Opposition Brief — Ford Motor Co. v. Fulkerson

Supreme Court‘ U.S,

No. 95-1516 FILED

ton oe 1996

IN THE APR 22 |

Supreme Court of the Uniteh States...

OCTOBER TERM, 1995

| ForD MoTor CoMPANY,

Petitioner,

v.

WILLIAM FRANKLIN FULKERSON, PAULINE FULKERSON,

ALLSTATE INSURANCE COMPANY and MELINDA HER-

RENSMITH, Individually And As Mother Of Troy E.

Cilone, Infant, and As Administratrix of the Estate of

Troy E. Cilone, Deceased, Respondents.

On Petition for Writ of Certiorari to the

Kentucky Court of Appeals

BRIEF IN OPPOSITION

A. CAMPBELL EWEN KENNETH L. SALES *

EWEN, HILLIARD & BUSH SEGAL, ISENBERG, SALES,

1090 Starks Building STEWART, CUTLER & TILLMAN

Louisville, KY 40202 2100 Waterfront Plaza

Counsel for 325 West Main Street

Allstate Insurance Louisville, KY 40202

(502) 568-5600

Counsel for William and

Pauline Fulkerson

WILLIAM A. MILLER, JR.

17th Floor

Kentucky Home Life Building

239 S. 5th Street

Louisville, KY 40202

Counsel for

Melinda Herrensmith

* Counsel of Record

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WILSON - Erzs Printine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

LIST OF INTERESTED PARTIES

The Petitioner is Ford Motor Company.

The Respondents are William Franklin Fulkerson,

Pauline Fulkerson, Allstate Insurance Company, and

Melinda Herrensmith, Individually, as mother of Troy E.

Cilone, Infant, and as Administratrix of the Estate of Troy

E. Cilone, Deceased. Kenneth L. Sales of Segal, Isenberg,

Sales, Stewart, Cutler & Tillman is counsel of record for

all Respondents. William A. Miller, Jr., is also counsel

for Respondents, Melinda Herrensmith, Individually, as

mother of Troy E. Cilone, Infant, and as Administratrix

of the Estate of Troy E. Cilone, Deceased. A. Campbell

Ewen of Ewen, Hilliard & Bush, is also counsel for Re-

spondent, Allstate Insurance Company.

Each of the Respondents fully join in this Brief in Op-

position, except Allstate. Allstate Insurance Company’s

position with respect to punitive damage is already a mat-

ter of record with this Court and remains unchanged. In

this particular case, Allstate takes no position with re-

spect to punitive damages, having been awarded none.

No issues remain concerning liability and compensatory

damages and Petitioner raises none here.

(i)

TAA nei Ar Gk ear ot aM SMR

TABLE OF CONTENTS

Page

LIST OF INTERESTED PARTIES .......... i

TABLE OF AUTHORITIES ........... Re Be See iv

COUNTER STATEMENT OF THE CASE .......... 1

I 2

B. The Punitive Damage Instruction .......... 6

REASONS FOR DENYING THE WRIT... 3

I. THIS CASE LACKS ANY PRECEDENT SET-

TING VALUE IN THAT THE PUNITIVE

DAMAGE INSTRUCTION GIVEN HERE AP-

PLIED A PREVIOUS LAW OF KENTUCKY

CONCERNING PUNITIVE DAMAGES AL-

TERED BY STATUTE IN 1988 8

If. KENTUCKY’S PRE-1988 PROCEDURES FOR

IMPOSING PUNITIVE DAMAGES WERE

ENTIRELY CONSISTENT WITH THIS

COURT’S HOLDINGS IN HASLIP AND COM-

PORT WITH DUE PROCESS ............................. 11

III. AS PETITIONER HAS NOT CHALLENGED

THE AMOUNT OF PUNITIVE DAMAGES

AWARDED AS CONSTITUTIONALLY EX-

CESSIVE, THIS CASE HAS NO RELATION

TO ANY ISSUES RAISED IN BMW v. GORE. 13

ea ts 15

APPENDIX

Instructions of Court on Punitive Damages and Ver-

dict Forms (Jefferson Circuit Court, 1 /22,/93) .... la

SS ) * Sn eae ee 7a

nee OOO 9a

Excerpts from Unofficial Trial Transcript (Jeffer-

son Circuit Court, 1/22/93)... 10a

(iii)

eo int it a tl

iv

TABLE OF AUTHORITIES

CASES Page

BMW of N. Am., Inc. v. Gore, 115 S. Ct. 9382

Sf | FERERRRSn ORR rR ON TSred Sore <X. Wine ies IE FEL ee 18 Oe 8,14

Beckner v. Palmore, 719 S.W.2d 288 (Ky. App.

