Opposition Brief — Roush v. RFC National Management Co.

Bupreme Court, U.S .

‘») FILED

S/S

No. 93-1711 JUL 13 1994

‘Vi. ir int LERK

In THE

Supreme Court of the United States

OCTOBER TERM, 1994

BETTY ROUSH,

y Petitioner,

KFC NATIONAL MANAGEMENT COMPANY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF FOR THE RESPONDENT IN OPPOSITION

STANLEY WEINER

JONES, DAY, REAVIS & POGUE

2300 Trammell Crow Center

2001 Ross Avenue

Dallas, Texas 75201

(214) 220-3939

STEVEN T. CATLETT

(Counsel of Record)

SARAH L. WANNER

JONES, DAY, REAVIS & POGUE

1900 Huntington Center

41 South High Street

Columbus, Ohio 43215

(614) 469-3939

Counsel for Respondent

KFC National

Management Company

EEG SALAM, SACLE RL SEITE LEG LIE Te PERSE ACNE ES EID Ne

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

(1) Whether this Court should grant certiorari to ad-

dress an alleged Seventh Amendment issue that was not

mentioned by the parties, or by the Court below, which

resolved this Age Discrimination in Employment case by

ruling, as a matter of law, that an equitable award of

front pay was not permissible?

(2) Whether the Court of Appeals erred in ruling that

Petitioner’s proof on the state law tort of outrage was

legally insufficient, where Petitioner does not contend

that the Court applied an incorrect standard for proof of

outrage and where the ‘formulation of that standard is

entirely consistent with the formulation contained in the

instructions given to the jury?

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED ................. steiiceeeet lightened

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

es ||, y Ai eee area iets wiiiales sidan

REASONS FOR DENYING THE WRIT...

I. THIS CASE PRESENTS NO SEVENTH

AMENDMENT ISSUE SUITABLE FOR RE-

sf SENT ASS ene a oe en nS

II. THE STANDARD APPLIED BY THE COURT

OF APPEALS IN OVERTURNING THE OUT-

RAGE AWARD DOES NOT PRESENT AN

ISSUE FOR THIS COURT ...............

CONCLUSION...

(iii)

iv

TABLE OF AUTHORITIES

Cases Page

Craft v. Rice, 671 S.W.2d 247 (Ky. 1984) _....... -- 3

Davis v. Combustion Engineering, Inc., 742 F.2d

Bi Re | RR ee 3

Denison v. SWACO Gelograph Co., 941 F.2d 1416

bi. Be SS | BAe on ee 7

Dominic v. Consolidated Edison Co., 322 F. od 1249

4 ho 5 RRR ee eee Te eee 7

Fairmount Glass Works v. Cub Fork Coal Co., 287

if | i} Rea eRer ees Soeeerere Be

Gibson v. Mohawk Rubber Co., 695 F. 2d 1093 (8th

Bg a Oe RR Oy I ene 7

Goldstein v. Manhattan Industries, Inc., 758 F.2d

1435 (11th Cir.), cert. denied, 474 U.S. 1005

CRUE ‘pinkianSisesarhaemelabisneseivaaicedsstiabaiaiaasadaannhias 7

Grunenthal v. Long Island Railroad Co., 393 U.S

156 (1968) . EARNS ee GE 6 8, 11

Hansard v. Pepsi-Cola Metro. Bottling Co., 865

F.2d 1461 (5th Cir.), cert. denied, 493 U.S. 842

(1989) al etd Ws 7

Herencia v. Guzman, 219 U.S. 44 (1911) .......... ~

Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1

(Ky. 1990) .. Lae 2 OOO 4

Lincoln v. Power, 151 US. ‘436 (1894) . lhe 9

Mazfield v. Sinclair Int'l, 766 F.2d 788 (3d Cir.

