Opposition Brief — Konkel v. Bob Evans Farms, Inc.

Supreme @eurt, U.S.

FILED

No. 99-180

In The

; OF THM CLERK

tates

Supreme Court of the Wnited,

CAROL M. KONKEL,

Petitioner,

BOB EVANS FARMS, INC.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

RESPONDENT?’S BRIEF IN OPPOSITION

Steven W. Bancroft

Counsel of Record

Julia B. Judkins

Michael J. Carita

TRICHILO, BANCROFT, McGAVIN,

HORVATH & JUDKINS, P.C.

4117 Chain Bridge Road, Suite 400

Post Office Box 22

Fairfax, Virginia 22030

(703) 385-1000

Counsel for Respondent,

Bob Evans Farms, Inc.

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

i

PARTIES TO THE PROCEEDING

The petition accurately lists the parties to the

proceeding.

PARTIES TO THE PROCEEDING

TABLE OF CONTENTS

il

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................4..

STATEMENT OF THE CASE .................

A. THE INCIDENT GIVING

RISE TO THE LITIGATION

e220 46 @ ee Ot 2 £28 2. Oe 282 Cte eee ee eee.

B. LITIGATION HISTORY .........

REASONS FOR DENYING THE WRIT ........

I.

THE FOURTH CIRCUIT’S REVERSAL OF

THE DISTRICT COURT’S DENIAL OF BOB

EVANS FARMS, INC.’S MOTION FOR A

NEW TRIAL BASED UPON THE FEDERAL

RULE OF CIVIL PROCEDURE 59(a) AND

AWARDING THE PLAINTIFF A

REMITTITUR OF $25,000.00 OR THE

OPTION OF A NEW TRIAL WAS PROPER

AND DID NOT VIOLATE THE SEVENTH

AMENDMENT OF THE UNITED STATES

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$4.06 62 0 42-4 2289

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II.

If.

ased o iV f

verdict, and ordering a remittitur_ of

25,000.00 or the option of a new trial

does not violate the Seventh

Amendment of the United States

FS, Sea ae

2. The Fourth Circuit applied the correct

Standard of review in reviewing the

district _court’s denial of Bob Evans

Farms, Inc.’s Motion for a New Trial

pursuant to Federal Rule of Civil

Procedure 59a) .................

THE PETITION SHOULD NOT BE

GRANTED BECAUSE THE FOURTH

CIRCUIT CORRECTLY INTERPRETED

THE REQUIREMENTS OF FEDERAL

RULES OF CIVIL PROCEDURE 8(a), 54(c),

56, AS WELL AS THE PENNSYLVANIA

LAW PERTAINING TO THE

REQUIREMENT TO PLEAD A CLAIM FOR

PUNITIVE DAMAGES .................

THE PETITION SHOULD BE DENIED

BECAUSE GRANTING IT WOULD BE A

WASTE OF JUDICIAL RESOURCES ......

13

20

27

iV

Contents

TABLE OF AUTHORITIES

Page

CASES CITED:

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

611 A.2d 1174 (1992) ....cccccceses 15, 16, 17

Carminati v. Philadelphia Tran tion Co., 405 Pa.

500. 176 A.2d 440, 445 (1962) ...... 14, 15, 16, 17

Catalano v. Bujak, 537 Pa. 383, 642 A.2d 448 (1994) 15, 16

Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed.

ot eer rr rr rer 11

Feld v. Merriam, 506 Pa. 383,485 A.2d 742, 747-48

CUE ccs cccdcssiueeneeereeneveeteqes 24

Feltner v. Columbia Pictures Television, Inc., 523 U.S.

340, 118 S.Ct. 1279, 140 L.Ed.2d 438 (1998) 12

Gasperini v. Center for Humanities, Inc., 518 U.S. 415,

116 S.Ct. 2211, 135 L.Ed.2d 659

(OGRE. 6 cance cctcxteveaneders 9,10, 12, 13, 14

Hetzel v. Prince William County, Virginia, 523 U.S.