|| RRR oe Re WE aie SE PAA ae ee Re ea 15

Carter v. Kentucky, 50 U.S. 288 (1981) ................... 11

Cox v. Cooper, 510 S.W.2d 508 (Ky. 1974) -........... 7

Deutsch v. Shein, 597 S.W.2d 141 (Ky. 1980)........ 14

Ford Motor Co. v. Fulkerson, 812 S.W.2d 119 (Ky.

yb RRR. Nr Se Eater SR en CE Re 2, 4, 6, 11

Hanson v. American National Bank and Trust Co.,

BAS F Bis Be. | eee 9,10

Hensley v. Paul Miller Ford, Inc., 508 S.W.2d 759

CF. RAEI utnnedacnacsdiadicictisahand tate netennuiaee mh iasseuaibabhtaten 12, 13

Nolan v. Spears, 432 S.W.2d 425 (Ky. App. 1968).. 14, 15

Pacific Mutual Life Insurance Co. v. Haslip, 499

Ro Fe EE ikccicctnnacnicdititniicnciae seen 8,11, 12,13

Pedigo v. Carey, 650 S.W.2d 256 (Ky. 1983) ........... 15

Phipps v. Bisceglia, 383 S.W.2d 367 (Ky. 1964)... 14

Phipps v. Winkler, 715 S.W.2d 893 (Ky. 1986)...... 15

Scherer v. Ford Motor Co., Civil Action No. CV-

91-B-00860-J, N.D. Alabama, Jasper Division.... 3,6

Scuddy Mining Co. v. Couch, 295 S.W.2d 553 (Ky.

pa eae REED ISS lcs. Sass 8 bet ni A PRO 14

Smith v. McMillian, 841 S.W.2d (Ky. 1992) ........... 15

Taylor v. Kentucky, 4386 U.S. 478 (1978) ................. 11

Turfway Park Racing Assoc. v. Griffin, 834 S.W.2d

SU IIE 5 cre siiact,ecotaegetaceiacacinddan acnatamamieaieuiices 14

CONSTITUTION

(eg RO | ¢ , SEN Rer en meee okeyeaee om 6

STATUTES, AND RULES

ee ood oes os hedechale 9

RE St meena nna IRE aren Om 9

es le eo II petetsicc toasceiceccco cence os tpnndad abeiasbcaniaias 7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

No. 95-1516

FoRD Motor CoMPANY,

o Petitioner,

WILLIAM FRANKLIN FULKERSON, PAULINE FULKERSON,

ALLSTATE INSURANCE COMPANY and MELINDA HER-

RENSMITH, Individually And As Mother Of Troy E.

Cilone, Infant, and As Administratrix of the Estate of

Troy E. Cilone, Deceased, Respondents.

On Petition for Writ of Certiorari to the

Kentucky Court of Appeals

BRIEF IN OPPOSITION

Respondents request the court deny the Petition for

Writ of Certiorari seeking review of an unreported opinion

of the Kentucky Court of Appeals. (For the convenience

of the Court, all citations to the opinion will be to the

opinion attached as App. 1a-10a to the Petition.)

COUNTER STATEMENT OF THE CASE

Petitioner commits the common mistake of reciting the

evidence most favorable to its position, which the jury

quite evidently did not believe, while ignoring contrary evi-

dence that amply supports the jury verdict. Of particular

importance, the record contains the following key

evidence:

A. The Accident

In the early morning of June 2, 1985, seventeen-year-

old Troy Cilone lost control of the 1984 Ford Ranger he

was driving and crossed the center line into the path of

the truck driven by William Fulkerson.’ Cilone was killed

and Fulkerson seriously injured, incurring medical ex-

penses in excess of seventy-four thousand dollars

($74,000.00). A passenger in Cilone’s vehicle testified he

heard a loud noise, then heard Cilone shout, prior to loos-

ing control of the Ranger. (Tape No. 2; 1/06/93;

10:32:50).

As the Kentucky appellate courts recognized in both the

first and second trial of this action, Respondents presented

ample evidence that the Ranger’s left front wheel assembly

separated from the vehicle prior to the collision. Five

independent expert witnesses from the police department

and coroner’s office, conducted an official investigation of

the scene immediately following the collision. Each con-

cluded, based upon substantial physical evidence,” that

1 Ford notes the “closing speed” of the vehicles was between

80-90 mph. (Pet., p. 1). The closing speed was determined by

combining the speeds of the vehicles at the time of the collision.