1985), cert. denied, 474 U.S. 1057 (1986) ....... 7

Neese v. Southern Railway Co., 350 U. S. 77

(1955) .. i - ...6, 8,11

New York Central & ‘Hudson Rive er RR. Co. v,

Fraloff, 100 U.S. 24 (1879) ...........-....... pa |

New York, Lake Erie & Western R.R. Co. v. Win-

a, Te ee el, 8-9, 13

Phelan v. Local 305, 973 F.2d 1050 (24 Cir. 1992),

cert. denied, 118 S.Ct. 1415 (1993) ........000..000.... 10-11

Phoeniz Ry. Co. v. Landis, 231 U.S. 578 (1913).. 8

Southern Ry.-Carolina Division v. Bennett, 233

I I aL 8,9

St. Louis, I1.M. & S.R. Co. v. Craft, 237 U.S. 648

(1915) . slanahansinilnaoraniee stb aepdesabaladianteich-taauaaaieanaaaie 8

Vv

TABLE OF AUTHORITIES—Continued

Texas & Pacific R.R. Co. v. Hill, 237 U.S. 208

ETN ais ineinaxiesmanailaninatimebiaieaedaia, sibiigaibiticn ia stidabe tien

Wabash Ry. Co. v. McDaniels, 107 U.S. 454

(1883) . rr ere ; sschihtan sedans

Wildman v. Lerner Stores Corp., 771 F.2d 605

(Ist Cir. 1985) . or

Wilson v. Everett, 139 U.S. 616 (1891) _...

Statutes

Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. §§$621 et seq.

Page

© =]

passim

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

No. 93-1711

BETTY ROUSH,

7 Petitioner,

KFC NATIONAL MANAGEMENT COMPANY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF FOR THE RESPONDENT IN OPPOSITION

STATEMENT

Petitioner, a former employee of Respondent KFC

National Management Company (“KFC”), brought claims

against Respondent under the Age Discrimination in Em-

ployment Act (“ADEA”), 29 U.S.C. $§ 621 et seq., and

Kentucky tort law of outrage.’ After the case had been

removed to the United States District Court for the

Western District of Kentucky, it was set for trial before

a jury in March, 1991.

The parties tendered proposed jury instructions to the

Court in late February, 1991. Petitioner's proffered

' Pursuant to Rule 29.1, the Court is advised that Respondent

KFC National Management Company is a wholly-owned subsidiary

of PepsiCo, Inc., which is a publicly-owned corporation.

2

to award, inter alia, the “amount of . . . future lost salary

to the date that you believe [Petitioner] will stop working

in the future,” and would have advised the jury that

“{t]his instruction allows you to award . . . front pay,

that is the payments [Petitioner] would have from the

date of the trial until her retirement age.” See Plaintiffs’

Tendered Jury Instructions, No. B 12. The trial judge

(the Honorable Thomas A. Ballantine, Jr.), however,

rejected this instruction. Instead, the sole instruction that

the Court gave the jury on the issue of ADEA damages

spoke only in the past tense, calling for the jury to award

“damages for lost income and benefits which she incurred

as a result of her discharge.” Trial Tr. at 563 (emphasis

added).

The Court further instructed the jury that it should

sustain the claim of outrage if Petitioner proved that

Respondent “by extreme and outrageous conduct inten-

tionally or recklessly caused severe emotional distress to

her.” Jd.

At trial, evidence regarding the amount of ADEA

damages was offered only by Petitioner, and consisted of

testimony by Petitioner’s accountant as well as Petition-

er’s own testimony as to her interim earnings, social secu-

rity benefits, and retirement benefits. On appeal, Petitioner

could point to no record evidence inconsistent with the

fact that the back pay component of her proof of ADEA

damages totalled precisely $24,386. The jury, however,

returned an award for Petitioner of $100,000 on the

ADEA claim, and an additional amount on the outrage

claim.

Respondent moved for j.n.o.v. and/or for a new trial,

contending, inter alia, that the ADEA damage award

necessarily and improperly included a substantial “front

pay” component. Respondent also argued that, because

the record failed to establish conduct by Respondent that

was a “ ‘deviation from all reasonable bounds of decency

{or] utterly intolerable in a civilized community,’” Peti-

3

tioner had failed to satisfy the stringent requirements

under Kentucky law for showing outrage. See Defend-

ant’s Memorandum in Support of Motion for Judgment

Notwithstanding the Verdict or, in the Alternative, for a

New Trial, at 8-9, 20-21 (quoting Craft v. Rice, 671 S.W.

