testimony concerning the size of

ee ae

17a

Appendix ‘A

Konkel’s mug, the jury’s experiment did not place it in

possession of evidence not presented at trial. Accordingly,

we conclude that the jury’s experiment using a cup not

admitted into evidence did not constitute jury misconduct.

We therefore affirm the magistrate judge’s denial of Bob

Evans’ Rule 60(b)(6) motion.

For the reasons stated above, we reduce the jury’s

compensatory damage award to $25,000 or grant a new trial

nisi remittitur at Konkel’s option. In accord with /n re Board

of County Supervisors, 143 F.3d 835, 842 (4th Cir. 1998),

the new trial may be “ ‘upon the whole case’ ” or limited to

the issue of damages alone, at the election of Konkel. /d.

(quoting Kennon v. Gilmer, 131 U.S. 22, 30 (1889)). In all

other respects, we affirm the judgment.

AFFIRMED IN PART, VACATED

IN PART, AND REMANDED

5. To the extent that Konkel raises on cross-appeal that the

magistrate judge erred in denying her oral motion to add a request

for punitive damages in her ad damnum clause and the magistrate

judge erred in granting Bob Evans’ motion in limine to exclude

evidence of punitive damages because Konkel did not aver punitive

damages in her complaint, we conclude that we need not address

her claims because, as is obvious, the facts in this case could not

Sustain an award for punitive damages under Pennsylvania law, and

Konkel has proffered no evidence in this regard. See Feld v.

Merriam, 485 A.2d 742, 747-48 (Pa. 1984) (noting that punitive

damages may be awarded in Pennsylvania for conduct that is

“malicious, wanton, reckless, willful, or oppressive”) (internal

quotation marks omitted).

18a

APPENDIX B — ORDER OF JUDGMENT OF

THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF VIRGINIA,

HARRISONBURG DIVISION DATED, ENTERED

AND FILED APRIL 24, 1997

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

HARRISONBURG DIVISION

CIVIL ACTION NUMBER 96-0020-H

CAROL M. KONKEL,

Plaintiff

BOB EVANS FARMS, INC., ET AL.,

Defendants

ORDER OF JUDGMENT

By: B. Waugh Crigler

U.S. Magistrate Judge

Upon return of the verdict of the jury on April 16, 1997,

it is

ORDERED AND ADJUDGED

that plaintiff shall have and recover compensatory damages

against defendant Bob Evans Farms, Inc., in the amount of

19a

Appendix B

One Million Dollars ($1,000,000.00) together with interest

at the statutory judgment rate from the date hereof.

The Clerk of the Court shall remove this case from the

active docket of the court.

The Clerk of the Court is hereby directed to send a

certified copy of this Order to all counsel of record.

ENTERED: s/ B. Waugh Crigler

- United States Magistrate Judge

April 24, 1997

Date

20a

APPENDIX C — FINAL ORDER OF JUDGMENT

OF THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA,

HARRISONBURG DIVISION DATED, ENTERED AND

FILED MAY 23, 1997

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

HARRISONBURG DIVISION

CIVIL ACTION NUMBER 96-0020-H

CAROL M. KONKEL,

Plaintiff

BOB EVANS FARMS, INC., ET AL.,

Defendants

FINAL ORDER OF JUDGMENT

By: B. Waugh Crigler

U.S. Magistrate Judge

For the reasons set forth in the Memorandum Opinion

of even date, it is

ORDERED

as follows:

2la

Appendix C

(1) Defendant’s April 28, 1997 motion for judgment as

a matter of law or in the alternative for a new trial pursuant

to Rule 50(b)(1)(B)-(C) hereby is DENIED.

(2) Defendant’s April 28, 1997 motion for a new trial

pursuant to Rule 59(a) or in the alternative to amend the

judgment hereby is DENIED.

(3) Plaintiff's April 23, 1997 motion for delay damages

hereby is GRANTED. In addition to the damages set forth

in this court’s April 24, 1997 Order of Judgment, plaintiff

shall have and recover delay damages from defendant Bob

Evans Farms, Inc. in the amount of $5,336.54.

(4) Plaintiff's April 28, 1997 Bill of Costs hereby is

GRANTED. The Clerk hereby is directed to tax as costs

against defendant Bob Evans Farms, Inc. the sum of

$2,962.80.