Ford’s accident reconstructionist estimated the Ranger to be travel-

ing approximately 45 mph and Fulkerson’s vehicle, approximately

35 mph, at the time of the accident. (Tape No. 11; 01/20/93;

16:19:55).

2A published opinion of the Kentucky Supreme Court resulting

from the first trial described the “substantial evidence” introduced

by the Plaintiffs at that trial. Ford Motor Co. v. Fulkerson, 812

S.W.2d 119 (Ky. 1991). Substantial physical evidence at the scene

included: various gouge and scrape marks on the roadway, running

in the same direction the Ranger traveled, between 100 and 200

feet before the point of impact (Tape No. 2; 01/06/93; 13:46:50;

14:22:30; 16:37:5; Tape No. 5; 01/11/93; 15:29:44; 14:39:39) ;

a brake shoe from Cilone’s left front wheel found 198 feet prior

to the point of impact (Tape No. 2; 01/06/93; 14:23:26); and

other pieces of Cilone’s vehicle, including rim pieces, a brake caliper

arm, and wheel chrome, found at distances from 47 feet 7 inches

to 152 feet 4 inches prior to the point of impact. (Tape No. 5;

aS

3

the Ranger’s wheel assembly was defective, causing the

left front wheel to separate from Cilone’s vehicle prior

to impact. (Tape No. 2; 01/06/93; 14:40:39; Tape No.

3; 01/07/93; 11:36:30; Tape No. 4; 01/08/93; 09:09:40).

Testimony of Ford’s experts supported this conclusion.*

As the Kentucky appellate courts further recognized,

Respondents produced ample evidence that the Ranger’s

left front wheel assembly separated because the wheel as-

sembly was defectively designed and/or defectively manu-

factured.* In addition to the conclusions of five independ-

01/11/93; 14:31:02). Dr. Alan Johnson, a metallurgist at the

University of Louisville working with the coroner’s office, also

found extensive corrosion, pre-dating the collision, on the Ranger’s

spindle stem. (Tape No. 4; 01/08/93; 09:07:36).

3 Ford expert, Richard Eisenberg, first testified the gouges and

scrape marks observed by police and coroner’s agents were not rele.

vant to the determination of when the spindle separated from the

vehicle. (Tape No. 11; 01/20/93; 14:17:40; 14:20:50; 14:25:00).

On cross-examination, however, Respondents introduced deposition

testimony from another action involving the wheel separating from

a Ford Ranger in which Eisenberg used the lack of scrapes and

gouges on the roadway to support his conclusion that the spindle

did not separate prior to impact. Scherer v. Ford Motor Co., Civil

Action No. CV-91-B-00860-J, N.D. Alabama, Jasper Division. (Tape

No. 11; 01/20/98; 14:21:27).

Ford employee and expert, James Varin, conceded gouges and

scrape marks on the roadway were relevant to the determination

of when the spindle separated, but admitted he did not consider

this evidence in forming his opinion in this case. In fact, Varin

testified he never looked at any photographs of the gouges and

scrape marks on the roadway resulting from this accident prior

to trial. (Tape No. 10; 01/19/93; 14:07:14).

4 Petitioner notes the jury in the first trial returned a verdict in

favor of Ford. Petitioner ignores, however, three very critical

factors regarding the first trial: (1) the prior jury received im-

proper instructions as to the criteria for finding a design defect;

(2) the judge in the first trial improperly excluded evidence of

design changes in the Ford Ranger’s wheel assembly; and (3)

Respondent did not discover, until after the first trial, the exist-

ence of design change request forms which demonstrated Ford’s

4

ent experts from the police and coroner’s office, Respond-

ents presented the testimony of two expert engineers.

Larry Bihlmeyer, a former Ford engineer involved in the

development of the shrink-fit assembly designed for the

Ford F-Series pickup and used on the Ford Ranger,’ and

John Stilson, another former Ford employee, likewise

opined that the Ranger’s wheel assembly was defectively

manufactured and designed.°®

awareness of the risk attributable to the absence of a secondary

retention feature. Fulkerson, supra. Evidence at the second trial

was so overwhelming the jury unanimously determined the accident

was caused by the defective wheel assembly of Cilone’s Ford

Ranger. (App. A).

5 Ford notes “there was no evidence that any shrink-fit joint in

any F-Series Truck had ever failed under any circumstances.”

(Pet., p. 2). Ford fails to mention, however, that the spindle stem

used on the shrink-fit joint of the F-Series pickup contained a

“nail head” secondary retention feature lacking on the shrink-fit

assembly of the Ford Ranger.