2d 247, 250 (Ky. 1984)). Petitioner responded by con-

tending that “front pay is not only proper, it is man-

dated”; and that “the conduct which [she had] endured

. was consistent, long lasting, reprehensible, emotion-

ally devastating, unacceptable in a civilized society, was

far outside the bounds of decency and has physical as

well as emotional impact.” See Plaintiff Betty Roush’s

Response to Defendant’s Motion for Judgment Notwith-

standing the Verdict and New Trial, at 19, 30. (Empha-

sis added. )

U.S. District Judge Charles Simpson’ denied KFC’s

request for post-trial relief on the ADEA damage and

outrage issues. With respect to damages, the District

Court ruled that “[f]Jront pay, back pay, and various bene-

fits identified could all properly be considered by the

jury in reaching its verdicts,” and accordingly upheld the

award on the premise that “there is some basis in the

record for the damage award.” Pet. App. 26a. As for

the outrage claim, Judge Simpson concluded that there

had been legally sufficient evidence presented that KFC’s

conduct was “so extreme in degree as to go beyond all

possible bounds of decency, to be regarded as atrocious

and utterly intolerable in a civilized society.” Pet. App.

28a.

Respondent appealed both rulings; the United States

Court of Appeals for the Sixth Circuit reversed. With

respect to the ADEA damages, the Court of Appeals

observed that, under Davis v. Combustion Engineering,

Inc., 742 F.2d 916, 923 (6th Cir. 1984), “determination

of the propriety of an award of front pay is a matter for

the court,” in its “sound discretion.” Pet. App. 10a.

2Trial Judge Ballantine died before Respondent’s post-trial

motion had been decided.

4

Then, the Court of Appeals concurred with KFC that

“the [damage] award must have included front pay, be-

cause even Roush’s own evidence justified a back pay

award totalling only $24,386.” Pet. App. 8a. The Court

of Appeals also agreed with KFC that the trial court’s

instructions to the jury had not authorized the jury to

make an award of front pay. Pet. App. 10a. Further

concluding that, “as a matter of law, front pay was not

appropriate in this case,” the Court of Appeals reversed

and remanded for entry of judgment in the amount of

$24,386, stating that it “could not condone the ex post

facto determination made by the district court in this

case” in “approv[ing] an apparent award of front pay by

the jury” after having “previously refused to give a front

pay instruction to the jury.” Pet. App. 12a-14a.

The Court of Appeals also reversed the District Court’s

denial of j.n.o.v. on the outrage claim. See Pet. App.

14a-16a. After noting that “the standard for proving

liability for this tort is particularly stringent,” it then

cited a requirement that, to show extreme and outrageous

conduct, a plaintiff must establish that the defendant’s

conduct has gone “beyond ‘all possible bounds of de-

cency.’” Pet. App. 15a (citing Humana of Kentucky,

Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky. 1990)). This

“bounds of decency” language was essentially the same

formulation of the relevant standard that had been set

forth in the District Court’s ruling on j.n.o.v., and it

had been quoted approvingly in Petitioner’s appellate

brief. Applying the standard, the Court of Appeals con-

cluded that Respondent’s actions “[e]ven when considered

in their totality . . . do not amount to ‘extreme and out-

rageous conduct’ justifying imposition of liability.” Pet.

App. I5a.

Armed with new counsel, Petitioner now seeks a writ

of certiorari in this Court, contending for the first time

that the Seventh Amendment prohibited the review and

result afforded in the Court of Appeals with respect to

5

the ADEA damage award, and that the formulation of

the legal standard used by the Court of Appeals in re-

versing the denial of j.n.o.v. on the outrage claim im-

permissibly conflicted with the formulation contained in

the relevant jury instruction.

REASONS FOR DENYING THE WRIT

The Petition identifies two issues that Petitioner be-

lieves this Court may have some interest in resolving:

whether the Seventh Amendment permits a Court of

Appeals to review and remit a jury award previously

deemed not excessive by the trial court; and whether an

appellate court engaging in a review of the sufficiency

of the evidence is bound by a legally erroneous jury

instruction to which the defendant made no objection.

But notwithstanding the ingenuity of Petitioner’s new

lawyers, these issues, and Petitioner’s case, simply do

not match. Despite the repackaging effort contained in

the Petition, certiorari should be denied on the ground

that the issues proffered are not clearly presented here

and were never litigated below. If they are of interest,

they deServe an appropriate case for deciding them. This

is not that case.