The Clerk of the Court hereby is directed to remove this

case from the docket of the court and to send a certified copy

of this Order to all counsel of record.

ENTERED: s/ B. Waugh Crigler

United States Magistrate Judge

May 23, 1997

Date

22a

APPENDIX D — MEMORANDUM OPINION

OF THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA,

HARRISONBURG DIVISION DATED, ENTERED

AND FILED MAY 23, 1997

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

HARRISONBURG DIVISION

CIVIL ACTION NUMBER 96-0020-H

CAROL M. KONKEL,

Plaintiff

BOB EVANS FARMS, INC., ET AL.,

Defendants

MEMORANDUM OPINION

By: B. Waugh Crigler

U.S. Magistrate Judge

Before this court are defendant's April 28, 1997 motions

for judgment as a matter of law, to amend judgment, and for

a new trial under Fed. R. Civ. P. 50(b) and 59 as well as

plaintiff's April 23, 1997 motion for delay damages and April

25. 1997 motion for the award of costs. For the reasons set

forth herein, an Order will enter denying defendant’s motions

for judgment as a matter of law, to amend judgment, and for

23a

Appendix D

a new trial, but granting plaintiff's motions for delay damages

and for the award of costs.

Defendant asserts that the verdict was not supported by

the evidence and that judgment should be granted in its favor.

Defendant further asserts that the court should grant a new

trial, in short, because the verdict was grossly

disproportionate to plaintiff's evidence of injury. In support

of its assertions, defendant notes that plaintiff failed to offer

any evidence of special damages such as medical bills or

lost wages and that there was no objective medical evidence

to support plaintiff's complaints of pain and discomfort.

The court must grant judgment as a matter of law when

“a party has been fully heard ... and there is no legally

sufficient evidentiary basis for a reasonable jury to find for

that party.” Towler v. Sayles, 76 F.3d 579, 581 (4th Cir. 1996)

(quoting Fed. R. Civ. P. 50(a)(1)). On a motion for a new

trial under Fed. R. Civ. P. 59, the court must set aside the

verdict and grant a new trial if it determines that

“[1] the verdict is against the clear weight of the evidence,

or [2] is based upon evidence which is false, or [3] will result

in a miscarriage of justice, even though there may be

substantial evidence which would prevent the direction of a

verdict.” Atlas Food Systems and Serv. y. Crane Nat'l

Vendors, 99 F.3d 587, 594 (4th Cir. 1996). This court is of

the view that there is a legally sufficient evidentiary basis

for the jury’s verdict in this case, is satisfied that the jury’s

verdict is not against the clear weight of the evidence,

believes the verdict is based on truthful evidence, and is

convinced that the outcome was not a miscarriage of justice.

24a

Appendix D

There was competent, and now what can be seen in the

jury’s mind, credible evidence that plaintiff suffered a

diagnosable neurologic condition that was caused by

ingesting chemicals served to her by defendant. Plaintiff's

treating physician set forth the bases of his opinions,

explaining fully the nature of the condition and its likely

causes and effects. Remarkably, defendant's expert could

not deny that plaintiff suffered from the condition. He simply

testified that he would have performed a different test to

determine the condition’s existence. Plaintiff's physician,

on the other hand, explained that such test would likely

exacerbate plaintiff's condition and her symptoms and that

such test was not necessary to diagnose the condition.

The court believes that a jury was entitled to give greater

weight to a treating doctor’s diagnosis and opinions than to

a specially retained expert. This is so because the treating

physician has observed the patient over a longer period of

time. In essence, the jury had before it a highly qualified

treating clinician and a highly qualified teaching physician

who had no dispute over whether there was such a condition

as heightened visceral nociception, but who simply disagreed

as to how the diagnosis should have been made in this case.

A more classic case for resolution by a jury could not be

presented. That it was resolved adversely to defendant

provides no legal grounds for relief at this juncture.

Furthermore, the court does not accept defendant's

contention that plaintiffs election not to present medical

specials renders the jury verdict excessive. There is no

dispute that plaintiff visited an emergency room, had

follow-up treating care and saw outside specialists for her

25a

Appendix D

condition. Even the defendant’s consulting physician could

not tell the jury that the emergency room diagnosis was

wrong. In fact, he steered clear of such assertion. Moreover,

there was evidence, which the jury had the right to accept

and apparently did accept, that showed plaintiff suffered a

serious but essentially untreatable condition whose duration

was indefinite but likely permanent.