® Bihlmeyer identified two design defects in the Ranger’s wheel

assembly: (1) the spindle shaft lacked a shoulder or head to insure

retention of the spindle in the assembly (Tape No. 4; 01/08/93;

13:25:10), and (2) the area of the shrink-fit was too small, and

therefore insufficient to provide the needed grip between the spindle

shaft and assembly. (Tape No. 4; 01/08/93; 18:25:22). Bihlmeyer

also testified as to five manufacturing defects: (1) the area of the

shrink-fit was smaller than required by Ford’s printed specifica-

tions; (2) Ford failed to properly test the spindle and wheel

assembly in light of actual manufacturing specifications; (3) Ford

violated its own standards, as well as generally accepted industry

standards by failing to eliminate the hazard; (4) if the potential

hazard from the lack of a secondary retention feature could not

be eliminated through design or manufacturing changes, Ford

failed to follow standard engineering practice in warning the pub-

lic of the potential hazard; and (5) Ford failed to follow proper

practices when Ford engineers foresaw and recognied the defect,

_~ but failed to correct it. (Tape No. 4; 01/08/93; 13:25:43).

Stilson, engineer, accident reconstructionist and former Ford

employee, also concluded, based upon the physical evidence, that

the Ranger’s left front wheel assembly separated prior to impact

as a result of Ford’s defective manufacture and design. (Tape

No. 6; 01/12/98; 11:18:20).

5

Ford entirely mischaracterizes the record with regard

to the evidence presented in support of Respondent’s

claims for punitive damages. Ford would have this court

believe the only evidence presented to show Ford acted with

a wanton or reckless disregard for the safety of others was

evidence that Ford subsequently improved its product to

make it safer. The Kentucky appellate court recognized

Respondents produced ample evidence that Ford knew,

prior to the accident in this case, there existed a risk of

wheel separation owing to the absence of a secondary re-

tention feature.’ Bihlmeyer testified Ford engineers in-

volved in the design knew of the risk inherent in the shrink-

fit process used to hold the spindle and wheel assembly,

and incorporated the “nail head,” as a secondary retention

method. (Tape No. 4; 01/08/93; 11:09:31). In fact, while

employed at Ford, Bihlmeyer was specifically instructed

that no shrink-fit design should be developed without the

“nail head” or some other secondary retention device.

(Tape No. 4; 01/08/93; 13:29:01; 15:03:40).

Indeed, Ford initially designed the Ranger with a sec-

ondary retention feature, but eliminated the feature prior

to manufacture in order to save production costs.* (Tape

7 The Kentucky trial court and court of appeals both considered

and rejected Ford’s argument concerning the sufficiency of the

evidence. The trial court recognized Plaintiffs presented evidence

that Ford knew of the risk inherent in the shrink-fit assembly, but

chose to manufacture the vehicle without a secondary retention

feature for cost saving purposes, despite the availability of a safer

design. The trial court concluded the evidence sufficient to support

the jury’s award of punitive damages. (Pet. App. lla-12a). In

reviewing this case, the court of appeals unanimously concurred.

(Pet. App. 6a-10a).

§ Ford began changing the design of the Ranger’s wheel assembly

almost immediately after production began in 1982. (Tape No. 11;

01/20/98; 10:21:57). Ford changed the design two or three times

between 1984 and 1988. (Tape No. 11; 01/20/98; 10:34:37). Re-

spondents introduced product change request forms from Ford

stating the change was requested because there was “no head on

stem” and that the stem was being “swaged over to provide a

6.

No. 4; 01/08/93; 13:49:05). Ford later (after sale of the

Ranger involved in this case, but prior to the collision)

redesigned the wheel assembly to include a secondary re-

tention feature. Ford’s own expert, James Varin, a Ford

employee who described his job as “analyzing parts that

may be the subject of [legal] claims,” admitted the primary

reason for changing the spindle design was to reduce

Ford’s liability exposure in the event of wheel separation.°

Ford refused, however, to recall cars previously sold to

install a safer design or to warn consumers who purchased

these vehicles of the risk of wheel separation.

B. The Punitive Damage Instruction

Because this accident occurred in 1985, the court gave

a punitive damage instruction based upon common law.

In 1988, the Kentucky legislature enacted a punitive

damage statute supplanting common law as to all acci-

dents occurring after the statute’s enactment. (App. B).

Ford claims Kentucky’s “traditional” (pre-1988) punitive

damage instruction failed to satisfy the Due Process

Clause of the Fourteenth Amendment to the United States

Constitution. To preserve this issue for appeal, Ford

tendered what they claimed was a proper instruction on

punitive damages.