With respect to the Seventh Amendment argument,

Petitioner cites a number of very old decisions from this

Court stating that trial court decisions denying motions

for a new trial based on purported excessiveness of the

verdict are not reviewable. Those cases, however, in-

volved an attempt to have an appellate court reweigh the

facts, not, as here, a reversal by a Court of Appeals

for legal error. None of them, accordingly, suggests that

the Seventh Amendment insulates the legal error com-

mitted by the trial court here—i.e., failing to disallow the

jury’s front pay award—from the review and relief af-

forded below. Indeed, these cases affirmatively approve

review of erroneous instructions and non-conforming

verdicts. No Seventh Amendment issue was litigated be-

low and none is implicit in the record.

6

Likewise, this case does not present the issue Peti-

tioner seeks to raise concerning a deviation between the

formulation of the legal standard used by the Court of

Appeals in reversing the outrage award, and that used

in the jury instructions. The formulations are not mean-

ingfully distinguishable; indeed, Petitioner has implicitly

acknowledged as much by using throughout this litiga-

tion the same formulation adopted by the Court of Ap-

peals. The Court should leave the issue that the Petition

attempts to raise for a case in which it is actually

presented.

I. THIS CASE PRESENTS NO SEVENTH AMEND-

MENT ISSUE SUITABLE FOR REVIEW

Petitioner claims that certiorari should issue based on

the Seventh Amendment question that this Court raised,

but left open, in Grunenthal v. Long Island Railroad Co.,

393 U.S. 156 (1968), and Neese v. Southern Railway

Co., 350 U.S. 77 (1955)—namely, whether an appellate

court can review and remit a trial court’s ruling upholding

a verdict as not excessive. That issue, however, plainly

is not presented by this case. Neither the parties, nor the

Courts below, ever mentioned the Seventh Amendment in

this litigation prior to the filing of the Petition, even

though the review of the front pay award undertaken by

the Court of Appeals could not have come as a surprise—

the Court of Appeals’ ruling afforded Respondent the

precise result and relief it had sought in the appeal.*

As argued and decided below, this case is about the

District Court’s legal error in permitting the judgment to

3 See KFC’s Brief 14 (contending that verdict should have been

conformed to Judge Ballantine’s jury instructions, which foreclosed

an award of front pay) ; id., 16 (asserting and demonstrating that

“Roush’s back pay can be precisely calculated from her own testi-

mony and that of her expert as a total of $24,386’); KFC’s Reply

Brief 10 (stating that the evidence supports a back pay award of

no more than $24,386 and that “The Court should order a specific

reduction of $75,614”).

—

7

include a front pay award. First, Respondent argued

below, and the Court of Appeals agreed, that front pay

is an equitable remedy and its availability is a question

for the court, and not the jury, to decide. In so ruling,

the Court below followed the approach uniformly taken

by each of the judicial circuits to address the issue.* Not

surprisingly, then, Petitioner does not challenge this hold-

ing that the threshold availability of front pay is a purely

legal issue. Next, the Court of Appeals proceeded to

apply this established rule on the availability of front pay

to the particular facts at hand. Based largely on the fact

that Petitioner quickly obtained another job at a com-

parable salary, the Court of Appeals held that, as a mat-

ter of law, no award of front pay was appropriate. Once

again, Petitioner does not challenge this holding.

Thus, the Petition does not challenge either of the

Court of Appeals’ front pay holdings. Instead, in seeking

to create a Seventh Amendment issue, the Petition con-

tends that the Court of Appeals was powerless to review

and rectify the trial court’s front pay rulings once that

Court had denied Respondent’s post-trial motion, leaving

the jury’s verdict intact. It is hard to see how, in ad-

dressing the purely legal issue of eligibility for front

pay, the Court of Appeals could possibly have created

a Seventh Amendment issue. And, indeed, none of Pe-

titioner’s authorities even remotely suggest that a refusal

to grant post-trial relief erects a constitutional barrier

* See, e.g., Wildman v. Lerner Stores Corp., 771 F.2d 605, 616

(1st Cir. 1985); Dominic v. Consolidated Edison Co., 822 F.2d

1249, 1257 (2d Cir. 1987); Maxfield v. Sinclair Int’l, 766 F.2d 788,

796 (3d Cir. 1985), cert. denied, 474 U.S. 1057 (1986); Hansard

v. Pepsi-Cola Metro. Bottling Co., 865 F.2d 1461, 1470 (5th Cir.),

cert. denied, 498 U.S. 842 (1989) ; Gibson v. Mohawk Rubber Co.,

695 F.2d 1093, 1100-01 (8th Cir. 1982); Denison v. SWACO Geolo-

graph Co., 941 F.2d 1416, 1425-26 (10th Cir. 1991); Goldstein v.