208, 118 S.Ct. 1210, 140 L.Ed. 336 (1998) 11, 12, 13

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

kt, errr rrr er 15

Vv

ntent

Smith v. Brown, 283 Pa. Super. 116, 423 A.2d 743, 745

SP rer rrr ene or 20, 21,

Stoughton v. Kinzey, 299 Pa. Super. 499, 445 A.2d 1240,

TOUMNNE avis tee se secu veuae cok 15, 17,

STATUTES CITED:

a ee pe ar ren he ke

UNITED STATES CONSTITUTION:

Seventh Amendment ................. 9,10, 11, 12,

RULES CITED:

Pe ee PE gc ote se laksa oe 20, 26,

We ee eo bas cous ca eee 25, 26,

PO OG FD ons 6.5 cas evsckuaee ee.

Pe Ga ee oo nc ende east hesee ae 24,

ee) re 20, 24, 25, 26, 28,

OPT, RPE Py eat

FO. Te C.F: Be ho 04a deceueeecen 8, 9, 13, 18,

Poe. Ti. Cow, FD oo onsvcc dn cvccucevcoees

22

18

13

29

29

25

20

l

STATEMENT OF THE CASE

A. THE INCIDENT GIVING RISE TO THE

LITIGATION.

On March 22, 1994, Carol M. Konkel (hereinafter

“Konkel’) and her husband had dinner at a Bob Evans Farms

Inc. restaurant in Carlisle, Pennsylvania. During dinner,

Konkel ordered hot tea. She was brought a carafe full of hot

water, a tea bag, and a cup. Konkel placed the tea bag in the

carafe of hot water, then poured that liquid into her cup along

with sugar and little bit of milk. Konkel drank that tea with her

dinner. Later, the waitress poured some additional hot water

into her carafe. Konkel put the previously used tea bag back

into the carafe, let it steep, poured some of that liquid back into

her cup and added more milk and sugar. Konkel then took one

swallow of her tea, noticed that it tasted soapy and felt a

burning sensation in her throat. It was later determined that the

waitress had inadvertently refilled the carafe with a clear

solution of water and Eco-line Finish cleaning detergent that

2

Bob Evans used to clean its coffee pots. This detergent is

similar to everyday Cascade used in household dishwashers.

The Konkels notified the restaurant manager that the tea

tasted soapy. The manager immediately contacted the local

poison seit office who advised that Konkel should drink

milk and go to the emergency room if she had continued

problems. Pursuant to these instructions, Konkel drank milk at

the restaurant. She also had a glass of water and reported that

these liquids soothed her discomfort and she and her husband

left to finish their trip home to Virginia.

After the Konkels left the Bob Evans Farms, Inc.

restaurant, they decided to stop at the Chambersburg Hospital

emergency room where Mrs. Konkel was examined by Dr.

Lawrence John Boyler. Although he did not see any swelling

‘nside Konkel’s mouth and he did not know the cause of the

slightly red appearance of Konkel’s throat, Dr. Boyler

diagnosed her as suffering from esophageal chemical burns by

3

history given to him. Approximately one hour after her arrival

at the hospital, Konkel indicated that she was feeling much

better and that she had only slight discomfort. Dr. Boyler told

Konkel that she would recover rapidly. The Konkels then left

the neta and drove to their home in Virginia.

Konkel neither sought nor received any additional

medical treatment or care for her throat/esophagus until

approximately eight months later when she was examined by

her family physician, Dr. Edward Cullen, on November 3,

1994. Thereafter Konkel sought sporadic treatment and had

diagnostic tests performed by various health care providers,

including two gastroenterologists. The results of these tests

were all normal and no objective findings were ever noted to

this ingestion of a small amount of simple dish detergent.

Dr. Nicholas Snow, one of Konkel’s

gastroenterologists, eventually diagnosed her as suffering from

heightened visceral nociception (HVN) of the esophagus. Dr.

4

Snow conceded that the test results of Konkel’s esophagus

were normal, and that his diagnosis of heightened visceral

nociception was not based upon any of the diagnostic tests.