As the Kentucky Supreme Court recognized in its opin-

ion reversing the first trial of this action, Kentucky takes

a “bare bones” approach to jury instructions. Fulkerson,

812 S.W.2d at 122. The court explained:

stem retention feature.” Ultimately, Ford redesigned the Ranger’s

spindle stem to include the “nail head” featured on the original

design. (Tape No. 4; 01/08/93; 11:36:56).

® Varin initially testified the primary reason for changing the

spindle design was the cheaper manufacturing process. On cross-

examination, Varin admitted testifying in Scherer, supra (another

action involving wheel separation on a Ford Ranger), that the

primary impetus for adding the secondary retention feature was

strictly for purposes of post accident investigation. (Tape No. 10;

01/19/93; 11:45:40; 11:47:04).

7

Unlike many jurisdictions that use pattern instruc-

tions, and otherwise.explain the law of the case to the

jury, the practice in Kentucky abjures the abstract

and requires the trial court, applying (rather than

stating), the underlying legal principles, to frame the

dispositive issues.

‘Our approach to instructions is that they should

provide only the bare bones, which can be

fleshed out by counsel in their closing arguments

if they so desire.’ Id. (Citing, Cox v. Cooper,

510 S.W.2d 530, 535 (Ky. 1974)).

In accordance with this practice, at the second trial

the court gave a punitive damage instruction which

framed the issue for the jury to decide as whether the

accident was caused by the gross negligence of Ford.”

The instruction defined “gross negligence” and explained

that if they found Ford acted in such a manner, the jury,

in their discretion, could award punitive damages. Pur-

suant to Kentucky law, Respondents were required, prior

to trial, to specify the amount of punitive damages

claimed in response to interrogatories submitted by Ford.

Ky. R. Civ. P. 8.01. Accordingly, the verdict form

limited the jury’s award to an amount not exceeding

$2,000,000 for each plaintiff. (App. A). Counsel for

10 The court gave the following instruction on punitive damage:

If you find for the Plaintiffs, Fulkerson and Herrensmith,

against the Ford Motor Company under Instruction One, and

if you are further satisfied from the evidence that the accident

was caused by gross negligence on the part of Ford Motor

Company, you may in your discretion award punitive damages

against Ford Motor Company in addition to the damages

otherwise authorized under these instructions in an amount

at the discretion of the jury. If you award punitive damages,

you will state the amount separately from the sum or sums

awarded under any other instruction, and you may use Verdict

Form G for this purpose.

“Gross negligence” means a wanton or reckless disregard for

the lives and safety of other persons, including the Plaintiffs,

or a willful or malicious act.

8

each party discussed the instructions in closing argument.

All three counsels agreed to the underlying purpose of

awarding punitive damages and explained to the jury that

punitive damages are designed to punish those who en-

gage in outrageous conduct and to act as a deterrent to

discourage others from engaging in the same type of

conduct in the future. (App. D).

REASONS FOR DENYING THE WRIT

This Court should deny Ford’s Petition for Writ of

Certiorari for the following reasons:

1. The issue presented in this case has no precedential

importance. Kentucky altered its approach to punitive

damages by enacting a statute in 1988 which contains all

the features Petitioner advocates. It is, therefore, likely

that this is the last pre-1988 accident governed by the

pre-statutory “bare bones” approach to punitive damages.

2. In any event, Kentucky’s pre-1988 procedures were

consistent with this Court’s holdings in Haslip and com-

port with due process.

3. Petitioner does not challenge the amount of puni-

tive damages awarded as constitutionally excessive (it

was roughly double the compensatory damages, and Ford

itself suggested a three time compensatory multiplier).

Thus, this case has no relation to the issue posed in

BMW v. Gore.

I. THIS CASE LACKS ANY PRECEDENT SETTING

VALUE IN THAT THE PUNITIVE DAMAGE IN-

STRUCTION GIVEN HERE APPLIED A PREVIOUS

LAW OF KENTUCKY CONCERNING PUNITIVE

DAMAGES ALTERED BY STATUTE IN 1988.

The punitive damage instruction given in this case ap-

plied a former rule of Kentucky law, unique to the state,

which no longer exists and is unlikely to be raised in

any other case. The accident, which is the subject of this

case, took place in 1985. It was, therefore, stipulated by

9

all counsel that this case was governed by the punitive

damage standards employed by Kentucky prior to 1988.

(Pre-trial conference; Tape 30-12-92 VCR 100; 12/11/

92; 16:41:34).