Manhattan Industries, Inc., 758 F.2d 1435, 1448 (11th Cir.), cert.

denied, 474 U.S. 1005 ( 1985). Only the District of Columbia Cir-

cuit has not addressed the issue.

8

insulating a judgment from review and correction of legal

error.

The complete absence of any discussion of the Seventh

Amendment in the proceeding below—as well as Peti-

tioner’s failure to preserve any Seventh Amendment is-

sue—are themselves fatal to the Petition. But even had

these issues been raised, they are wholly inapposite to

the Court of Appeals’ disposition of this case, as is evi-

dent from the contrast between the ruling below and the

authorities that Petitioner contends (Pet. 7-9 & n.16)

create the Seventh Amendment issue identified in Grunen-

thal and Neese.

Specifically, Petitioner’s authorities stand for the un-

remarkable proposition that an appellate court should

be wary of inferring that a trial court has erred in

rejecting a weight-of-the-evidence challenge to a jury’s

determination of a disputed factual issue.° They acknowl-

5 See, e.g., New York Central & Hudson River R.R. Co. v. Fraloff,

100 U.S. 24, 31-32 (1879) (“our authority does not extend to a re-

examination of facts which have been tried by the jury under in-

structions correctly defining the legal rights of parties.”) ; Southern

Ry.-Carolina Division v. Bennett, 233 U.S. 80 (1914) (where verdict

“excess did not appear as a matter of law” but instead “upon the

evidence,” reexamination by this Court of the size of the verdict

was improper, since “[t]he premises of the argument for the

plaintiff in error were not conclusive upon the jury, and... no

such error appears as to warrant our imputing to judge and jury

a connivance in escaping the limits of the law.”); Texas & Pacific

R.R. Co. v. Hill, 237 U.S. 208 (1915) (following Bennett); St.

Louis, 1.M. & S.R. Co. v. Craft, 237 US. 648 (1915) (amount

awarded for pain and suffering not open for reconsideration for

excessiveness, as this issue involved a question of fact); Phoenix

Ry. Co. v. Landis, 231 U.S. 578, 582 (1913) (where “[t]he argu-

ment, in substance, is that the verdict was without sufficient basis

in the evidence,” but where “[i]t cannot be said that there was no

evidence to go to the jury[,] an objection that the verdict is against

the weight of evidence or that darnages allowed were excessive

cannot be considered in this court”); Herencia v. Guzman, 219 US.

44 (1911) (same); New York, Lake Erie & Western R.R. Co. v.

Winter, 143 U.S. 60 (1892) (this Court had no jurisdiction on

ee

9

edge the obvious point that errors of law—expressly in-

cluding a trial court’s erroneous instructions, or, as here,

a verdict in clear contravention of proper instructions—

are not subject to this rule, whether on review of denial

of a motion for new trial or otherwise. See Fairmount

Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 482-84

(1933). Rather than suggesting, as does the Petition

(Pet. 12-14), that a Court of Appeals cannot construe

and consider the propriety of jury instructions and the

jury’s compliance with them, these cases typically preface

their refusals to disturb a judgment below with a comment

that, after careful review, the Court has determined that

the jury was properly instructed. E.g., Bennett, 233 US.

at 86; Fraloff, 100 U.S. at 30-33; Lincoln v. Power, 151

U.S. 436, 438 (1894).°

In this case, the Court of Appeals did not purport to

determine that the weight of the evidence, as a matter of

fact, showed the verdict to have been excessive. Compare,

e.g., Fairmount Glass, 287 U.S. at 482-84 (noting that

evidence was voluminous and conflicting, and that de-

fendant had pleaded several defenses and a counterclaim,

in refusing to disturb jury award as inadequate); Fraloff,

100 U.S. at 30-33 (noting, in rejecting attack on verdict

writ of error to decide questions of fact, or consider the weight

to be given to evidence properly admitted) ; Wilson v. Everett, 139

U.S. 616 (1891) (no review on writ of error of amount of verdict,

where “[t]he case was fairly submitted to the jury, and the issues

involved were passed upon by them”) ; Wabash Ry. Co. v. McDaniels,

107 U.S. 454 (1883) (court lacks authority te disturb damage award

as excessive because “our power is restricted to the determination

of questions of law arising upon the record”).