When asked about Konkel’s prognosis, Dr. Snow stated that he

could not predict whether she was going to get better or worse,

that HVN can come and go, and that this condition could stop

at any time and never come back. Dr. Snow came to his

opinion of HVN solely upon the subjective statements of

Konkel. This claim lacked objective medical evidence and was

based upon the speculative opinion of one doctor. Dr. Snow,

who advocated for his patient, was unable to render a clear

opinion on when this condition would end. Dr. Kalloo, Bob

Evans Farms. Inc.’s medical expert, opined that the data was

insufficient to diagnose Konkel with HVN and that her

esophagus was normal.

In addition to the speculative nature of her claimed

medical condition, Konkel produced no objective physical

5

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

evidence of lost future earning capacity, no evidence of loss of

future employment or out-of-pocket expenses.

B. LITIGATION HISTORY.

Carol Konkel filed a Motion for Judgment in the Circuit

Court of Clarke County, Virginia on March 26, 1996 against

Bob Evans Farms, Inc. and co-defendant, Ecolab, Inc.' In her

action, Konkel alleged that Bob Evans Farms, Inc. “carelessly,

recklessly, and negligently served the plaintiff Eco-line Finish”

and that Bob Evans Farms, Inc. “breached its expressed and

implied warranties”. The only relief requested against Bob

Evans Farms, Inc. was compensatory damages. Konkel also

sought punitive damages against co-defendant, Ecolab, Inc.

Bob Evans Farms, Inc. removed the case to the United

States District Court for the Western District of Virginia and a

discovery deadline of December 31, 1996 was imposed by that

‘Co-defendant, Ecolab, Inc. settled the claims of the plaintiff and

was dismissed from this case prior to trial.

6

court. During discovery, Bob Evans Farms, Inc. propounded an

Interrogatory to Konkel requesting a detailed itemization of her

claim for monetary damages. Konkel initially answered as

follows:

Documents setting forth medical expenses

already incurred have been previously provided.

In addition, I expect to incur additional medical

expenses in the future. My damages for past,

present and future pain and suffering, past and

future medical bills, are calculated at

$1,000,000.00. 1 will supplement this

Interrogatory as I receive additional medical

bills.

On December 27, 1996, four days before the end of

discovery, Konkel filed a supplemental answer, stating for the

first time that she was seeking punitive damages against Bob

Evans Farms, Inc., although she provided no facts to support

such relief. Konkel never provided any alleged facts to support

her last minute claim for punitive damages against Bob Evans

Farms. Inc., until December 31, 1996, the date on which

discovery ended, when she filed Second Supplemental Answers

to Interrogatories.

J

Because of Konkel’s failure to timely raise this new

claim of punitive damages, her failure to amend her pleadings

to request such relief, and the inherent unfairness of injecting

a new claim at the very end of discovery, Bob Evans Farms,

Inc. filed a motion to exclude Konkel’s belated claim for

punitive damages. Konkel responded by filing a Motion for

Summary Judgment on the punitive damage issue.

A hearing on these matters was held on February 7,

1997 in which the trial court denied Konkel’s claim for

punitive damages and her oral request for leave to amend her

complaint to include punitive damages. (Petition for a Writ of

Certiorari, Appendix E, p. 29a.)

The case went to trial on April 15-17, 1997. After

deliberations, the jury returned a verdict in favor of Konkel in

the amount of $1,000,000.00. Bob Evans Farms, Inc. filed

post-trial motions which were denied by the district court.

Bob Evans Farms, Inc. timely appealed the trial court’s

8

denial of its various post-trial motions, and Konkel filed a

cross-appeal based upon the trial court’s granting of Bob Evans

Farms, Inc.’s Motion in Limine to preclude evidence of

punitive damages.

The Fourth Circuit affirmed the trial court’s granting of

the Motion in Limine on the punitive damages claim, the trial

court's decision denying Bob Evans Farms, Inc.’s Fed. R. Civ.