The defendant had a right to assail the absence of any

special damages when its counsel argued the matter before

the jury and, in fact, asked the jury to assess that in arriving

at its verdict. However, the absence of special damages does

not necessarily, and certainly does not legally, denigrate the

magnitude of the impact plaintiff's medical condition has

had on her life. Obviously the jury concluded the impact

was great and compensated her accordingly.

Defendant also disputes whether Rule 238 of the

Pennsylvania Rules of Civil Procedure should be applied

here to allow plaintiff's recovery of delay damages. Federal

courts sitting in diversity cases must apply the substantive

law, including the conflict of law rules, of the forum state.

Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941).

Under Virginia conflict of law rules, as conceded by the

parties, the substantive law of Pennsylvania applies.

However, defendant asserts that Pennsylvania Rule 238 is

procedural in nature and, thus, should not be applied in this

diversity action. The greater weight of authority persuades

the court that the Pennsylvania delay damage rule is

substantive and not procedural and, therefore, must apply.

Rule 238 essentially provides for prejudgment interest

in Cases involving bodily injury for the period beginning one

26a

Appendix D

year after plaintiff filed her complaint until the date of

verdict. Yohannon v. Keene Corp., 924 F.2d 1255, 1263-64

(3d Cir. 1991). State law governs damage awards because

damages are a matter of substantive law. See Gasperint v.

Center for Humanities, Inc., _ U.S. __, 116 S. Ct. 2211,

2220 (1996) (statutory cap on damages is substantive law

for Erie purposes); Browning-Ferris Industries v. Kilco

Disposal, 492 U.S. 257, 278 (1989) (award of punitive

damages is a matter of substantive law); Mattison v. Dallas

Carrier Corp., 947 F.2d 95, 99 (4th Cir. 1991) (federal court

sitting in diversity must apply state law regarding punitive

damages). Prejudgment interest is considered to be an

element of damages. Library of Congress v. Shaw, 478 U.S.

310, 321 (1986). Thus, this court is bound by state law to

apply Pennsylvania Rule 238 which compels the award of

prejudgment interest in this case. Accord Thornhill v.

Donnkenny, Inc., 823 F.2d 782, 787 (4th Cir. 1987) (district

court must apply New York’s law on prejudgment interest

in a diversity case governed by New York substantive law);

see also Monessen Southwestern Ry. Co. v. Morgan, 486

U.S. 330 (1988) (holding in an FELA action that prejudgment

interest under Rule 238 constitutes too substantial a part of

a defendant's potential liability to be a mere local rule of

procedure).

Finally, the court concludes that the costs set forth in

plaintiff's bill of costs are reasonable and were necessarily

incurred in the presentation of the case. Plaintiff shall be

awarded these costs which come to $2,962.80 under 28

U.S.C. § 1920(1)-(2).

An Order will enter accordingly.

27a

Appendix D

The Clerk of the Court is hereby directed to send a

certified copy of this Memorandum Opinion to all counsel

of record.

ENTERED: s/ B. Waugh Crigler

United States Magistrate Judge

May 23, 1997

Date

28a

APPENDIX E — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE WESTERN DISTRICT

OF VIRGINIA, HARRISONBURG DIVISION DATED,

ENTERED AND FILED FEBRUARY 24, 1997

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

HARRISONBURG DIVISION

CIVIL ACTION NUMBER 96-0020-H

CAROL M. KONKEL,

Plaintiff

BOB EVANS FARMS, INC., ET AL.,

Defendants

ORDER

By: B. Waugh Crigler

U.S. Magistrate Judge

For the reasons set forth from the bench on February 7,

1997, it is

ORDERED

as follows:

29a

Appendix E

(1) Plaintiff's verbal motion to amend the ad damnum

to request punitive damages from defendant Bob Evans

Farms, Inc., (“Bob Evans”) hereby is DENIED.

(2) The January 16, 1997 motion in limine to bar any

claim for punitive damages against Bob Evans hereby is

GRANTED.

(3) Plaintiff's January 17, 1997 motion for summary

judgment against Bob Evans hereby is GRANTED, in part,

and DENIED, in part. Summary judgment hereby is

GRANTED in favor of plaintiff on COUNT II, Breach of

Warranty, with respect to liability only. Summary judgment

hereby is DENIED on the issue of damages on COUNT II

and on all other claims against Bob Evans.