In 1988, Kentucky enacted a punitive damage statute

supplanting common law as to all subsequent accidents.

The statute requires proof “by clear and convincing

evidence that the Defendant from whom such damages

are sought acted toward the plaintiff with oppression, fraud

or malice.” Ky. Rev. Stat. § 411.184. (App. B). A

companion statute, Ky. Rev. Stat. § 411.186, establishes

the procedures for imposing punitive damages and re-

quires the issue of punitive damages be tried concurrently

with all other issues presented in the case. (App. C).

The statute defines oppression, fraud and malice and

specifies punitive damages are “awarded against a person

to punish and discourage him and others from similar

conduct in the future.” The statute further delineates the

“factors” to be considered by the jury in determining the

amount of punitive damages if warranted.“ Finally, the

statute declares it “supersedes any and all existing statu-

tory or judicial law in so far as such law is inconsistent

with the provisions of this statute.” (App. B).

Kentucky courts now specifically instruct juries on the

terms of the statute. Hanson v. American National Bank

1 Ky. Rev. Stat. § 411.186(2) provides in part as follows:

(2) If the trier of the fact determines that punitive damages

should be awarded, the trier of fact shall then assess the sum

of punitive damages. In determining the amount of punitive

damages to be assessed, the trier of fact should consider the

following factors: (a) the likelihood at the relevant time that

serious harm would arise from the defendant’s misconduct:

(b) the degree of the defendant’s awareness of that likelihood;

(c) the profitability of the misconduct to the defendant; (d)

the duration of the misconduct and any concealment of it by

the defendant; and (e) any actions by the defendant to remedy

the misconduct once it became known to the defendant.

(App. C).

10

and Trust Co., 865 S.W.2d 302, 310 (Ky. 1993). Peti-

tioner does not contend Kentucky’s statutory procedure

falls short of the requirements of due process. Indeed,

it is evident the statute goes far beyond the requirements

identified in this Court’s decisions. The statute contains

the very safeguards which Petitioner claims lacking in |

Kentucky’s former procedure: a statement of the pur-

poses of punitive damages; an enumeration of the criteria

for determining entitlement to, and the amount of puni-

tive damages; a requirement that entitlement to punitive

damages be proved by clear and convincing evidence;

and omission of the wealth of the Defendant as a factor

in determining punitive damages.”

While we believe the procedures in the instant case

(not governed by statute) satisfied due process, see Part

II, infra, a decision respecting that issue would have no

precedential importance for the future of Kentucky law,

whose cases are now governed by the statute. Because

Kentucky has a one-year statute of limitations for per- |

sonal injury cases, it is doubtful there exist any other |

pre-1988 accident cases still pending. Moreover, we are

aware of no other state that presently follows Kentucky’s |

former procedure with regard to punitive damages, and

Petitioner cites none. A decision in this case would have

no precedential value elsewhere, either.”

12In Hanson, the Kentucky Supreme Court expressly declared

trial courts are not to suggest factors to the jury beyond those

mentioned in the statute. Further, the statute allows only evidence

of profitability of the misconduct, and not the wealth of the

Defendant. 865 S.W.2d at 310.

13JTn an attempt to make this case seem worthy of certiorari,

the Petition contains a lengthy critique of the procedures employed

in a variety of other states. It is self-evident those procedures

differ from the former Kentucky procedure. It is also self-evident

that the scope of post-verdict review (which Petitioner contends

is inter-dependent with the adequacy of jury instructions) will vary

from state-to-state. If there are problems in other states, they

ought to be addressed in cases coming from those states, not by

some direction from the review of a former Kentucky procedure

which is now defunct.

11

II. KENTUCKY’S PRE-1988 PROCEDURES FOR IM-

POSING PUNITIVE DAMAGES WERE ENTIRELY

CONSISTENT WITH THIS COURT'S HOLDINGS

IN HASLIP AND COMPORT WITH DUE PROCESS.

Apart from the obsolescence of the issues presented

in this case, they would not, in any event, warrant this

Court’s attention. Petitioner complains in this case, un-

like Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1

(1991), the trial court did not instruct the jury that the

purposes of punitive damages are to punish and deter.

Under Kentucky’s pre-1988 “bare bones” approach, how-

ever, the legal principles underlying the instructions “can

be fleshed out by counsel in their closing arguments if

they so desire.” Fulkerson, 812 S.W.2d at 122. In this

case, not only did Petitioner’s counsel tell the jury that

the purposes of punitive damages are to punish and deter,

so did counsel for each of the Respondents. (App. D).