P. 50(b) motion and Bob Evans Farms, Inc.’s Fed. R. Civ. P.

60(b)(6) motion. However, the Fourth Circuit vacated the trial

court's denial of Bob Evans Farms, Inc.’s Fed. R. Civ. P. 59(a)

motion for a new trial based on-the excessive compensatory

damage award, and ordered the plaintiff to accept a reduced

compensatory damage award of $25,000.00 or elect to proceed

with a new trial nisi remittitur at Konkel’s option. In support

of its decision, the Fourth Circuit held as follows:

[w]hen the lack of this evidence is viewed in

connection with Konkel’s evidence concerning

the severity of permanency of her injury, it

becomes evident that Pennsylvania courts

9

would view this compensatory damage award as

excessive.

(Petition for Writ of Certiorari, App. A., pg. 14a-15a).

Following this decision, Konkel filed a petition for a re-

hearing with a suggestion for a rehearing en banc. This petition

was denied.

P a N W. I THE

PLAINTIFF AREMITTITUR OF $25,000.00 OR THE

OPTION OF A NEW TRIAL WAS PROPER AN

DID NOT VIOLATE THE SEVENTH AMENDMENT

OF THE UNITED STATE NSTIT

] n appellat ver rt’

ial of for Ww

X iV jury v t

ittitur of f

new _ trial e Vv th Vv

A f it ion

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

415, 116 S.Ct. 2211, 135 L.Ed. 2d 659 (1996), this Court

10

addressed the issue of an appellate court’s review of a trial

court’s ruling on a motion regarding the excessiveness of a

verdict and explicitly held that “nothing in the Seventh

Amendment precludes appellate review of the trial judge’s

denial of a motion to set aside a jury verdict as excessive”. 116

S.Ct. at 2224. In that case, this Court reviewed the Seventh

Amendment which states as follows:

[i]n suits of common law, where the value in

controversy shall exceed $20.00, the right of

trial by jury shall be preserved, and no fact tried

by a jury shall be otherwise re-examined in any

Court of the United States, then according to

the rules of the common law.

U.S. Const., AMDT 7.

In Gasperini, contrary to Konkel’s contentions, this

Court clearly noted that the re-examination clause of the

Seventh Amendment does not prohibit the trial judge from

granting a new trial when the jury’s verdict is excessive. 116

S.Ct. at 2222. Moreover, this Court determined that appellate

review under an abuse of discretion standard is reconcilable

1]

with the Seventh Amendment as the control necessary and

proper for the fair administration of justice. 116 S.Ct. at 2223.

The issue of whether or not an appellate court can order

a remittitur of a jury verdict and not run afoul of the Seventh

Amendment was also addressed in v. Pri Willi

County, Virginia, 523 U.S. 208, 118 S.Ct. 1210, 140 L.Ed. 336

(1998). In Hetzel, this Court reviewed a case where an

appellate court had ordered a remittitur of a jury award without

giving the plaintiff the option of a new trial. Under those facts.

this Court held that it would be a violation of the Seventh

Amendment for an appellate court to order a remittitur without

the option of a new trial. Id. at 1211-12. Conversely, there is

no violation of the Seventh Amendment where an appellate

court orders remittitur with the option of a new trial and in fact,

this Court approvingly cited the case of Dimick v. Schiedt, 293

U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935) (a reaffirmation of

the practice of conditionally remitting damages and that, where

12

a verdict is set aside as grossly excessive, the parties remain

entitled to opt for a new trial). Hetzel, supra, at 1212.

Furthermore, Konkel’s reliance on Feltner v. Columbia

Pictures Television, Inc., 523 U.S. 340, 118 S.Ct. 1279, 140

L.Ed. 2d 438 (1998) is misplaced and inappropriate. The

Feltner case dealt with the right to a jury trial under the

Copyright Act, 17 U.S.C. §504(c). In that case, this Court

stated that the Seventh Amendment does provide a right to a

jury trial on all issues pertinent to an award of Statutory

damages under §504(c) of the Copyright Act. 118 S.Ct. at

1286. However, nothing in the Feltner opinion dealt with the

trial court's decision of whether to vacate a jury verdict for

excessiveness or appellate review of that decision, Feltner is

distinguishable and is of no controlling authority in this matter.