(4) Plaintiff's January 17, 1997 motion for summary

judgment against Ecolab, Inc.., (“Ecolab”) hereby is

DENIED.

(5) The motion for summary judgment filed by Bob

Evans on January 16, 1997 hereby is DENIED.

(6) The motion for summary judgment filed by Ecolab

on January 17, 1997 hereby is DENIED.

(7) The motion to exclude plaintiff's expert testimony

filed by Bob Evans on January 16, 1997 hereby is DENIED.

(8) By agreement of counsel, and with the concurrence

of the court, this case shall be tried before the undersigned

and a seven-member jury on April 14, 15, and 16, in the

30a

Appendix E

United States District Court, Harrisonburg, Virginia, with

the proceedings to commence at 9:30 a.m. each day.

(9) Plaintiff's January 17, 1997 motion for use of

deposition in lieu of appearance hereby is GRANTED.

The Clerk of the Court is hereby directed to send a

certified copy of this Order to all counsel of record.

ENTERED: s/ B. Waugh Crigler

United States Magistrate Judge

February 24, 1997

Date

3la

APPENDIX F — EXCERPTS FROM TRANSCRIPT OF

HEARING OF THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT OF

VIRGINIA, HARRISONBURG DIVISION ON CROSS-

MOTIONS FOR SUMMARY JUDGMENT

DATED FEBRUARY 7, 1997

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

HARRISONBURG DIVISION

Civil Action No.

696-0020-H

CAROL M. KONKEL,

Plaintiff,

BOB EVANS FARMS, INC., and ECOLAB, INC.,

Defendants.

Harrisonburg, VA

February 7, 1997

9:30 a.m.

TRANSCRIPT OF HEARING ON

CROSS-MOTIONS FOR SUMMARY JUDGMENT

BEFORE THE HONORABLE B. WAUGH CRIGLER

UNITED STATES MAGISTRATE JUDGE

* * *

32a

Appendix F

[67] THE COURT: Well, I think to turn that around,

your position is that a restaurateur exercising reasonable care

would not serve a product containing this cleaner.

MR. KLENKAR:

Oh, last issue, on punitive damages, Your Honor. We

have moved for summary judgment that there be a finding

that Bob Evans’ conduct as a matter of law was so reckless

that it establishes punitive damages in an amount to be

determined by the jury. It’s appropriate under Rule 56 that

the Court can make partial determinations, under 56(c) and

(d), as to certain facts. If you can find that no reasonable

jury could conclude that their conduct was not reckless,

you're entitled to punitive damages. We'll have evidence

on that.

They've suggested in their motion in limine to exclude

that, which is incorporated by reference in [69] their brief in

opposition to our motion for summary judgment, that we

cannot seek punitive damages against Bob Evans because,

in our original complaint, we did not request punitive

damages. Rule 54(c) does not require that and specifically

provides that a party can recover damages relief not asked

for in the pleadings. Their whole brief is premised on

the —

THE COURT: Well, only to the extent that the evidence

is conformed to the pleadings after the evidence has been

introduced. Would you agree?

33a

Appendix F

MR. KLENKAR: Yes, Your Honor, and the evidence

here —

THE COURT: Okay. Now, see, we have a different

setting. That's after all of the evidence has come in in the

trial and nobody has raised Cain about it and you stand up

and you say, “Your Honor, I want to conform the pleadings

to the proof in the case that has been received into evidence

without objection, and that proof would allow me to recover

» thy

Now, that’s the context in which Rule 54, conforming

the pleadings to the proof, is made, unless I’m just out to

lunch, but that’s what I remember.

MR. KLENKAR: You're not out to lunch.

[70] THE COURT: I haven’t had this issue in a long

time.

MR. KLENKAR: The important issue, Your Honor, is

the suggestion that Bob Evans makes that we would need to

amend our pleading prior to seeking punitive damages is

simply wrong, and on that I need you to understand a couple

of factual issues.

We pled that their conduct was reckless, which is enough

to state a claim under Pennsylvania law. You don’t have to

have the intention or willful conduct. Reckless does it. Bob

Evans knew that the Pennsylvania law applied from the time

that we first filed this motion for judgment in state court.