* Petitioner’s argument for deference to the district court’s read-

ing of the jury instructions ( e.g., Pet. 12, contending that “(tlhe

District Court was particularly well situated to recognize the mean-

ing of its jury instructions, and to realize how the jury would have

understood them”) is especially inappropriate here, where the

district judge who tried the case and instructed the jury has died

and a new judge unfamiliar with the case was asked to rule on

the post-trial motion.

10

as excessive, that “the evidence, in some of its aspects,

placed the [amount of damag .] very far in excess of

[the] amount” awarded by the jury). Rather than en-

gaging in the prohibited re-weighing of the facts, the

Court of Appeals here simply determined that front pay

damages were not available as a matter of law and that

the portion of the verdict attributable to them accord-

ingly could not stand.

Likewise, this case does not present the issue that

Petitioner’s authorities identify as problematic—i.e., im-

properly inferring an error of law from a mere summary

denial of a new trial motion. Here, the District Court

in its post-trial ruling expressly held that the verdict

was proper in including a front pay component. See Pet.

App. 24a-26a. The Court of Appeals had every right to

correct that legal error. Compare, e.g., Fairmount Glass,

287 U.S. at 482-84 (concluding that ruling denying mo-

tion for new trial on grounds of excessiveness would not

be disturbed, since, inter alia, “the record before us does

not contain any explanation by the trial court of the

refusal to grant a new trial, or any interpretation by it

of the jury’s verdict”).

Finally, Petitioner’s attempt to find a Seventh Amend-

ment issue in the Court of Appeals’ reduction of the jury

award (Pet. 16-22) fails for the same reason as her at-

tack on that Court’s authority to disturb the District

Court’s post-trial ruling: the Court of Appeals neither

determined that the jury verdict was “excessive” as a

matter of fact, nor did it order a “remittitur” on that

basis. Instead, having concluded that the front pay com-

ponent of the award was improper as a matter of law,

the Court of Appeals disallowed it. Even the Courts of

Appeals that Petitioner cites as finding Seventh Amend-

ment concerns in an appellate court’s remittitur of a ver-

dict for excessiveness do not dispute that vacating dam-

ages that were improperly awarded as a matter of law is

within the province of a Court of Appeals. E.g., Phelan

11

v. Local 305, 973 F.2d 1050, 1063 (2d Cir. 1992)

(“Accordingly, the back pay award against Patrick

Quinn should be set off in full [against earlier award of

back pay to plaintiff] to prevent a double recovery” ),

cert. denied, 113 §. Ct. 1415 (1993). Since Petitioner

failed to show the Court of Appeals that there was any

dispute or question of fact concerning the portion of the

verdict attributable to front pay, she can hardly complain

that there has been any infringement of her right to have

the amount of damages set by a jury. After all, the jury

did set the amount of damages; the Court of Appeals

merely eliminated the front pay component after ruling

that it was legal error for the trial court to have author-

ized front pay.

In sum, this case does not present the Seventh Amend-

ment questions that the Petition raises. Should the Court

wish to address those issues, it will need the benefit of a

record clearly presenting them. This is particularly so

since, even by Petitioner’s own admission, the Courts of

Appeals at present see no constitutional impediment to

reviewing, and setting aside, jury verdicts as excessive.

See Pet. 12. The two cases on which Petitioner relies

are both somewhat dated—Neese was decided in 1955;

Grunenthal was decided in 1968—and this Court has not

seen the need to revisit the issue since. Grunenthal, in-

deed, notes that, even at that date, “fajll 11 counts of

appeals have held that nothing in the Seventh Amend-

ment precludes appellate review of the trial judge’s denial

of a motion to set aside an award as excessive.” If such

a widespread practice is to be reevaluated, it should be

done on a clear record with the issues examined below.