Contrary to Konkel’s assertions, in Gasperini, it is clear

that an appellate court has authority to review a district court’s

denial of a motion to set aside an award as excessive, and the

13

Hetzel case makes clear that a remittitur of a jury award by an

appellate court with the option of a new trial does not run afoul

of the Seventh Amendment. Thus, the opinion of the Fourth

Circuit in this matter is correct and does not require review bu

this Court.

2. The h Circuit applied th

standard of review in reviewing the

district court’s denial of Bob Evans

Farms, Inc.’s Motion for a New Trial

pursuant to Federal Rule of Civil

Procedure 59(a).

We agree that under Gasperini, a federal trial court’s

review of a verdict for excessiveness in a diversity of

citizenship case is done by application of state law. We also

agree that the applicable state law in this case is Pennsylvania.

The Fourth Circuit properly applied Pennsylvania substantive

law in its review of the district court’s actions. An appellate

court's review of 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 is under an abuse of

14

discretion standard. Gasperini v. Center for Humanities, Inc.,

116 S.Ct. at 2223.

Under Pennsylvania law, a jury’s damage award is

excessive if it does not fall “somewhere within the necessarily

uncertain limits of fair and reasonable compensation in a

particular case, or whether the verdict so shocks the sense of

justice as to compel the conclusion that the jury were

influenced by partiality, prejudice, mistake or corruption.”

Carminati_ v. Philadelphia Transportation Company, 405 Pa.

500, 176 A.2d 440, 445 (1962). This standard was used by the

Fourth Circuit and specifically referenced in their opinion

(Petition for a Writ of Certiorari, Appendix A, p. 14a). The

Fourth Circuit applied the correct Pennsylvania law using the

following factors to determine whether a jury's damage award

is grossly excessive: (1) the severity of injury; (2) whether the

injury is demonstrated by objective physical evidence or

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

15

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

between the out of pocket expenses and the amount of the

verdict; and (6) the damages the plaintiff requested in his

complaint. Stoughton v. Kinzey, 299 Pa. Super. 499, 445 A.2d

1240, 1242 (1982). The Fourth Circuit recognized that

Pennsylvania courts examine only the above factors relevant to

the particular case at issue. Mineo v. Tancini, 349 Pa. Super.

115, 502 A.2d 1300, 1305 (1986).

Although Konkel relies heavily on the Pennsylvania

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

and Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 611

A.2d 1174 (1992), these cases do not conflict with or overrule

the Pennsylvania law contained in the Carminati and Stoughton

cases. Thus, Konkel’s assertions that “the Fourth Circuit

ignored the applicable substantive law as set forth in the

decisions of the Pennsylvania Supreme Court” are erroneous.

(Petition for a Writ of Certiorari, p. 14).

16

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

(1994), the Supreme Court of Pennsylvania held that it is

unwarranted to reduce or modify a verdict for personal injury

unless unfairness, mistake, partiality, prejudice or corruption is

shown, or the damages appear to be grossly exorbitant, or so

excessive as to offend the conscience and judgment of the

court. Id. at 451. This is the same standard, albeit in slightly

different language as the Pennsylvania Supreme Court

enunciated in Carminati, cited by the Fourth Circuit.

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

611 A.2d 1174 (1992), the plaintiff was awarded a jury verdict

in the amount of $350,000.00 after he was injured by inhaling

carbon monoxide which was mistakenly put in an oxygen tank.

The appellate court found this damage award to be excessive

and. instead of remanding it for a new trial, granted remittitur,

reducing the plaintiff's jury award to his actual out of pocket

medical expenses of $783.05. The Pennsylvania Supreme

17

Court found this remittitur without the option of a new trial to

be in error and re-instated the original jury verdict. The Botek

case did not change the fact or law that an appellate court can

overturn a trial court’s decision not to grant a new trial when

the verdict is excessive or grossly exorbitant, or when there is

an abuse of discretion, or error of law which affected the

verdict or outcome of the case. Id. at 1176.