They suggest that we let them know at a very late stage in

34a

Appendix F

the game that we were seeking punitive damages. It is true

that we did let them know right at the end of the discovery

period, but it was before they took the plaintiffs deposition.

It was three days before they took the plaintiff's deposition.

They cannot claim surprise. They’ve got plenty of time to

prepare for trial.

The only Bob Evans witness, there was one Bob Evans

witness who had testified, and that Bob Evans witness, |

don’t think they’re going to say that he would have changed

all his testimony as to what [71] factually happened if he

had known there was a punitive damages claim. I don’t think

prejudice is relevant because I think that only applies under

a Rule 15 motion to amend. But even if it did apply and if it

were relevant, they’re not prejudiced.

We're seeking punitive damages. There’s no real

discovery to be conducted on punitive damages. If there is,

you can ask the plaintiff the basis for it, and they took the

deposition after the claim for punitive damages.

THE COURT: Actually, the conforming the pleadings

to the evidence is Rule 15, not 54.

MR. KLENKAR: Well, I was trying to be polite, Your

Honor. I knew you would look up the two rules. 54(c) I cited

in my memorandum in opposition —

THE COURT: But 54(c) has to do with judgment.

MR. KLENKAR: Right, right. You don’t have to have

the pleadings changed to get the relief. If that were the case,

35a

Appendix F

under 54(c), 54(c) would say, if you want to do that, then

see Rule 15. It doesn’t. It Says it doesn’t matter what

the pleadings say. You can get the relief to which you are

entitled.

We’re going to be entitled to punitive damages. [72] I

submit, for purposes of summary judgment, we’ve shown

enough to establish right now that we’re entitled to punitive

damages. But there’s no requirement that we amend our

pleading at all, and so I would reject their motion that the

punitive damages claim should be thrown out because we

haven’t amended. We don’t have to amend under Rule 15. If

you take that view, 54(c) is irrelevant.

THE COURT: Well, I’m going to resolve that right now.

It’s my opinion that 54(c) deals with an award of damages

more than what was prayed for but at least consistent with

the form of relief that was prayed for, and it essentially says,

“Except as to a party against whom a judgment is entered by

default” — we understand why that is — “every final

judgment shall grant the relief to which the party in whose

favor it is rendered is entitled, even if the party has not

demanded such relief in the party's pleadings.”

When it comes to matters of punitive damages, though,

it is this Court’s belief that a defendant is entitled to notice

that that kind of relief is being sought. It is more than just

simply saying, “Are you going to grant full relief?” It is a

notice issue, because there are defenses to punitive damages

that [73] essentially now have become constitutional defenses

that can be raised and not raised. And I think if we use Rule

54 to allow an assessment of punitive damages, when it’s

36a

Appendix F

never been prayed for to begin with and the defendants are

not on notice that punitive damages are asked for specifically,

even if the pleadings contain words like “reckless” or

“careless” or “malicious” or things like that, if punitive

damages are not prayed for, defendants have a right to rely

on that in the development of their case, that they are free

from punitive damages because that has not been asked for,

nor has an amendment been sought to allow for it. I mean,

that’s just my view.

MR. KLENKAR: Your Honor, before you — if I may

cite two cases to you which are directly —

THE COURT: Are they Fourth Circuit cases?

MR. KLENKAR: One is the Eastern District of

Virginia, Norfolk Division, 1987.

THE COURT: Who’s the judge? Is it Judge Hoffman?

MR. KLENKAR: Judge Clarke.

THE COURT: What did he say?

MR. KLENKAR: He rejected the argument that if you

don’t plead punitive damages, specifically ask [74] for it,

you’re not entitled, and Judge-Ctarke-sided with the —

THE COURT: Can I just cite one thing? I have a lot of

respect for Judge Clarke. I’ve known him for years. I played

football with his son. He and I played next to each other on

the football team. But I want to say this: A lot of water has

37a

Appendix F

gone over the dam about what are and aren’t punitive

damages since that decision was rendered and about what

kind of effects punitive damages have in these kinds of cases

and what defenses can be asserted against them. And I don’t

think that that was decided in the same legal context that

punitive damages now can be awarded when Judge Clarke

decided that case a long time ago. That wasn’t long after he

went on the bench.