Thus, the jury received unanimous advice from counsel

for all parties that the purposes of punitive damages are

to punish and deter, fulfilling exactly what this Court, in

Haslip, ruled the jury should know.

Petitioner cites Carter v. Kentucky, 50 U.S. 288

(1981), and Taylor v. Kentucky, 436 U.S. 478 (1978),

two decisions of this Court from criminal cases, holding

the opportunity for counsel to “flesh out” or supplement

the Judge’s charge does not cure a constitutionally inade-

quate jury instruction. Assuming arguendo the principle

applies equally to punitive damage cases, Petitioner ig-

nores a crucial distinction between this case and the two

cited: In Carter and Taylor, counsel for the prosectuion

did not confirm the accuracy of the statements by de-

fense counsel, thus leaving the possibility the jury would

doubt their accuracy. In this case, Ford’s counsel ex-

plained to the jury, in closing arguments, the purpose of

punitive damages was to punish and deter. In their clos-

ing, counsel for Respondents expressly agreed the ex-

planation provided by Petitioner’s counsel was a correct

Statement of law. Counsel for both, Fulkerson and

ee

12

Herrensmith, expounded in detail upon the proper under-

lying principles of punitive damages. (App. C). There

is no doubt the jury knew, after these arguments, what

the underlying public policy or principles were for award-

ing punitive damages.

Petitioner further argues the Constitution requires more

elaborate punitive damage instructions here than in

Haslip, because Kentucky courts do not provide the same

degree of independent judicial scrutiny of the adequacy

of the jury’s verdict as Alabama. As demonstrated by

the court’s decision in Hensley v. Paul Miller Ford, Inc.,

508 S.W.2d 759 (Ky. 1974), Kentucky courts pro-

vide a very detailed post-verdict review of challenged

punitive damage awards. In Hensley, the jury returned

a verdict in favor of the plaintiff, awarding $2,102.85 in

compensatory and $20,000 in punitive damages. The de-

fendant moved for a judgment notwithstanding the verdict

as to the award of punitive damages. The trial court

sustained the motion, holding the evidence fell short of

the requirements necessary to sustain a verdict for puni-

tive damages. The judge also conditionally granted de-

fendant’s motion for a new trial on punitive damages in

the event the judgment notwithstanding the verdict was

later reversed. The Kentucky Supreme Court reversed

the trial court’s decision concerning the sufficiency of the

evidence to support an award of punitive damages. The

court upheld, however, the trial court’s decision granting

a new trial on the excessive nature or the punitive dam-

age award. The court recognized that the juries possess

wide discretion in awarding punitive damages, but held:

Litigants must not be left . . . to their arbitrary will,

and be without remedy in cases where verdicts can

be accounted for only upon the theory that they are

the result of an improper sympathy, or unreasonable

prejudice. In such cases it is one of the highest duties

of a court to interfere; otherwise great wrongs will

often result, and the party be remediless. 502 S.W.2d

at 763-64.

——O

13

Petitioner also ignores the explicit finding of the trial

judge, in this case ruling on Petitioner’s “Motion for In-

dependent Review of the Punitive Damage Award” (Pet.

App. 12a), that the facts of this case Support the puni-

tive damages award under “the standards in Pacific

Mutual Life Insurance Co. v. Haslip .. .” (Pet. App.

12a). Clearly, the post-verdict review here was constitu-

tionally adequate.

Petitioner’s peroration about the impropriety of con-

Sidering the wealth of the defendant in determining the

amount of punitive damages has no application to this

case. The trial judge did not instruct the jury to con-

Sider Ford’s wealth, nor did counsel for Respondents in-

vite the jury to do so. Indeed, Kentucky law ir. effect

prior to 1988 prohibited introduction of such evidence.

Hensley, 508 S.W.2d at 759.

Finally, Petitioner’s contention that punitive damages

Should be dependent upon proof of wrongdoing by clear

and convincing evidence was expressly rejected by this

Court in Haslip, 499 USS. at 23, n.11. As Kentucky now

requires proof by clear and convincing evidence (App.

B), this is hardly the case to revisit that ruling.

III. AS PETITIONER HAS NOT CHALLENGED THE

AMOUNT OF PUNITIVE DAMAGES AWARDED

AS CONSTITUTIONALLY EXCESSIVE, THIS CASE

HAS NO RELATION TO ANY ISSUES RAISED IN

BMW v. GORE.