The Pennsylvania cases cited and relied upon by the

Fourth Circuit are consistent with the cases cited by Konkel.

Under Pennsylvania law, an appellate court has the ability to

review a trial court’s ruling as to whether a jury’s award is

grossly excessive and can overturn a trial court’s decision on

that issue. Here, the cases relied upon by Konkel do not

modify or overrule the legal standards set out in Carminati or

Stoughton, but are cases where the same standard was applied

with a different factual result. Consequently, these cases give

further support to the Fourth Circuit’s decision.

18

In the preseni case, there was a clear abuse of discretion

by the trial judge in denying Bob Evans’ Rule 59(a) Motion for

a New Trial. The jury verdict was grossly exorbitant and

excessive and did not conform to the evidence. In reviewing

this issue, the Fourth Circuit applied the standard set out in

Stoughton v. Kinzey, supra, and specifically evaluated and

assessed the lack of any objective evidence to substantiate

Konkel’s subjective complaints. In its opinion, the Fourth

Circuit noted that (1) there was no objective physical evidence

of injury; (2) no evidence of lost wages; (3) no evidence of lost

future earning capacity; (4) no evidence of lost future

employment; and (5) no evidence of out of pocket expenses.

The appellate court also considered the evidence concerning the

severity of her injury and permanency of her injury. (Petition

for a Writ of Certiorari, Appendix A, p. 14a).

When the Fourth Circuit examined all of these factors

under Stoughton v. Kinzey, supra, it determined that the

19

Pennsylvania courts would have viewed Konkel’s

$1,000,000.00 compensatory damage award as excessive. The

Fourth Circuit specifically stated that “in our view, taking into

account the relevant factors under Pennsylvania law, an award

of $25,000.00 is the outermost award that could be sustained”.

(Petition for a Writ of Certiorari, Appendix A, p. 15a).

Konkel disingenuously asserts that the primary factor

examined by the Fourth Circuit in making its decision was the

lack of evidence of special damages. To the contrary, the

appellate court set forth many separate factors which were

considered in evaluating whether the jury’s verdict was grossly

exorbitant. Such factors included the lack of any objective

evidence to substantiate her subjective complaints of

discomfort, the severity, and the issue of permanency. (Petition

for a Writ of Certiorari, Appendix A, p. 14a).

Based on the above, there is no dispute that the correct

standards were applied by the Fourth Circuit, and that its

20

decision was properly reached and supported by both the law

and the facts of this case.

Il. THE PETITION SHOULD NOT BE GRANTED

BECAUSE THE FOURTH CIRCUIT CORRECTLY

INTERPRETED THE REQUIREMENTS OF

FEDERAL RULE OF CIVIL PROCEDURE 8(a),

54(c), 56, AS WELL AS THE PENNSYLVANIA

LAW PERTAINING TO THE REQUIREMENT TO

PLEAD A CLAIM FOR PUNITIVE DAMAGES.

Federal Rule of Civil Procedure 8(a) requires “a short

and plain statement of the claim showing that the pleader is

entitled to relief’. In support of a punitive damage claim

against Bob Evans Farms, Inc., as required, Konkel’s Motion

for Judgment must have alleged facts which, if proven, would

have entitled her to punitive damages against Bob Evans

Farms, Inc.

Under Pennsylvania law, an essential fact which must

be pled to support a claim for punitive damages is that the

defendant’s conduct was “outrageous.” Smith v. Brown, 283

Pa. Super. 116,423 A.2d 743, 745 (1980). Outrageous conduct

21

is an act committed with bad motive or reckless indifference to

the interest of others. Id.