MR. KLENKAR: The only point I would add to that,

Your Honor, is that the case that Judge Clarke cites for

authority is the first one I’ve attached to my memorandum

in Opposition to that motion in limine. It’s a Griffith case.

It’s a Southern District of New York case. It’s exactly and

directly on point, and what it —

THE COURT: And | appreciate it, and I’m not saying

that I own the book or that I’m right [75] about it, but I want

to tell you, I just want you to know what my position is,

because | think at this juncture, if you haven’t asked for

punitive damages and you’re not asking to amend your

complaint or anything like that, and summary judgment may

be too late for that anyway, I think I need to rule that you’re

not entitled to punitive damages as a matter of law.

MR. KLENKAR: If that is the Court’s position, I would

move at this point, Your Honor, orally for leave to amend

our addendum to request punitive damages against Bob

Evans.

THE COURT: And I would deny it.

38a

Appendix F

MR. KLENKAR: I believe that’s all I have, Your Honor,

with respect to our motion for summary judgment and

responding to the defendants.

THE COURT: Lori, make sure you make a note about

that, because I need to cover this. This case, I thought maybe

I would be able to announce what I was going to be able to

do from the bench, but I’m not so sure. There’s no trial date

set, right?

MR. KLENKAR: Yes, there is, Your Honor.

MR. BANCROFT: Yes.

MR. MORGAN: April, I believe it’s the 14th or

thereabouts, Your Honor.

* ~ *

(Recess from 11:22 a.m. to 11:30 a.m.)

THE COURT: The case is before the Court on cross-

motions for summary judgment, the plaintiff moving for

summary judgment on the issues of liability for negligence

and breach of warranty and seeking an award of summary

judgment on the question of punitive damages.

I’m going to take that up first, because I indicated what

I would do earlier, and I do want this record to reflect that

I’m announcing this decision [93] from the bench, as laconic

as it may be, because of two reasons. First of all, if the parties

essentially do consent and the case is transferred, then the

39a

Append’x F

matter is dealt with and they know where they’re going. And

even if they don’t consent, then I’ve put my thoughts on the

record, and the only thing I would follow up with is a brief

report and recommendation adopting what I’ve done here in

open court.

The punitive damage issue, it is this Court’s belief that

punitive damages were never sought in a complaint or an

amended complaint, that the type of conformity that Rule

54 talks about is not granting relief that has not been prayed

for specially in the sense of punitive damages but granting

greater relief of the same character that is prayed for in the

complaint. Whereas Rule 15 allows the amendment of a

complaint to conform to the proof, it is this Court’s

considered opinion that punitive damages have become by

decisional authority a category of damages that needs to be

sought against which the defendants have notice so that they

may file defenses, even constitutional defenses, that they may

have. And so therefore I believe, under the circumstances of

this case, it would be error for this Court either to {94} permit

the recovery in general of punitive damages or plaintiff to

seek them before the jury or to certainly award them in

summary judgment, and I decline to do either. Yeah?

MR. KLENKAR: Your Honor, that is solely with

respect to defendant Bob Evans.

THE COURT: Okay.

MR. KLENKAR: Is that — that is correct, counsel? |

mean, we did plead them as to the defendant Ecolab.

40a

Appendix F

THE COURT: As to Bob Evans, this is the plaintiff

against Bob Evans.

MR. BANCROFT: Right.

MR. KLENKAR: Thank you, Your Honor, for that

clarification.

THE COURT: You’re not moving for summary

judgment on Ecolab except as to punitive damages.

MR. KLENKAR: Well, no. With respect to Ecolab, I’m

moving for summary judgment solely on this strict liability

claim.

THE COURT: Oh, okay, right, but not on damages.

MR. KLENKAR: Yes, sir.

THE COURT: Right. So this is as to Bob Evans. As to

negligence, these are my thoughts: ...

* * cd *

4la

APPENDIX G — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

DENYING PETITION FOR REHEARING DATED

AND FILED APRIL 26, 1999

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 97-1824

CA-96-20-H

CAROL M. KONKEL

Plaintiff — Appellee

BOB EVANS FARMS, INCORPORATED

Defendant — Appellant

and

ECOLAB, INCORPORATED

Defendant

No. 97-1867

CA-96-20-H

CAROL M. KONKEL

Plaintiff — Appellant

BOB EVANS FARMS, INCORPORATED

Defendant — Appellee

42a

Appendix G

and

ECOLAB, INCORPORATED

Defendant

On Petition for Rehearing and Rehearing En Banc

The appellee/cross-appellant has filed a petition for

rehearing and rehearing en banc.