This case has no such record, and certiorari should be

denied.”

7It should be noted that the early decisions of this Court on

which petitioner so heavily relies by no means necessarily demon-

strate that a Seventh Amendment issue exists. These cases uni-

formly rely on the then-existing “writ of error” jurisdiction in

12

II. THE STANDARD APPLIED BY THE COURT OF

APPEALS IN OVERTURNING THE OUTRAGE

AWARD DOES NOT PRESENT AN ISSUE FOR

THIS COURT

Petitioner alternatively suggests that this Court should

grant certiorari to decide whether an appellate court en-

gaging in review of the sufficiency of the evidence is

bound by a legally erroneous jury instruction to which

the defendant made no objection. Once again, Petitioner

selects an issue not presented by this case.

Petitioner notes that the jury was instructed here that

it could award damages for outrage if Respondent “by

extreme and outrageous conduct intentionally or reck-

lessly caused severe emotional distress to her.” Pet. 22.

She then complains that the Court of Appeals, in reversing

the jury’s decision, cited a requirement that, to show ex-

treme and outrageous conduct, a plaintiff must establish

that the defendant’s conduct has gone “beyond ‘all pos-

sible bounds of decency.’” Pet. 23. While Petitioner

does not claim that the Court of Appeals applied the

wrong state law standard, she does contend that that

Court’s formulation of the standard somehow deviated

from the formulation used in the jury instruction.

As an initial matter, Petitioner plainly has not pre-

served this issue. Not only did she fail to object to the

“bounds of decency” standard when Respondent referred

to it in moving for j.n.o.v., and on appeal (see KFC’s

Reply Memorandum in Further Support of Motion for

Judgment Notwithstanding the Verdict or, In the Alterna-

tive, for a New Trial at 14; KFC’s Brief 26)—Petitioner

herself cited it approvingly before both the District Court

and the Court of Appeals. See Plaintiff Betty Roush’s

holding that excessiveness is unreviewable. Only one or two even

mention the Seventh Amendment, and those do not definitively decide

that a Seventh Amendment problem exists. Moreover, the Fair-

mount opinion reflects an erosion of the rule of nonreviewability

even under writ of error analysis.

tiki ieee eiiiiel

13

Response to Defendant’s Motion for Judgment Notwith-

standing the Verdict and New Trial at 23-24; Petitioner's

Brief 24.

Moreover, as Petitioner’s own earlier adoption of the

“bounds of decency” language demonstrates, there is no

clear distinction between the two formulations. The mere

fact that that language was not set forth in the jury in-

structions in no way establishes a discrepancy. Cf. New

York, Lake Erie & Western R.R. Co. vy. Winter, 143

U.S. 60 (1879) (“In fact, it is much the better practice

to refuse to give instructions to the jury, the substance

of which has already been stated in the general charge,

than to repeat the same charge in different language, al-

though the charge requested may be technically correct

as an abstract proposition of law; for a multitude of in-

structions, all stated in different language and meaning

the same thing, tends rather to confuse than to enlighten

the minds of the jury.”). The Court of Appeals’ discus-

sion indicates that that Court, at least, viewed the two

formulations of the legal standard as interchangeable,

negating the possibility of any error in the ruling revers-

ing the verdict on outrage. See Pet. App. 14a-l6a. In-

deed, the Court of Appeals’ actual conclusion that insuffi-

cient evidence existed uses the precise language contained

in the jury instruction. See Pet. App. 15a (“Even when

considered in their totality, these actions do not amount

to ‘extreme and outrageous conduct’ justifying imposition

of liability for the tort of outrage in this case.”). The

issue that Petitioner szeks to raise is not presented on this

record, and certiorari should be denied.

14

CONCLUSION

For the reasons set forth above, the petition should be

denied.

Respectfully submitted,

STANLEY WEINER

JONES, DAY, REAVIS & POGUE

2300 Trammell Crow Center

2001 Ross Avenue

Dallas, Texas 75201

(214) 220-3939

STEVEN T. CATLETT

(Counsel of Record)

SARAH L. WANNER

JONES, DAY, REAVIS & POGUE

1900 Huntington Center

41 South High Street

Columbus, Ohio 43215

(614) 469-3939

Counsel for Respondent

KFC National

Dated: July 13, 1994 Management Company