In Smith v. Brown, supra, the Pennsylvania appellate

court addressed the pleading of “recklessness” necessary to

give rise to a punitive damage claim. The plaintiff sought

recovery for injuries arising out of an automobile accident as

well as punitive damages. In support of her punitive damages

claim, the plaintiff alleged that the defendant drove her car in

a “wanton and reckless manner”. The plaintiff also alleged the

following facts to support this claim:

Operation of the motor vehicle at a high and

excessive rate of speed under the

circumstances; failure to have the motor vehicle

under proper and adequate controls; failure to

have due regard for the point and position of the

plaintiff pedestrian; violation of the ordinance

of Montgomery County and the statutes of the

Commonwealth of Pennsylvania; and,

otherwise failing to exercise due care under the

circumstances. Id. at 744.

The Pennsylvania court held that these allegations were

insufficient to put Brown, the defendant, on notice as to what

22

“outrageous” conduct was being alleged. The court held that

the plaintiff failed to properly state a claim for punitive

damages. Id. at 745.

Similarly, in this case, Konkel’s allegations are

insufficient under Pennsylvania law to put Bob Evans Farms,

Inc. on notice as to what “outrageous” conduct was being

alleged. In her Motion for Judgment, Konkel alleges that Bob

Evans Farms, Inc. “carelessly, recklessly, and negligently

served the plaintiff Eco-line Finish” and that “by serving the

plaintiff Eco-line Finish, a highly alkaline caustic industrial

cleaner, Bob Evans breached its expressed and implied

warranties”. Here, as in Smith, the allegations are insufficient

to put Bob Evans on notice as to what specific outrageous

conduct was being alleged, and are only conclusions, not facts.

Furthermore, in Smith, the plaintiff did request punitive

damages against the defendant in her complaint. Here, Konkel

made no such demand or request in her Motion for Judgment.

23

In fact, Konkel never sought leave to amend her Motion for

Judgment to include punitive damages prior to the close of

discovery. Instead, Konkel first raised the claim in a

supplemental Interrogatory response, filed just before discovery

cutoff, without providing any facts to substantiate her claim.

Konkel delayed providing her claimed basis for such relief until

the day discovery closed. Because of the inherent unfairness in

defending against a new claim made at the close of discovery,

Bob Evans filed a motion to exclude Konkel’s claim for

punitive damages. Konkel first sought leave to amend her

pleadings until approximately two months after the close of

discovery.

The Fourth Circuit correctly applied Pennsylvania law

in affirming the trial court’s granting of a Motion in Limine to

Bar Evidence of Punitive Damages and in denying Konkel’s

last minute motion to orally amend her Motion for Judgment to

claim punitive damages. The Fourth Circuit reviewed the

24

evidence and held that the facts did not support an award for

punitive damages under Pennsylvania law even if properly

plead because Bob Evans Farms, Inc.’s conduct was devoid of

being “malicious, wanton, reckless, willful or oppressive”.

Citing Feld v. Merriam, 506 Pa. 373, 485 A.2d 742, 747-48

(1984). (Petition for a Writ of Certiorari, Appendix A, p. 17a).

The Fourth Circuit correctly viewed this case as a simple

negligence and warranty claim.

In addition, Konkel did not follow the proper procedure

under the rules in which to state her claim for punitive

damages. Konkel relies on Fed. R. Civ. P. 54(c) which

provides that “every final judgment shall grant the relief to

which the party in whose favor it is rendered is entitled, even

if that party has not demanded such relief in the party’s

pleadings”. However, Konkel’s reliance on this rule is

erroneous. By its explicit language, Fed. R. Civ. P. 54 deals

with the entry of final judgments being conformed to the

25

evidence presented. Federal Rule of Civil Procedure 15 is the

rule which deals with the amendment of pleadings. Konkel

inappropriately attempts to use the judgment provisions of Rule

54 to avoid informing a defendant of her claims. Konkel’s

counsel admitted as much in the February 7, 1997 hearing on

this issue when he stated:

You don’t have to have the pleadings changed

to get the relief. If that were the case, 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 are going

to be entitled to punitive damages. [emphasis

added]. (Petition for a Writ of Certiorari,

Appendix A, p. 34a-35a).

Konkel also ignores Fed. R. Civ. P. 8(c) which states

that a pleading setting forth the claim of relief shall contain “a

short and plain statement of the claim showing that the pleader

is entitled to relief and the demand for judgment for the relief

the pleader seeks”. Under Konkel’s mistaken interpretation of

Rule 54(c), a plaintiff would not have to follow Fed. R. Civ. P.