Petitioner does not contend the amount of punitive dam-

ages awarded in this case is constitutionally excessive. As

the amount is less than two times the compensatory dam-

ages awarded, and the misconduct here substantial (it

hardly needs elaboration that a knowing failure of an

automobile manufacturer to take precautions against the

separation of wheels from its vehicles warrants strong pun-

ishment and deterrence ),"* any such contention would be

14 Ford erroneous’: asserts throughout its Petition that Plaintiffs

only evidence to Support an award of punitive damages was the

14

specious. Indeed, Petitioner itself proposed a jury instruc-

tion indicating the propriety of a treble damage punitive

award. (Pet. App. 38a). It follows then, that there is no

reason for this Court to hold the Petition in this case pend-

ing a decision in BMW of N. Am., Inc. v. Gore, 115 S. Ct.

932 (1995), which involves only the constitutional limits

on the amount of punitive damages, nor to remand this

case for further consideration in light of whatever deci-

sion is rendered in Gore.”

design change. As both the trial court and the court of appeals

recognized, Plaintiffs presented evidence, through expert testimony

of a former Ford employee and product-change request forms

generated by Ford, that Ford knew a secondary retention feature

was necessary to prevent separation of the spindle assembly. (Pet.

App. 6a-7a, 1la-12a). Plaintiffs presented evidence that Ford knew

of other claims that the shrink-fit assembly failed and recognized

the need to alter the design to add a secondary retention feature

in product request forms. This evidence is sufficient to support the

jury’s finding that the accident resulted from Ford’s gross negli-

gence in manufacturing a defective product and intentionally elect-

ing not to correct the defect or warn the public of the risk of sepa-

ration. (Pet. App. lla). The court of appeals unanimously con-

curred with the trial court’s opinion that the record contained ample

evidence to support an award of punitive damages. (Pet. App. 10a).

15 Ford claims, under Kentucky law, reversal of the punitive

damage awards in this case requires the reversal of the compensa-

tory awards as well. This is a gross misstatement of Kentucky

law. Kentucky courts have “long endorsed the view that damages

may be separated from liability and that a case may be properly

remanded for retrial of damages only.” (Emphasis added). Turf-

way Park Racing Assoc. v. Griffin, 8834 8.W.2d 667, 672 (Ky. 1992)

(Citing, Phipps v. Bisceglia, 383 S.W.2d 367 (Ky. 1964); Nolan

v. Spears, 4832 8.W.2d 425 (Ky. App. 1968) ).

In Deutsch v. Shein, 597 S.W.2d 141 (Ky. 1980), the Kentucky

Supreme Court held as a general rule a limited retrial should be

granted. The court held “where a distinct and severable issue is

to be decided, a trial on that issue alone is appropriate unless such

a retrial would result in injustice.” Jd. at 146. This rule prevents

a party who has already had his day in court on a particular issue

from relitigating the same issue. Scuddy Mining Co. v. Couch, 295

S.W.2d 553, 554 (Ky. 1956). Only in cases involving inadequate

damages, where liability is unclear, must the case be remanded for

15

CONCLUSION

Ford’s Petition for Writ of Certiorari should be denied.

Respectfully submitted,

A. CAMPBELL EWEN KENNETH L. SALES *

EWEN, HILLIARD & BuSH SEGAL, ISENBERG, SALES,

1090 Starks Building STEWART, CUTLER & TILLMAN

Louisville, KY 40202 2100 Waterfront Plaza

Counsel for 325 West Main Street

Allstate Insurance Louisville, KY 40202

(502) 568-5600

Counsel for William and

Pauline Fulkerson

WILLIAM A. MILLER, JR.

17th Floor

Kentucky Home Life Building

239 S. 5th Street

Louisville, KY 40202

Counsel for

Melinda Herrensmith

* Counsel of Record

retrial on all issues. Nolan, 482 S.W.2d at 427. A verdict awarding

inadequate damages is regarded as representing a compromise on

liability, so as to taint the entire verdict and require a new trial

on all issues. Jd.

Pedigo v. Carey, 650 S.W.2d (Ky. 1983), cited by Ford in

support of its argument for a new trial on all issues, involved an

appeal of an inadequate damage award where liability was con-

tested, and as such, has no application to this case. The issue of

damages is distinct and severable from the issue of liability and

compensatory damages in this case. Ford already had its day in

court on those issues and there is no reason to allow it to try them

again. As Ford recognized in its motion for separate trials on the

issues of causation and punitive damages, they are distinct and

severable issues. Any retrial would be limited to punitive damages.

See also, Smith v. McMillan, 841 S.W.2d 172 (Ky. 1992); Beckner

v. Palmore, 719 S.W.2d 288 (Ky. App. 1986) ; Phipps v. Winkler,

715 S.W.2d 893 (Ky. 1986).