# Opposition Brief — Ford Motor Co. v. Fulkerson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 1229

## Text

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

IIE NN NLL TSC NE TEA TIEN LE ION sinlediaall

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1262%3A2. Public record. Not legal advice.