26

8(a) or Fed. R. Civ. P. 15 in order to receive relief. Plaintiff

would merely present evidence at trial that he is entitled to a

specific form of relief. Konkel’s interpretation of the Federal

Rules of Civil Procedures is illogical and defies the

fundamental fairness of the notice pleading requirement.

The district court granted Bob Evans Farms, Inc.’s

Motion in Limine because the claim was not properly pled and

the defendant was not on notice of such a claim. The district

court specifically distinguished the requirements of Fed. R.

Civ. P. 54(c) finding that the rule was inapplicable.

Konkel contends that, if the Fourth Circuit’s decision is

permitted to stand, this Court will be encouraging every

personal injury plaintiff to seek punitive damages. This

premise is flawed since the Fed. R. Civ. P. require a good faith

factual basis for seeking punitive damages. If such a belief

does not exist, the claim should not be pled, and in some cases

sanctions could be imposed. If facts come to light which

27

support a claim for punitive damages, a plaintiff is free to

petition the court to amend the pleadings. Unlike this case, the

motion to amend pleadings should be in written form and prior

to the close of the discovery with facts to support it. Here,

Konkel had no such facts and never made the required request

to amend her claim.

Il]. THE PETITION SHOULD BE DENIED BECAUSE

GRANTING IT WOULD BE A WASTE OF

JUDICIAL RESOURCES.

The Fourth Circuit has ordered a remittitur of Konkel’s

jury award to $25,000.00, and has given her the option of

accepting that remittitur or having a new trial. For this Court

to consider the Petition for a Writ in a case where Konkel has

the clear option of accepting the remittitur or having a new trial .

is premature and a waste of judicial resources.

CONCLUSION

There is no dispute as to the proper legal standards

governing the issues in this case. The Fourth Circuit in its

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carefully considered opinion applied the standards all parties

agree are controlling, examined them in light of the facts of the

case, and arrived at a proper conclusion.

The law authorizes an appellate court to review a

district court’s decision on a Motion for a New Trial under Fed.

R. Civ. P. 59(a). The law permits the appellate court to order

a remittitur to the plaintiff if it also grants the plaintiff the

option of a new trial, which the court did.

The Fourth Circuit correctly applied Pennsylvania

standards of appellate review to the facts in this case and came

to a well-reasoned and correct decision. The Fourth Circuit did

not err in finding that the district court erred in denying Bob

Evans’ Rule 59(a) motion for a new trial. Under the facts of

this case, the verdict was grossly enadbitent which necessitated

offering Konkel the option of a new trial or remittitur.

Konkel’s claims that she is entitled under Fed. R. Civ.

P. 54(c) to present a claim for punitive damages when no such

29

claim was made in her pleadings ignores the requirements of

Fed. R. Civ. P. 8(a) and 15. Rule 54(c) does not apply because

the district court’s decision regarding punitive damages was a

pre-trial matter, whereas Fed. R. Civ. P. 54(c) pertains to

conforming pleadings to the proof made at trial. Moreover,

Konkel never moved to amend her pleadings to state such a

claim until her counsel did so orally almost two months after

the close of discovery.

WHEREFORE, for the foregoing reasons, Bob Evans

Farms, Inc., by counsel, respectfully requests that this

Honorable Court deny Konkel’s Petition for Writ of Certiorari.

Respectfully submitted,

BOB EVANS FARMS, INC.

By Counsel

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TRICHILO, BANCROFT, McGAVIN,

HORVATH & JUDKINS, P.C.

Steven W. Bancroft, Esquire

Virginia State Bar No. 18447

Julia B. Judkins, Esquire

Virginia State Bar No. 22597

Michael J. Carita, Esquire

Virginia State Bar No. 35702

4117 Chain Bridge Road, Suite 400

Fairfax, Virginia 22030-0022

(703) 385-1000

Counsel for Respondent