Judges Murnaghan, Judge Hamilton and Senior Circuit

Judge MaGill, of the United States Court of Appeals for the

Eighth Circuit sitting by designation voted to deny the

petition for rehearing.

A member of the Court requested a poll on the petition

for rehearing en banc. The poll failed to produce a majority

of judges in active service in favor of rehearing en banc.

Judges Widener, Wilkins, Michael and King voted to rehear

the case en banc, and Chief Judge Wilkinson, and Judges

Murnaghan, Ervin, Niemeyer, Hamilton, Luttig, Williams,

Motz and Traxler voted against rehearing en banc.

The Court denies the petition for rehearing and rehearing

en banc.

Entered at the direction of Judge Hamilton for the Court.

For the Court,

/s/ Patricia S. Connor

CLERK

43a

APPENDIX H — RELEVANT RULE

Fed. R. Civ. P. 56

Rule 56. Summary Judgment

(a) For Claimant. A party seeking to recover upon a

claim, counterclaim, or cross-claim or to obtain a declaratory

judgment may, at any time after the expiration of 20 days

from the commencement of the action or after service of a

motion for summary judgment by the adverse party, move

with or without supporting affidavits for a summary judgment

in the party’s favor upon all or any part thereof.

(b) For Defending Party. A party against whom a

claim, counterclaim, or cross-claim is asserted or a

declaratory judgment is sought may, at any time, move with

or without supporting affidavits for a summary judgment in

the party’s favor as to all or any part thereof.

shall be served at least 10 days before the time fixed for the

hearing. The adverse party prior to the day of hearing may

serve opposing affidavits. The judgment sought shall be

rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law. A summary judgment,

interlocutory in character, may be rendered on the issue of

liability alone although there is a genuine issue as to the

amount of damages.

(d) Case Not Fully Adjudicated on Motion. If on

motion under this rule judgment is not rendered upon the

44a

Appendix H

whole case or for all the relief asked and a trial is necessary,

the court at the hearing of the motion, by examining the

pleadings and the evidence before it and by interrogating

counsel, shall if practicable ascertain what material facts exist

without substantial controversy and what material facts are

actually and in good faith controverted. It shall thereupon

make an order specifying the facts that appear without

substantial controversy, including the extent to which the

amount of damages or other relief is not in controversy, and

directing such further proceedings in the action as are just.

Upon the trial of the action the facts so specified shall be

deemed established, and the trial shall be conducted

accordingly.

(e) Form of Affidavits; Further Testimony; Defense

Required. Supporting and opposing affidavits shall be made

on personal knowledge, shall set forth such facts as would

be admissible in evidence, and shall show affirmatively that

the affiant is competent to testify to the matters stated therein.

Sworn or certified copies of all papers or parts thereof

referred to in an affidavit shall be attached thereto or served

therewith. The court may permit affidavits to be

supplemented or opposed by depositions, answers to

interrogatories, or further affidavits. When a motion for

summary judgment is made and supported as provided in

this rule, an adverse party may not rest upon the mere

allegations or denials of the adverse party’s pleading, but

the adverse party’s response, by affidavits or as otherwise

provided in this rule, must set forth specific facts showing

that there is a genuine issue for trial. If the adverse party

does not so respond, summary judgment, if appropriate, shall

be entered against the adverse party.

45a

Appendix H

(f) When Affidavits are Unavailable. Should it appear

from the affidavits of a party opposing the motion that the

party cannot for reasons stated present by affidavit facts

essential to justify the party’s opposition, the court may

refuse the application for judgment or may order a

continuance to permit affidavits to be obtained or depositions

to be taken or discovery to be had or may make such other

order as is just.

(g) Affidavits Made in Bad Faith. Should it appear

to the satisfaction of the court at any time that any of the

affidavits presented pursuant to this rule are presented in

bad faith or solely for the purpose of delay, the court shall

forthwith order the party employing them to pay to the other

party the amount of the reasonable expenses which the filing

of the affidavits caused the other party to incur, including

reasonable attorney’s fees, and any offending party or

attorney may be adjudged guilty of contempt.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.